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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

J_ F. R_, Plaintiff-Respondent, v. R_ R_, Defendant-Appellant. No. 34313. Missouri Court of Appeals, St. Louis District, Division No. 1. June 20, 1972. Wion, Burke & Boll, Clayton, for plaintiff-respondent. Charles M. Warner, St. Louis, for defendant-appellant. CLEMENS, Judge. Three months after the plaintiff-mother was granted a divorce and custody of the parties’ two children the defendant-father moved to modify the decree as to child custody. The gist of the motion is that after the divorce his wife demonstrated maternal unfitness by attempting suicide and by intimately associating with another man. The father appeals from the denial of his motion. In deciding the fitness issue we review the entire record de novo and decide the case on its merits, according to the best interest of the children, giving deference to the trial court where credibility of witnesses arises. Rutstein v. Rutstein, Mo.App., 324 S.W.2d 760[1]; Rule 73.01(d), V.A.M.R. The facts, as we find them to be, follow. The father is a physician in his 40’s, the mother is 12 years younger, and they have a son ten and a daughter six. The divorce was granted in August, 1970. The mother remained in the family home with the children and the father took up residence at the hospital where he practiced. He was given liberal temporary custody rights and exercised them fully. If granted custody the father would acquire a home and his cousin and her son would live there. A few days after the divorce the mother became ill and the father moved back into the family home, staying for a month. During this time the mother met a young unmarried man, D_ D_, who was ten years her junior. A week or so later she and he drove to California and were constant companions for ten days. The children remained at home with their father and the family’s domestic servant. For the next several months the mother continued her association with D_ D_, who sometimes stayed overnight in the home when the children were with their father. In mid-November 1970 the mother gave a birthday party for D_ D_ and his friends and she became intoxicated. She had been ill and despondent and after the guests had left she cut both wrists with a knife. The wounds were superficial and the attending physician termed the incident a “suicidal gesture.” Three days after this incident the father filed his motion to modify. The first of three partial hearings was in January 1971. At the conclusion of this hearing the judge cautioned both parties about misconduct affecting the children and warned that could result in denying child custody to either parent. This warning seems to have had a profound effect on the mother. She virtually ceased her association with D_ D_ and stopped his overnight visits. The mother readily acknowledged the impropriety of her past association with D_ D_and the “suicidal gesture.” At the second and third partial hearings the mother was apologetic and contrite over her past misconduct and convinced the trial court that since his admonition she had “put the children’s interests first.” Numerous lay and professional witnesses testified about the parties’ respective parental fitness. Both are intelligent and considerate parents, loved by the children. The father is strict and protective of his role as head of the family. In times past his actions toward his wife were violent. His own witness-psychiatrist described him as “somewhat schizoid and paranoid,” but nonetheless “capable of taking care of the children.” The same psychiatrist described the mother as unstable, immature and irresponsible, and he doubted her ability to take care of the children. The mother’s own witness-psychiatrist acknowledged she had “reacted to very stressful situations in a temporarily wrong manner” but she was neither psychotic nor seriously neurotic, and had “a strongly developed sense of loyalty to her children.” This last conclusion is borne out by the evidence of maternal care since the divorce. She keeps the home clean and orderly. The children are well dressed and well scrubbed; they are mannerly and loveable. Their school record shows perfect attendance; scholarship is above average, their relationship with teachers and peers is excellent and their “appearance and indication of care” is “outstanding.” The mother is a “room mother” at school and interested and active in school affairs. The children are responsive to her interest and affection. We have studiously considered the entire record here and the cases cited by the father. We have omitted a recitation of facts deemed immaterial to the issue of the children’s welfare. As said, the gist of the husband’s complaint relates to the mother’s “suicidal gesture” and her association with DD-But past moral lapses do not in themselves make a parent unfit, and are to be measured by the effect, if any, they have on the children’s welfare. We believe the evidence as a whole fails to show the mother’s past misconduct has or will hereafter affect the children’s welfare. As said in H_B_ v. R_ B_, Mo.App., 449 S.W.2d 890[1]: “Few problems have absolutely satisfactory solutions. In child custody cases the trial judge rarely enjoys the luxury of deciding between a good home and a poor one. Often he must select the better of two poor ones. His decision is influenced by the character of the parties and their witnesses — factors more apparent to him than to us. The rule of appellate deference to trial court decisions is sound.” Here the trial court had to choose between two imperfect parents. We cannot say the denial of the father’s motion to change custody was clearly erroneous, and accordingly we affirm. BRADY, C. T., and WEIER, J., concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

CITY OF MEXICO, a Municipal Corporation, Plaintiff-Respondent, v. Thomas M. and Jo Ann HODGES et al., Defendants-Appellants. No. 34110. Missouri Court of Appeals, St. Louis District. June 20, 1972. Warren D. Welliver, Columbia, M. E. Stokes, St. Louis, Edwards, Seigfreid & Runge, Mexico, for defendants-appellants. McQuie & Deiter, Montgomery City, for plaintiff-respondent. DOERNER, Commissioner. The City of Mexico brought this action under what is commonly termed the Sawyer Act, § 71.015, RSMo 1969, V.A.M.S., to obtain a declaratory judgment authorizing it to annex adjacent land. The trial court entered the judgment sought by the City, and after unavailing post-trial motions this appeal followed. In its petition the City alleged, as required by § 71.015, that the annexation was reasonable and necessary to the proper development of said City, and that the City had the ability to furnish normal municipal services of said City to said unincorporated area within a reasonable time after said annexation was to become effective. The trial court so found, and the sole point urged on appeal is that the evidence was not sufficient to support the court’s findings. In one of the earlier cases construing § 71.015, City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 836, it was said that the provision therein, “* * * ‘That such annexation is reasonable and necessary to the proper development of said “ * * * embodies two separate but closely related concepts; that is, (a) that the annexation is reasonable, and (b) that the annexation is necessary to the proper development of the city. The plain language of the provision makes evident the legislative intent. To say that the annexation must be ‘reasonable * * * to the proper development of said city’ is confusing and tends to preclude a judicial inquiry into the reasonableness of the annexation from the standpoint of the area to be annexed. Both parties are entitled to the test of reasonableness. City of Fulton v. Dawson, Mo.App., 325 S.W.2d 505, 516[3, 4], To hold otherwise might render the Act vulnerable to an attack as to its constitutionality. See 16A C.J.S. Constitutional Law § 604c, p. 726.” Our appellate courts have repeatedly held that the burden of establishing the statutory elements by evidence rests squarely on the city which seeks to annex the unincorporated land, City of Bourbon v. Miller, Mo., 420 S.W.2d 296; City of Olivette v. Graeler, Mo., 369 S.W.2d 85; City of Tracy v. McCrea, Mo.App., 374 S.W.2d 553. When is a proposed annexation “reasonable” as to both? No criteria as to the tests to be applied are stated in § 71.015. In the absence of statutory standards or guidelines the courts perforce have enumerated their own. Six factors for consideration are mentioned in Johnson v. Parkville, Mo., Mo.App., 269 S.W.2d 775. Seven more are suggested in City of Tracy v. McCrea, Mo.App., 374 S.W.2d 553, but the thirteen mentioned in those cases were not meant to be all inclusive, and others have been, and should be, considered. It has been said, for example, that a city may, to a reasonable extent, look to its future needs in planning and making an annexation, City of St. Joseph, v. Hankinson, Mo., 312 S.W.2d 4, but as pointed out in that case, and in State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762, the rate of growth of the municipality as shown in the past is a highly important element to be considered in planning for the future. For as was succinctly put in City of Bourbon v. Miller, Mo., en banc, 420 S.W.2d 296, 303, “ * * * what is reasonable for the future should be judged chiefly from the known and existing facts,” and “ * * * dreams or hopes * * *” inspired by a false sense of civic pride “ * * * are not a sound and sufficient substitute for evidence in a legal action,” City of Houston v. Duff, Mo.App., 338 S.W.2d 373, 382. In short, as the adjudicated cases indicate, there can be no exact, precise and inflexible standard by which the issues of reasonableness and necessity can be measured, and “ * * * each case must depend on its individual facts and circumstances.” City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 837. With these guidelines in mind we turn to a review of the evidence. The City of Mexico, a city of the third class, is the county seat of Audrain County. Its present city limits constitute virtually a square in shape, and encompasses an area of 4525 acres. As ultimately presented to the' trial court by the City’s amended petition, the city seeks to extend its boundaries on all four of its sides so as to annex a total of 4719 acres, but the proposed extensions are by no means uniform. In fact, the extent of the proposed area on each side is so irregular as to defy any description which could be comprehended, and relying on the Chinese proverb that one picture is better than a thousand words, we include the following plat, on which the solid lines represent the present city limits and the dotted lines depict the areas proposed to be annexed: The subject of annexation is one which has been under consideration by the City for some time, although the extent of the area to be annexed, and the timing of the proposed successive annexations has varied. In 1964, at the request of the City, the firm of Harland Bartholomew & Associates submitted a report estimating that the then population of the city was 13,200, and projected a 1990 population of 22,000 to 25,000 persons. Based upon such projected increases in population that firm recommended a two stage annexation program. The first stage recommended was to annex approximately 2,000 acres to the east of the present city limits; and the second envisioned an addition of approximately one-half mile on the south and west sides of the present boundaries. Thereafter the city council appointed a citizens annexation study committee which made its final report in 1967. In substance, the committee recommended the annexation of one-half mile on all four of the sides of the city. In 1968 the city council employed the firm of Black & Veatch to make a study. In its report, submitted in October, 1968, Black & Veatch estimated that the 1970 population would be 13,850, and projected a population of 16,600 in 1990. In effect, that firm recommended that even more land on the north, south and east sides of the City be annexed than that shown on the foregoing plat, which would result in more regular boundaries. The total number of acres proposed to be annexed is not stated, but judging from the plat included in the report we estimate that it encompassed an area approximately 20-25 percent more than that presently proposed, or a total of about 6,000 acres. The city council’s resolution followed the 1968 recommendation of Black & Veatch, and the original petition in this action, filed on July 15, 1969, was based upon that report. After answers had been filed the city employed Black & Veatch to update its 1968 study. In its 1970 report that firm recognized that instead of an increase in population there had been a decline in the decade from 1960-1970 and estimated the then population as 11,760. Black & Veatch likewise revised its projection of the 1970 population in the city to 15,261. Thereafter the city council enacted a new resolution on February 23, 1970, reducing the area sought to be annexed to 4719 acres, and an amended petition in accordance with that resolution was filed. The premise upon which the City seeks to more than double its present size, as reflected in the 1970 Black & Veatch report and the testimony of Stephen D. Kelly of that firm, is that the additional land will be needed in the future for residential, industrial, and commercial purposes. It should be noted that it was the theory of that firm that if 100 acres were needed for some purpose the City should annex three times as much, or 300 acres, in order that a prospective purchaser would have a wide choice as to a variety of sites. That theory of annexation might redound to the benefit of a prospective buyer, but we question whether it accords with the requirements of 71.015 as to reasonableness and necessity. The basic hypothesis upon which the 1970 Black & Veatch report built its case for the proposed annexation is that more new jobs would be created by the industrial concerns presently located in the city, and that for each new manufacturing job 1.5 to 2 new additional jobs would be created in sales and service activities. It is flatly stated in the report for example, that, “ * * * A. P. Green Refractories and Florsheim Shoe Company project employment increases totaling more than 800 new jobs by 1990”; and that “ * * * Two of the City’s largest industries anticipate approximately 550 new male employees by 1990. * * *” The validity of those assertions, in our opinion, were utterly destroyed when Kelly, who had supervised the preparation of the report, conceded on cross-examination that he had nothing in his files from either Florsheim Shoe or A. P. Green to support the statement as to their projected employment increases, and that neither he nor any member of his staff had even talked to any responsible official of either company regarding the subject. Furthermore, the “two largest industries” in the area are A. P. Green Refractories and Kaiser Aluminum & Chemical Corporation. The personnel records of the latter concern, the successor to Mexico Refractories, showed that the number of its employees had declined from 775 in 1967 to 600 by the middle of 1970; and a responsible official of the company testified that it expected to further reduce its work force by about 40 persons when its current modernization program was completed. However satisfying to the municipal ego may be the rosy projections made in the 1970 Black & Veatch report, the hard, unvarnished and uncontroverted fact is that the City has lost, not gained, population in the decade from 1960 to 1970. The official census figures show that the City’s population in 1950 was 11,623; in 1960 it reached a high of 12,889; and in 1970 it had declined to 11,807. Thus during that ten year period the City sustained a loss of over 1000 persons, or about 8 percent of its 1960 peak, to a figure approximating that of 1950. An exhibit introduced by the City shows a corresponding decline in the number of building permits issued for new residential construction in the municipality, from a high of 86 in 1955, to 21 in 1969, and only 8 in the first seven months of 1970. Nor can the City’s loss of population be attributed to any marked movement of persons from the City to the unincorporated areas. Kelly estimated that the number of persons who resided in 1963 in all of the 4917 acres sought to be annexed was about 400; and that by 1970 the number had increased to approximately 839. Even if it is assumed, though it was not shown, that all of the approximately 439 new residents in the unincorporated areas had moved there from the City during that period it is obvious that that figure does not correspond to the City’s loss of population, nor does it indicate any significant exodus from the City to the areas proposed to be annexed. In the 1970 report of Black & Veatch it was stated, and Kelly testified, that there were 801 acres within the present city limits which were vacant and suitable for some type of development. Thus of the 4525 acres within the present boundaries it is conceded that about 18 percent are available for development. And the figure of 801 acres did not include 292 acres of vacant land in the flood plains of the Salt River and Davis Fork, nor did it include approximately 240 acres in a tract referred to in the evidence as the “Green Estate.” That tract, admittedly suitable for residential development, was excluded on the supposition, never adequately shown, that the owners would not sell at any price. Of the 801 acres suitable for development Black & Veatch classified 560 acres for residential purposes, 66 acres for industrial purposes, 17 for commercial development, and recommended the reservation of the remaining 158 acres for public and recreational purposes. The report conceded, and Kelly confirmed, that the 560 acres of vacant land then available for residential purposes was sufficient to contain the anticipated 1990 population. There is nothing in the evidence which would indicate that there is any pressing need for more land for industrial purposes than that presently available. So far as the record before us shows only two industrial concerns of any consequence have located in Mexico in the recent past, and there was no evidence that any have been lost because of a dearth of available and suitable sites. As to commercial developments, the record shows that two new shopping centers have been constructed a short time before the trial, one within the City limits and the other near its southern boundary, and there is no evidence in the record that the remaining vacant acreage will be inadequate for commercial purposes in the foreseeable future. From the standpoint of the unincorporated areas the unreasonableness of the proposed annexation is even more pronounced. Starting in the north, a substantial part adjacent to the northern boundary, extending in an east-west direction, is a part of the flood plains of Salt River and Davis Fork, and hence not suitable for development. The part extending directly northward, referred to as the northwest neck, contains 365 acres, of which 289 acres are used for agricultural purposes, as are a portion of the remainder of 76 acres. The only commercial business in the northwest neck is the Snell Auction Company. The extension in a northeastwardly direction, designated as the northeast neck of the northern area contains 496 acres, of which Kaiser Aluminum owns 466 acres, McGee Packing Company 8, D. A. Suri 10, and H. Pehle 12. Kaiser and McGee use their respective properties for their own industrial purposes. Suri and Pehle farm their lands, and in addition to their houses there is a home for the caretaker on the Kaiser tract. In all, only 7 people live on the 496 acres in the northeast neck. Appellants contend, with more than a measure of plausibility, that the primary reason for the annexation of the northwest neck is to obtain for the municipal coffers the taxes which would inure to the City by the inclusion of that area. The area to the east of the present city limits extends a distance eastwardly of approximately three miles, and contains 1698 acres. Of that number about 72 percent are presently used for agricultural purposes. The major portion of the eastern area is bisected by U. S. Highway 54 East. Some development of small commercial establishments and homes have occurred along the highway. A trailer court, as well as three small subdivisions, scattered residences, and a country club are located in the east area, but as stated the major portion is used for farming and pasturing. While the evidence showed that 132 people resided in the 52 mobile homes in the trailer court, no figure was given for all of the persons living in the entire east area. As appears from the plat, the southern area, similar to the eastern area, is irregular in shape. The central elongation, divided by U. S. Highway 54 South, extends a distance of approximately 2¾6 miles from the present City limits. The entire southern area contains 1391 acres and 63 dwelling units, of which 37 are mobile homes located in a trailer court situated approximately 2 miles south of the present city limits. One subdivision of 60 acres, platted into 45 lots, of which 13 had been sold, is located in the south part of the eastern portion of the south area, not adjacent to the present City limits, but the new shopping center does adjoin the boundary. An implement company is located on the highway about three-fourths of a mile from the City limits, and at the southern end of the elongation are a motel, a filling station, and a restaurant. Of the 1391 acres contained in the southern area 1276 are presently used for agricultural purposes. No figure was given for the persons residing in the area. In general, the area proposed to be annexed on the west side of the City would extend its boundary in that direction about one-quarter of a mile for most of its length, and about five-eighths at its northern end. It contains 428 acres, 12 houses, a salvage company, and a packing company. The total of 428 acres includes 119 in the flood plains of the Salt River, 24 acres of railroad right-of-way, and about 260 acres devoted to agricultural purposes. Thus an area by area review of the proposed annexation demonstrates that the vast majority of the land which the City seeks to acquire is agricultural land. As the testimony of Kelly, the City’s witness revealed, all of the areas are sparsely populated, and the total of 4917 acres contain only 268 dwellings housing about 839 persons. The few subdivisions mentioned in the evidence are not contiguous to its present limits, and the maps introduced by the City do not show that any streets or thoroughfares extend into the unincorporated area, other than the State or U. S. Highways. Thus there has been no “spilling over” of the population from the City to the unincorporated area so frequently given as the basis for a proposed annexation. And the foregoing plat clearly indicates that if the proposed annexation was approved it would result in an odd shaped municipality with highly irregular city limits. Whatever merit there may be to a reasonable amount of expansion of the City to the east, and perhaps to the south, we have no hesitancy in saying that the inordinate annexation proposed in the present proceeding, considered as a whole, is both “unreasonable and arbitrary,” City of Bourbon v. Miller, 420 S.W.2d 296, 303. Having reached that conclusion we do not reach nor need not discuss the second issue raised, that of the sufficiency of the evidence to support the finding that the City would be able to furnish its normal municipal services to the proposed annexed area within a reasonable time. Accordingly, the judgment of the circuit court is reversed and the cause is remanded with directions to enter a judgment dismissing plaintiff’s petition with prejudice as of October 29, 1970, the date of the original judgment. PER CURIAM: The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment reversed and cause remanded with directions. DOWD, P. J., and SIMEONE and SMITH, JJ., concur.

sw2d_482/html/0553-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Tennie E. Chandler RAY, Respondent-Complainant, v. Columbus P. CHANDLER, Sr., Petitioner-Defendant. Supreme Court of Tennessee. July 3, 1972. Dewey C. Whitenton, Bolivar, for petitioner. James H. Bostick, Hutton & Bostick, Memphis, for respondent. OPINION DYER, Chief Justice. This cause comes to this Court by grant of the writ of certiorari. The undisputed facts are as follows: On May 10, 19S6, the petitioner, Columbus P. Chandler, Sr., obtained an absolute divorce from his wife, Tennie E. Chandler (Ray), the respondent herein. Under the terms of this divorce petitioner was awarded exclusive custody of their minor son, Paul Allen Chandler. On April 8, 1966, Paul Allen Chandler, age 26, died, intestate, unmarried and without issue. Petitioner qualified as Administrator of the Estate of Paul Allen Chandler, deceased, and after payment of debts and other charges there remains as assets of the estate personal property of approximate value of $14,000.00, to be distributed in accord with our statutes of distribution. The one question here for decision is whether under T.C.A. § 31-201(4) this distribution will be made equally to petitioner and respondent, as parents of the deceased, or whether the distribution will be made to petitioner to the exclusion of respondent. T.C.A. § 31-201(4) reads as follows: If no husband, wife or children, to the father and mother in equal parts, but if either father or mother be dead, then to the survivor of them, provided, however, that where the father and mother of a person dying intestate have been divorced by valid decree which commits the custody of such person to one of the parents to the exclusion of the other, then the personal estate of such person shall be distributed to that parent to whom such custody has been committed, as sole next of kin, to the exclusion of the other parent. (Emphasis supplied). Petitioner relies upon that language of T.C.A. § 31-201(4) italicized above. Petitioner’s position is that since there was a valid divorce decree by the terms of which the custody of this deceased son was committed to him to the exclusion of respondent, then under the language of the statute petitioner is the sole next of kin and would take all the personal property. The minority opinion of the Court of Appeals agreed with this position. Respondent’s position is that since the custody of the deceased son committed to petitioner terminated upon deceased reaching the age of twenty-one, which was prior to his death, then the language of this statute relied upon by petitioner is not applicable, and the personal property would be distributed equally to respondent and petitioner. The chancellor and the majority opinion of the Court of Appeals agreed with this position. We have not been cited, nor have we found, a case on the precise issue presented here; that is, whether the language of the statute italicized above is applicable where the custody of the minor child has been terminated by the minor reaching the age of twenty-one, the then age of emancipation. The answer will require a construction of this statute to determine whether or not it was the intent of the Legislature in the enactment of this statute to exclude the parent deprived of custody of the child during the child’s minority, by valid divorce decree, from taking a distributive share from the estate of said child dying, intestate, after having reached the age of emancipation. This Court has dealt with the language of the statute here at issue in cases where the minor child committed by a valid decree of divorce to the exclusive custody of one parent died, intestate, during the child’s minority, unmarried and without issue, and has consistently applied the literal language of the statute holding the parent having custody was the sole next of kin, and would take all the personal property. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097 (1937); Damron v. Damron, 212 Tenn. 14, 367 S.W.2d 476 (1963). Construing that part of the statute here at issue with reference to its intended purpose (see McGill & Daugherty v. Kefauver, 175 Tenn. 667, 137 S.W.2d 279 (1940) ) it is apparent the Legislature in the enactment of this statute had turned its attention to the situation of a child dying, intestate, while the child was still in the custody of its parents and in clear language has said which parent shall inherit under the circumstances where one parent has lawfully been denied any custody of the child. The whole thrust and sole purpose of that part of the statute here at issue is concerned with the rights of inheritance of a child while still in custody of one of its parents and we find no language, express or implied, that the Legislature was concerned with the rights of inheritance from an emancipated child who is not in the custody of either parent. We hold the language of this statute here at issue is not applicable where a child has been emancipated and not in the custody of either parent. The opinion of the Court of Appeals is affirmed and the cause remanded to the Chancery Court for a distribution of the Estate of Paul Allen Chandler, deceased, in accord with this opinion. CHATTIN, CRESON and Mc-CANLESS, JJ„ and JENKINS, Special Judge, concur.

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2024-08-24T03:29:51.129235

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In re ESTATE of Zack T. BRIGHT. Supreme Court of Tennessee. June 5, 1972. E. Michael Ellis, Knoxville, for heirs of Zack T. Bright. Myron Ray Ely, Knoxville, for heirs of Jessie Lee Womack Bright. OPINION McCanless, justice. Zack T. Bright and Jessie Lee Womack Bright were married in February, 1940. Each had been married previously and each had children by the former marriage. They had no children by this marriage. On July 19, 1952, Mr. and Mrs. Bright executed identical wills, each leaving all his property to his respective spouse, and James E. O’Connor and W. A. Carpenter were the attesting witnesses to both wills. Jessie Lee Womack Bright died on October 15, 1970, leaving three children surviving her. Zack T. Bright died on November 2, 1970, leaving two children and a grandchild surviving him. Neither had changed his will and Zack T. Bright had not been physically capable of changing his will after his wife had died. John Edward Womack, representing himself and the other children of Jessie Lee Womack Bright, presented to the County Court a petition by which he sought to probate both wills. He contended that he and those he represented were the beneficiaries of both estates. The children and grandchild of Zack T. Bright answered, denying that the children of Jessie Lee Bright had any interest in either estate and contended that John Edward Womack should not be allowed to probate either will. The County Judge heard the matter, ordered that both wills be admitted to probate, and appointed John Edward Womack administrator with the will annexed of both estates, conditioned upon his entering into bond in each estate. The children and grandchild of Zack T. Bright appealed to the Circuit Court which found that the will of Zack T. Bright was mutual and strictly reciprocal with the will of Jessie Lee Womack Bright, that it was the intent of the testators to have only one will take effect, that being the will of the first to die, thus vesting all property in the survivor. The court, therefore, adjudged that the will of Zack T. Bright should not be admitted to probate and that the entire estate of both Jessie Lee Womack Bright and Zack T. Bright passed to the heirs of Zack T. Bright in accordance with the statutes of descent and distribution. In the Circuit Court the parties stipulated all the facts and the children of Jessie Lee Womack Bright have perfected their appeal in the nature of a writ of error to the Supreme Court. The heirs of Jessie Lee Bright contend that by reason of the terms of Section 32-306, T.C.A., the property devised and bequeathed to their mother by the will of Zack T. Bright passed to them. That Section is as follows: “Whenever the devisee or legatee to whom, or any member of a class to which, an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue which survives the testator, said issue shall take the estate or interest devised or bequeathed which the devisee or legatee or the member of the class, as the case may be, would have taken, had he survived the testator, unless a different disposition thereof is made or required by the will.” The Zack T. Bright heirs contend that the two wills were mutual and reciprocal and that the property of Jessie Lee Bright passed to her husband under the terms of her will, and that upon the death of Jessie . Lee Bright her will became the only will of the parties and the will of Zack T. Bright thereupon became ineffective. In Church of Christ Home for Aged, Inc. v. Nashville Trust Co., 184 Tenn. 629, 202 S.W.2d 178 (1947), the court in considering mutual and reciprocal wills, in the words of Mr. Justice A. B. Neil, said: “While there are many cases holding that a contract to execute mutual wills cannot be determined alone by the contents of the wills, especially where there is no reference in said wills to such a contract, there are cases where the mutual or reciprocal wills in and of themselves furnish ample evidence of such a contract. In Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, the Court gave due consideration to the contents of four mutual wills as proof of the agreement, as shown by the following comment (at page 154 of 157 Tenn., at page 57 of 7 S.W.2d): ‘The four wills bearing the same date, each disposing of property to the survivors, and with the direction that such property be divided at the death of the survivor among the same persons, negative any conclusion but that they were executed pursuant to a joint compact or agreement, and that each was executed in consideration of the execution of the other three. No parol evidence would, therefore, be necessary to establish the fact of the compact or agreement.’ (Italics ours.) “Where, as in the instant case, the wills are identical in language, witnessed by the same persons, at the same time and place, and the contracting parties are husband and wife, it is well nigh conclusive that such wills were executed in accordance with their mutual contract to dispose of their property in this manner.” See also Seat v. Seat, 172 Tenn. 618, 113 S.W.2d 751 (1937). In this case, therefore, we are bound by the presumption that exists in such cases that Mr. and Mrs. Bright executed their wills “in accordance with their mutual contract to dispose of their property in this manner.” In Maurer v. Johansson, 223 Iowa 1102, 274 N.W. 99 (1937), the Supreme Court of Iowa said: “Mutual wills are those which are executed pursuant to an agreement or compact between two or more persons to dispose of their property in a particular manner, each in consideration of the other. Such wills, if they contain no provisions for third persons, constitute a single will and is the will of the first to die, and has no further existence as the will of the survivor.” In this case the court held that the Iowa anti-lapse statute — similar to Section 32-306, T.C.A. — did not operate to raise the presumption that the testator intends his devise to go to the heirs of the devisee in case the devisee predeceases him, unless the will shows a contrary intent. In Wilson v. Starbuck, 116 W.Va. 554, 182 S.E. 539 (1935), the Supreme Court of West Virginia said: “The authorities seem to be in agreement on the proposition that where one party to a contract to make mutual wills has fully performed the undertaking and has died, the contract is enforceable in equity against the estate of the survivor.” In American Jurisprudence, Wills, Section 737, the following statement appears which we adopt as the applicable law in Tennessee: Statutes have been enacted m many jurisdictions designed to prevent, under certain circumstances, the application of the rule that a bequest lapses upon the death of the donee occurring prior to the death of the testator by providing that in such contingency, the heirs or issue of the deceased donee shall take in the absence of testator’s intention to the contrary. An important question presented in several cases concerns the application of such a statute in a case involving wills which are reciprocal in their bequests. The question ordinarily arises where the wills are those of husband and wife and one of the spouses has died leaving his entire estate to the other. The question is whether upon the death of the latter, the heirs of the former will take the entire estate under the statute as the heirs of a donee whose death has preceded that of the testator. According to some authorities, mutual wills, that is to say wills executed pursuant to an agreement or compact between the testators by which each testator bequeathed his property to the other, making no provision for a third person either absolute or conditioned upon the death of both testators in a common disaster, constitute in effect a single will, being the will of the first to die, and has no existence as the will of the surviving testator.” The wills of Jessie Lee Bright and of Zack T. Bright were mutual and reciprocal, executed in accordance with their contract, and the will of Jessie Lee Bright, the first to die, became the only will of the parties. We affirm the judgment of the Circuit Court. DYER, C. J., CHATTIN and CRESON, JJ., and JENKINS, Special Judge, concur.

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2024-08-24T03:29:51.129235

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Carlos R. MANNS et al., Complainants-Appellants, v. INDIANA LUMBERMEN’S MUTUAL INSURANCE COMPANY OF INDIANAPOLIS, INDIANA, Defendant-Appellee. Court of Appeals of Tennessee, Western Section. Jan. 12, 1971. Certiorari Denied by Supreme Court May 3, 1971. Jack McNeil, Memphis, for complainants-appellants. Albert T. McRae, Nelson, Norvell, Wilson, McRae, Ivy & Farmer, Memphis, for defendant-appellee. CARNEY, Presiding Judge. Complainants-appellants are Carlos R. Manns, Mrs. Carlos R. (Trice) Manns, and Junius P. McQueen, Administrator of the estate of Mrs. Frank G. (Allie McQueen) Morton. Mrs. Morton was killed on March 17, 1968, in an automobile collision while riding in a 1958 Ford station wagon automobile owned by the appellants, Carlos R. Manns and/or wife. The accident occurred in the State of Arkansas. Occupants of the other automobile have filed damage suits against Manns and wife totaling some $200,000. These suits are pending. The driver of the other automobile was an uninsured motorist. At the time of the collision the complainants, Manns and wife, were covered by liability and uninsured motorist coverage on their GMC truck by a policy issued by defendant Indiana Lumbermen’s Mutual Insurance Company of Indianapolis, Indiana. The Ford station wagon in which they were riding had been acquired by Mr. or Mrs. Manns less than thirty days prior to the date of the accident. Notice of its acquisition was given the defendant insurance company and the premium paid after the accident but within the thirty-day period required by the GMC policy. Defendant Indiana Lumbermen’s Mutual admits the policy on the GMC would have covered the Ford station wagon except for the fact that Mr. or Mrs. Manns was the owner of a 1959 Studebaker and 1948 Wil-lys which were not insured by the defendant. The policy expressly excluded coverage on an after-acquired automobile unless all private passenger automobiles owned by the policyholder were insured by the defendant company. On this ground the defendant company refused coverage under its policy. The complainants filed suit in Chancery-Court seeking a declaration of liability against the defendant insurance company. The Chancellor found in favor of the defendant insurance company and the complainants have appealed and assigned error. Mr. and Mrs. Manns lived in Memphis, Tennessee, but they often went to Arkansas to a fishing camp. In June, 1967, the Manns owned and operated two automobiles: (1) A 1940 GMC pickup truck which had been purchased in 1962. This is the GMC truck covered by the policy in question. It was titled in the State of Arkansas and not in the State of Tennessee and was used by the complainants, Manns and wife, for travel to and from their fishing cabin in Arkansas. (2) They owned a 1959 Studebaker titled in the State of Tennessee in the name of Mrs. Manns and they used this automobile as their Tennessee automobile to drive about over the City of Memphis. In 1959 Mr. and Mrs. Manns had bought a 1948 Willys automobile which they used until January 1, 1963, when it was parked in the back yard of the Manns’ home. The 1948 Willys has not been driven since January 1, 1963. It was in bad repair and Mr. and Mrs. Manns bought the 1959 Studebaker to replace it. On June 17, 1967, Mr. Manns was injured when he fell off his garage in the City of Memphis while making certain repairs to it. He was unable to drive a car from June 17, 1967, until February 6, 1968. On the date of his injury on June 17, 1967, the Studebaker automobile was covered by a liability insurance policy issued by MFA Insurance Company which did not expire until August, 1967. Likewise, it bore a Memphis Motor Vehicle Inspection Sticker which did not expire until the end of August, 1967, and it bore a 1967 Tennessee license plate. On June 17, 1967, when the complainant fell off the garage and injured himself, the Studebaker was sitting in the street in front of the complainant’s home where it had been driven or parked on June 15, 1967. Complainant testified the condition of the Studebaker was such that the motor knocked and would barely turn over; it used lots of oil; the floorboard was badly rotted; the tires were flat; the brakes were bad; the gear shift assembly was bad; the clutch grabbed; and the whole exhaust system was worn out; that replacement parts were not available and that it would cost too much to repair the car; that the car had no trade-in value; the Studebaker was never driven after complainant’s injuries on June 17, 1967. Sometime after June 17, 1967, the Studebaker was pushed into the complainant Manns’ front yard and later into his back yard. The determinative question before the court below and before this court on appeal is whether or not the Studebaker and Willys were, within the meaning of the policy, private passenger automobiles at the time complainant acquired the 1958 Ford on February 29, 1968, or were junked and abandoned automobiles. The Chancellor held that the Studebaker was not a junked or abandoned car and that its condition was such that it was not beyond repair with reasonable cost and effort and was a private passenger automobile within the meaning of the policy. Since the Studebaker was not insured by the defendant company, coverage of the 1958 Ford was expressly excluded by the terms of the policy on the GMC pickup truck. The Chancellor did not mention the Willys in his findings. On February 9, 1968, complainant Manns had recovered to the extent that his doctor advised him he could resume driving an automobile. On February 17, 1968, complainant, before driving any automobile, called his local agent, John L. Peden, for liability coverage. Peden was the local agent who had written the liability insurance through MFA Mutual on the Studebaker beginning February 8, 1964. The MFA policy on the Studebaker expired August 8, 1967. It was renewed from time to time during the period above mentioned. When called by complainant on February 17, 1968, the local agent, John L. Peden, sent his assistant, James F. Gunn, to see the complainant about the insurance. Gunn brought with him the expired automobile policy covering the Studebaker automobile. Peden had previously represented MFA but on February 17, 1968, was representing the defendant, Indiana Lumbermen’s Mutual Insurance Company of Indianapolis, Indiana. Complainant explained to the assistant agent, Gunn, that he wanted insurance on the GMC truck and did not want any coverage on the Studebaker and Willys located in the back yard because they were worn out and that complainant did not intend to run either of them. Assistant agent, Gunn, returned to the office and discussed complainant’s written application for insurance on the GMC with the local agent, John L. Peden. Gunn told Peden that complainant did not want insurance on either the Studebaker or the Willys in the back yard because they were worn out and the complainant did not intend to drive either car. Complainant Manns had a good driving record. His application was approved and the policy issued on the GMC pickup truck. After the complainant obtained insurance dated February 17, 1968, on the GMC pickup truck, he bought a 1961 Plymouth, on February 22, 1968, as an additional car to the GMC pickup truck. He traded the Plymouth on February 29, 1968, for the Ford station wagon. Complainants were riding in the Ford at the time of the accident on March 17, 1968. Notice of the purchase of the Ford station wagon and of the collision was given defendant company a couple of days after the collision but within thirty days of the acquisition of the Ford as provided by the policy. The premium was paid thereon. The acquisition of the Plymouth is of no consequence in this lawsuit. The primary question raised by this appeal is whether the evidence preponderates against the finding of His Honor the Chancellor that the Studebaker automobile was an owned private passenger automobile of the complainants within the meaning of the policy. That portion of the policy relating to “owned automobile” is as follows : “ ‘owned automobile’ means: (a) a private passenger or utility automobile or home trailer described in this policy for which a specific charge indicates that coverage is afforded, (b) a private passenger or utility automobile or home trailer ownership of which is acquired by the named insured during the policy period, provided (1) it replaces an owned automobile as defined in (a) above, or (2) the company insures all private passenger and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within thirty (30) days thereafter of his election to make this and no other policy issued by the company applicable to such automobile or trailer, (c) a temporary substitute automobile, and includes while used with any automobile described above, a home trailer not owned by the named insured or a utility trailer We are not cited to any Tennessee cases involving provisions of contracts of automobile liability policies similar to the one involved in this case. We have had cases in the appellate courts involving construction of the temporary substitute provisions of automobile liability policies similar to the one quoted hereinabove. In Canal Insurance Company v. Paul (1963), 51 Tenn.App. 446, 369 S.W.2d 393, the defendant insurance company had issued to the complainant Paul a public liability insurance policy covering the complainant as a “taxicab operator” and the vehicle covered was a 1955 model Ford which was to be used as a taxicab. The Ford automobile was involved in the collision necessitating repairs. The insured, Paul, borrowed a Studebaker which he used as a taxicab in place of the Ford. The Ford was repaired and put back in service as a taxicab. The door on the Ford taxicab began rattling and the Studebaker was again put in service as a taxicab while waiting for the repairman to fix the door on the Ford. The repairman was dilatory in repairing the door of the Ford taxicab. The Studebaker, while being used as a taxicab, was involved in an automobile accident which gave rise to the litigation. During the six-weeks period the Ford automobile sat on the lot of the taxicab business it was not used as a taxicab but the insured, Paul, did use it to go to and from his work and also occasionally permitted the Ford taxicab to be driven by his wife. The defendant insurance company denied coverage on the Studebaker alleging that it was not being used as a substitute for the Ford automobile but that it was being used as an additional vehicle. In the Paul case, opinion by Presiding Judge McAmis, this court announced the general rule that it is not necessary, in the absence of a policy provision so requiring in express terms, that the vehicle mentioned in the policy be withdrawn from all use in order for the insured to be covered by the substitute provision of the insurance policy, citing Mid-Continent Casualty Company v. West, Okl., 351 P.2d 398, 1962 Supp. 5A Am.Jur., Insurance, Section 87. In the case of State Farm Mutual Insurance Company v. Tennessee Farmers Mutual and E. V. Markham from the Chancery Court of Benton County decided November 22, 1968, by this court, certiorari denied by the Supreme Court, unreported, this court construed a substitute automobile provision of an automobile liability policy. The contest was actually between two insurance carriers as to whether one or both had primary liability coverage. Defendant E. V. Markham owned and operated a 1955 Oldsmobile which he used for general purposes. Occasionally he used the Oldsmobile to haul small quantities of chicken and dairy feed from a local mill to his poultry farm near Camden, Tennessee. His brother, Robert Markham, had left a 1948 Chevrolet pickup truck with E. V. Markham while Robert Markham worked in Chicago. E. V. Markham had full permission to use the 1948 pickup truck of his brother any time he wished but E. V. Markham used it only occasionally. On the day of the accident, E. V. Markham had intended to drive to the mill in his own 1955 Oldsmobile but it would not start because the battery was down. E. V. Markham then took the pickup truck of his brother which was parked down near the barn and drove to the feed mill, obtained several sacks of feed and had the accident on the way back home. A passenger in the other automobile obtained a judgment for $6,000 against E. V. Markham and driver of the other automobile as joint tort feasors which was paid by State Farm Mutual as the insurance carrier on the other automobile. State Farm Mutual brought suit against Tennessee Farmers Mutual Insurance Company, carrier of liability insurance on the 1955 Oldsmobile seeking contribution for one-half of the $6,000 judgment. It was the contention of the complainant, State Farm Mutual Insurance Company, that at the time of the collision the 1948 Chevrolet pickup truck was in fact a substitute automobile being used in place of the 1955 Oldsmobile and, therefore, E. V. Markham was covered under the Oldsmobile insurance policy. Tennessee Farmers Mutual denied liability on the grounds that the 1948 Chevrolet had been an additional vehicle. The Chancellor held that the 1948 Chevrolet pickup was a temporary substitute automobile and awarded judgment against Tennessee Farmers Mutual. Tennessee Farmers Mutual appealed. This court affirmed on authority of Canal Insurance Company v. Paul (1963), 51 Tenn.App. 446, 369 S.W.2d 393. The Tennessee Supreme Court denied certiorari on April 7, 1969. While there is proof that both the Willys and the Studebaker automobiles could have been made to run with minimum expense, there is no proof to rebut complainant’s testimony that for all practical purposes the two automobiles were worn out. The decision as to when an automobile is worn out and whether it is suitable for further use as a transportation vehicle is peculiarly a decision for the owner. The defendant Indiana Lumbermen’s Mutual Insurance Company prepared the insurance contract in the case at bar and as a general rule its provisions will be construed liberally in favor of coverage for the policyholder. Palatine v. E. K. Hardison Seed Co., 42 Tenn.App. 388, 303 S.W.2d 742; Patterson v. U. S., 233 F.Supp. 447 (E.D.Tenn.1964); Goodson v. Am. Home Assurance Co., 251 F.Supp. 125 (E.D.Tenn.1966). An automobile which has been retired from use as a vehicle of transportation, even if it is in operable condition, is not an automobile within the meaning of the liability policy sued on in this case. Of course, the condition of the vehicle usually influences an owner in his decision whether to retire such vehicle from use. The determinative question on this appeal is not whether the Willys and Studebaker automobiles could be made to run with minimal expense but whether they had, in fact, been withdrawn by the owner from use as vehicles of transportation. The Willys has not been operated for five years. The Studebaker had not been operated for several months. Defendant Indiana Lumbermen’s agents, Peden and Gunn, fully understood at the time the policy was issued that complainant Manns had two old automobiles in the back yard which were inoperable and had been withdrawn from use or service as transportation vehicles. At no time has complainant Manns made any effort or shown any intention to put either the Willys or the Studebaker back in service as transportation vehicles. The evidence preponderates against the finding of His Honor the Chancellor that the vehicles had not been junked by Mr. Manns. Upon the rationale of Canal Insurance Company v. Paul and State Farm Mutual v. Tennessee Farmers Mutual discussed above, we hold that the Willys and Studebaker automobiles were not private passenger automobiles within the meaning of the policy and that complainant Manns and wife had full coverage on the 1958 Ford station wagon as an after-acquired automobile. Assignments of error I and II are sustained. Since we have held that complainants are entitled to full coverage under the express terms of the policy, the questions of waiver and estoppel raised by assignment of error No. III have become moot. Assignment of error No. Ill is, therefore, pretermitted. Assignment of error No. IV insists that the Chancellor erred in failing to allow attorney’s fees to complainant under the authority of T.C.A. Section 56-1105. Since the defendant insurance company knew that the local agents, Peden and Gunn, would testify that they knew, at the time the policy in question was written, that the Willys and Studebaker had both been retired from service as transportation vehicles, we find that the defendant was guilty of bad faith in resisting liability in this case. However, on the authority of the old case of People’s Bank & Trust Co. v. U. S. F. & G. Co. (1928), 156 Tenn. 517, 3 S.W.2d 163, reaffirmed by our Tennessee Supreme Court in the case of Tennessee Farmers Mutual Ins. Co. v. Cherry (1964), 213 Tenn. 391, 374 S.W.2d 371, we hold that T.C.A. Section 56-1105 does not apply to automobile liability policies such as the one in this case. The decree of the lower court is reversed. A decree will be entered in this court in favor of the complainants in accordance with this opinion. The costs in the court below and in this court are taxed against the defendant. MATHERNE and NEARN, JJ., concur.

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CHOCTAW, INC., Complainant-Appellee, v. Nate EVANS and Irving Evans d/b/a Evans Grading Company, Defendants-Appellants. Court of Appeals of Tennessee, Western Section. Dec. 30, 1970. Certiorari Denied by Supreme Court April 5, 1971. Shields & Levit, Henry M. Beaty, Jr., Memphis, for defendants-appellants. Benjamin Goodman, Everett B. Gibson, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for complainant-appellee. CARNEY, Presiding Judge. The defendants-cross complainants below, Nate Evans and Irving Evans d/b/a Evans Grading Company, have appealed from a decree of $60,282.50 in favor of the complainant-appellee, Choctaw, Inc. The case was tried to a jury in Chancery Court. Complainant Choctaw, Inc., a corporation in Memphis, Tennessee, brought suit against the defendants, Nate Evans and Irving Evans, partners doing business under the style of Evans Grading Company, seeking to recover judgment in the amount of $66,032.50 plus interest and reasonable attorneys’ fees for alleged breach of contract to pay for sewer pipe construction materials furnished the defendants on two sewer installation jobs in Shelby County, Tennessee. The defendants-appellants, Nate Evans and Irving Evans d/b/a Evans Grading Company, admitted the purchase of the sewer pipe and other construction materials at a total price of $66,032.50 but claimed set off against said account. The defendants-appellants then assumed the attitude of cross-complainants and sought recovery from the original complainant, Choctaw, Inc., for damages in the amount of $85,000 because the pipe and supplies furnished by Choctaw were defective and failed to meet specifications of the City of Memphis relating to the sewer projects. Choctaw filed an answer to the cross bill averring that the damages complained of by Evans Grading Company were the result of Evans failing to test the line of pipe before backfilling the sewer line and failing to obtain adequate testing equipment to perform tests of the pipe required by the City of Memphis specifications and failing to notify Choctaw of any difficulties with the pipe until several thousand feet of pipe had been laid and backfilled. Choctaw demanded a jury to try the issues. The trial was had on oral testimony before a jury on October 29, 1969, and October 30, 1969. The issues of fact and the answers of the jury thereto are as follows: "I. Did Choctaw fail to furnish to Evans Grading Company concrete pipe in compliance with the terms of the City of Memphis Capleville Outfall Sanitary Sewer contract? Answer ‘Yes’ or ‘No’ YES II. If the answer to Issue No. 1 is ‘Yes’ then answer — Was Evans damaged thereby ? Answer ‘Yes’ or ‘No’ YES III. If the answer to Issue No. II is ‘Yes’ then answer: What damage did Evans Grading sustain which directly and proximately resulted from the failure of Choctaw, Inc. to supply the concrete pipe according to said contract? Answer $5,750.00 IV. Did Evans Grading Company fail to notify Choctaw, Inc. of any defect in the pipe within a reasonable time from its discovery or when it should have been discovered? Answer ‘Yes’ or ‘No’ YES” His Honor the Chancellor allowed the defendants-appellants a setoff against the account of Choctaw for the damages assessed by the jury to-wit, $5,750. The Chancellor disallowed the complainant, Choctaw, any interest on the account and disallowed any attorneys’ fees. He entered a net judgment of $60,282.50 from which the defendants-cross complainants, Evans and Evans, have appealed. Appellants filed a motion for new trial containing three grounds: (1) The court erred in propounding Issue No. IV to the jury. This ground was sustained by His Honor the Chancellor and resulted in the allowance of set-off for $7,570 damages assessed by the jury in favor of the appellants. (2) The verdict of the jury as to the amount of damages the defendants-cross complainants were entitled to recover is contrary to the weight and preponderance of the proof as to damages. (3) The court erred in overruling the cross complainants’ motion for a judgment notwithstanding the verdict of the jury. Cross complainants-appellants have made four assignments of error in this cause: “I. That the Learned Chancellor below erred in submitting to the jury the question of the amount of damages sustained by appellants as this sum was liquidated and only required mathematical computation. II. That the Learned Chancellor below erred in not disregarding the finding of the jury as to the amount of damage since the sum of $5,750.00 was so menial and insignificant as to show a total lack of comprehension by the jury. III. That the Learned Chancellor below erred in not sustaining the motion for a new trial when the verdict of the jury as to the amount of damages was contrary to the weight and preponderance of the proof and showed that the jury did not comprehend its function as to this issue. IV. That the Learned Chancellor below erred in entering a final decree on the verdict of the jury in favor of appel-lees for the sum of $60,282.52 as the un-contradicted proof showed that appellants were entitled to a greater credit than the sum of $5,750.00.” Solicitors for appellants concede that there was material evidence to support the findings of the jury. However, they insist that the proof in support of the appellants’ damages was highly technical and complicated ; but it was uncontradicted and proved that the appellants were entitled to damages many times the amount found by the jury; and that because of the complicated and technical evidence, His Honor the Chancellor should have withdrawn Issues III and IV from the jury and should have made the computation himself. Further, they contend that in the alternative upon motion for new trial His Honor the Chancellor should have set aside the ver-diet, withdrawn Issues III and IV, and either ordered a reference to the Clerk & Master to ascertain damages or made a finding of damages based upon the uncon-tradicted proof of appellants’ actual damages. Upon this appeal the appellants insist that the court should grant them a new trial limited to a reference to ascertain the appellants’ damages by way of set off. Appellants insist that His Honor the Chancellor failed to charge the jury with regard to what facts of damages were uncontro-verted and undisputed and he allowed the jury to speculate and compromise beyond its constitutional function of considering all the evidence of damages and arriving at the correct damages to be awarded; that the nature of the verdict is so obscure that no person has been able to ascertain what elements of damage the jury considered in its deliberation. Solicitors for appellants further insist that in cases of purely equitable nature such as cases involving complicated accounting, the Chancellor has wide latitude in withdrawing issues from a jury and has a duty not to submit to a jury questions involving accounting of a complicated nature, citing Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666; Doughty v. Grills, 37 Tenn.App. 63, 260 S.W.2d 379; Moore v. Mitchell, 205 Tenn. 591, 329 S.W.2d 821; Greene County Union Bank v. Miller, 18 Tenn.App. 239, 75 S.W.2d 49. The case of Moore v. Mitchell, (1959), 205 Tenn. 591, 329 S.W.2d 821, cited and relied upon by appellants was a suit to set aside a deed for fraud, undue influence, and abuse of confidential relationship between the grantor and the grantee. It was tried before a jury in Chancery Court of Shelby County which found against the validity of the deed. Decree setting aside the deed was entered in the court below and the cause was appealed to this section of the Court of Appeals. The writer of this opinion wrote the opinion of the Court of Appeals affirming the decree of the lower court on the grounds that there was material evidence to support the verdict of the jury. Our Tennessee Supreme Court granted certiorari and limited argument to the sole question of whether the Court of Appeals should have reviewed the evidence de novo under the provisions of T.C.A. Section 27-303 or whether we correctly reviewed the case as prescribed in T.C.A. Section 27-302. In an opinion by the late and much lamented Justice John Swepston our Supreme Court expressly overruled the case of Doughty v. Grills, (1952), 37 Tenn.App. 63, 260 S.W.2d 379, and held that 1932 Code Section 10-574 (now T.C.A. Section 21-1011) changed the law relating to the trial by jury in Chancery Court and did not exclude all cases involving inherent equity jurisdiction. The Supreme Court affirmed the ruling of this court. Appellants’ cross bill to recover un-liquidated damages resulting from the furnishing of defective pipe is not an inherently equitable proceeding. While the testimony relating to the damages sustained by the appellants was technical, complainant’s claim for damages does not come within any of the exceptions from jury trials set out by Justice Swepston in Moore v. Mitchell, supra. Even if the appellants’ cross bill had come within the exceptions set out in Moore v. Mitchell the appellants’ motion for a reference to the Clerk & Master to ascertain their damages comes too late. The appellants made no request for a reference in their pleadings and at no time during the course of the trial. In argument before the court upon the motion of Choctaw to withdraw from the jury the issue of the amount of Choctaw’s claim against Evans Grading Company, solicitor for the defendants-appellants made the following statement: “I respectfully submit the issue should go to the Jury regarding the facts about the pipe, and whether it was or wasn’t defective, whether it meets the specifications, and what damages we are entitled to.” Appellants did not offer any special requests to be charged to the jury. We are not cited to any evidence in the record contradicted, or uncontradicted, which shows the appellants to be entitled to any amount of damages in excess of the $5,750 awarded by the jury and approved by the Chancellor. See Rule 12. We agree with solicitors for appellee that the jury must have found that the appellants overstated the amount of their damages. The appellants do not contend on this appeal that there was no material evidence to support the verdict of the jury and there is no assignment of error to said effect. In the absence of such assignment of error we must presume that there was material evidence to support the verdict of the jury and a judgment of the court based thereon will not be overturned. T.C.A. Section 27-302; Moore v. Mitchell, supra; and Schlickling v. Georgia Conference Association, 49 Tenn.App. 412, 355 S.W.2d 469. We find no merit in any of the assignments of error and the judgment of the lower court is affirmed. The costs of this appeal are taxed to the appellants. Chancellor Brooks McLemore sat by consent in place of Judge Nearn who re-cused himself. MATHERNE, J., and McLEMORE, Special Judge, concur.

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GENERAL TELEPHONE COMPANY OF KENTUCKY, a corporation and Ernest Taylor, Appellants, v. E. L. YOUNT and Clarence Campbell, Appellees. Court of Appeals of Kentucky. June 9, 1972. C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellants. Donald P. Moloney, Moloney & Molo-ney, Lexington, for appellees. VANCE, Commissioner. A jury awarded the appellees, E. L. Yount and Clarence Campbell, damages for personal injuries under a last clear chance instruction. This appeal is from the judgment entered upon the jury verdict. Yount and Campbell were injured when a truck owned by the appellant, General Telephone Company, and driven by its employee, Ernest Taylor, struck a wire which Yount and Campbell were attempting to string across a principal street in Midway, Kentucky. Yount and Campbell were employed to install Christmas lights across the street. To accomplish this it was first necessary to string a wire between utility poles located on the northeast and the northwest corners of the intersection of Winter and Bruen streets in the city. Campbell first attached the wire to the utility pole on the northwest side of the intersection at a height of sixteen feet. He then gave the roll of wire to Yount and they both proceeded across the street. Both men ascended a ladder to attach the wire to the utility pole on the east side of the street. While Yount was holding the wire stretched across the street approximately eight feet and nine inches above ground level it was struck by the truck and caused injury to both men. The driver of the truck testified that he did not see the wire or the workmen on the ladder. Yount and Campbell were working with their backs to traffic approaching from the south and they did not see the truck approaching. They did not have a lookout or flagman or any type of warning sign to alert traffic to the danger of the work in which they were engaging. At the conclusion of the evidence the trial court instructed the jury as to the duties of Yount and Campbell and the truck driver and in addition gave a last clear chance instruction. The verdict was returned pursuant to the last clear chance instruction. On this appeal appellants assert (1) that the trial court erred in failing to peremptorily instruct the jury that appellees were negligent as a matter of law, (2) that the trial court erroneously gave the last clear chance instruction and (3) that the trial court erroneously excluded certain photographs from the evidence. Since the verdict was returned under the last clear chance instruction, it is apparent that the jury found the appellees were negligent. Consequently any failure of the trial court to peremptorily instruct as to their negligence was not prejudicial to appellants. Partin v. Sherman, Ky., 437 S.W.2d 735 (1969) and Hosch v. Helton, Ky., 415 S.W.2d 848 (1967). We agree with appellants however that the last clear chance instruction was erroneously given. The doctrine of last clear chance is a humanitarian doctrine designed to soften the harsh effects of the contributory negligence rule and it will, in some instances, permit a recovery by one whose own negligence would otherwise bar recovery as a contributing factor to his injuries. It applies, under different standards, to two classes of plaintiffs, viz., the plaintiff in helpless peril and the plaintiff able to avoid injury to himself except for his inattention. The application of the doctrine of last clear chance is succinctly stated in Sections 479 and 480 of the Restatement of the Law of Torts, Second, as follows: ‘‘Section 479. Last Clear Chance: Helpless Plaintiff A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and (b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he (i) knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.” “Section 480. Last Clear Chance: Inattentive Plaintiff A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant (a) knows of the plaintiff’s situation, and (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.” The principal difference in the Restatement standards applicable to recovery by the helpless plaintiff and the inattentive plaintiff is that the helpless plaintiff may recover if the defendant in the exercise of ordinary care should discover the plaintiff’s situation while the inattentive plaintiff may not recover unless the defendant actually knows the plaintiff’s situation and realizes or has reason to realize that the plaintiff is inattentive and unlikely to discover his peril. In Kentucky the law is generally in accord with the rules enunciated in the Restatement. We hold that the helpless plaintiff who has negligently subjected himself to a risk of harm from a defendant’s negligence may recover from such defendant if the defendant knows the plaintiff’s situation or in the exercise of ordinary care should have discovered the plaintiff’s situation and realizes or has reason to realize the peril involved in any case where the defendant thereafter fails to exercise ordinary care to avoid injury. Wheeler v. Creekmore, Ky., 469 S.W.2d 559 (1971) and Rose v. Vasseur, Ky., 320 S.W.2d 608 (1959). In the case of the inattentive plaintiff we have adhered to the requirement of actual knowledge of the situation on the part of the defendant before imposing liability under last clear chance. Saddler v. Parham, Ky., 249 S.W.2d 945 (1952). The appellees cite the cases of Dickerson v. Martin, Ky., 450 S.W.2d 520 (1970); Meredith v. Crumpton, Ky., 434 S.W.2d 648 (1968); Cassinelli v. Begley, Ky., 433 S.W.2d 651 (1968) and Riley v. Hornbuckle, Ky., 366 S.W.2d 304 (1963), as authority for the proposition that we have extended the doctrine of last clear chance to include the inattentive plaintiff whose negligence should have been discovered by the defendant. We do not believe that appellees have properly interpreted those cases. Riley v. Hornbuckle, supra, involved a factual situation in which a pedestrian was within the intended path of travel of an oncoming vehicle with nothing to obstruct the driver’s view of the pedestrian. In that case we said: “There is yet another and more important reason why a directed verdict was not proper in this case. It is true, as observed in Severance v. Sohan, Ky.1961, 347 S.W.2d 498, 501, that over the years the last clear chance doctrine has been trimmed to a narrower (and, we believe, more accurate) basis. But it is not the intention of the court that this process be extended to the vanishing point, nor do we intend to hold that the rule will apply only where the party in peril is unconscious, crippled, fettered or otherwise in a helpless condition. While we do not withdraw in any respect from the principles stated in Saddler v. Parham, Ky., 1952, 249 S.W.2d 945, a majority of the court today feels that under the facts of that case the last clear chance issue should have been submitted to the jury. If it is to have any real effect as a humanitarian policy, we think the doctrine must be held applicable to the situation in which (as in the Saddler case) there is evidence that a pedestrian who was within the intended path of travel of an oncoming vehicle remained in that area of peril, with nothing to prevent the driver’s seeing him, long enough for the vehicle to move a distance of several hundred feet. When this occurs, there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a ‘clear’ chance ought to be left to the jury.” Riley specifically affirmed the principles enunciated in Saddler v. Parham, supra. It went further to say however that in cases where a vehicle strikes a pedestrian and the driver of the vehicle has an unobstructed view of the scene for several hundred feet there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. That is but another way of saying that in such cases there is a point in time in which the pedestrian becomes helpless and the last clear chance rule as it applies to a helpless plaintiff applies to a pedestrian in such cases. Dickerson, Meredith and Cassinelli all followed the decision in Riley v. Hornbuckle, supra, and each case involved a collision between a motorist and a pedestrian in the street. Although there is language in each of the opinions to the effect that the defendant should have discovered the situation it is not made plain whether the plaintiff in each of the cases was regarded as being in helpless peril or merely inattentive. Each of the cases however can be reconciled within the concept espoused in Riley v. Hornbuckle, that in motorist-pedestrian accidents where the motorist has an unobstructed view of the scene there comes a point in time when the pedestrian is helpless. Whether at that point the motorist in the exercise of ordinary care has a clear chance to avoid the injury is the question. The cases of Bolus v. Martin L. Adams & Son, Ky., 438 S.W.2d 79 (1969) and Brown v. Swift, Ky., 444 S.W.2d 550 (1969), are not helpful to appellees because in each case the operator of the vehicle had actual knowledge of the situation. The facts of this case demonstrate that the plaintiffs were not in a position of helpless peril. Injury could have been avoided by them right up to the moment of contact with the wire simply by dropping the wire. Their peril was created not only by the negligent act of stringing the wire across the street in such a manner as to create danger but also by their inattention to approaching traffic and this inattention continued until the moment of injury. They now seek to impose liability upon the defendant by saying in effect, “the defendant by carelessly failing to maintain a proper lookout failed to discover that we were carelessly failing to maintain a proper lookout.” We are unwilling to extend the doctrine of last clear chance to this extent. Where the negligence of the plaintiff consists of inattentiveness which continues to the moment of injury, and his ability to avoid injury continues to that moment, his chance to avoid the injury is equal to that of the defendant and it cannot be said that the defendant has the last chance to avoid injury unless the defendant actually knows the situation and realizes or has reason to realize that the plaintiff will remain inattentive. We hold therefore that the last clear chance doctrine is not applicable to the inattentive plaintiff in the absence of proof that the defendant had actual knowledge of the situation and realized or had reason to realize that plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid harm to himself. Since there was no evidence tending to show that Taylor had actual knowledge of the situation and realized or had reason to realize that Yount and Campbell were inattentive and therefore unlikely to discover their peril in time to avoid harm to themselves the last clear chance instruction was erroneously given. The appellees were negligent as a matter of law and they were found negligent by the jury. The appellants were entitled to a directed verdict and appellants’ motion for judgment notwithstanding the verdict should have been sustained. In view of this disposition of the case it is unnecessary to discuss the alleged error regarding the admissibility of photographs in evidence. The judgment is reversed with directions that a new judgment be entered dismissing the appellees’ complaint. All concur. . As used in the Restatement, knowledge of the situation refers to knowledge of the facts and circumstances which give rise to the plaintiff’s peril. Realization of the peril refers to knowledge that the facts and circumstances in which the plaintiff is situated has caused him to be in danger. Reason to realize as used in tlie Restatement does not connote any duty to discover but only implies such knowledge of peril as would be imputed to a person of reasonable intelligence from the knowledge of the situation. Restatement of the Law of Torts, Second, Section 12(1).

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Clifford Clyde ALSIP, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. Coleman D. Moberly, London, for appellant. Ed W. Hancock, Atty. Gen., John C. Ryan, Special Asst. Atty. Gen., Frankfort, for appellee. VANCE, Commissioner. The appellant, Clifford Clyde Alsip, was convicted of the offense of involuntary manslaughter in the first degree and sentenced to confinement in the penitentiary for a period of seven years. On this appeal he alleges the following grounds for reversal of the judgment: (1) he was entitled to a directed verdict on his plea of self-defense, (2) the jury was not properly instructed and (3) incompetent testimony was admitted as to cause of death. On the occasion of the shooting the appellant was visiting at the home of his brother, the victim of the shooting. For three or four hours before the shooting the appellant had been in the front yard talking and drinking with his nephew. There was no testimony however that appellant was intoxicated. The deceased was drinking heavily and stayed indoors during most of appellant’s visit. On at least one occasion however he came outside in a quarrelsome mood. According to appellant the deceased said to him “What the goddamn hell are you doing here?” Deceased then took a drink of whiskey, stomped around awhile and went back into the house. Sometime later as appellant was preparing to leave the premises the deceased again came outside. The appellant’s version of the second encounter is as follows: “ * * * And directly here he come back. And he got up pretty close coming, and he said, ‘Get up, God damn you.’ And I just raised up. I said, ‘What’s the matter with you?’ I seen he was mad then. And I said, ‘Well, if that’s the way it’s going to be I’ll just go home.’ Well, I started to the car and got down to the car — almost to the car door and he grabbed me and wheeled me around, and shook me, choked me, and throwed me right back over the hood of the car and raring me back over it, and hit me two licks in the stomach. Then he started backing me back up the road a shaking me. And he backed me as fer as across this house from my car up towards his drive — up towards his porch-way, and hit me two more licks in the stomach and then knocked me down and hit me in the face. And then landed right on top of me. So, I was shook up pretty bad. From there on I don’t know what was going on.” During the struggle which followed some shots were fired, at least two of which struck the decedent. He was dead when the coroner arrived. The appellant’s pistol was found at the scene after the shooting. It contained three spent shells. Ballistics tests established that a bullet found on the ground at the scene was fired from appellant’s pistol. On the trial, the appellant neither admitted or denied that he fired the shots, nor did he claim to have been in fear of his life or of great bodily harm, it being his contention that after he was struck by his brother he had no recollection of what happened and certainly no intention to kill him. He contends however that he was entitled to a directed verdict because the uncontradicted evidence clearly established that he was acting in self-defense. He relies upon Holcomb v. Commonwealth, Ky., 280 S.W.2d 499 (1955) and Taul v. Commonwealth, Ky., 249 S.W.2d 45 (1952). The cases cited are not helpful to appellant because in each of them the accused at the trial specifically admitted the killing and claimed justification by reason of self-defense. Here the appellant made no such admission nor did his testimony necessarily indicate that he was acting in self-defense. An essential element of the right of self-defense is that one claiming the right must believe at the time he exercises it that there exists a present danger to his life or a great bodily harm to him. Roberson’s New Kentucky Criminal Law and Procedure, Section 304. In this case the appellant did not testify that his actions were motivated by the necessity to protect himself from danger to his life or from bodily harm nor that the force he used was believed necessary by him to avert any such danger. He was not entitled to a directed verdict of acquittal. Appellant also contends that the instructions were improper. He made no specific objection to the instructions when given and the only reference to the instructions in his motion and grounds for a new trial was as follows: “The court erred in instructions No. 1, No. 2, No. 3, No. 4, No. 5 and No. 6 as given to the jury and failed to correctly define the law of the case.” Unless specific objections to instructions are made at the trial or set forth in the motions and grounds for a new trial there can be no review of alleged errors in the instructions. RCr 9.54. Fornash v. Commonwealth, Ky., 471 S.W.2d 700 (1971); Greenville v. Commonwealth, Ky., 467 S.W.2d 765 (1971) and Hunt v. Commonwealth, Ky., 466 S.W.2d 957 (1971). The final allegation of error is that the testimony of a deputy coroner, an undertaker with no medical qualifications, was improperly admitted to establish the cause of death. In Harvey v. Commonwealth, Ky., 318 S.W.2d 868 (1958), we held that where a decedent was shot near the middle of his body, immediately fell and died within less than an hour no medical evidence as to cause of death was required. The decedent here was shot in the chest and died before his body was removed from the premises. Although the testimony was incompetent, no prejudice resulted to appellant since no medical testimony as to the cause of death was necessary. Harvey v. Commonwealth, supra. Dennis v. Commonwealth, Ky., 464 S.W.2d 253 (1971). The judgment is affirmed. All concur.

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KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Daniel T. TAYLOR, III, Respondent. Court of Appeals of Kentucky. June 30, 1972. Charles L. Hobson, Frankfort, C. Gibson Downing, Jr., Lexington, for complainant; Charles S. Cassis, Gen. Counsel, Ky. State Bar Assn., Eli H. Brown, IV, Louisville, of counsel. Robert Allen Sedler, Lexington, William M. Kunstler, Morton Stavis, Arthur Kinoy, Doris Peterson, New York City, Catherine G. Roraback, Bonnie Brower, Jeremiah S. Gutman, New York City, Neville M. Tucker, Louisville, Dean A. Robb, Suttons Bay, Mich., Sanford M. Katz, New York City, William H. Allison, Jr., Louisville, for respondent ; Dennis J. Roberts, Michael Kennedy, Joseph Rhine, Michael Tigar, San Francisco, Cal., Philip J. Hirschkop, Alexandria, Va., Percy L. Julian, Jr., Madison, Wis., Tobias Simon, Miami, Fla., of counsel. PALMORE, Judge. This disciplinary matter is before us on a recommendation that the respondent, Daniel T. Taylor, III, be suspended from the practice of law in this state for five years. As in the case of Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900 (1971), the proceedings were conducted under the rules in force prior to the amendments of July 2, 1971. They originated on July 19, 1968, in the form of a charge signed by the president and by the executive director of the association setting forth nine separate allegations of unethical conduct and recommending permanent disbarment. A three-man trial committee appointed by the president of the association thereafter conducted hearings in which the respondent and his counsel participated. The trial committee found the respondent guilty on all but Count 6 but found also that there were extenuating circumstances with respect to several of the other counts and recommended a one-year suspension. RCA 3.400. After its review of the trial committee’s report the Board of Governors found the respondent guilty under all but Counts 4 and 6 and recommended a five-year suspension. RCA 3.420. Though not in the order presented in his brief, the respondent’s arguments are: 1. That this court is not presently constituted in accordance with § 116 of the Kentucky Constitution and the “one man, one vote” principle of the equal protection clause of the 14th Amendment to the United States Constitution, for which reason it does not have the authority to deal with this or any other case now before it. 2. That this proceeding was brought for the purpose of discouraging and inhibiting the representation of controversial and unpopular clients. 3. That important procedural rights of the respondent were violated by denial of a public hearing and of the right to question members of the trial committee as to their possible bias. 4. That the imposition of the costs of the proceeding upon the respondent, if he is unsuccessful in defense of the charges, violates due process of law. Cf. RCA 3.-520. 5. That the evidence does not support the charges. 6. That the recommended punishment is disproportionate to the charges. Our opinions with respect to each of these points follow: Point 1. HB 567, enacted at the 1972 regular session of the General Assembly and duly signed by the Governor, established new appellate court districts which comply with the “one man, one vote” principle except for the Fourth District, which consists of Jefferson County. Const. §116 requires that the state be divided “by counties” into appellate court districts, which in our opinion forbids the splitting of any county between two or more districts. Therefore, this court is now constituted as nearly in accordance with our own constitution as it can be. Conceding arguendo that it may not have been so constituted before the 1972 redistricting enactment, and that the incumbent judges have not been elected from the new districts, certainly there is no authority for the proposition that it must cease functioning, abandoning its vast inventory of public work to drift rudderless at sea until a transition to the new districts has been fully consummated. There is dictum in Hadley v. Junior College District, 397 U.S. 50, at p. 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) from which it can be argued that under the Equal Protection Clause of the 14th Amendment the “one man, one vote” principle applies to any public body whose members are elected by districts. In the same opinion, however, it is recognized that there may be some governmental agencies to whose work the matter of apportionment is not relevant. Thus far the prevailing view has been that the courts fall in this category. See Stokes v. Fortson, 234 F.Supp. 575, 577 (N.D.Ga.1964); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1966); New York State Ass’n of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967); Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967); Sullivan v. Alabama State Bar, 295 F.Supp. 1216, 1222 (M.D.Ala.1969). It is our opinion that the “one man, one vote” principle should not and does not apply to the judiciary. In any event, unless and until it be determined by the United States Supreme Court that the federal constitution dictates otherwise we are bound to comply with our own state constitution. Point 2. The assertion that this proceeding is a bad-faith attempt to suppress the representation of controversial and unpopular clients is simply a wild conclusion drawn from speculation and surmise. Apparently it is based upon a theory that the case against the respondent is so devoid of merit that there must be some other reason for its prosecution, the most probable of which would be that he represents a type of client the Brahmins of the bar disapprove. There is however, nothing in the record, or in the record of the federal court case in which the respondent has sought to enjoin the association, to support such a conclusion. Indeed, it occurs to us that this particular contention may be less designed to help the respondent than it is to cast doubt on the integrity of the organized bar. Point 3. The respondent’s motion that the hearings before the trial committee be open to the public was denied by the committee because RCA 3.3S0 provided that the proceedings “shall not be public” and that the record shall remain confidential to all but the parties and the court unless and until guilt be finally adjudged. The members of the committee declined to be interrogated with respect to their qualifications to sit. We fully appreciate the principle of public trial. There is, however, an erroneous tendency today to equate all rights with those that are guaranteed to a defendant in a criminal prosecution, and we are not convinced that a public trial is necessary in a disciplinary inquiry conducted by the bar association. Publicity cuts both ways. Sometimes the desirability of having it is outweighed by the desirability of protection from it, as in juvenile matters. Usually it is the respondent himself whose protection from it is sought in a disciplinary case, but quite often there are others whose protection is equally important. In this instance, for example, it developed that one of the principal witnesses, a circuit judge, was about as much on trial as the respondent was. Under the circumstances we cannot say that public hearings would have been desirable, and we have not been referred to any authority holding that they may be required as a matter of right. RCA 3.310 provided a method of challenging members of the trial committee for the same causes that would apply to a circuit judge, but the respondent claims that he was unable to do this because he did not know the names of the committee members until too late and for that reason should have been permitted to interrogate them in voir dire fashion, as we held that a teacher may do with respect to the members of a school board which has charged him with misconduct. Cf. Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). It is not seriously contended that such an interrogation in this case actually would have disclosed any prejudice on the part of the committee members, and there are significant differences between this and the Osborne case. In Osborne the school board was the accuser and the judge. In this case the trial committee was not the accuser and is not the judge. Its ultimate function was advisory only. The impartiality of an advisory tribunal is important by reason of its control of the trial rather than its power to recommend. Whatever weight its ultimate recommendation has in this court depends entirely on the record made before it, cf. Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900, 904 (1971), and a careful study of that record discloses no indication whatever that the committee did not conduct the hearings fairly and honestly. In summary, we hold that the respondent was not prejudiced by the denial of a public trial and the opportunity of questioning the members of the committee. Point 4. The argument that the assessment of costs against a respondent, if he is found guilty, violates due process relies on the decisions of the United States Supreme Court and of this court holding that the trier of a case cannot have a financial interest in the outcome. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918 (1927); Roberts v. Noel, Ky., 296 S.W.2d 745 (1956); Asher v. Mills, Ky., 421 S.W.2d 78 (1967). We do not have that situation here. Neither the members of the trial committee nor of the Board of Governors receive any part of the costs^ Although they represent the bar association in the proceeding, they do so in the same sense that the officers of a court represent the state. It is no more a denial of due process when the bar association recovers its costs than it is when the state does so in criminal proceedings conducted by its courts. Point 5. We now come to the facts of the case. Since Counts 1 through S involve conduct during the trial of one case and the evidence pertaining to them occupies a major portion of the record the other counts will be taken first. Count 6 had to do with the alleged neglect and abandonment of a case in which the respondent had been employed. The board having found him not guilty, it needs no further mention. Count 7 is that on May 4, 1967, the respondent committed assault and battery upon an assistant city attorney of the City of Louisville “without cause or provocation.” The supporting facts are so closely related to Count 9 that they may as well be treated together. Count 9 is that on May 4, 1967, the respondent intimidated and threatened a witness with legal action, in violation of Canon 18 The facts of Counts 7 and 9 are as follows: Shortly before May 4, 1967, Judge William Colson, judge of the Louisville Police Court, had ordered the respondent (whom we shall hereinafter call by his name) to jail for contempt of court following an incident in which several of his clients, while appearing before the bench as defendants in. Judge Colson’s court, had burst forth in song. A young lady named Kathleen Arnold, a reporter for the Louisville Courier-Journal, wrote an account of the incident which appeared in the newspaper. In it she said that Taylor stood mute, or failed to answer, when Judge Colson asked whether he had directed his clients to commit this impropriety. Anyway, in order to get out of jail Taylor brought a habeas corpus action which was heard by one of the judges of the Jefferson Circuit Court, and in which Miss Arnold appeared as a witness. After the hearing Taylor asked to speak to her in the hallway outside the courtroom. When they reached the hallway, she says, Taylor appeared to be quite agitated, and asked if she was the reporter who had written the newspaper story, to which she replied that she was. Taylor then accused her of some discrepancy between what she had written in the news story and what she had said as a witness in the habeas corpus hearing. According to Miss Arnold, “He told me that he was going to have me brought before the Court for libel, slander, defamation of character and perjury because of this discrepancy which I never did understand.” At about this time John Tim McCall, a young assistant city attorney, who also had left the courtroom and was waiting in the hallway for an elevator, walked over and told Miss Arnold “that you don’t have to listen to this stuff.” We continue with McCall’s testimony: “At that time she said that, in so many words, she was big enough to take care of herself and for me to get out of the way, you know, she could take care of herself. At that point, I started walking away and Mr. Taylor said something about using punk language. That I was a punk, that I shouldn’t be interfering. I walked away . At that point Mr. Taylor again started talking about . . .1 remember one statement he made. He said if you make one step towards me I’ll knock you all the way into Jefferson Street ... I didn’t think at the time that he could do it, but I didn’t say anything. I probably did exchange some comments with him and as the elevator came up, came back up, we were waiting on the tenth floor for the elevator, we exchanged comments and at that point he said something to me and I called him an asshole. I had books in one hand and a briefcase in the other hand and as I got ready to get on the elevator, as near as I can tell Mr. Taylor hit me in the back and I turned around, I don’t know if I hit him with my forearm or with my fist or what but he hit the floor and suffered a convulsion. I think his head hit the floor, he had a knot on his head. “As far as I’m concerned it was partly my fault, it was not all Mr. Taylor’s fault.” Following this incident Taylor wrote letters of apology to both McCall and Miss Arnold. At the time Taylor accosted Miss Arnold in the hallway the habeas corpus proceeding had terminated adversely to Taylor and he had been instructed to report to the jail at 6:30 P.M. for the purpose of serving out the 6-hour contempt penalty assessed by Judge Colson. Count 8 is that Taylor “on numerous occasions, in the Police Court of Louisville, Kentucky, presented a person other than the defendant when the defendant was called, when the person so presented was not the defendant,” in violation of Canon 22. Though it was alleged that Taylor had engaged in this conduct on numerous occasions, the evidence suggested only one such event, which was as follows: On April 29, 1967, some 480 defendants appeared before Judge Colson in the police court following wholesale arrests in connection with “open housing” demonstrations in Louisville. They were represented by five or six lawyers (described in the newspaper as a “phalanx of lawyers”) of whom Taylor was one. Some were tried singly and some in groups. The courtroom was jammed. At the beginning of the proceedings the attorneys had moved the court to allow them to bring up the defendants in large groups and require the arresting officers to identify the individual defendants against whom they had placed charges. The court’s ruling on these motions was thus described in the testimony of the city prosecuting attorney: Q — “And what had the Court’s ruling been?” A — “Well, it was said that we try them individually or in small segments and we were not going to have an identity or try to pick the defendant out at the time.” Q — “In other words, the court had already ruled on this particular day and before the Cowden case was tried and in a case or one or more cases in which Mr. Taylor was involved, that the court would not permit multiple defendants or multiple people there and require the police officers to pick the defendant out, is that correct?” A — “That’s correct.” When Cowden’s case was called for trial Taylor moved to the area in front of the bench, accompanied by a young man. Officer Bramble, the prosecuting witness, recognized at once that this young man was not the defendant, and said so to the prosecuting attorney. Upon overhearing the officer’s conversation with the prosecutor Judge Colson asked Taylor if this was the defendant on trial, to which Taylor replied something to the effect that “we are ready for trial,” or, as the prosecutor testified, that “he is in the courtroom.” Whatever were the exact words, all of the witnesses agree that Taylor did not represent to Judge Colson that the person with him was the defendant. Judge Colson then told Taylor to produce the defendant or he would order his bail bond forfeited. Shortly thereafter Cowden emerged from the crowd and his case proceeded to trial. Judge Colson testified that he “did not like” what had happened but saw nothing improper in it. His impression of Taylor’s purpose was as follows: Q — “With regard to the charge that Mr. Taylor entered a substitute defendant in your court, at any time during the episode that took place on that particular day, did you come up with the impression or the conclusion that Mr. Taylor was trying to perpetrate a fraud on your court ?” A — “No, I didn’t. As a matter of fact I had the opposite conclusion. Had I thought he was trying to perpetrate a fraud on my court I would have put him in jail right then for contempt.” Q — “What was his purpose?” A — “I don’t know. I can only guess and assume that he was trying to confuse the prosecution witness from the standpoint of the definity [sic] of the defendant. That is what I assumed at the time.” Q — “At any time — incidentally how long have you known Mr. Taylor?” A — “Well, 15 years, I assume.” Q — “Well, at any time since you have been on the bench with the exception of tactics, such as what we’re talking in this matter, have you ever had any occurrence or anything that would ever make you question the ethics of Mr. Taylor either as a lawyer or a human being?” A — “No, I have never questioned Mr. Taylor’s honor or integrity. As you mentioned I have questioned his tactics. I have had my problems with Mr. Taylor and I held him in contempt of court on probably two or three occasions on tactics. Not for fraud or misrepresentation or lying or anything else. I have never had any question. As a matter of fact I think he is an honest man and a man of integrity.” The prosecuting attorney also testified that he had opposed Taylor in a great many cases: Q — “And in any of that time in your association with him in this capacity, have you ever known him to represent to a court anything that was not so?” A — “No. I mean, Dan is a — an aggressive lawyer and attempts to defend his clients. And I always consider him a very worthy opponent in this capacity. But I have never known him to misrepresent anything to the Court.” Counts 1 to 5 are that during the first trial of Commonwealth v. Kermit Ray Geary and Doyal Randall Geary in the Jefferson Circuit Court before the late Judge J. Miles Pound, Taylor (1) on April 29, 1968, within the view and hearing of the jury disrespectfully remonstrated with the judge and “exploited matters unrelated to the trial of the case and not affecting the merits of the pending cause,” in violation of Canon 1; (2) on May 2, 1968, within the view and hearing of the jury, falsely accused the judge of calling him a “dirty son-of-a-bitch,” exceeding the bounds of Canons 5 and 15; (3) on May 3, 1968, within the view and hearing of the jury, charged the judge with threatening to fine him and otherwise addressed disrespectful language to the judge concerning his action in other cases, in violation of Canons 1 and 22; (4) on May 3, 1968, within the view and hearing of the jury, falsely accused the judge of being under disability from the use of medicine or alcohol, in violation of Canons 1, 15 and 22; and (5) at various times during the trial, in an effort to obtain a mistrial, violated the confidence of the court by revealing to the jury statements made by the judge for the record and out of the jury’s hearing, in violation of Canons 15 and 22. Kermit and Doyal Geary were being tried for the murder of one policeman and the wounding of another. The trial extended over a period of five or six days and ended with a “hung jury.” With a view toward getting the jurors out of the hotel so it could honor its reservations for customers arriving to attend the Kentucky Derby on May 4, the court held night sessions, a background circumstance we mention as relevant because it is quite evident that as the trial wore on both Taylor and the presiding judge showed the effects of great strain. Taylor conducted the defense alone. The first incident (Count 1) arose during voir dire examination of the prospective jurors when the court refused Taylor’s request to have a courtroom door closed so that the questions and answers might be heard better. Judge Pound called Taylor to the bench and told him in a low voice that he was holding him in contempt and would deal with him later, whereupon Taylor moved away and insisted, within the hearing of the jury, that if he was going to be held in contempt it should be done right now, that he did not want to go through the trial with a sword over his head, etc. Shortly thereafter court was adjourned for the day, and on the next morning Judge Pound and Taylor had an amicable discussion out of the presence of the jury in which the judge absolved Taylor of contempt, observing that “we all get hot under the collar at times,” and Taylor expressed his gratitude and assured the judge that he would “try to conduct himself as he should.” The second incident (Count 2) occurred when, immediately following some damaging testimony elicited by the Commonwealth from a brother of the defendants, Taylor approached the bench and asked that “the record show that the trial judge was just shaking his head from side to side,” and then, after the judge interposed the word “Look,” asked that “the record further show that the trial judge just said to the defense lawyer, ‘You dirty son-of-a-bitch.’ ” This is the most serious of the Geary trial incidents giving rise to the charges of professional misconduct. Judge Pound denied having made such a remark and immediately questioned the court attachés, jurors, and nearby newspaper reporters as to whether they had heard him say it. If he did, no one heard it but Taylor, who was of course looking directly at him. Only one witness testified in the instant proceeding that the judge made the statement. This was a friend of Taylor who was present at the trial as a spectator. He did not actually hear, but said that it appeared from the movement of Judge Pound’s lips that he did call Taylor a “son-of-a-bitch”. Unquestionably, however, Taylor’s statement that the judge had done so was heard by all present, including the jury. Taylor continued to insist that Judge Pound had uttered the remark in question, and so testified in this proceeding. Judge Pound testified categorically to the contrary. The third incident (Count 3) did not, as alleged in the formal charges against Taylor, occur in the presence of the jury. During the evening or supper recess on May 2 Taylor evidently collapsed in his office from exhaustion and strain and was unable to return to the courtroom to resume the trial. Some lawyer friends of Taylor summoned a physician and reported the situation to Judge Pound. The judge’s reaction was that the illness was feigned for the purpose of precipitating a mistrial, and he remarked to the newspaper reporters in attendance that it was an example of “shysterism.” In order to avoid a mistrial in the event Taylor should be unable to continue on the next morning he appointed three lawyers to represent the Geary brothers. Meanwhile, the physician who had been called for Taylor appeared in court, reported his condition, and indicated that with some rest and nourishment Taylor should feel better and probably would be able to continue with the trial in the morning. The doctor later testified that at this time the judge appeared to be intoxicated or under the influence of drugs. Taylor did return the next morning, and the incident in question occurred during his efforts to have the other three lawyers relieved of their appointment to participate in the defense. In declining to relieve them Judge Pound explained that he wanted them to be 'there in case Taylor got sick again, to which Taylor responded in the following vein: Mr. Taylor: “And it also would be very convenient if your Honor should decide that Mr. Taylor should go to jail in the middle of the trial, wouldn’t it? I suggest — ” The court: “(Interrupting) Don’t forget about this Court, he would never do a thing like that.” Mr. Taylor: “Fine, fine. And I hope he won’t fine Mr. Taylor $25.00 in the middle of the trial, which has occurred previously many times.” This exchange was followed very shortly by the fourth incident (Count 4), in which Taylor, while moving for a mistrial, said the following: “My motion that the trial judge declare a mistrial, discharge the jury and reassign these causes for trial, is based on the obvious inability of the trial judge to continue this case in a fair and impartial and dispassionate manner, as he is charged, both under the law and both morally and legally. “I submit that the record and the occurrences, some of which, unfortunately for the defendant, are not portrayed on tape, which — uh—which preserves only sound, has been of such a type as to clearly indicate that the trial judge is suffering from some type of disability, be it either the use of medicine or the use of alcohol.” The fifth incident, or series of incidents (Count 5), is mainly a different facet of the first, in which Taylor, after being advised that he was being held in contempt following the door-closing exchange, in effect announced it to the prospective jurors. In addition, the court reporter testified that during a recess on the third day of the trial she had overheard Taylor remark to two unidentified lawyers at the drinking fountain “that he might just as well declare a mistrial now, because he was going to before it was over with. And that was — they sort of laughed.” We come now to an analysis of the case on its merits. It should be recognized that with the exception of Count 2 (the “son-of-a-bitch” incident) the facts are virtually undisputed, the real question in each instance being whether they reflect a violation or violations of the applicable canons, which is more a question of law than of fact. If the canons of ethics adopted for the legal profession were tested under the “void for vagueness” doctrine which has spelled the doom of various breach of peace and disorderly conduct laws throughout the country it is doubtful that they would survive this case. What is “fair and honorable,” “a respectful attitude,” “candor and fairness,” or “chicane” must depend very largely on the subjective point of view of the person or persons making a judgment after the fact. Obviously we do not all have the same sense of propriety. It is interesting to note, for example, the chairman of the trial committee’s comment that “you all live in a legal jungle down here.” It may well be that the standard of decorum usually prevailing in the sedate precincts of chancery should also he observed by the jungle-fighters in the pit of police and criminal courts, but it would be somewhat less than realistic to assume that the advocate who practices exclusively in one of these two worlds will have the same conception of what is expected of him as the lawyer who confines his practice to the other. We do not mean to suggest that there should he two different sets of rules. On the contrary, there can be only one. But when the rules are loosely couched in terms of high principle, as are the canons, there is room for differences of opinion, hence the distinct possibility that they do not provide sufficiently explicit “no trespassing” signs for those who may approach the invisible line of proscription. For this reason, if for no other, simple justice dictates that in arriving at a final determination all doubts be resolved in favor of the respondent. We find that the facts of Count 7 and Count 8 do not warrant disciplinary action. With respect to Count 9 we find that Taylor’s conduct toward Miss Arnold did violate Canon 18 and justifies a public reprimand. Nothing is more vital to the administration of justice than the freedom of witnesses from the fear of retribution and embarrassment. They must be protected in their coming and going. That Taylor was a litigant as well as a lawyer in the proceeding in which she testified did not excuse him from his obligation as a lawyer to treat her with the same consideration as if he had not been personally involved. Counts 1, 2, 3 and 5 all have to do with a course of conduct during one trial and should, we think, be treated as one charge. Disregarding the issue of whether Judge Pound did or did not actually mouth the words “dirty son-of-a-bitch” at Taylor, we find that Taylor violated Canon 1 in that he consistently and conspicuously failed to maintain a respectful attitude toward the trial court and that he violated Canon 22 in that while addressing the court he made statements intended to influence the jury or bystanders. With respect to Canon 1, the fact that a presiding judge may not measure up to what he ought to be, or what counsel thinks he ought to be, is no excuse for discourtesy on the part of counsel. Two wrongs do not make a right. Whatever may be the judge’s conduct, the remedy lies somewhere else, and if both court and counsel misbehave the damage to the profession and to the image of justice in the public eye is doubled. With respect to Canon 22, there can be no doubt, even in the jungle, that Taylor intentionally said things in the hearing of the jury that he knew, or as a lawyer should have known, were not relevant to but might nevertheless have an effect upon its deliberations. For example, while certainly not acting beyond the bounds of propriety in insisting that the judge make an immediate disposition of the contempt matter (Count 1), he knew it was not a circumstance the prospective jurors under voir dire might properly have in mind when later determining the guilt or innocence of his clients. And again, had Judge Pound actually called him a vile name, to announce it to the jurors and public assembled was a flagrant and inexcusable impropriety, entirely unnecessary to the legitimate process of having it reflected in the transcript. We suppose that an attempt to outlaw gallery play in the courtroom would be about as successful as the current effort to ban the private possession of firearms. Nevertheless, intoxication induced by his own histrionics cannot excuse an advocate’s excesses. He indulges at his own risk. Under our system the jury’s function is to weigh the evidence unalloyed by other factors, and it is the lawyer’s obligation to preserve the integrity of that system. The intentional introduction of improper information or comment amounts in plain words to cheating. It is common knowledge that in certain widely publicized trials of recent years a new breed of lawyers has instituted the studied technique of baiting the trial judge in order to convey to the public an impression that its courts are instruments of discrimination and injustice. Frequent contempt citations are the hallmark of that technique. It will not be tolerated in this jurisdiction. The representation of unpopular clients or points of view does not clothe the lawyer with a special immunity from his obligations as an officer of the court. The evidence in this case suggests (though by no means does it prove) that Taylor may at least have been conducting a precarious flirtation with this improvident new school of thought. We note, for example, both Judge Colson’s and Taylor’s own references to other instances in which he has been fined for contempt of court. Frequent and repeated punishment for contempt of court indicates that a lawyer is not fit to practice law. It may be that with a more extensive investigation the bar association could have produced a better case in this instance. As it is, however, the serious charges are largely confined to one trial, which would not constitute a fair basis for a determination that Taylor is a deliberate and persistent violator so as to merit disbarment or a substantial period of suspension, and certainly he should not be made a scapegoat for the sins of others. The trial committee was of course more familiar with the case than the governors of the bar association, and we are favorably impressed by its analysis and recommendations. Since, however, the members of the committee saw violations in some instances (such as Counts 7 and 8) where we hold there was none, it seems appropriate that the recommended disciplinary action be modified to scale. It is therefore our judgment that the respondent be publicly reprimanded and suspended from the privilege of practicing law in this state for a period of six months. The foregoing disposition obviates consideration of Point 6 (that the recommended punishment is disproportionately great) and leaves only the question of costs. It is our judgment that 50% of the costs of the proceeding be taxed against the respondent. STEINFELD, C. J., and EDWARD P. HILL, Jr., MILLIKEN, NEIKIRK and OSBORNE, JJ., concur. REED, J., concurs in the result that this court is empowered to decide the case and that the respondent be suspended for six months. . All citations of the Rules in this opinion refer to the rule numbers as they were before July 2, 1971. . See Taylor v. Kentucky State Bar Association, 424 F.2d 478 (6 Cir. 1970). Upon subsequent hearing the District Court denied relief, and the Circuit Court of Appeals has denied a motion for injunc-tive relief pending a second appeal. . The formal charge does not specify which of the Canons of Ethics was violated, but see In re Vaughn, Ky., 369 S.W.2d 14 (1963). . Canon 18 provides that a lawyer “should always treat adverse witnesses and suitors with fairness and due consideration,” etc. .In some places they have singing waiters. In Louisville, upon this occasion, they had singing defendants. . Canon 22 demands “candor and fairness” in the conduct of a lawyer before the courts. . One of Taylor’s clients was named Frederick Cowden. . Canon 1 states that it is the lawyer’s duty “to maintain towards the Courts a respectful attitude,” etc. . Canon 5 limits the lawyer defending in a criminal case to the use of “fair and honorable means.” Canon 15 denounces the use of “fraud or chicane” or the setting up of a false claim in order to win his client’s cause. .Among other things in addition to requiring “candor and fairness” of the lawyer in his conduct before the court, Canon 22 says that the lawyer should not, in addressing the court, make statements intended to influence the jury or bystanders. . At a subsequent trial Kermit Geary received a sentence of death and Doyal Geary was sentenced to life imprisonment. The judgments were affirmed in Geary v. Com., Ky., (March 7, 1972, pet. reh. overruled May 12, 1972.) . The Board of Governors found the respondent not guilty under Count J.

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Oscar Clay RUSSELL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. Gerald E. Benzinger, Harry K. Aurandt, Covington, for appellant. Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee. CATINNA, Commissioner. Oscar Clay Russell, Jr., was tried pursuant to an indictment charging indecent or immoral practices with infants under fifteen years of age. Count One charged practices with Douglas Thompson on March 27, 1970; Count Two charged practices with Douglas Thompson on April 3, 1970; and Count Three charged practices with Lucy Thompson on March 21, 1970. Count Two of the indictment was withdrawn by the prosecution at the conclusion of the Commonwealth’s evidence. The jury found Russell guilty as charged on Counts One and Three of the indictment. Russell’s punishment was fixed at ten years in the penitentiary on Count One and ten years in the penitentiary on Count Three. Over the objection of the defense, the trial judge ordered that the two sentences be served consecutively. Russell presents six claims of error, asserting that (1) the court erred in overruling appellant’s motion for separate trials on each count set out in the indictment; (2) the court erred in overruling motion of appellant’s counsel for a psychiatric examination of appellant; (3) the appellant’s right to a fair trial was prejudiced by remarks made in open court by a prospective juror on voir dire; (4) the appellant’s right to a fair trial was prejudiced by remarks made in open court by the Commonwealth’s attorney during cross-examination of appellant; (5) the appellant was denied his constitutional right to a preliminary hearing on Count One of the indictment; and (6) the indictment was defective since it did not state as an element of the charge that appellant was seventeen years of age or over. We affirm the judgment. Prior to and during March 1970, Russell and Edna Thompson, mother of Douglas and Lucy Thompson, together with her ten children, lived in a four-room house on 3-L Highway in Covington, Kentucky. They were not husband and wife but had lived together for more than seven years. Edna had four children by her husband Thompson, and six children had been born to Russell and Edna. Edna testified that she was pregnant and that Russell was the father of this child also. Douglas Thompson, age 13, testified that the practices charged in Count One were committed in a bedroom of the house on 3-L Highway in the afternoon, but before Russell went to work at 2 p. m.; that his mother was at work at the time, but the other children, except two, were at home; and that he was then directed to “fix him something to eat.” Russell admits that he was at the house on 3-L Highway on March 27, 1970; that at a time just before he went to work he was in the bedroom with Douglas; and that “he made me a cup of coffee, and I went to work.” He denies that he engaged in any indecent or immoral practices with Douglas. Lucy Thompson, age 10, testified that the practices charged in Count Three were committed in the bedroom of the house on 3-L Highway; that she was in bed with her mother and Russell; that while “he was laying kind of on top of my mother * * * he played with me.” She testified that at the time she was living with an aunt but “they came and picked me up for the weekend and a picnic.” Russell testified that on March 21, 1970, Lucy was visiting her mother for the weekend; that on this night he was in bed with the mother and Lucy; that the mother had brought her in the bedroom and placed her in bed with them. He denies any indecent and immoral practices with Lucy Thompson. His explanation of the bedroom scene is as follows: “We started making love and Lucy was in the bed, and I made her mother take her back and put her in her own bed where she was at.” Was it error for the trial court to refuse appellant’s motion for a separate trial on each count of the indictment ? RCr 6.18, RCr 9.12, and RCr 9.16 require consideration on this problem. RCr 6.18 permits the joinder of two or more offenses in the same indictment in separate counts, if the offenses are of the same or similar character. RCr 9.12 permits two or more indictments to be consolidated for trial together if the offenses could have been joined in a single indictment. RCr 9.16 requires the trial court to order separate trials of counts where it is made to appear to the court that a defendant will be prejudiced by a joint trial. The bare fact that two or more counts are joined in a single indictment under RCr 6.18 or could be consolidated for trial under RCr 9.12 does not require or even permit a joint trial of counts under all circumstances. This court, in Russell v. Commonwealth, Ky., 403 S.W.2d 694 (1966), said that RCr 6.18 clearly permits offenses “to be joined and tried together.” We have now determined that this language goes beyond the true scope of RCr 6.18 which is concerned only with the composition of an indictment and not with a trial of the offenses charged. Even though the joinder of offenses is permissible under RCr 6.18, if a defendant makes a timely motion under RCr 9.16 and shows prejudice, the court should grant separate trials. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). The granting or denying of a motion for separate trials under RCr 9.16 is a discretionary function of the trial court which must weigh prejudice to the defendant caused by the joinder of offenses. Since this matter is addressed to the sound discretion of the trial court, a conviction will be reversed only if the refusal of the trial court to grant the relief is a clear abuse of discretion and prejudice to the defendant is positively shown. It is incumbent upon an appellant seeking to show such abuse to make a positive showing of the prejudice which has resulted. He must show something more than the fact that a separate trial might offer a better chance of acquittal or a less severe penalty. Cf. Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965); Brown v. Commonwealth, Ky., 458 S.W.2d 444 (1970); United States v. Levrie, 445 F.2d 429 (CA 5th Cir. 1971); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). An important factor in determining whether a joinder of offenses for trial is prejudicial is whether the evidence of one of the offenses would be admissible in a separate trial for the other offense. If the evidence is admissible, the joinder of offenses, in most instances, will not be prejudicial. Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965); United States v. Begun, 446 F.2d 32 (CA 9th Cir. 1971). The general and well-established rule in criminal cases in this state is that evidence which in any manner shows or tends to show that a defendant has committed another offense independent of that for which he is on trial is inadmissible. Keith v. Commonwealth, Ky., 251 S.W.2d 850 (1952). As an exception to this general rule, we hold that in ‘sex crimes evidence of prior acts of the same nature committed upon the same person is competent for the purpose of showing corroboration and to show design, disposition, or intent on the part of the accused. Young v. Commonwealth, Ky., 335 S.W.2d 949 (1960). In those cases where a defendant is charged with indecent or immoral practices with a child under the age of fifteen years, evidence of separate and distinct prior acts of a similar or identical nature, not too remote in time, committed upon children other than those charged in the indictment is admissible for the purposes of showing disposition and intent as to the act charged, lustful inclination, motive, a common pattern, scheme, or plan. The separate and distinct acts with other children to be admissible must have a reasonably close relation in scheme and pattern and in time to the act charged. Cf. State of Minnesota v. DePauw, 246 Minn. 91, 74 N.W.2d 297 (1955); Ball v. State of Texas, 163 Tex.Cr.R. 214, 289 S.W.2d 926 (1956); State of Washington v. Leohner, 69 Wash.2d 131, 417 P.2d 368 (1966). The trial of separate counts in an indictment at the same time or the joinder of indictments for the purpose of trial requires extreme caution on the part of the trial judge. The trial of more than one offense at the same time is almost invariably prejudicial to some of the rights of the defendant so tried. Should it be shown at any time during the trial that the rights of a defendant have been so prejudiced as to constitute a denial of due process in regard to any one of the counts tried, the trial court should grant the aggrieved defendant a new trial. No positive prejudice having been shown, the trial court did not abuse its discretion in overruling the motion for a separate trial. Was it error for the trial court to refuse the motion of appellant’s counsel for a psychiatric examination of appellant ? On this case being called for trial, counsel for appellant moved that the court order a psychiatric examination for Russell. The motion was heard in chambers and overruled by the trial court. Whether an inquest pursuant to RCr 8.06 shall be held rests in the sound discretion of the trial court. Kilgore v. Commonwealth, 310 Ky. 826, 222 S.W.2d 600 (1949). We do not find an abuse of discretion by the trial court in overruling the motion for a psychiatric examination. Dye v. Commonwealth, Ky., 477 S.W.2d 805 (decided March 3, 1972). Were the rights of appellant to a fair trial prejudiced by remarks made in open court by a prospective juror, Andrew Knox, on voir dire ? Knox, on voir dire and in answer to a question on his knowledge of the facts, answered generally that he had heard about it from his foreman and that there was notoriety about the trial. Appellant claimed such remarks prejudiced the entire panel, and moved that it be dismissed. The trial court overruled the motion. This remark was made on Friday before anyone had been accepted as a juror to try the case. A supplemental panel was drawn and on the following Tuesday the trial jury was completed and accepted. Knox was not a juror. Appellant could not have been prejudiced by the answer of Andrew Knox. There was no abuse of discretion on the part of the trial judge in overruling the motion to dismiss the jury panel. Were the rights of appellant to a fair trial prejudiced by remarks made in open court by the Commonwealth’s attorney, John J. O’Hara, during cross-examination of the appellant? The remarks in question follow: “CQ29. I’ll ask you, again, - - - DEFENDANT’S RESPONSE BY MR. MONOHAM (Interposing): Judge, I don’t think Mister O’Hara is allowed to badger the witness. He’s already answered the question. RULING OF THE COURT: He’s on cross examination. I’ll let it in. COMMONWEALTH’S RESPONSE BY MR. O’HARA: I’ll badger him, much more than I’m doing now.” Appellant’s counsel did not object to this remark nor did he move the court to discharge the jury. Other objections were made during the cross-examination, but they concerned other grounds. The accusation of badgering was not repeated. No objection having been made to the intemperate remark, it must be considered waived and, therefore, not a subject for review by this court. Cf. Patrick v. Commonwealth, Ky., 436 S.W.2d 69 (1969); RCr 9.22. Was the absence of a preliminary hearing on Count One of the indictment a denial of a constitutional right of the appellant? The absence of a preliminary hearing did not prejudice any of the constitutional rights of the appellant. Cf. Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (1966). Was the indictment defective since it did not state as an element of the charge that appellant was seventeen years of age or over? This last claimed error was not included in appellant’s motion for a new trial nor objected to in the course of the trial. This court will not consider on appeal matters occurring before the verdict which were not objected to during trial or were not relied on in the motion for a new trial. RCr 10.12. The judgment is affirmed. All concur.

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Caselaw Access Project

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WASHER ONE, INC., d/b/a, etc., et al., Appellants, v. COMMONWEALTH of Kentucky ex rel. DIVISION OF UNEMPLOYMENT INSURANCE, Appellee. Court of Appeals of Kentucky. June 23, 1972. John M. Prewitt, Mt. Sterling, for appellants. Paul E. Tierney and Harlan E. Judd, Jr., Div. of Unemployment Ins., Frankfort, for appellee. CULLEN, Commissioner. Washer One, Inc., operated a car-washing establishment in Paris, Kentucky, in which it used four employees, and thus was subject to the Kentucky Unemployment Compensation Law. See KRS 341.070. The company refused, however, to submit to the law by paying the required tax or even by filling out any forms. As a result, the Division of Unemployment Insurance brought action against the company and its principal stockholder to enjoin operation of the car-wash establishment until the law was complied with. The defendants pleaded unconstitutionality of the law. Judgment was entered granting the relief sought in the complaint. The defendants have appealed. The issue is the constitutionality of the Unemployment Compensation Law as applied in the instant circumstances. The appellants assert unconstitutionality on numerous grounds, hut the substance of the argument is that the law is discriminatory in requiring employers to pay the tax while automated businesses rendering the same kind of service are exempt. We find no merit in the argument. Unemployment Compensation laws uniformly have been upheld against the contention that they were discriminatory in exempting businesses with less than a prescribed number of employees, or with no employees at all. See Carmichael v. Southern Coal and Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245; Riehl v. Kentucky Unemployment Compensation Commission, Ky., 256 S.W.2d 354; 16 Am.Jur.2d, Constitutional Law, sec. 525, p. 914. It seems to us that if a classification based on having more than a minimal number of employees validly may be used in subjecting employers to an unemployment compensation tax, it should make no difference for what reason the exempted businesses happen to have less than the minimum number of employees, or even none—whether it is because the businesses are automated or for some other reason. We conceive that the primary objective of the unemployment compensation laws is to provide relief against the kind of unemployment that is created when jobs that once existed cease to exist. The automated business that employs no workers does not contribute to that kind of unemployment; it merely fails to create any jobs. While that lessens the number of jobs available, it does not cause a decrease in the number of existing jobs. It is our opinion, therefore, that it is not discriminatory for the tax to be imposed upon those who create jobs while exempting those who do not. Cf. Riehl v. Kentucky Unemployment Compensation Commission, Ky., 256 S.W.2d 354; Standard Dredging Co. v. Murphy, 319 U.S. 306, 63 S.Ct. 1067, 87 L.Ed. 1416. The appellants argue that the provisions of the unemployment compensation law requiring the filing of informational reports by employers is unreasonable and therefore invalid because the same information is included in income tax reports to the Kentucky Department of Revenue. Obviously, the unemployment compensation informational reports are designed for a purpose entirely different from that of income tax reports, and although the information sought by the former might be obtainable from the latter it would increase the administrative work of both agencies. In the absence of a showing that the filing of unemployment compensation returns is unreasonably burdensome on the employer in comparison with the ease with which the information could be obtained from income tax returns, we cannot hold unconstitutional the requirement for filing the unemployment compensation returns. The appellants suggest that it is “arbitrary” to use an injunction shutting down their business as a means of enforcing compliance on their part with the unemployment compensation law, because the effect is to put their employees out of work and thus create unemployment in violation of the very purpose of the law. It is sufficient to say that the legislature in enacting the law authorized injunctive procedure, KRS 341.265, and thus decided that the use of that procedure would have beneficial effects in achieving compliance with the law outweighing any incidental effect it might have offending the purpose of the law. That decision cannot be classed as arbitrary. The judgment is affirmed. All concur.

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Curtis Columbus JONES, Appellant, v. The STATE of Texas, Appellee. No. 45099. Court of Criminal Appeals of Texas. July 19, 1972. Melvyn Carson Bruder, Dallas (Court appointed on Appeal), for appellant. Henry Wade, Dist. Atty., Robert T. Bas-kett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is breaking and entering an automobile with the intent to commit theft with two prior offenses of the same nature alleged for enhancement; the punishment, life. Appellant’s second and third grounds of error relate to the exclusion of evidence. Appellant first contends that the court should have permitted the arresting officer to answer if, from his experience, “logically, someone wanting to steal something would also hit the glove compartment.” The court sustained the State’s objection to the inquiry. The offense charged in the indictment is complete when the “vehicle” is broken into with “intent of committing a felony or the crime of theft.” It is not necessary that there be a taking of property. Martinez v. State, Tex.Cr.App., 469 S.W.2d 185. Therefore, whether or not the appellant took anything from the glove compartment is not determinative. Further, since the complaining witness testified that the glove compartment was locked, we are unable to determine how the court’s ruling could reflect reversible error. Appellant next contends that the court erred in not permitting him to establish that the defense witnesses had been interviewed separately by counsel and not in each other’s presence. Although the objection was sustained, the appellant’s next question, to which there was no objection and to which he received an answer, was substantially the same as the earlier one. No error is shown. Appellant’s fourth ground of error is that the court erred in declining to grant him the right to conduct a secret ballot poll of the jury. We do not construe Art. 37.-05, Vernon’s Ann.C.C.P., as authorizing that which appellant requested. No reversible error is shown. Appellant’s fifth ground of error relates to the proof of his prior convictions. He claims that appellant’s fingerprints, taken to compare with those in his “prison packets,” were secured “prior to the trial in this cause and, therefore, had no probative value. . . . ” The State introduced a set of prints into evidence which had the date January 7, 1969 on them. However, the officer who took the prints, testifying on January 8, 1970, stated that the date on the prints was an error and that they had actually been taken by him the previous day, January 7, 1970. He also positively identified the appellant as the man from whom he took the prints. No error is shown under the circumstances. Appellant’s sixth ground of error is that the punishment was cruel and excessive since the amount of money stolen was less than a dollar. Appellant was found guilty of breaking and entering a motor vehicle with intent to commit theft. The State is not required to prove any actual taking. Martinez v. State, supra. Appellant’s last ground of error is that he was prejudiced by the admission of testimony that he lived at least six different places in ten years. Appellant’s objection to the testimony was sustained. Appellant requested no further relief. It is well settled that appellant must continue to object until he receives an adverse ruling. Burks v. State, Tex.Cr.App., 432 S.W.2d 925. Appellant’s first ground of error relates to testimony concerning another offense. He claims that testimony by Dallas Police Officer Strebeck, at the punishment phase of the trial, that he arrested the appellant on June 29, 1964, at “Carpenter and Oakland Streets” for “unlawful entry into a motor vehicle with intent to commit the crime of theft,” was evidence of a prior arrest without proof that it resulted in a prior conviction and was, therefore, violation of Art. 37.07, V.A.C.C.P. The record reflected appellant did not object to the officer’s testimony and, consequently, nothing is presented for review. Vera v. State, Tex.Cr.App., 473 S.W.2d 22; Jackson v. State, Tex.Cr.App., 477 S.W.2d 879, (March 22, 1972). However, the indictment alleged that the appellant had been previously convicted of felony theft on August 5, 1960, in Criminal District Court No. 3 of Dallas County; that after such conviction became final, he was convicted of “unlawful entry into a motor vehicle with intent to commit crime of theft,” in Criminal District Court No. 3 of Dallas County on October 12, 1964, and that after such conviction had become final, the instant or primary offense of breaking and entering a motor vehicle had been committed on September 3, 1969. The record reflects that the State proved the prior convictions alleged in the indictment by introducing “prison packets” from the prior convictions plus a comparison of the appellant’s fingerprints with those in the packets. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108; Childress v. State, Tex.Cr.App., 472 S.W.2d 133. In order to invoke the provisions of Art. 63, Vernon’s Ann.P.C., it is also necessary to prove that each succeeding offense was committed after the conviction for the preceding offense became final. Hutchinson v. State, Tex.Cr.App., 481 S.W.2d 881 (May 31, 1972). In the case at bar there is insufficient proof that the second conviction alleged was for an offense committed by the appellant after the first prior conviction became final. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383. However, since the second prior conviction is for an offense of the same nature as the primary offense, the conviction can be sustained under Article 62, V.A.P.C. The judgment and sentence are, therefore, reformed to provide for appellant’s confinement in the Department of Corrections for a period of three (3) years. As reformed, the judgment is affirmed. . Appellant’s grounds of error will not be discussed in the order they are briefed. . Apparently tlie State called Officer Stre-beck to show that the second offense was committed after the first prior conviction became final. His testimony was the only evidence offered to prove that fact. However, his testimony did not affirmatively connect his arrest of the appellant on June 29, 1964, with appellant’s conviction on October 12, 1964. The indictment for the second prior conviction was not introduced, the name of the complainant is not shown, etc. There is, thus, no showing that the offense for which Officer Strebeck arrested the appellant served as a basis for the second prior conviction. Further, without the indictment, it is not possible to utilize the statute of limitations to supply the proof. See Childress v. State, supra. There is also no recitation in the 1964 judgment of the date on which the offense occurred which would be sufficient to establish the date for the purposes of the enhancement allegation. Espinosa v. State, Tex.Cr.App., 463 S.W.2d 8.

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James Douglas McArthur YEAGER, Appellant v. The STATE of Texas, Appellee. No. 45226. Court of Criminal Appeals of Texas. July 19, 1972. Dan J. Anderson, Richardson, for appellant. Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is murder with malice; the punishment, five hundred (500) years. Appellant’s sole ground of error is that his punishment is cruel and unusual within the meaning of the Eighth Amendment of the Constitution of the United States and Article 1, Sec. 13, of the Constitution of Texas, Vernon’s Ann.St. Specifically, he contends that Art. 1257, Vernon’s Ann.P.C., provides for cruel and unusual punishment since it sets no limit on the number of years a jury may assess and conceivably permit sentences of “one million” or more years. Alternatively, he suggests that the statute actually does not permit a sentence of 500 years. He claims that the wording of Article 1257, V.A.P.C., providing the punishment for murder as “ . . . confinement in the penitentiary for life or for any term of years not less than two (2)” means that the jury may only assess life or a term of years less than a reasonable life expectancy but more than two (2). Recently, in Sills v. State, Tex.Cr.App., 472 S.W.2d 119, 120, we dealt with a similar contention and concluded, as we do here, that a very long sentence: “. . . . does not change the rule that a person can be considered for parole when he has received credit for 20 years or one-third of his sentence, whichever is the less. Art. 42.12, Sec. 15, Vernon’s Ann.C.C.P. Since such [long] sentences serve no purpose, the Legislature should at least set a maximum as well as a minimum for every crime. The entire sentencing structure of the State of Texas should be inquired into by the Legislature, which is the proper body, and not this Court, to make those corrections.” See also Miller v. State, Tex.Cr.App., 465 S.W.2d 150. Finding no reversible error, the judgment is affirmed.

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Ex parte Odell STAUTS. No. 45814. Court of Criminal Appeals of Texas. July 19, 1972. James Wedding, Marshall (Court appointed), for appellant. Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Justice. This is a post conviction habeas corpus proceeding in which the petitioner, Odell Stauts, seeks release from confinement in the Texas Department of Corrections. See Article 11.07, Vernon’s Ann.C.C.P. Petitioner was convicted of burglary with his punishment enhanced under Arti-ele 63, Vernon’s Ann.P.C, in Cause No. 19,385, in the 71st District Court of Harrison County and sentenced to life on February 14, 1961. No appeal was perfected in that cause. The Honorable John Furrh, Presiding Judge of the trial court, conducted an evi-dentiary hearing, concluded that representation by counsel afforded the petitioner was “perfunctory, a pretense and without adequate opportunity for conference and preparation” and recommended that the writ be granted. The record reflects that George Edwards was appointed to represent the appellant on December 30, 1960. The petitioner testified that he met counsel, for the first time, moments before the trial began and that they never discussed the facts of the case. He testified that attorney Edwards advised him to plead guilty (to the mandatory life sentence) but that he refused and told counsel that he was not going “to cop out for no life.” He also testified that during the trial Edwards made no objections and conducted no cross-examination, although there was testimony that the court admitted certain incriminating evidence which was discovered during a warrantless search of the petitioner’s home. He further stated that counsel made no attempt to determine the validity of the habitual criminal indictment, or to advise him of his right to appeal his conviction. Christine Price, the official court reporter now and at the time of the trial, testified that Edwards was not an active practitioner and did not maintain a law office; that he appeared in criminal cases only by appointment, appearing on the day of trial; that Edwards, as a matter of course, did not make objections or cross-examine witnesses during trial; and that it appeared that Edwards had been involved in an automobile accident in which he had received some severe brain damage. The Statement of Facts of petitioner’s trial is not included in the record. We must, therefore, determine if the facts developed at the habeas corpus hearing support the trial court’s conclusion. See Ex parte Young, Tex.Cr.App., 479 S.W.2d 45. Initially, we note that the petitioner entered a plea of not guilty rather than guilty. See Ex parte Love, Tex.Cr.App., 468 S.W.2d 836, and Ex parte Perry, Tex.Cr.App., 455 S.W.2d 214. Petitioner’s refusal to enter a guilty plea made it incumbent upon counsel to take an active role in the preparation of defensive strategy. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Ex parte Barnes, Tex.Cr.App., 478 S.W.2d 547. Edwards did not do so in the case at bar. In fact, during the writ hearing conducted in Ex parte Love, supra, District Attorney Charles A. Allen testified, in substance, that Edwards would not have been competent to represent any defendant where a “not guilty” plea to a jury would have been entered, especially in a serious case. Secondly, the petitioner's testimony is substantially corroborated by that of Christine Price, the court reporter. Inasmuch as petitioner entered a plea of “not guilty” in this case and Price’s testimony reflected that Edwards never prepared for trial or even became involved in the legal proceedings, we must conclude that this corroboration testimony as to “common practice” is sufficient to sustain this petitioner’s burden of proof. Cf. Ex parte Young, supra. Thirdly, we have the trial court’s recommendation that the writ be granted. It is apparent that there is substantial corroboration to support the trial court’s finding that, in the case at bar, the appointment of Edwards as counsel for a defendant who entered a plea of not guilty, to a jury, in a prosecution involving the Habitual Criminal Act, deprived this petitioner of the opportunity to be represented by “the effective assistance of counsel” guaranteed by the Sixth Amendment. We agree that petitioner’s trial must have been a “mere sham and mockery,” therefore requiring the conviction to be vacated. See Ex parte Smith, Tex.Cr.App., 463 S.W.2d 185; Ex parte Larkin, Tex.Cr.App., 420 S.W.2d 958; Williams v. Beto, 354 F.2d 698 (5th Cir.); the dissenting opinion in Ex parte Black, Tex.Cr.App., 457 S.W.2d 919, and Black v. Beto, D.C., 327 F.Supp. 1405. The writ of habeas corpus is granted and the judgment of conviction is set aside. Petitioner is ordered released from the Texas Department of Corrections, to be delivered to the sheriff of Harrison County to answer to the indictment in Cause No. 19,385 pending against him in this case. . The petitioner was originally convicted under the same indictment and sentenced to life on May 3, 1960, but his motion for new triai was subsequently granted because appellant was not represented by counsel at that trial. He remained in jail, unable to make bail, until February 1, 1961, the date of the second trial. . This is not the first time this Court has been called on to consider the caliber of this attorney’s representation. See Ex parte Perry, Tex.Cr.App., 455 S.W.2d 214, and Ex parte Love, Tex.Cr.App., 468 S.W.2d 836. Cf. Perry v. Beto, D.C., 331 F.Supp. 431. In Ex parte Perry, supra, we held that Edwards representation was not ineffective where the petitioner entered a guilty plea prior to counsel’s appointment, was familiar with court procedures and did, in fact, voluntarily and intelligently enter a plea of guilty. Cf. Perry v. Beto, 331 F.Supp. 431. However, in Ex parte Love, supra, another case involving a guilty plea, this Court granted the writ and concluded that Edwards did not provide adequate representation due to his physical and mental impairments. In that case, petitioner Love pleaded guilty to a charge he was innocent of and of which another person, also represented by Edwards, was guilty. .Petitioner testified that he was not represented by counsel at the time that he pled guilty to three (3) burglary indictments on June 15, 1952, and it appears that all three (3) of these prior convictions were used for enhancement in this case. Another prior conviction for burglary occurring on February 2, 1956 was also alleged, but petitioner was represented by counsel at that trial. . See Statement of Facts in Ex parte Love, supra. However, compare to Ex parte Perry, supra. . This Court lias long accepted, in habeas corpus proceedings, the practice of allowing the State to refute a petitioner’s claim by showing -what a normal and common scheme of practice was for a particular defense attorney, or a trial judge, in cases where a particular “method of operation” was challenged. Thus, evidence showing poor “common practice” is also admissible and relevant in this petitioner’s case. .Of course, this Court is not bound by the trial court’s recommendation. See Ex parte Bazemore, Tex.Cr.App., 430 S.W.2d 205, Ex parte Mitchell, Tex.Cr.App., 462 S.W.2d 28; Ex parte Young, supra.

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Ex parte Harvey James McMILLAN. No. 45830. Court of Criminal Appeals of Texas. July 12, 1972. No attorney on appeal. Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This appeal is from an order in a ha-beas corpus proceeding remanding appellant to custody for extradition to the State of South Dakota. At the habeas corpus hearing the Executive Warrant of the Honorable Preston Smith, Governor of the State of Texas, was introduced, along with all of the supporting papers. The appellant, testifying in his own behalf, stated that he and his mother had lived in Sioux Falls, South Dakota, in early January of 1971. He was not certain of the date but he had left the State of South Dakota with his mother to join his father, who was in the military service in El Paso, prior to the 16th day of January, 1971, the date on which it was alleged the offense occurred. It is the appellant’s contention that he should not be remanded for extradition because he was not in the State of South Dakota on the date alleged to have been the day the crime was committed and for the additional reasons that he is not charged by a “proper accusation” and the evidence would not show an act which would be a violation of the laws of the State of South Dakota. The appellant’s testimony that he was not in the demanding state on the date of the alleged offense is insufficient to overcome the prima facie case established by the Governor’s Warrant that he was in fact the same individual sought by the South Dakota authorities and that he was in the demanding state at the time the offense was alleged to have been committed. Ex Parte Binette, 465 S.W.2d 373 (Tex.Cr.App.1971); Ex Parte Harvey, 459 S.W.2d 853 (Tex.Cr.App.1970); Ex Parte Sutton, 455 S.W.2d 274 (Tex.Cr.App.1970); Ex Parte Buel, 468 S.W.2d 385 (Tex.Cr.App.1971); and Delgado v. State, 158 Tex.Cr.R. 52, 252 S.W.2d 935 (1952). In an extradition proceeding the Texas courts are not called upon to decide whether or not the demanding state may prosecute the accused on the basis of the supporting papers standing alone. Ex Parte Beckham, 468 S.W.2d 446 (Tex.Cr.App.1971); Ex Parte Posey, 453 S.W.2d 833 (Tex.Cr.App.1970) and Ex Parte Clubb, 447 S.W.2d 185 (Tex.Cr.App.1969). The guilt or innocence of the appellant is not an issue to be determined in the asylum state in extradition proceedings. Ex Parte Bacquet, 469 S.W.2d 578 (Tex.Cr.App.1971); Ex Parte Sutton, supra. The Executive Warrant introduced in the proceedings appearing to be regular, the order remanding appellant to custody for extradition is affirmed. No motion for rehearing will be entertained or filed with the clerk without leave of the court first being obtained after good cause has been shown. Opinion approved by the Court.

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Franklin D. ROSE, Appellant, v. The STATE of Texas, Appellee. No. 45586. Court of Criminal Appeals of Texas. July 12, 1972. John T. Forbis, Childress, for appellant. Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from a conviction for the offense of driving a motor vehicle while intoxicated, subsequent offense. Punishment was assessed by the court at one year. The sole ground of error is that appellant was denied the right to make argument to the court after the evidence had closed. The record shows that the appellant waived his right to a jury trial and entered a plea of guilty before the court. He was duly admonished and the evidence was presented. Thereafter, both the state and the defense announced that they closed. The following then occurred: “THE COURT: Mr. Rose, would you stand, please, sir? As you were informed' previously by this Court, if you persisted in entering your plea of guilty, the Court would hear evidence, and if the evidence in connection with your plea showed that you were guilty beyond a reasonable doubt, the Court would find you guilty and assess your punishment within the limits prescribed by Law. “You persisted in pleading guilty, and the Court has heard the evidence in this case, and in the opinion of the Court, you are guilty beyond a reasonable doubt of the offense charged in the Indictment, and the Court fixes your punishment at confinement in the Texas Department of Corrections for a term of one year.” No objection was addressed to the court’s prompt pronouncement of judgment, nor was a request made for argument. The contention was raised for first time on motion for a new trial. Since this was a plea of guilty before the court, we fail to see any harm shown. Appellant orally argued before this court that had he not been deprived of argument he could have pleaded for probation. True, but he could have done so prior to sentence. No error is shown. The judgment is affirmed.

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Bedford Jay BUTLER, Jr., Appellant, v. The STATE of Texas, Appellee. No. 45594. Court of Criminal Appeals of Texas. July 12, 1972. Dan J. Anderson, Richardson, for appellant. Henry Wade, Dist. Atty., George O. Washington, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. This is an appeal from an order revoking probation. On July 16, 1971, appellant was convicted for the offense of felony theft; the punishment was assessed at five years, probated. One of the terms of probation was that the appellant report to the probation officer monthly, during the period of probation. A report of probation violation was filed on November 12, 1971, alleging that appellant had violated the terms of his probation in that he had not reported to the probation officer during the months of August, September, and October of 1971. A motion to revoke probation was filed on December 21, 1971, making the same allegation. The probation officer and the appellant both testified that he had failed to report as alleged in the application. The evidence further showed that appellant did not report during the months of August, September, October, November, or in December, 1971, having been placed in jail on December 21, 1971. The probation officer further testified that he made a phone call to the number given him by appellant; talked to appellant’s brother; a letter was written to appellant at the address given; the probation officer went to the address and talked to appellant’s sister; and in November went to the address and talked to appellant’s father. Appellant testified that the reason he did not report was that he was working as a bartender and felt that that would automatically revoke his probation. The only issue on appeal of revocation of probation is whether or not the trial court has abused its discretion. Pitts v. State, 442 S.W.2d 389 (Tex.Cr.App.1969); Basinger v. State, 450 S.W.2d 623 (Tex.Cr.App.1970). The evidence shows appellant violated a condition of his probation, and no abuse of discretion is shown. The judgment is affirmed.

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Frank ESPARZA, Jr., Appellant, v. The STATE of Texas, Appellee. No. 45574. Court of Criminal Appeals of Texas. July 12, 1972. Dan J. Anderson, Richardson, for appellant. Henry Wade, Dist. Atty., Catharine T. Hill, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from an order revoking probation. On the 25th day of September, 1970, the appellant was convicted for burglary with intent to commit theft. His punishment was assessed at two years, probated. One of the conditions of the probation was that the appellant report to the probation officer monthly. A motion to revoke probation was filed January 11, 1972. It alleged that the appellant failed to make reports for ten months, February through November of 1971. The trial court found that appellant failed to report as ordered and revoked probation. The appellant contends that there was insufficient evidence to revoke probation. Don R. Stiles, an adult probation officer for Dallas County, testified the appellant entered a plea of guilty to the burglary charge on the 25th day of September, 1970, and was placed on probation and that he did not report as directed during the months of February through November, 1971. The probation officer also testified that he tried to get in touch with the appellant by telephone and wrote letters in March and April, 1971, warning him that action would be taken to revoke probation if he did not report. There was no response to the letters. The appellant testified that he received a copy of the order of probation from Officer Stiles and that he knew he was to report. He also testified that he received the letters from the probation officer but did not answer or report because he had lost his job and his wife was ill and he was afraid that he would be put in jail. The only issue on appeal is whether the trial court abused its discretion in revoking probation. Basinger v. State, Tex.Cr.App., 450 S.W.2d 623. The evidence is sufficient to show that appellant violated a condition of his probation in failing to report. See Whiteside v. State, Tex.Cr.App., 468 S.W.2d 831. No abuse of discretion has been shown. The judgment is affirmed.

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Ronnie RICHARDSON, Appellant, v. The STATE of Texas, Appellee. No. 45587. Court of Criminal Appeals of Texas. July 12, 1972. John C. Ertel, San Antonio, for appellant. Ted Butler, Dist. Atty., Fred Rodriguez and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. This is an appeal from a conviction for the offense of burglary with the intent to commit theft. Upon appellant’s plea of guilty before the court, punishment was assessed at four years. Court-appointed counsel has filed a brief wherein he recites that after examination of the record, he finds the appeal to be “wholly frivolous and can find no real grounds for appeal.” Attached to the brief is an acknowledgment of receipt of a copy of the brief by appellant stating that he has examined the same as well as the record in the case and approves of the statements contained in the brief. In accordance with the requirements set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 and Gainous v. State, Tex.Cr.App., 436 S.W.2d 137, appellant’s counsel has set forth two contentions which might arguably support the appeal as follows: (1) The conviction is based in part on unsigned, unauthenticated police reports; (2) The record does not show an intent to commit theft. The record contains appellant’s judicial confession which was in writing, sworn to and introduced into evidence. This, standing alone, is sufficient to support the conviction. Article 1.15, Vernon’s Ann.C.C.P.; Holder v. State, Tex.Cr.App., 469 S.W.2d 184; Soto v. State, Tex.Cr.App., 456 S.W.2d 389; Waage v. State, Tex.Cr.App., 456 S.W.2d 388. The record reflects that appellant and his counsel, together with the attorney representing the State, stipulated that the exhibits, of which the police reports were a part, could be considered as part of the statement of facts and that such stipulated evidence was true and correct. After a thorough examination of the record before us, we find ourselves in agreement with counsel’s conclusion that this appeal, is frivolous. The judgment is affirmed. Opinion approved by the Court.

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Ex parte James MELVIN. No. 45810. Court of Criminal Appeals of Texas. July 12, 1972. William B. Portis, Jr., Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. This is an appeal from an order entered in a habeas corpus hearing, remanding appellant to custody for extradition to the State of Alabama. The State introduced into evidence the Executive Warrant of the Governor of this State. The Warrant recites that the appellant stands charged by information and supporting affidavit before the proper authorities, with the crime of burglary and grand larceny. The Executive Warrant of the Governor of Texas, which appears regular on its face, made out a prima facie case authorizing remand of appellant to custody for extradition. Ex parte Jackson, Tex.Cr.App., 470 S.W.2d 679; Ex parte Rhodes, Tex.Cr.App., 467 S.W.2d 425; Ex parte Slavin, Tex.Cr.App., 461 S.W.2d 421. Appellant contends that he entered a plea of guilty to burglary and grand larceny in Alabama, and that the conviction was void “of the necessary procedures in accepting a plea of guilty.” The validity of a conviction in the State of Alabama is a question for the courts sitting in Alabama. Ex parte McCarthy, Tex.Cr.App., 472 S.W.2d 759; Ex parte Venable, Tex.Cr.App., 456 S.W.2d 86; Ex parte Knoll, 170 Tex.Cr.R. 174, 339 S.W.2d 678. No error has been shown. The order remanding appellant to custody for extradition is affirmed. No motion for rehearing will be filed by the clerk, except by leave of the court. Opinion approved by the Court. . The document attached to appellant’s brief was not introduced into evidence and is not before us for review.

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Ex parte Eugene WADDLE, Appellant, v. The STATE of Texas, Appellee. No. 45697. Court of Criminal Appeals of Texas. July 12, 1972. W. C. Shead, Houston, for appellant. Carol S. Vance, Dist. Atty., and James C. Brough, Asst. Dist. Atty., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. This is an appeal from an order denying bail pending trial. The petitioner was charged with the offense of rape. The petitioner made application to the trial court for writ of habeas corpus alleging that he was under indictment in six causes; three for robbery by assault and three for rape. The trial court conducted a hearing on the application for writ of habeas corpus and granted bail in one of the six causes in the amount of $25,000. On the same day, the trial court denied bail in this cause which resulted in this appeal. However, while the appeal from that order denying bail was pending, the petitioner entered a plea of nolo contendere to the charge. Punishment was assessed at thirty (30) years in the Texas Department of Corrections. Since the appellant has already been convicted of the offense for which bail was denied, the issue before this Court is moot. We, therefore, decline to answer appellant’s other contentions. However, we do not condone the delay in preparing and transmitting this record to this Court. The appeal is dismissed. . Although this is not an appeal from an order denying post conviction bail, we note that the Legislature has specifically provided that one who has been assessed a penalty in excess of fifteen years is not entitled to bail pending appeal. Article 44.04, Yernon’s Ann.C.C.P., Ex parte Nielssen, Tex.Cr.App., 446 S.W.2d 882.

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David Lee SANDERS and Carey Allen Hill, Appellants, v. The STATE of Texas, Appellee. No. 44948. Court of Criminal Appeals of Texas. May 24, 1972. Rehearing Denied June 28, 1972. Emmett Colvin, Jr., Dallas, for appellants. J. Taylor Brite, Dist. Atty., Jourdanton, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The convictions were for the unlawful possession of marihuana; the punishment for each appellant, five years imprisonment. The appellants’ first ground of error is that “The trial court erred in denying appellants’ motions to suppress the fruits of the search and in admitting such fruits and evidence relating thereto, over objection, in violation of the appellants’ rights under the Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States.” An informant in Nuevo Laredo, Mexico, contacted Leonard Williams, a special agent employed by the United States Customs Service, on the morning of July 14, 1970. The informant had previously on numerous occasions furnished to Customs Service officers reliable information resulting in the prosecution of twelve or fifteen cases. The information received by Williams was that two young men from the Dallas area who had been there before were again in Nuevo Laredo and had contacted La Changa, a marihuana dealer. They were said to be negotiating with La Changa for a quantity of marihuana. Williams received word from the informant again at 11:30 p. m. and at 4:30 a. m. the following morning. The young men had been in Nuevo Laredo in June and had been driving a 1968 model beige Chevrolet automobile with Texas license plates KPV-885. Investigation at that time showed that automobile to be registered in the name of a person residing in Plano, Texas. The informant believed the young men to be driving an automobile of the same description. The informant said that the marihuana had already been smuggled into the United States and that the appellants were to accept its delivery near Co-tulla, 65 miles from Laredo. Williams alerted customs personnel at the International Bridge at Laredo to be watchful for these young men. He then contacted Pugh, the Deputy Assistant Director of Customs in San Antonio. He also called agents Reyher and Valverde, asking them to meet him at a restaurant. They met at approximately 5:15 a. m. Williams informed them concerning the investigation. Reyher and Valverde proceeded in separate vehicles to Cotulla. There they commenced a surveillance, being especially observant of the road from Cotulla to Jourdanton as this was the route the informer said would be followed by the suspects. After ascertaining that he had not had any further calls at his home, Williams also started to drive to Cotulla. En route, he received a radio message from Inspector Finney, who was at the Laredo bridge. The transmission was poor and Williams could not get the complete message. He continued on toward Cotulla and after contacting the agents who had preceded him to Cotulla, he placed a telephone call to Finney. At about 5:20 a. m. the appellants, driving a cream-colored 1968 Oldsmobile bearing license plates KPR-828, were stopped crossing the International Bridge from Nuevo Laredo to Laredo by Finney and the customs agents and immigration authorities. After they had declared their American citizenship, the appellants stated that they had baggage with them. The border search revealed a small quantity of marihuana sweepings and seeds in baggage claimed by each of the appellants. Marihuana sweepings were also found in Sanders’ shirt pocket and on the automobile floorboards. After this discovery had been made, the appellants completed a form furnished by the customs agents. The appellants agreed to abandon and make no claim to the marihuana found and to its destruction by the customs agents. The appellant Hill gave his residence as Arlington, Texas, and the appellant Sanders gave his residence as Plano, Texas. After the inspection the appellants were permitted to continue on their way. Finney and the other agents decided that the appellants were the young men that Williams had asked them to watch for, even though the car was of a different make and the license plates were not the same but similar to those described by Williams. Finney then tried to transmit a radio message to Williams, but the transmission was not satisfactory and Williams called him later on the telephone. Finney related to Williams what had occurred at the bridge and described the appellants and the automobile. Williams relayed the additional information to agents Reyher and Valverde. Val-verde had seen an automobile matching this description of the appellants’ automobile on Highway 97 east of Cotulla going toward Jourdanton. The three officers then proceeded toward Jourdanton. Williams established contact with Pugh in San Antonio and he dispatched agent Brekke from San Antonio. Williams then made radio contact with Brekke. Upon receiving a description of the appellants and their automobile, Brekke said he had seen it being driven east toward Pleasanton. Brekke drove in that direction. He overtook the appellants as they had reached Pleasanton and had parked in front of a restaurant. The other officers soon arrived and they all maintained a surveillance on the automobile. The appellants shortly thereafter returned to their automobile and as they were seated in the automobile the officers placed them under arrest. Williams told the appellants he wanted to search the automobile and took the keys from the ignition and opened the trunk of the automobile. Three Mexican flour sacks filled with what was shown to be marihuana were found in the trunk. There was a sprig of marihuana on the right front floorboard of the automobile. We do not agree with appellants’ contention that probable cause to search the automobile was lacking. “The existence of probable cause is a factual matter that calls for the determination of a factual question.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) (dissenting opinion). In his first two telephone calls the informant made available the following information: he had just identified two young men from the Dallas area about whom he had given information to customs officials the previous month; they were again in Nuevo Laredo negotiating with La Chan-ga, a known marihuana dealer, for a quantity of marihuana; he believed the two individuals were using the same automobile they had used when they had been in Laredo a month earlier. In the telephone call made at approximately 4:30 a. m. the officers were furnished the additional information that the marihuana had already been smuggled into the United States; the two young men from the Dallas area would be leaving Nuevo Laredo, Mexico, shortly, going to Cotulla, Texas; and that the individuals would pick up the marihuana in Cotulla, and after obtaining the marihuana they would proceed on State Highway 97 toward Jourdanton. Between midnight and 7:00 a. m., only one lane of traffic was kept open across the International Bridge at Laredo. During the night while the officers were watching, only one automobile crossed the border from Nuevo Laredo which resembled the car the informant believed appellants were using. It was one of the same color and year as the one used in June, and it crossed the bridge within an hour of the informant’s call at 4:30 a. m. Although the automobile did not match the exact description given by the informant for the automobile used in June and which he believed was being used again, it bore such a close resemblance that the officers at the bridge in Laredo thought it could have been mistaken for the automobile used in June. The only occupants of the automobile were two young men from the Dallas area. Marihuana stems, seeds and scrapings were discovered on the floor, in the trunk of the automobile, in the occupants’ suitcases and in the pocket of one of the individuals as well. The automobile traveled north on Interstate 35 to Cotulla, then turned on Highway 97 and proceeded on to Jourdanton and Pleasanton. Under the “common-sense teachings” of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Brinegar v. United States, 338 U. S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Spinelli v. United States, supra, and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), we conclude that probable cause for the war-rantless search of the automobile existed. The facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a man of reasonable caution to believe that the automobile contained marihuana. The search of the automobile was not unreasonable. The constitutional rights of the appellants were not violated by the search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See and compare Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971); Mottu v. State, 472 S.W.2d 522 (Tex.Cr.App.1971); Muggley v. State, 473 S.W.2d 470 (Tex.Cr.App.1971); Weeks v. State, 417 S.W.2d 716 (Tex.Cr.App.1967), cert. denied 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494 (1967). Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) and Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970), cited and relied upon by the appellants, appear to support rather than to require a different result than that reached in this case. In the second ground of error it is alleged “that the evidence as to Appellant Hill (being merely a passenger in the automobile) is insufficient to support his conviction . . .” Between the time appellant Hill completed the federal “Report of Personal Search” form in Laredo at 5:30 a. m. and the time the automobile was searched 140 miles away in Pleasanton “shortly after 9:00 a. m.” three “Mexican flour sacks . . . that would usually hold, say, fifty or seventy pounds of flour” that were “fairly full of marihuana” were placed in the trunk of appellants’ automobile. This circumstance would strongly suggest complicity on the part of Hill, one of two occupants of the vehicle, with regard to the presence of the sacks in the trunk of the car when it was searched in Pleasanton. We need not rely solely upon this fact, though, for at the time the automobile was searched the second time, a three-inch “twig or sprig” of marihuana was discovered on the floor of the automobile on the passenger side. The evidence is sufficient to sustain Hill’s conviction. Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972). This ground of error is overruled. By way of a supplemental brief, appellants urge that Article 725b, Vernon’s Ann.P.C., is unconstitutional because it classifies marihuana as a narcotic drug. Reliance is had upon People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971). We are not persuaded. In rejecting this contention we offer the following observation made by Chief Justice Underwood of the Supreme Court of Illinois in his dissenting opinion in McCabe as being more sound than that of the majority. “The majority’s lengthy discussion of the characteristics and effects of marijuana as compared to other prohibited drugs clearly illustrates that no two drugs are identical and that marijuana is also quite different from the stimulant or depressant drugs with which defendant seeks to classify it. The fact that a substantial body of scientific and medical opinion now considers marijuana to be more nearly like [a dangerous drug] does not, in my opinion, necessitate the conclusion that there was no rational basis for the classification in question. Medical and scientific opinion is even now by no means unanimous in condemnation of classifications of marijuana with ‘hard drugs’ ... In the absence of more nearly conclusive evidence that the legislative judgment was devoid of any rational basis, a finding of unconstitutionality is unwarranted, for few rules of law are more soundly bottomed than that which proscribes judicial interference with legislative discretion.” 275 N.E.2d at 415. (Emphasis added). Appellants’ third ground of error is overruled. Durham v. State, 466 S.W.2d 758 (Tex.Cr.App.1971); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968). The judgments are affirmed. Opinion approved by the Court.

sw2d_482/html/0652-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Emma Schneider LAURIE et al., Appellants, v. George STABEL, Individually and as Independent Executor of the Estate of Edward Schneider, Deceased and the Estate of Mary Schneider, Deceased, Appellee. No. 8284. Court of Civil Appeals of Texas, Amarillo. June 26, 1972. Gene E. Steed, Perryton, for appellants. Gibson, Ochsner, Adkins, Harlan & Hankins, Sterling E. Kinney, Amarillo, for appellee. REYNOLDS, Justice. This appeal, lodged from a take nothing order following a hearing on the issue of removal of the independent executor involved in the litigation, is dismissed because the order appealed from is not a final judgment but is an interlocutory order from which no appeal is authorized. Emma Schneider Laurie and twenty-two other persons, alleging themselves to be interested in the estates of Edward Schneider and Mary Schneider, both deceased, as heirs and beneficiaries named in the wills of the decedents, instituted this suit in the district court against George Stabel, individually and as independent executor of the two estates. This suit sought the removal of Stabel as independent executor under V.A.T.S. Probate Code § 222 because of certain alleged acts of misconduct and mismanagement; a temporary injunction restraining Stabel from exercising any further authority as independent executor; the appointment of a temporary receiver; the setting of bond in an amount proper to secure the estate property in the event Sta-bel is not removed; a full accounting; and a money judgment against Stabel. At the same time, a lis pendens notice was filed of record. Stabel answered by a general denial, a plea to the jurisdiction of the district court over any cause of action alleged and by special denials. With leave of court obtained, Stabel filed a cross-action against four other persons as third-party defendants for conversion of estate property and recovery of any judgment that may be rendered against him in connection therewith. The third-party defendants answered by a general denial. Thereafter, Emma Schneider Laurie and eleven of the original twenty-three plaintiffs filed an amended original petition seeking substantially the same relief prayed for in the original petition, except that the executor’s removal was sought under both V.A.T.S. Probate Code § 222 “and under the law,” the plea for a temporary receiver was expanded to first request the appointment of an administrator with will annexed, and the temporary injunction was abandoned. The nine other original plaintiffs applied for and were granted an order dismissing them from the suit as plaintiffs without prejudice. In this state of the record, plaintiffs asked for a hearing before the court, and it was agreed and stipulated by and between counsel for plaintiffs and defendant with the court that the issue before the court was limited to whether or not there were sufficient legal grounds for the removal of the independent executor. It was further agreed and stipulated that no other issue was to be determined, and particularly not the issue of the money judgment sought, since a jury trial thereon might be requested. Neither the third-party defendants nor their counsel appeared at the hearing under the agreement that only the issue of removal would be heard. Following the hearing at which evidence bearing on plaintiffs’ contentions for removal of the independent executor was presented, the court entered a take nothing order against plaintiffs. No order of severance was requested or entered. At plaintiffs’ request, the trial court made and filed findings of fact, one of which was that the removal was sought under V.A.T. S. Probate Code § 222 for alleged acts of mismanagement or misconduct, and the one conclusion of law that the district court did not have jurisdiction to remove the independent executor on the grounds alleged. Plaintiffs filed objections to the findings of fact and conclusion of law, and a request for additional findings and conclusions was denied, to which plaintiffs objected by bills of exception ordered filed as a part of the record by the court. Between the time the appeal was perfected in the trial court and the date the record was filed in this court, the record was prepared to reflect that plaintiffs applied to the probate court • for an order to require Stabel to give bond, and in response thereto, Stabel posted a $50,000.00 surety bond. Stabel assigned sold and conveyed an undivided fifty per cent of all his interest in the two estates to his attorney. Plaintiffs then filed an instrument designed as a supplemental petition against Stabel, his attorney and the surety on Sta-bel’s bond to set aside the conveyance to the attorney, to recover under the bond for Stabel’s defaults and for additional damages. These plaintiffs, as appellants in this court, have presented seventeen assertions of error on the part of the trial court in entering the take nothing order, which appellants view as a denial of all their pleaded grounds for relief. Defendant Stabel, as appellee, has replied after first filing his motion to dismiss this appeal on the ground that the order from which the appeal is attempted is not a final judgment or an interlocutory order from which an appeal is allowed. The motion to dismiss was carried forward to the submission of the case. An appellate court has jurisdiction of an appeal only from an interlocutory order authorized to be appealed or from a final judgment. Davis v. McCray Refrigerator Sales Corporation, 136 Tex. 296, 150 S.W.2d 377 (1941). In giving consideration to the nature, form and effect of the court’s pronouncement that aggrieves the appealing party, the pleadings and the evidence also must be taken into account. Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945 (1960). The hearing resulting in the take nothing order entered on the issue regarding the removal of the independent executor apparently was conducted under Rule 174, Texas Rules of Civil Procedure, which permits a separate trial of a separate issue. The separate trial contemplated by the rule results in an interlocutory order, Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11 (1961), and the order entered here is not embraced within the categories of those interlocutory orders from which an appeal is authorized. Neither is the order complained of a final judgment. A judgment constituting the finality requisite to an appeal must dispose of all parties and of all issues in the suit, Davis v. McCray Refrigerator Sales Corporation, supra, terminating the litigation of the parties on the merits of the case so that nothing remains to be done except to execute the judgment. Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944). It is obvious from the factual recitation that the take nothing order entered upon the one stipulated issue between the appellants and ap-pellee in the absence of the other parties who were then and now are parties to the suit is not a final judgment! It neither disposed of all the parties nor disposed of all the issues in the suit. Unsevered from the issue tried by stipulation and still un-disposed and now pending in this suit before the district court are issues between the parties which the district court has the jurisdiction and power to determine, among which are included, but not to the exclusion of other issues, the questions of appellants’ entitlement to (1) appointment of a receiver, Vernon’s Ann. Civ.St. art. 2293; Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980 (1933); O’Connor v. O’Connor, 320 S.W.2d 384 (Tex.Civ.App.—Dallas 1959, writ dism’d w.o.j.); Metting v. Metting, 431 S.W.2d 906 (Tex.Civ.App.—San Antonio 1968, no writ); (2) an accounting from appellee, V.A.T.S. Probate Code § 149A; O’Connor v. O’Connor, supra; Carter v. Brady, 423 S.W.2d 946 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.); and (3) a claim against appellee under the circumstances of mismanagement alleged, Griggs v. Brewster, supra, Carter v. Brady, supra; and the determination of appellee’s right to recover from the third-party defendants the property alleged to be a part of the estate. Adams v. Bankers’ Life Co., 36 S.W.2d 182 (Tex.Com.App.1931, holding approved). Long established in Texas has been the rule that the district court, by virtue of its general powers, can, in the proper case, call the independent executor to account, Jerrard v. McKenzie, 61 Tex. 40 (1884), and, considering the pleadings and the evidence, it is apparent that neither these parties nor the court treated the hearing, and the resulting order, as a final adjudication of all the merits between all the parties. It follows that the order entered by the trial court is not a final judgment, but it is an interlocutory order from which no appeal is authorized. In the absence of a severance, appellants will have the right to complain of the interlocutory order by appeal when but not before it is merged in a final judgment disposing of all the parties and all the issues in this suit. Appellee’s motion to dismiss is granted. The appeal is dismissed. ELLIS, C. J., not sitting. . For interlocutory orders authorized to be appealed, see Vernon’s Ann.Oiv.St. arts. 2008 (plea of privilege) ; 2250 (appointing a receiver or trustee ; overruling a motion to vacate an order appointing a receiver or trustee) ; and 2251 (granting or dissolving temporary injunctions) ; and 4662 (granting, refusing, dissolving, or refusing to dissolve temporary injunction). See art. 1738a (injunction direct appeal to Supreme Court). . Vernon’s Ann.Oiv.St. art. 2249. . See also O’Connor v. O’Connor, 337 S.W.2d 829 (Tex.Civ.App.—Texarkana 1960, no writ); O’Connor v. O’Connor (5th Cir. 1963), 315 F.2d 420.

sw2d_482/html/0655-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Sarah LATHAM, et vir, et al., Appellants, v. MOUNTAIN STATES MUTUAL CASUALTY COMPANY, Appellee. No. 15892. Court of Civil Appeals of Texas, Houston (1st Dist.). March 30, 1972. Rehearing Denied July 13, 1972. Green & Richardson, Texas City, John D. Richardson, Texas City, of counsel, for appellants. James R. Roos, Houston, Painter & Painter, Houston, of counsel, for appellee. COLEMAN, Justice. This is an appeal from a summary judgment granted in a suit for damages brought under the uninsured motorist provisions of an insurance policy. The decisive question on this appeal concerns the proper interpretation of the “hit-and-run automobile” coverage included in the uninsured motorist provisions of the policy. The plaintiffs in the trial court, Sarah Latham and Nora Carter, alleged that while their car was stopped in a line of traffic in obedience to the command of a police officer, a car immediately behind them was struck from the rear by a pick-up truck and propelled into their automobile. As a result of this collision they suffered personal injuries. The pick-up truck left the scene of the accident, and neither the driver nor the owner of the truck can be identified. They allege that the pick-up truck was a hit-and-run vehicle which negligently caused bodily injury to the plaintiffs; that such injuries arose out of physical contact (at least indirectly) of such pick-up truck with plaintiffs’ vehicle; and that they are covered by Latham’s automobile insurance policy. Part IV of this policy, designated “Family Protection Coverage,” provides that the company will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. It provides that the term “uninsured automobile” means a “hit and run automobile.” The paragraph of particular concern reads: “ ‘hit and run automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is oc-cuping at the time of the accident provided (a) there cannot be ascertained the identity of either the operator or the owner of such hit and run automobile; (b) the insured or someone on his behalf shall have reported an accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable and setting forth the facts in support thereof; and (c) at the company’s request the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.” The insurance company plead the quoted provisions of the policy and that the plaintiffs’ failure to comply therewith was a bar to plaintiffs’ recovery. By an amended petition the plaintiffs admitted their failure to file with the company the required statement under oath, and alleged that it had been waived by the company and that the company was estopped to assert such failure as a defense to the suit. Appellee made no attempt to negative waiver and estoppel by summary judgment evidence. It is contended that the plaintiffs’ petition establishes that there was no physical contact between the car occupied by the plaintiffs and the one alleged to be a hit-and-run car, and that the requirement of a sworn statement is a part of the definition of “hit-and-run automobile,” which cannot be waived by the company, and which the company cannot be estopped to assert in defense of the suit. The question of what constitutes “physical contact” of one automobile with another appears to be one of first impression in this state. The cases from other states in which the exact question has been presented hold that indirect contact satisfies the policy requirement. Where a car A strikes car B and propels it into car C, there is physical contact between Car A and Car C within the meaning of such a provision. We agree with this interpretation. Johnson v. State Farm Mutual Automobile Ins. Co., 70 Wash.2d 587, 424 P.2d 648 (1967); State Farm Mutual Auto. Ins. Co. v. Spinola, 374 F.2d 873 (Ct. of Appeals, 5th Cir. 1967); M. V. A. I. Corp. v. Eisenberg, 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524 (1966); Inter-Insurance Exchange of Automobile Club v. Lopez, 238 Cal.App.2d 441, 47 Cal.Rptr. 834 (1965); Page v. Insurance Company of North America, 256 Cal.App.2d 374, 64 Cal.Rptr. 89 (C.A., 2d Dist., 1967); Anno. 25 A.L.R. 3d 1299. Although included within the paragraph giving the meaning of the term “hit- and-run automobile,” the language of (b) and (c) is not that of a definition. These requirements are conditions precedent to the liability of the company. The effect of the language following the word “provided” in this paragraph “is to limit the scope of the language to which it relates and except something therefrom which, but for such proviso, would be included therein.” New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945); Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953). As a general rule the failure of the insured to comply with the conditions of a policy requiring notice will relieve the company of liability. However such policy provisions are for the benefit of the insurance company and may be waived by it. Walters v. Century Lloyds Insurance Co., 154 Tex. 30, 273 S.W.2d 66 (1954); Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233 (1957); United States Fidelity & Guaranty Co. v. Bimco Iron & Metal Corporation, 464 S.W.2d 353 (Tex.1971). By requirement (b) of Part IV the insured must file a sworn statement with the company stating that he has a cause of action for damages arising from an accident, which had been previously reported to the police, against an unknown person and “setting forth the facts in support thereof.” Condition 3 of the policy requires the insured, “in the event of an accident, occurrence or loss,” to give the company written notice of same including the time, place, and circumstances thereof, “as soon as practicable.” Condition 9 requires the insured to furnish to the company as soon as practicable written proof of claim including the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable. Condition 6 contains a provision that no action shall lie against the company under Part IV unless, as a condition precedent thereto, there shall have been full compliance with all the terms of the policy. Conditions 3 and 9 require notice of the occurrence on which a claim against the company might be based, and a formal proof of loss. The effect of Requirement (b) of Part IV, in view of the fact that the policy covers loss due to physical injury which the insured is legally entitled to recover as damages from the owner or operator of a hit-and-run automobile, is to require the insured to give the company notice of his claim for damages within 31 days after the accident. Condition 6 makes compliance with this notice provision a condition precedent to the right of the insured to institute suit against the company on such a claim. Art. 5546, Vernon’s Ann.Civ.St, provides : “(a) No stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable. Any such stipulation fixing the time within which such notice shall be given at a less period than ninety (90) days shall be void, . . .” In Citizens’ Guaranty State Bank of Hutchins v. National Surety Co., 258 S.W. 468 (Tex.Com.App.1924), the court said: “The company contends that the bond in this case requires, as a condition precedent to suit, merely a notice ‘of any loss in respect of which liability of the company is claimed,’ and that this is less than notice of a ‘claim,’ or cause of action, for damages. It may be; but if the force of the statute is to be avoided by requiring notice, not of the cause of action itself, but of necessary and component parts of the cause of action, its purpose can be too readily defeated. For instance, instead of using in a provision the exact words of the law, ‘notice * * * of * * * claim for damages,’ a surety company, assuming contractual liabilities and duties, might reach exactly the same result by stipulating either for ‘notice of defalcation’ on the one hand, or for ‘notice of damage’ on the other. Neither element would constitute the entire cause of action, but requiring notice of either would be as effective a limitation as requiring notice of the whole cause of action. The spirit of the statute is a liberal public policy, and excludes an evasion of that nature, however unconscious on the part of the company, and regardless of questions of expediency in a particular line of business. It does not permit a tendency to relaxation, but demands strict obedience.” The statement required by Part IV (b) amounts to a requirement that the insured give notice to the company that he asserts a cause of action against the company. The information which the insured must include in the statement relates solely to the facts necessary to establish the liability of the company under the policy. The fact that the notice required is contained in the part of the policy defining “hit-and-run automobile” is of no special significance. It is a stipulation in a contract requiring notice to be given of a claim for damages as a condition precedent to the right to sue thereon fixing the time for such notice at a less period than ninety (90) days. This stipulation is void. Francis v. International Travelers’ Ass’n, 260 S.W. 938 (Tex.Civ.App.), affirmed International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282 (1930); American Surety Co. of New York v. Blaine, 115 Tex. 147, 277 S.W. 619 (1925); Austin v. Aetna Casualty & Surety Co., 300 S.W. 638 (Tex.Com.App.1927); Western Indemnity Co. v. Free and Accepted Masons of Texas, 268 S.W. 728 (Tex.Com.App.1925); Bankers’ Reserve Life Co. v. Springer, 81 S.W.2d 756 (Tex.Civ.App.—El Paso 1935, writ ref.). The summary judgment cannot be sustained on the ground that pleadings of appellants are insufficient in that the part of the pleadings of appellants relating to the pick-up truck were stricken as a result of the action of the court in sustaining ap-pellee’s special exception. Appellants present a point of error complaining of this action. The point is sustained. The special exception was a “speaking demurrer” supported by an affidavit. It did not point out with particularity the defect, or other insufficiency in the plaintiffs’ petition as required by Rule 91, Texas Rules of Civil Procedure, but attacked the pleading for the reason that there could be no cause of action under the “hit-and-run” provisions of the policy because of the failure to file the notice affidavit required by Part IV (b). The facts alleged in the exception required proof. This point was properly raised by the Motion for Summary Judgment, but not by the exception. Friedman v. Cohen, 404 S.W.2d 372 (Tex.App.—Houston, 1st Dist, 1966); Harold v. Houston Yacht Club, 380 S.W.2d 184 (Tex.Civ.App.—Houston, 1st Dist., 1964). Appellee failed to show that it was entitled to judgment as a matter of law. The summary judgment was improperly granted. Reversed and remanded.

sw2d_482/html/0659-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

YELLOW FREIGHT SYSTEM, INC., Appellant, v. HYDRAULIC-PRODUCTS CO., Inc., Appellee. No. 8279. Court of Civil Appeals of Texas, Amarillo. May 30, 1972. Rehearing Denied June 19, 1972. Griffith, Brister & Benson, Daniel H. Benson, Lubbock, for appellant. W. Hugh Harrell, Lubbock, for appel-lee. REYNOLDS, Justice. Appellant Yellow Freight System, Inc., has contested the allowance of attorney’s fees in connection with a judgment rendered for appellee Hydraulic Products Co., Inc., for repair of freight damaged in interstate commerce. Affirmed. Appellee is a Texas corporation based in Lubbock and engaged in the manufacture of hydraulic pumps and related products. Previous to the transaction resulting in this litigation, appellee had sold and shipped merchandise to one Jimmy Rowan in Clovis, New Mexico. Rowan paid the freight charge upon delivery. Each shipment was billed to Rowan by an invoice providing, inter alia: “Hydraulic Products Co., Inc., assumes no responsibility for loss or damage in transit. When merchandise is receipted for by transportation company it automatically becomes property of purchaser. Inspect this shipment on arrival against possibility of loss or damage. If loss or damage exists, file claim with delivering carrier.” In September, 1970, appellee sold three hydraulic pumps to Rowan, issued its invoice containing the above quoted printed language, and consigned the shipment to appellant, a common carrier, for delivery, receiving appellant’s bill of lading. The bill of lading was not introduced in evidence. The record is silent as to the disposition of the bill of lading; i. e., whether it was retained by appellee or transferred to Rowan. During shipment, one of the pumps was damaged and Rowan refused to accept delivery of that pump. Appellant requested Rowan, the consignee, to file a claim for damages, but Rowan did not do so. Appellant returned the pump to its Lubbock terminal, and the terminal manager contacted appellee’s office about repairing the pump. There were several other places of business in Lubbock that repaired pumps. Upon being advised the pump would have to be inspected for a repair estimate, the terminal manager caused the pump to be delivered to appellee’s place of business. The pump was inspected and appellee’s plant manager informed appellant’s terminal manager that the cost of repairs would be $308.73, and perhaps quoted the price for a new pump. After consideration by appellant’s officers, its terminal manager requested appellee to repair the pump at the price stated. When appel-lee repaired the pump, it was delivered to appellant and transported to Clovis where Rowan accepted delivery. Appellee’s statement in the sum of $308.-73 for the repairs was submitted to appellant’s terminal manager on the 19th or 20th day of October, 1970. Appellant sent the repair invoice to its Clovis office with the request that it be presented to Rowan and that he file a claim for the damaged merchandise since, as appellant’s terminal manager testified, “it’s always customary for the consignee to file the claim.” Approximately a month later, the repair invoice was returned to the Lubbock terminal manager for payment. He telephoned the Clovis office and was told that it “was supposed” that Rowan had filed a claim. Another month passed without the payment having been made and appellee’s plant manager contacted appellant’s terminal manager about the unpaid account. Appellant took the position that the invoice could not be paid in the absence of a claim for the damaged shipment, contacted Rowan by telephone in an unsuccessful attempt to induce him to file a claim, and then requested appellee to file the claim, sending one of appellant’s employees to appellee’s office to assist in preparing the claim. The claim was filed on or about January 29, 1971. This claim was not introduced in evidence and the form of it was not described. In the interim, appellant had requested appellee to deliver the damaged pump motor to it for salvage, but it developed that the damaged motor had been repaired and there was no salvage available to appellant. The account had not been paid on March 6, 1971, when appellee’s attorney made a written demand for payment to be made no later than March 12, 1971. No payment was made and appellant filed this suit on March IS, 1971, in the form of an open account for the labor done and materials furnished in making the repairs, and alleged entitlement to and prayed for reasonable attorney’s fees by authority of Vernon’s Ann.Civ.St. art. 2226. Appellant answered, admitted liability to the extent of $308.73 only under the Interstate Commerce Act, and tendered that sum into the registry of the court. Subsequent pleadings solidified appellee’s contention that the controversy arose over and was based on an open account for labor done and materials furnished for which reasonable attorney’s fees were recoverable, and appellant’s position that the controversy arose over merchandise damaged in interstate commerce for which appellant’s liability was limited to the cost of repairs. Stipulations were filed, including the amounts for reasonable attorney’s fees at various levels of the proceedings, and evidence was heard by the court sitting without a jury. At the conclusion of the hearing, the trial court entered judgment on December 29, 1971, in favor of appellee for the sum of $779.40 — presumably including the $308.73, interest thereon to date of judgment and the stipulated reasonable sum of $450.00 as attorney’s fees in the trial court — bearing interest at the rate of 6% per annum from date of the judgment until paid, and providing for additional stipulated amounts for attorney’s fees through the various stages of appeal that may be taken, up to and including the United States Supreme Court. The trial court made and filed findings of fact and conclusions of law in support of its judgment. The sole issue presented and to be determined on this appeal is whether, under the facts, appellee is entitled to attorney’s fees. Appellant has presented five points of error contending that the award of attorney’s fees was erroneous, and appellee has answered with two counterpoints asserting that the award was correct. In its points of error numbered three and four, appellant submits that there was no evidence and factually insufficient evidence, respectively, to support the trial court’s finding of fact no. 2 that “the agreement to repair was made and the repairs completed at a time when (appellee) had not and was not asserting any claim against (appellant) for damages to freight.” This finding is supported by the undisputed evidence which, as set forth above, reveals that, pursuant to the agreement to repair, the repairs were completed on October 19, 1970, and no claim for freight damage was made until January 29, 1971, when, at appellant’s insistence and on the representation that a claim was a prerequisite to payment of the repair invoice, a claim was filed. This record does not contain even a suggestion that appellee had made or intended to present a claim for damage caused to the pump by appellant until appellant insisted that such a claim was necessary before the cost of repairs could be paid. Points numbered three and four are overruled. The most equivocal question is presented by appellant’s points of error numbered one and two. They advance the proposition that the agreement to repair was only collateral to and so intimately connected with the damage incurred in the interstate shipment that the Interstate Commerce Act precludes the recovery of attorney’s fees. Both parties are agreed that if this controversy in fact is an action for damages for injury to freight in interstate commerce, the Interstate Commerce Act’s measure of damages as being “the full actual loss, damage, or injury to such property” does not include the allowance for attorney’s fees, 13 C.J.S. Carriers § 265b, and since Congress has legislated that measure of damages, Texas cannot extend the carrier’s liability for losses to include attorney’s fees otherwise authorized by V.A.C.S. art. 2226. Thompson v. H. Rouw Co., 237 S.W.2d 662 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.). However, appellee insists its action is not one for damage to interstate commerce freight, but rather that it is one for labor done and materials furnished under an independent contract giving rise to liability for reasonable attorney’s fees under the circumstances contemplated by V.A.C.S. art. 2226. We agree with appellee’s contention that the facts of this case do not bring it within the federal statute. In legal contemplation this is an independent contract to recover the agreed reasonable value of labor done and materials furnished. By the terms of the sale between appellee and Rowan, title to the pump in question passed to Rowan when appellee received appellant’s bill of lading upon consignment, and Rowan was to look to appellant for any loss due to shipment damage. Appellant now claims that it was liable only to appellee, the lawful holder of its bill of lading; however, not only does the record fail to disclose who the lawful holder thereof was at the material time, but appellant’s testimony was that at the time Rowan was the proper party to file the claim for the damaged pump. Generally, the owner of the merchandise — in this instance, Rowan — is the one entitled to maintain an action against the common carrier for loss of, or injury to, the property, 13 C.J.S. Carriers § 249a, and even if the form of the bill of lading were otherwise, the seller’s — in this instance, appellee’s— property in the goods shall be deemed only for the purpose of securing performance by the buyer-consignee under the contract. 46 Am.Jur., Sales, § 455. The “full actual loss, damage, or injury to property” measure of damage provided by the federal statute may be determined by the reasonable cost of repair to the pump or the difference in its value immediately before and immediately after the damage occurred. Southwestern Motor Transport Co., Inc. v. Valley Weathermakers, Inc., 427 S.W.2d 597, 37 A.L.R.2d 1114 (Tex.Sup.1968). Appellant, therefore, was not bound to repair the pump, but could have discharged its liability to Rowan — and its only liability — by paying him whichever measure of damage that was the most economical. Having elected to have the pump repaired, appellant could have had the work done at any number of places, but chose instead to have appellee make the repairs at the agreed price of $308.73. It was stipulated that appellant’s terminal manager had the authority to bind appellant to the contract made with appel-lee for the repair of the pump at the agreed cost of $308.73. It cannot be doubted that had appellant elected to have some other shop make the repairs, that third party would have been entitled, under these facts, to the recovery allowed appellee by the trial court. Appellant relies primarily on Southwestern Motor Transport Co., Inc. v. Valley Weathermakers, Inc., supra, to sustain its contention that attorney’s fees are not recoverable by appellee. In that case, although the plaintiff asserted a special oral contract for repair, the Supreme Court denominated the action to be one of recovery for damages to merchandise in interstate commerce based upon the Interstate Commerce Act, under which attorney’s fees could not be recovered. Analytically, that case is distinguishable and not determinative of the issue presented by the Facts in the case at bar. There, legal title remained in the shipper; here, title passed to the consignee when appellant receipted for the pump. There, to comply with its contract with the consignee, the shipper was required to repair or replace the damaged merchandise; here, the contract was complied with when the pump was entrusted to appellant for delivery. There, the damaged property was returned to the shipper as the owner; here, the damaged property was owned by Rowan and was returned to appellee for repair under the agreement made. In Southwestern, the shipper and carrier proceeded to negotiate a settlement of the amount of damages; in this case, there was only an agreement to repair at an agreed price. There, no other repair shop capable of making the necessary repairs was located within 400 miles of the shipper’s location; here, several repair shops equipped to make the required repairs were located in the same city. There, no agreement was reached in the negotiations on the specific items of damage; here, a definite agreement to repair at a cost of $308.73 was concluded. There, in assessing the charges made, the shipper completed a claim in the form generally used in connection with losses covered by a uniform bill of lading; here, the charge was shown on a repair invoice, and the form of the claim required by appellant is not shown. In Southwestern, the claim included charges for items disputed as proper in a loss and damage claim and found by the Supreme Court not to be items covered by the federal law; in the case here, no dispute existed as to the agreed cost of repairs. There, no evidence of the authority of the carrier’s agent to enter into an independent contract for repairs was produced; here, the authority of the carrier’s terminal manager to conclude the contract was stipulated. There, the negotiations were so intimately connected with the interstate transaction as to be a part thereof in attempting to settle a federally imposed liability; here, since appellee was not the owner of the damaged pump so as to be entitled to claim damages for the injury thereto, the transaction was not so intimately connected with the interstate transaction as to be a part thereof, but was in the nature of the appellant dealing with a stranger to the shipment. Appellant’s points of error numbered one and two are overruled. Thus, this being an independent contract for the agreed reasonable value of labor done and materials furnished, and there being no issue as to the procedural steps taken, appellee is entitled to recover attorney’s fees under V.A.C.S. art. 2226, unless it can be said, as appellant does in its point of error number five, that appel-lee’s cause of action is upon a special contract not within the provisions of V.A.C.S. art. 2226. We have carefully considered the special contract authorities cited by appellant, but it is sufficient to state, without extending this opinion by distinguishing comments, that those authorities concerned contracts to furnish a product or a general service and are not dispositive of the issue presented here. In this- case, the contract was not for a product or a general service, but was one for labor done and materials furnished. In this situation, it is established that attorney’s fees are recoverable. V.A.C.S. art. 2226; Tacker v. Phillips, 473 S.W.2d 1 (Tex.Sup.1971); George Linskie Company, Inc. v. Miller-Picking Corporation, 463 S.W.2d 170 (Tex.Sup.1971). Appellant’s point of error number five is overruled. The judgment of the trial court is affirmed. ON MOTION FOR REHEARING Appellant asserts, in its motion for rehearing, that the statements in the opinion that the bill of lading was not introduced in evidence, and that the record fails to disclose who the lawful holder of the bill of lading was at the material times, are contrary to the record which shows both the initial and subsequent bills of lading were introduced in evidence as appellant’s exhibits, and reflected appellee to be the lawful holder thereof. The opinion statements were drafted in the context of recitals about, and perhaps should have included specific denomination of, the shipper’s copy of the initial bill of lading held by appellee when the merchandise was first delivered to appellant for shipment. This bill of lading was not introduced in evidence. The bills of lading submitted by appellant were its carbon copies and revealed appellee to be the shipper but these bills, of course, would not and could not reveal whether appellee retained, or endorsed to Rowan, its shipper’s copy of the bill of lading so as to establish the lawful holder at the times relevant. The motion for rehearing has been considered with care, but it does not actuate us to change our original holding that the cause of action is one for recovery on a contract for repairs independent of and not controlled by the preemptive provisions of the Interstate Commerce Act applied to a claim for damage to interstate commerce freight. Appellant’s motion for rehearing is overruled. . “Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, over charges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount ns attorney’s fees. * * As amended, eff. May 17, 1971. . 49 U.S.C.A. 20(11), which provides, in part, that: “Any common carrier * * * receiving property for transportation from a point in one State ⅜ * * to a point in another State * * * shall issue a receipt or bill of lading therefor, and ⅜ ⅝ ⅜ shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, ⅜ * ⅜ for fuii actual loss, damage, or injury to such property caused by it . No complaint is made to the method of allowing attorney's fees; however, as to the proper assessment of attorney’s fees conditioned upon appeal, attention is directed to International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.Sup.1971).

sw2d_482/html/0665-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Ronald Edward RODGERS, Appellant, v. Lauretta WILLIAMSON and William F. Williamson, Appellees. No. 17889. Court of Civil Appeals of Texas, Dallas. May 18, 1972. Rehearing Denied June 15, 1972. Michael A. Robertson, Grand Prairie, for appellant. R. Lewis Nicholson, Dallas, for appel-lees. CLAUDE WILLIAMS, Justice. The principal question presented by this appeal is the validity of appellant’s collateral attack upon a judgment of adoption rendered by an Illinois court. The Juvenile Court of Dallas County gave full faith and credit to the Illinois decree and denied appellant’s prayer for relief. We affirm. In 1965 Ronald Edward Rodgers and his then wife Lauretta Rodgers were divorced in the 99th District Court of Lubbock County, Texas. The decree of divorce awarded custody of the only minor child of the parties, Randall Scott Rodgers, age two years at that time, to his natural mother. Thereafter Lauretta Rodgers married William F. Williamson and the family moved to Chicago, Illinois. In 1969 William F. Williamson and his wife Lauretta filed a petition in the Circuit Court of Cook County, Illinois to adopt Randall Scott Rodgers, then age six. Appellant Rodgers received notice of the petition and went to Chicago and employed an attorney of his own choice to represent him at the hearing. After conferring with appellees and with his own counsel, appellant Rodgers entered into a written stipulation in which he gave his consent to the adoption of the child by Mr. and Mrs. Williamson. The stipulation also provided that Rodgers should have the right of visitation with the minor at specified times. Thereafter the Illinois court entered the decree of adoption in which the court recited that it had jurisdiction of the parties and subject matter and that the father had consented to the adoption in accordance with the Illinois law. The stipulation signed by the father was attached to the decree and made a part thereof. The material part of the decree was as follows: “IT IS THEREFORE ORDERED, ADJUDGED and DECREED, that from this date, RANDALL SCOTT RODGERS, a minor, shall be to all legal intents and purposes, the child of the Pe-tioners, WILLIAM F. WILLIAMSON and LAURETTA WILLIAMSON, his wife; and for the purposes of inheritance and all other legal incidents and consequences, shall be the same as if he had been born to the petitioners in lawful wedlock. “IT IS FURTHER ORDERED that the name of the said minor shall be changed to RANDALL SCOTT WILLIAMSON.” Following the entry of this decree in the Illinois court on August 7, 1969, and until April 15, 1971, the stipulation with reference to visitation rights on the part of appellant was carried out. On April 15, 1971 appellant Rodgers filed his original action in the Juvenile Court of Dallas County, Texas in which he recited the Illinois decree of adoption and requested the Juvenile Court of Dallas County to alter and modify the visitation dates which had been previously agreed to and incorporated in the Illinois decree. In this petition appellant recited that conditions had changed since the Illinois order and that he and appellees, with the boy, now live in close proximity to each other in Texas. Appellees filed a plea in abatement, answer and cross-action in which they took the position that since the original divorce was granted by the 99th District Court of Lubbock County, Texas, and that by virtue of Article 4639a, Vernon’s Tex.Rev.Civ. Stat.Ann., the exclusive jurisdiction to alter visitation privileges was vested in the District Court of Lubbock County, Texas, or alternatively, with the Circuit Court of Cook County, Illinois, the court that rendered the decree of adoption. Appellees also alleged that the Illinois decree of adoption was entitled to full faith and credit by the Texas court and that the court should render a declaratory judgment holding that appellant Rodgers has no legal right or obligation to the minor child. Thereafter appellant filed his second amended original petition in the juvenile court in which he, in addition to re-urging his previous pleadings, added an alternative ground as a basis for requesting the court to modify the custody award of the child. In this alternative plea appellant charged that the decree of the Illinois court should be disregarded and declared to be of no force and effect because same was wholly void and that said invalidity appears on the face of the judgment itself. Appellant pled that the Illinois decree was void because it was induced and procured by fraud in that his consent to the adoption was obtained upon the representations of appellees and their attorney that appellant would retain his right of visitation with his son. The court, sitting without a jury, heard the evidence presented and rendered final judgment holding that the Illinois decree granting adoption should be and is given full faith and credit and that Rodgers’ motion to change visitation rights should be denied. At the request of appellant the trial court made and filed findings of fact and conclusions of law. The court found, inter alia, that Rodgers had executed the consent to the adoption voluntarily and upon the advice of his own attorney and that such consent to adoption was not procured by fraud. The court concluded (1) that the Illinois court had jurisdiction of the parties and subject matter of the petition to adopt the minor; (2) that the decree of adoption is entitled to full faith and credit; (3) that such decree of adoption terminated all parental rights of a natural father; and (4) that the agreement for visitation is not enforceable. While appellant asserts eight points of error in his attack upon the judgment rendered he candidly concedes in his “Summary of Argument” that: “There is no question about the events which preceded the Illinois Decree. The sole point at issue is the legal force and affect [sic] of that foreign judgment.” In the same argument he says: “Appellant hesitates to attack the entire Illinois Decree as void, but he is left no choice in the face of the trial court’s refusal to enforce his right of visitation. * * * It seems clear from the cases which will be discussed that the Illinois judgment is void from the beginning, and that Appellant is entitled to an adjudication as to the proper schedule of visitation under the changed circumstances.” Several of appellant’s points are not briefed. From the brief itself we conclude that appellant’s real contention is that there is either no evidence, or the evidence is wholly insufficient, to support the trial court’s finding that appellant’s consent to the adoption in the Illinois court was not procured by fraud. This court, as was the trial court, is confronted with the primary question of the force and effect Texas courts will give to a final decree of a sister state. Several basic rules of law must be noticed: (1) Pursuant to Article 4, Section 1, of the Constitution of the United States, a state must give the final judgment of a sister state the same force and effect as it is entitled to in the state in which it is rendered. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942); and Carter v. G & L Tool Company of Utah, Inc., 428 S.W.2d 677 (Tex.Civ.App., San Antonio 1968). (2) When a sister state judgment is challenged in Texas, and the attack is collateral as in this case, in order for the attack to be successful the judgment must be void. 34 Tex.Jur.2d § 385, p. 408, and cases there cited. (3) A judgment of a competent court of jurisdiction cannot be collaterally impeached unless the record affirmatively shows the want of jurisdiction of the court rendering the judgment. Williams v. Hays, 77 Tex. 283, 13 S.W. 1029 (1890); Holmes v. Buckner, 67 Tex. 107, 2 S.W. 452 (1886); Mitchell v. San Antonio Public Service Co., 35 S.W.2d 140 (Tex.Com.App.1931); and 34 Tex.Jur.2d § 344, p. 350. (4) A judgment of a sister state may be attacked collaterally for fraud where the fraud went to the jurisdiction of the court, that is, where it operated to prevent the complaining party from asserting his case. 34 Tex.Jur.2d § 387, pp. 411— 412; Stumberg, Principles of Conflict of Laws, 3d Ed. p. 114 (1963); Drinkard v. Ingram, 21 Tex. 650 (1858); Babcock v. Marshall, 21 Tex.Civ.App. 145, 50 S.W. 728 (1899); Hare v. Reily, 269 S.W. 473 (Tex.Civ.App., Dallas 1925, affirmed Com.App., 280 S.W. 543 (1926)); Ogletree v. Crates, 359 S.W.2d 54 (Tex.Civ.App., Eastland 1962); Marsh v. Millward, 381 S.W.2d 110 (Tex.Civ.App., Austin 1964, writ ref’d n. r. e.); Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538 (1889); Freeman on Judgments, 5th Ed., § 1183 (1925); and 55 A.L.R.2d 673, 680. (5) Where fraud in procuring the sister state judgment is alleged, the averments and proof must be clear, specific, and definite tending to establish the fraud. 34 Tex.Jur.2d § 388, p. 413. The judgment of the foreign state is entitled to every presumption of its validity. It will be presumed that the judgment is valid and subsisting in the absence of clear and convincing proof to the contrary. 34 Tex.Jur.2d § 383, p. 405. We turn now to the record in this case and review the same in the light of these rules. It is undisputed that the court in Illinois acquired jurisdiction of both the parties and the subject matter of the adoption proceedings. Appellant-father was notified of the adoption petition, he employed an attorney of his own choice to represent him in the proceedings, he subjected himself to the jurisdiction of the Illinois court, and, acting upon the advice of his own attorney, he executed the consent to adoption. The only remaining question is whether the jurisdiction of the Illinois court was obtained by fraud or that the judgment of the Illinois court was tainted with fraud. The only allegations of appellant concerning fraud are that: “ * * * his consent is void under Texas and Illinois law because it was induced and procured by fraud, to-wit: the representations of the Respondents and their attorney that Petitioner would retain his right of visitation with his son; that the fraud as to Petitioner’s retention of visitation rights appears on the face of the Decree * * *.” Appellant’s own testimony is quite clear and revealing on the issue of alleged fraud in the procuring of his consent: “Q Mr. Rodgers, you were aware that an action for adoption had been filed in Illinois by your former wife and her second husband, is that correct ? A Yes. Q And you did retain counsel and in person go to Chicago ? A Yes. Q To Cook County? A Yes, sir. Q And you did participate in that action in the sense of asking your lawyer to file an appropriate paper and you appeared at a deposition, is that correct? A Yes. Q There was no question in your mind at the time that they were asking to adopt your son? A No. Q All right. At the time you signed the instrument that is marked Plaintiff’s Exhibit No. 1, whether you referred to it as an order or a stipulation, you understood that your son was being adopted by William Frank Williamson, is that correct ? A Yes. Q You understood that his name would be changed as a result of this? A Yes. Q You understood that a new birth certificate would be issued? A Yes. Q You understood that he would refer to Mr. Williamson as daddy, or as his father, is this correct? A Yes. Q Since that time you have had visitation with your son, is that correct ? A Yes. Q During the visitations you have had, what was your relationship with your son, did he call you daddy? A No, he didn’t. Q Did you tell him that you were his father ? A No, I didn’t. Q What was your relationship; were you a friend, an uncle, or some such ? A He considered me to be his uncle. Q Your son, Scott, considered you to be his uncle? A Yes. Q At all times did he consider Mr. Williamson to be his father? A Yes.” “Q You stated on direct testimony that you signed this instrument marked Plaintiff’s Exhibit No. 1 as — or upon advise of your counsel, is this correct? A That is correct.” In our opinion the above quoted testimony from appellant himself is sufficient to negate the question of fraud alleged in the procurement of the consent and the entry of the adoption decree. The case is not similar in any respect to People ex rel. Karr v. Weihe, et al., 30 Ill. App.2d 361, 174 N.E.2d 897 (1961), which is relied upon by appellant. In that case the mother attacking the adoption decree was shown to be young and inexperienced. She was not represented by competent counsel and it was clearly demonstrated that the representations made to her were false and known to be false by the adverse parties to the proceedings. Neither can it be said that the Illinois judgment may be impeached by showing that the judgment was obtained in violation of an agreement between the parties. The parties in this case did agree that appellant-father might visit the child from time to time, such agreement being purely personal as between the parties and not in accordance with any demands or requisites of either the Illinois or the Texas law relating to adoptions. The agreement between the parties was entirely separate and distinct from the basic laws of adoption. The Supreme Court of Illinois in People ex rel. Bachleda v. Dean, 268 N.E.2d 11 (1971), pointed out that the adoption statute of Illinois (Ill.Rev.Stat.1969, ch. 4, par. 9.1-17), provides in part that upon the entry of a decree of adoption, the natural parents of the child shall be relieved of all parental responsibility for such child and also shall be deprived of all legal rights as respects the child. While the case involved the question of the right of grandparents to visit an adopted child, the court said: “Naturally, it follows that if an adoption decree divests a natural parent of his rights with respect to the child, it likewise divests a grandparent of any such rights.” The law is the same in Texas. Article 46a, Sec. 9, V.A.C.S.; Smith v. Painter, 408 S.W.2d 785 (Tex.Civ.App., Eastland 1966, writ ref’d n.r.e. with written opinion, Tex., 412 S.W.2d 28 (1967)). We know of no Texas statutes or decisions which confer upon divorce or juvenile courts continuing jurisdiction to decide or pass upon questions of visitation or custody in cases where the parent-child relationship has been terminated by a valid decree of adoption. In such cases the jurisdiction of the divorce court is terminated. Lewis’ Adoption, 380 P.2d 697 (Okl.Sup. 1963); Hardesty’s Adoption, 150 Kan. 271, 92 P.2d 49 (1939). Our Texas statute, Art. 46a, Sec. 7, specifically provides that a court of competent jurisdiction may assume jurisdiction to take away from the adoptive parent the custody of the adopted child but only upon proof of the bad moral character of such adoptive parent, or upon proof of abuse, neglect or ill treatment of such adopted child by the adoptive parent. We find no allegations in the pleadings nor evidence admitted before the trial court which would justify the implementation of the statute just quoted. We have carefully examined all of appellant’s points of error and finding the same to be without merit they are overruled. The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

D. I. JIMMERSON et al., Appellants, v. NORRIS FENCE COMPANY, Inc., Appellee. No. 8096. Court of Civil Appeals of Texas, Texarkana. May 30, 1972. Rehearing Denied June 27, 1972. Robert L. Fairchild, Fairchild, Hunt & Price, Center, for appellants. J. R. Cornelius, Cornelius & Cornelius, Jefferson, for appellee. CHADICK, Chief Justice. This is a venue case. Norris Fence Company, Inc., a Texas corporation, instituted a suit in the District Court of Marion County, Texas, naming E. L. Bruce Company of Texas, a corporation, domiciled at Center, Shelby County, Texas, along with Robert H. Adams, Jr., and D. I. Jimmer-son, as defendants. The fence company’s trial pleading alleged that Adams and Jim-merson, “individually and while acting as agents and employees” of the Bruce corporation came to the fence company’s mill yard and in the process of sorting and loading logs “negligently and carelessly caused” a load of logs being handled by a log loader “to swing around and strike” a gang saw that was stored nearby, knocking this machinery from the blocks where situated, crushing, bending and ruining certain of its parts. Prayer was for damages, costs and other appropriate relief. By single instrument the three defendants filed a plea of privilege praying that the action he transferred to Shelby County, the residence respectively of each defendant. The fence company controverted the defendants’ plea of privilege and asserted venue in Marion County, Texas, for trial of the action under the provisions of Vernon’s Tex.Rev.Civ.Stat.Anno. art. 1995, Secs. 9 and 9a (1964). At conclusion of the recessed hearing on the plea of privilege the trial court sustained the plea as it pertained to th^^E. L. Bruce Company of Texas, bur overruled the plea of Adams and Jimmerson. From the order overruling their plea of privilege, both Adams and Jirrimerson have perfected an appeal. Separate consideration of each of the appealing parties will be made in the interest of clarity. Appeal of Robert H. Adams, Jr. Points of error No. Three, No. Four, No. Six, No. Eleven, No. Twelve, No. Thirteen and No. Fourteen present for review, from the standpoint of Adams, no evidence and insufficient evidence questions relative to proof of a crime, offense or trespass in Marion County, Texas, and the same questions respecting negligence and proximate cause. After detailed examination of the statement of fact, no evidence is found that sustains the trial court’s order as to Adams. Necessarily, appellant Adams’ no evidence points are sustained and the judgment of the trial court is reversed as it pertains to him. Something of a paradox develops in demonstrating the absence of evidence. What is absent is determined by showing what is present. In giving full measure, when a no evidence point is under consideration all evidence in the record must be repeated to demonstrate that vital evidence is not present. Though the statement of fact is not lengthy, a summary of all the evidence will not be made, as a satisfactory accounting seems possible without taking such course. Five persons testified at the plea of privilege hearing and extracts from the deposition of Adams, Jimmerson and two others were introduced. Of the five testifying in person none knew Adams, and consequently were unable to say whether or not he was present or a participant in events at the Norris Fence Company’s mill yard on August 28, 1969, the date the gang saw was damaged. Mr. William G. Goodrich, logging superintendent for the Bruce corporation, testified that Mr. Adams was hauling for the Bruce corporation back in the summer at an unspecified time. Mr. Jimmerson as a witness admitted hauling logs for the Bruce corporation as an independent contractor on August 28, 1969, and that he hauled some logs from the Norris mill, making five or six trips. In connection with these trips he was questioned, and answered in this manner: “Q. Un-huh. Now on the occasion ., you heard Mr. Adams say you had two trucks up here and a loader. A. Yes, sir.” Adams testified as shown by this extract from his deposition: “Q. All right. In August of 1969, who were-you employed by? A. I think the Bruce Company. I am not sure of the time. I don’t remember. Q. Well, o. k. Well, I’ll ask you then, did you, together with Mr. Jimmer-son make a trip up to the Norris Fence Company’s saw mill west of Jefferson? A. Yes, sir. We hauled some logs from there.” Adams’ tenuous connection with the case is found in the foregoing summary of direct evidence relevant to Adams. Examination of all direct and circumstantial evidence in the record discloses a hiatus and failure in proof that Adams in person or by agent, servant or employee, or as a partner or joint adventurer became legally liable for or participated in the events that led to the damage of the fense company’s gang saw. Appeal of D. I. Jimmerson The remaining points of error present identical questions from appellant Jimmer-son’s standpoint. The evidence is not controverted that Jimmerson undertook to and did load and haul logs from the fence company’s mill yard on August 28, 1969. Two of the fence company’s employees saw the log loader used in the loading operation by Jimmerson swing a load of logs into the out of service gang saw and dislodge it from its base and thereby damage it. The inquiry in this instance is limited to the question of no evidence or insufficient evidence to prove a crime, offense or trespass in Marion County, or to prove negligence and proximate cause in such county. Although the evidence is sparse, it is sufficient to prove trespass. Jimmer-son voluntarily used the log loader in his operation. The inference from the proven facts is that employment and operation of the log loader in sorting and loading logs was deliberate and intentional. The operational swinging of the load of logs that struck the gang saw was a part of the voluntary, deliberate, and therefore, intentional action Jimmerson carried out in damaging the machine. The gang saw was lawfully in place. The intrusion on it was forceful, immediate and direct. Molesting and damaging the gang saw was a violation of the fence company’s property right. Damage to the machine gave rise to a cause of action. Whether or not Jimmerson or his employees were acting as an ordinarily prudent person would have acted under the same or similar circumstances is immaterial. Mountain States Telephone & Telegraph Company v. Vowell Construction Company, 161 Tex. 432, 341 S.W.2d 148 (Tex.Sup.1960). In the cited case, Judge Norvell said: “The particular appellation or classification to be given the particular act is not of controlling effect. The important thing is that a property right was violated.” All modern authorities recogfRe that destruction, injury, or any unlawful interference, however slight, with the enjoyment by another of his personal property, is a trespass, warranting an action for damages. 56 Tex.Jur. Trespass, Sec. 3 (1964); 52 Am.Jur. Trespass, Sec. 10 (1944); 87 C. J.S. Trespass, §§ 8 and 9 (1954). The fence company did not plead trespass as a theory of recovery in its trial petition; such theory was first injected in the controverting affidavit to the plea of privilege. Proof tending to establish the theory was admitted without objection. Under the record, any objection to such theory was waived, and the trial court was justified in trying the trespass issue outside of the pleadings. Tex.R.Civ.P. 67. It appears that the evidence is sufficient to prove a trespass occurred, the question of negligence, the application of the res ipsa loquitur doctrine, or proximate cause will not be explored. The judgment of the trial court sustaining the plea of privilege as to Robert H. Adams, Jr., is reversed and judgment rendered that the action as it pertains to him be transferred to Shelby County, Texas. In all other respects, the judgment of the trial court is affirmed. The condition of the record is such that it appears equitable to tax costs as follows: Appellant Jimmer-son pay one-half costs of trial court and this appeal, and Appellee Norris Fence Company, Inc., pay the other one-half thereof. It is so ordered. DAVIS, J., not participating. ON MOTION FOR REHEARING In a motion for rehearing, counsel for appellant Jimmerson reasserts inability to find evidence in the record tending to show appellant Jimmerson’s tortious responsibility or connection with the log loading operation that damaged the gang saw. The log loading operation and damage to the gang saw occurred on August 28, 1969. Mr. C. E. McGowan, Mill Manager for the Texas Fence Company, Inc., testified that two men came to the mill yard the day the gang saw was damaged to pick up and haul hardwood logs. One of the men came to him and talked about separating pine logs from hardwood logs. Mr. McGowan’s testimony puts appellant Jimmerson on the ground at the mill on that day. His testimony also puts Jimmerson in supervision of the log loading operation. Some of his testimony in this connection follows, to-wit: “Q. You know Mr. Jernigan, I will ask you whether or not Mr. Jernigan was one of the men that came up there ? (sic) A. Yes, Jimmerson was the one that talked to me. Q. And you do know him ? A. Yes. Q. I will ask you whether or not Mr. Jimmerson has been the one that came generally and hauled the logs off from there? A. Yes, sir. Q. Was the other man — did he generally come or do you know about that? A. I don’t know. I didn’t pay much attention to the extra truck driver. Q. But you do know Mr. Jimmerson generally comes and hauls the logs off for — the ones you sold to Dill back there? A. Yes.” In his deposition, Jimmerson testified that he was hauling logs on August 28, 1969, on a contract basis. Without relating the haul to such date he acknowledged that he hauled some logs from the Norris mill west of Jefferson, and that he had two trucks and a log loader at the mill. His testimony in part follows: “Q. How many loads did you make from there or how many trips? A. I imagine five or six of them. I don’t — couldn’t say offhand just how many. Q. Un huh. Now on the occasion— you have heard Mr. Adams say you had two trucks up there and a loader. A. Yes, sir. Q. Is that correct? A. Right.” It is elementary that the trial judge as trier of the facts determines the credibility of the witnesses, the weight to be given the testimony, and reconciles contradictions or inconsistencies in the witnesses’ testimony. In performing this function the judge may draw legitimate inferences from all the facts and circumstances in evidence. The evidence set out above, that alluded to in the original opinion as well as other testimony in the record, is sufficient to support the trial court’s judgment with respect to appellant Jimmerson. Appellant Jim-merson’s motion for rehearing is respectfully overruled. DAVIS, J., not participating.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

WINDWARD SHIPPING (LONDON) LIMITED et al., Appellants, v. AMERICAN RADIO ASSOCIATION AFL-CIO et al., Appellees. No. 635. Court of Civil Appeals of Texas, Houston (14th Dist.). May 17, 1972. Rehearing Denied June 14, 1972. W. D. Deakins, Jr., John Smither, Vinson, Elkins, Searls & Smith, Ben L. Reynolds, Royston, Rayzor, Cook & Vickery, Houston, for appellants. Herman V. Wright, Mandell & Wright, W. Arthur Combs, Combs & Archer, Houston, Bertram Perkel, Schulman, Abarbanel, Perkel & McEvoy, New York City, for ap-pellees. TUNKS, Chief Justice. In October of 1971 the cargo vessels Northwind and Theomana, both of Liberian registry, were docked at the Port of Houston for the purpose of loading and unloading cargo. American Radio Association, AFL-CIO and five other deep sea maritime unions, acting in concert, established picket lines which longshoremen and other workmen would not cross to service such vessels. The owners of the vessels filed suit in the district court in Harris County to enjoin permanently such picketing. The district court, after hearing evidence, dismissed the owners’ suit, concluding that the court was without jurisdiction because of preemption by the National Labor Relations Board. The owners have appealed. We affirm the trial court’s judgment of dismissal. The basic facts of the case were established by stipulation or uncontroverted evidence. The vessels in question carry cargo between United States ports and foreign ports. They do not carry cargo from one port in the United States to another port in the United States. The crews and officers of the vessels are foreign nationals. There is no labor dispute between the owners of the vessels and their crews or the foreign unions who represent them or on the foreign contracts under which ■ they work. The picketing unions neither have nor claim the right to represent the crews, nor do they seek to obtain such right. None of the crew members are members of the picketing unions. The picketing has been peaceful and without violence or threat of violence. Four pickets commenced picketing the Theomana at the Port of Houston on October 28, 1971, and four began picketing the Northwind the following day. Signs carried by the pickets bore the following message: “ATTENTION TO THE PUBLIC The wages and benefits paid seamen aboard the vessel THEOMANA (NORTHWIND) are substandard to those of American seamen. This results in extreme damage to our wage standards and loss of our jobs. Please do not patronize this vessel. Help the American seamen. We have no dispute with any other vessel on this site.” (Parenthesis added) The signs bore the names of the picketing unions. The pickets did not speak to anyone. When inquiry was made of them they handed out literature in the following language: “TO THE PUBLIC American Seamen have lost approximately 50% of their jobs in the past few years to foreign flag ships employing seamen at a fraction of the wages of American Seamen. American dollars flowing to these foreign ship owners operating ships at wages and benefits substandard to American Seamen, are hurting our balance of payments in addition to hurting our economy by the loss of jobs. A strong American Merchant Marine is essential to our national defense. The fewer American flag ships there are, the weaker our position will be in a period of national emergency. PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE. Our dispute here is limited to the vessel picketed at this site, the SS-”. This literature, too, had on it the names of the picketing unions. The refusal of longshoremen and others to cross the picket lines resulted in damage to the vessels’ owners which the unions agree is incalculable. The first step taken to stop the picketing was the filing, in behalf of the owner of the Theomana, of a complaint with the NLRB charging the unions with secondary picketing. The next day suit was filed in behalf of such owner in the district court of Harris County seeking temporary and permanent injunction. The petition in that suit also alleged that the unions were guilty of secondary picketing. The complaint with the NLRB was voluntarily withdrawn by the complainant. The pleadings in the district court of Harris County were amended. Those pleadings as amended alleged, in behalf of the owners of both vessels, that the picketing by the defendant unions was for the purpose of inducing the owners to breach their contracts with their crews and the foreign union representing those crews. It was alleged that such activity was in violation of Tex.Rev.Civ. Stat.Ann. art. 5154d, sec. 4 (1947) and was a tort under Texas law. The unions answered to the suit filed by the owners, asserting the defenses that: (1) The jurisdiction over the subject matter of the dispute was pre-empted to the NLRB by the Labor Management Relations Act, 29 U.S.C. sec. 151 et seq. (1947). (2) The Norris-LaGuardia Act 29 U.S.C. sec. 101, et seq. (1932), prohibited the granting of the injunction sought. (3) The activities sought to be enjoined were protected by constitutional guaranties of free speech. (4) Tex.Rev.Civ.Stat.Ann. art. 5154d, sec. 4 (1947), if applicable to their activities, would be unconstitutional. (5) The owners were without clean hands in that their conduct was contrary to the public policy of the United States to promote the merchant marine, as pronounced in 46 U.S.C. sec. 1101 and sec. 1241 (1970). The trial court sustained the first of those asserted defenses and did not make findings of fact or conclusions of law relating to the others. We shall likewise confine our discussions to the jurisdictional pre-emption question. Since San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), state jurisdiction in cases of labor disputes has been compelled to yield to the jurisdiction of the NLRB if the activities complained of are arguably either protected by section 7 or prohibited by section 8 of the NLRA as amended by the LMRA. The determination of whether activity in fact is or is not protected or proscribed by the statute is initially for the NLRB. Failure of the Board to determine the status of the activity does not pass jurisdiction to the state courts. After the Garmon case state jurisdiction notwithstanding federal pre-emption rules is confined to (1) those cases involving libel, Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), and other matters “deeply rooted in local feeling or responsibility”, Garmon, supra; (2) cases in which jurisdiction has been ceded to the state by the NLRB by virtue of 29 U.S.C. sec. 160(a) (1959); (3) cases in which the disputed activity is a “merely peripheral concern” of the LMRA, Garmon, supra, (e. g., breach of contract, damages for wrongful expulsion from a union); (4) cases in which the NLRB refuses jurisdiction; and (5) those cases involving violence, e. g., International Union, Etc. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); International Ass’n of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958); United Const. Workers, Etc. v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1953); Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957); United Auto., A. & A. I. W. v. Wisconsin Emp. Rel. Bd., 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162 (1955). The courts of Texas have adhered to these principles. Ex Parte Dilley, 160 Tex. 522, 334 S.W.2d 425 (1960); Carpenters & Joiners Local Union No. 1097 v. Hampton, 457 S.W.2d 299 (Tex.Civ.App.-Tyler 1970, no writ). This Court’s primary inquiry, then, is whether the appellees’ picketing here in question was arguably prohibited or protected under the LMRA (29 U.S.C. sec. 157 and sec. 158). As appellants point out, ap-pellees’ picketing carefully remained within the guidelines for permissible picketing on the premises of a secondary employer promulgated in Sailor’s Union of the Pacific, 92 N.L.R.B. 547 and adopted in Local 761, Inter. Union of Elec., Radio and Mach. Wkrs. v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961). These principles, commonly referred to as the “Moore Dry Dock Rules”, consider picketing of a secondary employer’s premises lawful primary activity when it meets these conditions: (1) The picketing is strictly limited to times when primary employees are present at the premises of the secondary employer or at the common premises. (2) The primary employer is engaged in his normal business at the picketed premises at the time of the picketing. (3) The picketing is limited to places reasonably close to the locations on the premises where the employees of the primary employer are at work. (4) The picketing clearly discloses that the dispute is with the primary employer alone. (5) The primary, employer has no separate place of business at which a reasonable opportunity is afforded to reach his employees by picketing. In the instant case the evidence reveals that appellees picketed only when the vessels of the appellants, primary employers, were dockside. Secondly, when picketed the ships were being loaded and unloaded, part of the usual operation of cargo ships and the normal business of the primary employers. Moreover, the picketing was limited to the dock at which the vessels were berthed. Further, the signs carried by the picketers clearly restricted the picketing to the primary employer. And, the two ships were the only reasonably accessible places of business to which the unions could direct their attention and efforts. Accordingly, appellees were not engaged in a secondary boycott. No other violation of section 8 is intimated by the parties and none other appears from the record. We must, then, consider whether appel-lees’ conduct was arguably protected under section 7 of the LMRA. Section 7 is in the following language: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.” Peaceful picketing has repeatedly been held protected by this section of the NLRA (amended by LMRA, 29 U.S.C. sec. 157). Garner v. Teamsters, Chauffeurs and Helpers, Etc., 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Carter Carburetor Corp. v. National Labor R. Board, 140 F.2d 714 (8th Cir. 1944); National Labor Relations Board v. Thayer Co., 213 F.2d 748 (1st Cir. 1954); Edir, Inc. d/b/a Wolfie’s v. Club & Restaurant Employees and Bartenders’ Union Local No. 133, AFL-CIO, et al., 159 N.L.R.B. 72 (1966); Sears-Roebuck & Company v. Retail Store Employees’ Union, Local 345, AFL-CIO, 168 N.L.R.B. 126 (1967). And see Cox, The Right to Engage in Concerted Activities, 26 Ind.L.J. 319 (1951). The Supreme Court has expressly recognized that a union’s peaceful picketing to protest wage rates below established area standards arguably constitutes protected activity under section 7. International Longshoremen’s Ass’n, Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), and cases cited therein. This is the now well-recognized “area standards” picketing. One case is persuasive authority in support of the trial court’s order of dismissal. In South Georgia Co., Ltd. v. Marine Engineers Beneficial Ass’n, 44 CCH Lab. Cas. 26,269 (La.Dist.Ct.1961) picketing of a foreign ship with a foreign crew by an American union to protest loss of jobs by U. S. seamen from use of that ship to transport cargo purchased by Indonesia under the Agricultural Trade Development and Assistance Act was held to be arguably-protected by section 7 of the L.M.R.A. In Ex Parte George, 163 Tex. 103, 358 S.W.2d 590 (1962), vacated 371 U.S. 72, 83 S.Ct. 178, 9 L.Ed.2d 133 (1963), on remand 364 S.W.2d 189 (Tex.Sup.1963), an American maritime union which represented unlicensed crew members on American Oil Company vessels was involved in a labor dispute with that company. The union picketed the main gate and parking lot gate at a coastal refinery operated by a wholly-owned subsidiary of American Oil. Workers at the refinery were represented by a separate union. Despite a finding, supported by the record, that the ttnion’s purpose was to induce the violation of American Oil’s existing contract with the refinery worker’s union (a violation of Art. 5154d here in question), the U. S. Supreme Court held that the maritime union’s picketing was arguably protected by section 7. In this case with facts not so gross as those in Ex Parte George, there appears no persuasive reason to hold contrary to the Supreme Court’s holding in George. In fact, appellants do not argue that the appel-lees’ picketing is not of a character sufficient to fall within section 7’s protection. Rather, they contend that the LMRA “does not extend to the maritime operations of foreign-flag ships employing foreign aliens, and that American union activity which affects the internal affairs of the ship and its foreign crew is not protected by the Act.” Appellants base their contention on three cases: Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); McCulloch v. Sociedad Nacional, Etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); and Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963). All three of those cases involved foreign-owned and registered ships with alien crews under foreign articles. In Benz the crew members went on strike and their cause was taken up successively by three different American unions. In McCulloch an American union petitioned for certification as the representative of foreign crewmen and the NLRB ordered an election. In Incres an American union picketed as part of its campaign to organize foreign crewmen. In each case the Supreme Court held that the NLRA, as amended, does not apply to foreign-registered ships employing alien seamen. This is so because the NLRB’s jurisdiction is based upon circumstances “affecting commerce” and the Court concluded that maritime operations of foreign-flag ships employing alien crewmen are not “in commerce” as that term is contemplated by section 2(6) (29 U.S.C. sec. 152(6) (1947)). McCulloch and Incres were decided on the basis of Benz. In Marine Cooks and Stewards v. Panama S. S. Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797, the Supreme Court, while involved in a construction of the Norris-LaGuardia Act, drew an important distinction between the facts in Benz and those in Marine Cooks. The Court noted that in Benz an American union, to which none of the alien crew members belonged, had a substantial, immediate interest in the “internal economy” of the ship. The Marine Cooks case involved facts essentially the same as now before us (except that picketing was by boat and not at the dock of consignee, although that was expressly threatened). Justice Black, speaking for eight justices (Justice Whittaker dissented on a separate issue), viewed the union members’ interest there as being “in preserving job opportunities for themselves in this country,” [362 U.S. page 371, 80 S.Ct. page 784] not in the “internal economy” of the foreign vessel. They were picketing on their own behalf and not for the benefit of foreign employees. The opinion labeled the dispute as domestic even though the employer was foreign. The Benz case was distinguished from a case factually identical to the present case on the basis of the distinction noted by Justice Black in Marine Cooks. South Georgia Co., Ltd. v. Marine Engineers Beneficial Ass’n, supra. The Court in South Georgia characterized Benz as involving only “an internal dispute on a foreign ship.” In Madden v. Grain Elevator, Flour & Feed Mill Wkrs., etc., 334 F.2d 1014 (7th Cir. 1964) the Seventh Circuit rejected a union’s contention that, based upon Incres, the NLRB lacked jurisdiction of a dispute involving rtnion members’ refusal to unload ships so as to compel their employer to cease doing business with a Canadian shipping company. In passing on a contempt order arising from a secondary boycott complaint, the Court found that no attempt was being made to apply the NLRA to “the internal management or affairs” of the vessels involved. In a subsequent chapter of the same dispute the D.C. Circuit sustained the finding of the Seventh Circuit that Incres was inapplicable. Grain Elevator, Flour and Feed Mill Workers, Int. Longshoremen Ass’n Loc. 418 v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774 (1967). These cases construe the Incres case to hold not that the NLRB lacks jurisdiction of any “maritime operations” of a foreign ship and crew, but that the Board lacks jurisdiction over the “internal affairs” of a foreign ship and crew. This is a more narrow and precise area of activity and one which hints of exclusion of the usual elements of a cargo-carrying operation and focuses only upon crew-owner relations. In 1970 the Supreme Court was presented with a case of union picketing to protest the substandard wages paid by foreign-flag vessels to American longshoremen in American ports. International Longshoremen’s Ass’n Local 1416 v. Ariadne Shipping Co., supra. The question of pre-emption was squarely at issue. Lower courts had held no pre-emption because the NLRB lacked jurisdiction. McCulloch and Incres were the authority for that holding. The Supreme Court reversed and held that the longshore activities of American longshoremen were not within the maritime operations of foreign-flag vessels. The Court carefully pointed out that the construction of the federal statute in Benz, McCulloch and Incres, “. . . was addressed to situations in which Board regulation of the labor relations in question would necessitate inquiry into the ‘internal discipline and order’of a foreign vessel . . .”. The Court concluded that the functions of the American longshoremen did not constitute involvement with the ships’ “internal discipline and- order”. Application of American labor statutes to resolve a conflict over wages paid to American longshoremen thus would not interfere with the foreign ships’ internal affairs. Consequently the longshoremen’s operations were “in commerce” and could be subject to the board’s jurisdiction. There is still no clear statement of the Supreme Court’s position as to whether the NLRB has jurisdiction of, as here, picketing by American seamen to protest substandard wages and conditions on foreign vessels. The picketing in the Ariadne case could not have been any less destructive to the cargo-carrying business of the ships than the protracted picketing and conflict in Benz. So, it seems that the terms “internal affairs” and “internal order and discipline” must refer to the relationship between crew and employer and not to the carrying-on of the business for which the vessel is employed (a matter between shipowner and shipper). This construction has support in the language employed by the Court in the Ariadne case where the Court refers to the crucial term “internal affairs” of the foreign ship as affairs “which would be governed by foreign law,” i. e., (see footnote 4) the foreign ships’ articles. Ships’ articles concern such matters as seamen’s conduct and obedience, wages, seamen’s liability for cargo damaged or embezzled, competency in performance of seamen’s duties and airing of seamen’s grievances. See, e. g., 46 U.S.C. sec. 713 (1946). The issue in McCulloch and In-cres was representation of foreign seamen. In Benz it was picketing to support a strike by the foreign crew members. To allow American unions to intercede in those instances would clearly be to allow interference with the internal order, discipline and affairs of a foreign ship. In Ariadne the Court confronted a situation involving American workers hired by foreign ships to serve, not as seamen, but as longshoremen. As noted before, the Court held that the longshoremen’s activities performed by Americans were not an element of the “foreign ships’ ” internal affairs. Ariadne differs from the instant case in at least two respects. First, it dealt with longshoremen rather than seamen. Further, it concerned picketing in regard to wages to be paid to American workers who were employed by foreign employers. The casual connection between American longshoremen’s duties and the foreign vessels is what excluded those functions from the reach of the term “internal discipline and order.” The Court expressly reserved the question of longshore work performed by foreign crewmen. But in this case there are no American residents employed by foreign ship owners. The protest is not directed to allegedly substandard wages paid by foreign shipowners to then-employed American seamen, but to allegedly substandard wages paid to foreign seamen, with a concurrent request to the public not to patronize the foreign ships. There is no direct interference with the relationship between employer and crewmen. Any direct interference is between the consignee and the shipowner, or the shipowner and the stevedore company. The fact that ap-pellees are seamen and not merely longshoremen cannot indicate greater involvement in the internal affairs of the ships because none are employed on those ships. It is important also to note that the Court in Ariadne focused upon the effect of longshore work upon the ships’ internal affairs and not upon the purpose and intent of the picketers. The purpose of the activity in question is not of controlling significance in deciding the question of jurisdiction of the activity. (See, e. g., Chief Justice Calvert’s dissenting opinion in Ex Parte George, 163 Tex. 103, 358 S.W.2d 590, 607). If the picketing intervenes in an alien crewmen’s strike or strives to organize those crewmen it constitutes involvement with matters not “in commerce”. If it but voices a complaint as to foreign wages and urges the public not to patronize foreign vessels it does not engage in matters outside of commerce. It is peaceful picketing, publicizing a labor dispute, of such a character that its validity is suggested by the Court’s holding in the Marine Cooks case, supra. It is, at least arguably, a protected activity under section 7 of the LMRA. As such, it is an activity as to which the exclusive jurisdiction to determine its propriety has been pre-empted to the NLRB. Upon that basis the trial court properly dismissed the plaintiffs’ suit for want of jurisdiction. Affirmed.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

A. R. COX et al., Appellants, v. E. W. OLIVARD, Jr., et ux., Appellees. No. 17888. Court of Civil Appeals of Texas, Dallas. May 18, 1972. Rehearing Denied June 15, 1972. Oían R. Van Zandt, Sherman, for appellants. Charles B. Robinson, Sherman, for ap-pellees. CLAUDE WILLIAMS, Chief Justice. Appellants sued appellees in trespass to try title in which they sought title and possession of 5.53 acres of land in Grayson County, Texas. Appellants base their claim of title exclusively upon the ten and twenty-five year statutes of limitations (Article 5510 and 5519, Vernon’s Tex.Rev. Civ.Stat.Ann.). Appellees answered with a general denial. The case was submitted to the court, without a jury. We summarize the material testimony. The record title to the disputed 5.53 acres of land is admitted to be in appellees. Both appellants and appellees •owned tracts of land which were contiguous. Appellees’ land is situated to the east and appellants’ land to the west with the disputed 5.53 acres near the middle of the two tracts. The area surrounding the disputed land was used by the respective parties primarily for pasture and for grazing of livestock. The land in question is described by all parties and witnesses as being rough, uneven, irregular, and covered in heavy underbrush and trees. A considerable part of the land lay within the bed and along the steep banks of a meandering creek, known as Jerden Creek, which runs in a general north and south direction. The west boundary line of ap-pellees’ property, as described in the warranty deed to appellees, extended along the bed of Jerden Creek and in places extended slightly west of the creek. Appellee E. W. Olivard, Jr. testified that when he acquired the property in 1960 the remains of an old fence existed along portions of his west “deed line” and that a few fence posts along the old fence line were still evident. He further testified that even though he knew that his west line was the creek, and a part west of the creek, that some years previously his west fence had been relocated on the east bank of the creek. He assigned three reasons for the relocation of the fence line: (1) for the protection of his cattle since his pasture, extending westerly towards the creek, dropped off sharply into the bed of the creek and his cattle on occasions had been injured after losing their footing and falling down the steep east bank of the creek; (2) that the land now in dispute was subject to overflow and the fence had washed away on a number of occasions when it was situated further to the west; and (3) that the fence could not be maintained further to the west even in the absence of overflow because of the roughness of the terrain and the steepness of the east and west banks of Jerden Creek. He testified that the fence could not practicably be maintained on his west deed line due to the nature of the terrain and that he had been required on at least one other occasion to relocate the fence even further to the east in order to maintain it during the rainy seasons of the year, Olivard testified that the fence belonged to him though having been constructed originally by his predecessors in title, and that he had always maintained it. He said that, to his knowledge, appellant Cox had never maintained the fence. There was testimony from appellant Cox and his witnesses to the effect that the fence had been repaired from time to time by Cox or at his direction. Olivard testified that he knew the acreage west to the fence line and extending down to the creek to his deed line belonged to him but that he had been unable to use it economically for agricultural purposes or for grazing cattle due to the difficult nature of the terrain at and near the creek. Olivard said that the Cox’s cattle occasionally roamed at will in his pasture so that when he occasionally saw other cattle in the area in dispute he had no reason to believe that Cox was claiming said acreage adversely to him. He also testified that up to the time the lawsuit had been filed he had received no actual or implied notice from Cox concerning his adverse claim to the land in dispute. Appellant A. R. Cox testified that he purchased his farm in 1948 and that the deed recites 288 acres of land, “more or less.” In July, 1971, in contemplation of sale of the farm, Cox employed E. M. Busby, a surveyor, who surveyed the land on the ground and under fence. Busby testified that he found 292.48 acres of land which included the 288 acres under the Cox deed and the 5.53 acres of land in controversy. Busby said that the 5.53 acres of land was within the fence of the Cox land; that the fence was a substantial barbed wire fence capable of turning cattle and showed evidence of having been there for many years. Cox testified that he and his tenants, as well as his neighbors on the east, had maintained the fence and repaired the same from time to time and that for more than ten years he and his children, as well as his tenants, had open, adverse and peaceable possession of the 5.53 acres of land and had used same for grazing purposes. There was also testimony from a tenant, B. T. Worsham, and Weston Cox, son of A. R. Cox, who said that Cox and his family had claimed and used the disputed acreage for grazing purposes for more than ten years preceding the institution of the lawsuit. The trial court rendered judgment that plaintiffs had failed to carry their burden of proof to establish title to the disputed acreage and that title and possession of same remains vested in Olivard and wife. The trial court, complying with request of appellants, filed findings of fact and conclusions of law. The court found (1) that for more than ten years prior to the filing of the suit the property in question had been within the boundaries of the deed constituting the record title of appellees; (2) that during all of said period of time the disputed property had been in an enclosure with contiguous property owned by appellants; (3) that a substantial creek winds across the boundary lines between the contiguous farms of appellants and ap-pellees, same constituting the boundary line as defined in the record title of the respective parties; (4) that the course of such creek together with its magnitude has at all times rendered the construction of a fence on such boundary line highly impractical; (5) that for said reason many years ago the fence was constructed so as to enclose the disputed land within the boundaries of contiguous owners rather than within the boundaries rightfully entitled to the property by virtue of the deed; and (6) the use of the property by appellants had been limited to some grazing. The court concluded (1) that under the state of the record here the possession and use of the property by the appellants has not been sufficient to mature title by limitation to the property in dispute; (2) when the terrain along the boundary of a contiguous property renders impractical the construction of a fence on the true boundary line, the location of the fence off of such boundary line will not support a claim for title by limitation against the landowner on whose land the fence is located in the absence of unequivocal notice to the landowner adversely affected that his neighbor is asserting title to the property in question; and (3) under such circumstances the cultivation or grazing of the disputed property is not sufficient. Appellants attack the judgment in fourteen points of error. The seventh point has been abandoned. Many of the points are too general in nature to be considered and some have not been briefed. A careful analysis of appellants’ argument under all of the points asserted reveals that they rely upon three points: (1) that the judgment rendered is not in conformity with the pleadings; (2) there is no evidence to support the trial court’s findings of fact and conclusions of law; and (3) the evidence is insufficient to support the trial court’s findings of fact and conclusions of law. The essence of appellants’ first contention is that since appellees did not plead “not guilty” pursuant to Rule 788, Vernon’s Texas Rules of Civil Procedure, but merely pled a general denial, that such pleading was insufficient, as a matter of law, to permit the appellees to do more than affirmatively prove that the limitation period relied upon by appellants had been interrupted and since this had not been accomplished the trial court could not legally render the judgment in favor of appellees. We cannot agree with appellants. Rule 788, T.R.C.P., provides that a defendant may file a plea of not guilty. Our courts have repeatedly held that a defendant in a trespass to try title action is not required to file a plea of “not guilty” but that a plea of general denial has the effect of putting the plaintiff upon proof of his right to recover the land in controversy. The plea of “not guilty” in a trespass to try title suit was first provided for by the Act of Congress of the Republic of Texas in 1844. Nine years after the passage of such act the Supreme Court of Texas in Harlan’s Heirs v. Haynie, 9 Tex. 459 (1853), held that under a general denial the defendant could attack the sufficiency of plaintiff’s title. An excellent discussion and review of the more recent authorities holding that a general denial is sufficient is found in Brinkley v. Brinkley, 381 S.W.2d 725 (Tex.Civ.App., Houston 1964). As we view the record the principal points relied upon by appellants concern the question of whether appellants’ use and occupancy of the disputed acreage was to such an extent and of such a nature as to put the appellees on notice of appellants’ adverse claim to such property and thereby to cause the statute of limitations to ripen in appellants’ favor. The trial court concluded that the possession and use of the property by the appellants had not been sufficient to mature title by limitation. Appellants contend that there was no evidence or either insufficient evidence to support this finding and conclusion on the part of the trial court. We have carefully examined this entire record in the view of appellants’ “no evidence” and “insufficient evidence” points and having done so we conclude that the trial court’s judgment is amply supported by the facts and therefore overrule appellants’ contentions. It is quite obvious from this record that the actual location of the fence is the fact which precipitated the controversy between the adjacent landowners. The record is quite clear that it was impossible or highly impracticable for appellees to either construct a new fence or maintain the old fence which had originally divided the properties so that the disputed area would have been within the fenced area of appel-lees’ property. This condition was brought about by the nature of the terrain. This resulted in the obvious necessity of placing the fence line within the property owned by appellees thereby leaving the 5.53 acres outside of such fence line. This situation resulted in a condition which permitted occasional grazing by cattle owned by appellants. The matter of the location of the fence, under the circumstances here presented, has been discussed by other courts in similar situations and in cases involving the application of the statutes of limitations. Our Supreme Court in Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954), had before it a case involving a disputed tract of land which had been casually or incidentally enclosed with other land. The court held that incidental enclosure and occasional grazing of the disputed tract by cattle straying from titled land was not enough to amount to adverse possession so as to support the statute of limitations. In 1945 the Supreme Court in McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677, said that in order to acquire title by adverse possession to additional land outside one’s conveyance, the claimant must exercise actual possession of such property in such a manner as will give notice of an exclusive adverse possession. The Court of Civil Appeals at Beaumont in 1952 in Ogletree v. Evans, 248 S.W.2d 804, held that the question of whether an enclosed tract of grazing land was in the exclusive possession of the claimant for the purpose of his acquiring title thereto was a question for the jury to determine under all of the evidence. Again in 1956 the Court of Civil Appeals at Galveston in Wynn v. Mendoza, 287 S.W.2d 217, writ refused n.r.e., held that the question of whether or not the occasional grazing of cattle on disputed property was sufficient to show adverse and hostile claim thereto, was for the court or jury to determine. The mere fencing of land for more than ten years does not, in itself, demonstrate use or occupancy of the land sufficient to give title to an adverse claimant. Such claimant must come forward with clear and satisfactory proof of open and notorious claim and use of the property so as to justify the claim of title by limitations. Texas & New Orleans R. Co. v. Schoenfeld, 136 Tex. 173, 146 S.W.2d 724 (1941); Hankins v. Dilley, 206 S.W. 549 (Tex.Civ.App., Amarillo 1918); Carter & Brother v. Ruth, 275 S.W.2d 126 (Tex.Civ.App., Beaumont 1955); Marion County v. Sparks, 112 S.W.2d 798 (Tex.Civ.App., El Paso 1938, writ dism’d); and West Production Co. v. Kahanek, 132 Tex. 153, 121 S.W.2d 328 (Tex.Comm’n App. 1938). The record clearly demonstrates that appellants’ testimony concerning use of the disputed land is not of such character as would compel the trial court to render judgment in favor of appellants. Much of the testimony is conflicting with respect to the use and occupancy of the land by appellants. We hold that there was evidence to support the trial court’s findings and conclusions of law and that said findings are not contrary to the great weight and preponderance of the evidence. We have carefully considered all of appellants’ points of error and the same are overruled. The judgment of the trial court is affirmed. Affirmed.

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Caselaw Access Project

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D. O. ATKINSON, Jr., et al., Appellants, v. Lucile SCHMIDT, Appellee. No. 11930. Court of Civil Appeals of Texas, Austin. June 21, 1972. Wilson, Logan, Lear & Massey, Ralph Logan, Gregory V. Gossett, San Angelo, for appellants. Kerr, Gayer & Gregg, Lloyd Kerr, San Angelo, for appellee. PHILLIPS, Chief Justice. Appellee Lucile Schmidt brought suit in trespass to try title against Appellants D. O. Atkinson, Jr. and other members of his family in the District Court of Tom Green County. Lucile Schmidt and D. O. Atkinson, Jr. are brother and sister. Appellee based her claim to title in fee simple to the north 2,354 acres of the D. O. Atkinson, Sr. ranch in Tom Green County on two theories: first, that at the time her mother and father, Mary and D. O. Atkinson, Sr., executed similar wills in 1949, they entered into an oral contract concerning the disposition of their community property; and second, that the will of the mother, Mary Atkinson, disposed of the entire community interest on the land in question, and that by probating and accepting benefits under the will of her mother, her father, D. O. Atkinson, Sr., made an election and was therefore bound to allow the property to pass by the will of the mother. Appellants answered “not guilty” and, under Tex.R.Civ.P. 790, they further answered that the extent of their claim to the land in question is a remainder interest in an undivided one half interest to the above mentioned acreage subject to the life estate of Appellee. All parties are claiming title by and through D. O. Atkinson, Sr. and Mary Atkinson, husband and wife, who owned the land as part of their community estate. Trial was had before the court and judgment was rendered for Appellee awarding the entire fee simple title in the land to Appellee. It is from this judgment that Appellants have perfected their appeal to this Court. We affirm. Appellants are before us on seven points of error. The first three, briefed together, are the error of the trial court in rendering judgment for Appellee and in failing to render judgment for Appellants for the reason that there was either no evidence or insufficient evidence that D. O. Atkinson, Sr. and Mary Atkinson at the time of the execution of the 1949 wills, contracted that they would not revoke these wills. We overrule these points. In 1949, Mary Atkinson executed a will of which the third paragraph reads as follows : “THIRD: I give, devise and bequeath to my daughter LUCILLE SCHMIDT, subject to the hereinafter provisions, the title in fee to the North 2354 acres of the D. O. Atkinson Home Ranch containing 4,034 acres more or less, located south of Knickerbocker in Tom Green County, Texas.” The sixth paragraph of the will is as follows: “ . . . All of the property owned by my husband and myself is community property and it is my will and desire, and I hereby direct that all of said property shall remain intact so long as my husband, D. O. Atkinson, shall live, and neither of my children shall have authority, and are hereby prohibited from partitioning or in any manner dividing said real estate during the natural life of my said husband. It is my will and I further direct that my husband, D. O. Atkinson, shall, so long as he lives and during his natural life, have full and exclusive authority, and I hereby authorize my husband, D. O. Atkinson, and empower him to execute all oil, gas and mineral leases on any and all of my said real estate. . . .” At the same time that Mary Atkinson made her will in 1949, D. O. Atkinson also made his will. These wills contained identical reciprocal provisions by each of the parties in favor of the other and they made the same dispositions of the same items of property, each in favor of the same persons. Mary Atkinson died in 1956, and her will of 1949 was probated by D. O. Atkinson. At that time D. O. Atkinson had his attorney draw another will for him which was identical to his reciprocal will of 1949 with the exception of changing the executor. As stated above, Mrs. Atkinson’s will was probated on her husband’s application. He qualified as its independent executor, filed an inventory of the community estate showing goats appraised at $400, yearling ewes at $1,600, live lambs at $800, cows at $400, and $6,234.87 in cash. This was Mrs. Atkinson’s interest, all of which was given to him in her will. In addition, as such executor and exercising the exclusive authority given him by the will, he entered into a series of oil, gas and mineral leases on dates from 1958 to 1969 for considerations involving many thousands of dollars. In 1963, D. O. Atkinson executed his last will and testament which devised to Appel-lee only a life estate in his community half of the land in question with remainder to her children if any, or the children of Appellant, D. O. Atkinson, Jr. Both Appellants and Appellee agree that Appellee has title in fee simple to an undivided one half of the land under the provisions of the will of Mary Atkinson. At issue, however, is the title to the remaining undivided one half of the land. Appellee contends that she is the owner in fee simple of the remaining one half. Appellants contend that Appellee received title in fee simple to an undivided one half under the will of Mary Atkinson and only a life estate in the remaining one half under the will of D. O. Atkinson, Sr. We cannot agree with Appellants’ contention that there is no evidence or insufficient evidence that the senior Atkin-sons intended to enter into a contract under their reciprocal wills made in 1949. Quite to the contrary, testimony at trial from the late B. W. Smith, the senior Atkinsons’ attorney, who prepared all of the wills presently in issue, indicates that Mary and D. O. Atkinson, Sr. entered into an oral contract to dispose of their property as indicated in the reciprocal wills of 1949. Mr. Smith testified that, “After Mr. and Mrs. Atkinson came into the office and we were seated then I, of course, asked them what they wanted or desired, and Mr. D. O. said, Mr. D. O. Atkinson said ‘We have agreed on how we want our property to go and want you to prepare our wills for us’ . ” Again Mr. B. W. Smith testified as follows : “Q Judge, [meaning the witness] do you remember whether they said anything about an agreement that the 4,034 acre ranch would not be divided at any time during the life of the survivor? A As I recall that, Mrs. Atkinson used some of the words that I put in this will about the division of that ranch during the lifetime of the survivor. I haven’t taken time to pick them out. She used some of the words I thought were so good that I just put it in the will. Q She give you those words in the presence of D. O. Atkinson? A In the presence of D. O. Atkinson. Q At the time when she did that they were telling you what their agreement on wills was, is that correct? A That’s right. Q Did they say whether or not they wanted you to prepare a will for both of them? A Yes, sir. Q In accordance with that agreement? A Yes, sir. Q And did you? A Yes, sir.” With respect to the second will B. W. Smith drew for D. O. Atkinson, Smith testified as follows: “Q Now, after Mrs. Atkinson passed away in 1956 you drew the second will in 1957 for Mr. Oscar? A That’s right. Q And that will is virtually the same as the will in 1949, with the exception that it named Lucille and D. O. as executors in place of Mrs. Atkinson? A Lucille and D. O., Jr., as executors; yes, I believe that is right. Now, I don’t know whether there’s any other variance in there with reference to anything else or not, Ralph. I do know that’s in there, but I will take your word on it, whatever you say. Q I believe that’s in substance the only difference. A Whatever you say on it. Q Naming somebody else as executor in the will. A Okay. Q And as a matter of fact wasn’t that what Mr. Atkinson told you to do when he came in, was to prepare another will like his original will except name D. 0. Jr. and Lucille as executors in place of Mrs. Atkinson? A He told me he wanted to carry out the agreement, if it is called, whatever you call it, that name, he had with ‘Mom’ when he drew the other will.” In Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946), the Court held that one who relies upon a will as a contract has the burden of proving that the will is contractual as well as testamentary in character. Proof “may be made by the provisions of the will itself or by competent witnesses who testify to the agreement; and evidence as to declarations of the promisor, relations or conduct of the parties and other facts and circumstances, that tend to prove that an agreement was made, are admissible.” Citing cases, 193 S.W.2d 167-168. The abovementioned testimony of D. O. Atkinson and B. W. Smith was competent testimony tending to prove that the parties also intended their wills to be a contract between them. In addition, in the terms of the identical wills, each bequeaths and devises all of the community property in question to Appellee. In other words, the wills treat the property of testators as one. As stated in Nye under similar facts: “A will like that could not have been made without agreement between the testators that it should be so made. Its very terms are evidence that an agreement was made, and they are entirely consistent with the testimony of the witness as to what the agreement was.” Nye continues: “We need not determine whether the agreement between the husband and wife, pursuant to which the joint will was executed, was valid and enforceable against the wife when made. Interesting discussions of the validity of such contracts appear in Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, 402-404, application for writ of error refused, and Johnson v. Durst, Tex.Civ.App., 115 S.W.2d 1000, 1004, 1005. The husband, R. T. Bradford, fully performed his contract. He died without having undertaken to revoke the joint will and without having attempted to make any disposition of the property in contravention of the agreement. The surviving wife, on her own application, caused the joint will to be probated as the last will and testament of her deceased husband and qualified as executrix under the will. Thereupon the contract, even if it had theretofore been voidable (and as to that we express no opinion), became obligatory upon her.” Appellants cite two cases in support of their first three points, namely, Ramm et al. v. Ramm’s Estate, 314 S.W.2d 847 (Tex.Civ.App. Austin 1958, writ ref’d n. r. e.) and Magids v. American Title Insurance Company, et al., 473 S.W.2d 460 (Tex.Sup.1971). These cases are of no assistance. In Ramm we have a different set of facts. The jury found that there was no contract between the testators. This Court affirmed the trial court’s judgment entered upon the jury’s finding, stating that the evidence disclosed only that each testator wanted to make a will, that their friendliness for each other and the further fact that they were the sole survivors of their immediate family were evidence that the jury could consider as influencing the naming of beneficiaries in the will, independently of any agreement. In Magids the Court stated the crucial question to be whether the Magids made an oral agreement to dispose of their community property at their respective deaths or at the death of the first of them, in the manner set forth in the wills, and this was not asked. The Court went on to state that this failure was understandable because there was no evidence of this type in support of a contract between the testators. Such is not the case here. In Magids the Court also stated that although the wills were on an identical form prepared by the same scrivener and signed at the same time before the same witnesses, they were entirely separate wills dealing only with each testator’s property; neither will attempted to deal with the entire community estate of both testators in a manner that would affect the survivor’s one half interest or put the survivor to an election whether to take under the will. These facts are not present in this case. In other words, the Court found in Magids the evidence would support only an agreement to make identical wills and nothing more. Nor are we impressed with the contention that the clause in the will providing that neither of the children shall partition the real estate during the life of D. O. Atkinson would have been useless if the part of the estate in question was intended to go to Appellee. There are several answers to this argument. One answer is that property other than that before us was devised in the will and that only the testator’s individual interest was devised in some instances. We hold that the oral testimony quoted above and the provisions of the wills were sufficient evidence to affirm the judgment of the trial court that the death of Mrs. Atkinson put effective revocation beyond the legal right and power of D. O. Atkinson. Weidner v. Crowther et al., 157 Tex. 240, 301 S.W.2d 621 (1957). Appellants’ fourth, fifth and sixth points, briefed together, are the error of the court in failing to render judgment for Appellants for the reason that the 1949 will of Mary Atkinson, as a matter of law, did not dispose of any of the community interest of her husband, D. O. Atkinson, Sr., to the land in question, and therefore D. O. Atkinson, Sr. was not put to any election; this point is followed by the no evidence and insufficient evidence points relative thereto. We overrule these points. The will of Mrs. Atkinson expressly recognizes the fact that all of the property owned by her and her husband was community property. Some of her bequests in this will devised only her community interest. Her bequest to Appellee devised the entire community interest. Thus at her death, D. O. Atkinson, Sr. was put to an election under Mrs. Atkinson’s will. This was a question of fact to be determined by the trial court and we hold that there was sufficient evidence to sustain the judgment under the facts set out above. Lawrence v. Coffield, 468 S.W.2d 544 (Tex.Civ.App.1971, writ ref’d n. r. e.); Farmer v. Zinn et al., 276 S.W. 191 (Tex.Comm’n App.1925, opinion adopted); Cunningham v. Townsend, 291 S.W.2d 438 (Tex.Civ.App.1956, writ ref’d n. r. e.); Wurth v. Scher, 327 S.W.2d 72 (Tex.Civ.App.1959, no writ); see 60 A.L.R.2d 736. Nor can we agree with Appellants’ seventh point of error that the court erred in the judgment rendered because the oral contract alleged in Appellee’s pleading was in violation of the statute of frauds and thus unenforceable. Consequently, we overrule the point. An oral agreement to make mutual wills is taken out of the Statute of Frauds by part performance, as by the death of one party, leaving a will in accordance with the agreement, and the acceptance of benefits, under such will, by the survivor. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961). To quote from Kirk: “Mutual wills have been executed pursuant to an oral contract plus the acceptance by the survivor of the benefits provided by the will of the deceased. The deceased party to the contract has fully and completely performed.” The judgment of the trial court is affirmed. Affirmed.

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RICHARDSON HEIGHTS BANK AND TRUST, Appellant, v. Frank WERTZ, Appellee. No. 17927. Court of Civil Appeals of Texas, Dallas. June 29, 1972. Rehearing Denied July 20, 1972. H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellant. Wm. Andress, Jr., Andress & Woodgate, Dallas, for appellee. BATEMAN, Justice. The appellee Frank Wertz sued the appellant Richardson Heights Bank and Trust, herein called the Richardson bank, the Hillcrest State Bank of University Park, herein called the Hillcrest bank, and William E. Baker, for actual and exemplary damages. Sitting without a jury, the trial court rendered judgment that Wertz take nothing against the Hillcrest bank, that he recover judgment against the Richardson bank for $1,505 with interest and costs, but no exemplary damages, and that he recover default judgment against Baker for $1,505 actual damages and $1,000 exemplary damages, with interest and costs. The Richardson bank appeals and Wertz cross-appeals. The material facts revealed by the undisputed evidence are: Wertz was a general agent for American National Insurance Company and Baker was his assistant. Baker had borrowed $1,505 from American National Insurance Company and Wertz guaranteed payment of his notes therefor. On or about August 1, 1970 Baker expressed to Wertz his intention to pay the indebtedness. Wertz had already received Baker’s notes from American National Insurance Company by paying the amounts thereof to that company. Baker gave Wertz his check for $1,505, dated August 15, 1970, payable to the order of American National Insurance Company, but ordered the bank to stop payment thereof by letter dated August 10, 1970. On several successive business days after receipt of the check Mrs. Bishop, an agency secretary for American National Insurance Company in Wertz’s office, called the Richardson bank to inquire whether Baker’s check was good, and on each occasion was advised that it was not. On August 25, 1970, however, the Richardson bank advised her that it was good, whereupon, after stamping an endorsement thereon, as follows : Pay to the order of HILLCREST STATE BANK AMERICAN NATIONAL INSURANCE COMPANY For Deposit Only, she took Baker’s check to the Richardson bank and exchanged it for a cashier’s check from that bank dated August 25, 1970, payable to the order of “American National Insurance Co. for deposit only to Hillcrest State Bank,” in the sum of $1,505. Upon receipt of that cashier’s check Wertz delivered to Baker his notes aggregating- $1,505, and Mrs. Bishop deposited the cashier’s check to the account of American National Insurance Company in the Hillcrest bank. On August 27, 1970 the Richardson bank wrote a letter to Wertz, with copy to the treasurer of American National Insurance Company, asking return of the cashier’s check because Baker’s check had been paid under a mistake of fact, a computer error, in that Baker had previously given the bank an order to stop payment on his check. On August 31, 1970 the Richardson bank wrote the treasurer of American National Insurance Company, with copy to Wertz, that a stop-payment order had been placed on the cashier’s check. The cashier’s check was received by the Hillcrest bank on September 10, 1970, marked “Payment Stopped.” The trial court’s conclusions of law were that (1) Wertz was the beneficial owner of both Baker’s check and the cashier’s check, and had suffered a loss of $1,505; (2) the Richardson bank wrongfully stopped payment on its cashier’s check and is liable to Wertz for the amount thereof; and (3) the Richardson bank knowingly participated in Baker’s acts in stopping payment of checks before the date of such checks, but is not liable for exemplary damages. Appellant’s four points of error on appeal complain of (1) the trial court’s holding that it wrongfully stopped payment on the cashier’s check; (2) the judgment in favor of Wertz on a cashier’s check of which he was neither a payee nor endor-see; (3) the judgment because it has no support in the pleadings - or (4) the evidence. The points will be discussed and disposed of together. Wertz cannot say that he paid the insurance company in reliance upon either Baker’s check or the cashier’s check, or that he has been damaged by anything the Richardson bank did, because he had already paid the insurance company and received the notes from it before either check was issued. Being neither payee nor endorsee of either check, he was not a holder in due course. Texas Uniform Commercial Code, § 3.302, V.T.C.A. Baker had an absolute right to order payment stopped on his check, Texas Uniform Commercial Code, § 4.403, and the bank was obligated to honor the order, Central Nat. Bank of Houston v. Martin, 396 S.W.2d 218, 221 (Tex.Civ.App., Houston 1965, writ dism’d), and would have been liable to Baker if it had not honored it. McPheeters v. Farmers State Bank, 416 S.W.2d 605, 608 (Tex.Civ.App., Tyler 1967, no writ); Hewitt v. First National Bank, 113 Tex. 100, 252 S.W. 161 (1923); American National Bank v. Reed, 134 S.W.2d 782 (Tex.Civ.App., Amarillo 1939, writ dism’d). See also First-Wichita National Bank v. Steed, 374 S.W.2d 932, 934 (Tex.Civ.App., Fort Worth 1964, no writ); Central National Bank of Houston v. Martin, supra; Pram Laboratories, Inc. v. Pram Laboratories-South, 445 S.W.2d 533, 538 (Tex.Civ.App., Dallas 1969, no writ); Capital National Bank in Austin v. Wootton, 369 S.W.2d 475 (Tex.Civ.App., Austin 1963, writ dism’d); Pacific Molasses Co. v. Graves, 451 S.W.2d 294, 298 (Tex.Civ.App., San Antonio 1970, writ ref’d n. r. e.). Wertz argues that he changed his position in reliance upon the issuance of the cashier’s check by delivering the notes to Baker, and was thus damaged by the Richardson bank’s refusal to honor its cashier’s check. However, he sustained no damage or loss thereby, because he recovered judgment against Baker for the amount of said notes together with $1,000 exemplary damages, from which judgment no appeal was taken. In State v. Tyler County State Bank, 277 S.W. 625, 627, 42 A.L.R. 1347 (Tex.Com.App. 1925, jdgmt adopted and holding appr’d), the law is clearly stated, as follows : “An ordinary check is simply a written order of a depositor to his bank to make a certain payment, and is executory in its nature. A cashier’s check is one issued by the authorized officer of a bank directed to another person evidencing the fact that the payee is authorized to demand and receive upon presentation from the bank the amount of money represented by the check, and like an ordinary one, it is also executory in its nature and revocable at any time before the bank has paid it. 1 Words and Phrases, Second Series, p. 658.” That case was cited with approval and quoted from in Preston v. First State Bank of Amarillo, 344 S.W.2d 724, 726 (Tex.Civ.App., Amarillo 1961, writ ref’d n. r. e.). Since Wertz was not a holder in due course of either check, whatever rights or ownership he might have had in them were subject to the defenses of the bank. Texas Uniform Commercial Code, § 3.306. The bank had pled, inter alia, both lack and failure of consideration for its cashier’s check, and since it was obligated by law to honor the stop-payment order, the lack of consideration was a good defense to Wertz’s action on the cashier’s check. We therefore hold that the trial court erred in holding that the Richardson bank acted wrongfully in refusing to pay its cashier’s check, and that there was no evidence to support the judgment. We also agree with appellant that there is no support for the judgment in the pleadings. Wertz alleged in his petition that the Richardson bank issued a cashier’s check payable to American National Insurance Company for deposit only to Hillcrest State Bank, and that immediately after issuance of the cashier’s check the bank notified him that it had been issued in error and requested its return. He also alleged that after payment had been stopped on the check the Hillcrest bank charged back to the American National Insurance Company’s account in the Hillcrest bank the amount of the check. Rule 301, Vernon’s Texas Rules of Civil Procedure, provides that the judgment shall conform to the pleadings. Both the pleadings and the evidence in this case show that both checks were payable to American National Insurance Company, and Wertz did not plead that he was the payee, endorsee or assignee of either check, or that he had any interest in either check. The trial court concluded, as a matter of law, that Wertz was the “beneficial owner” of the cashier’s check, but there was no pleading of such beneficial ownership. All four of appellant’s points of error are sustained. Wertz presents two cross-points of error under which he says (1) that the stop-payment order issued by Baker five days before the issuance of his check was not valid and was “a badge of fraud,” and (2) that “the repeated connivance of the Richardson Bank in honoring Baker’s stop-payment orders given before the issuance of the checks constitutes legal malice requiring imposition of exemplary damages in order to make Wertz as a faultless party whole.” The cases cited in support of these cross-points may be said to support a judgment against Baker, but do not support the judgment against the Richardson bank. Wertz argues that the evidence shows that the bank was aware of Baker’s “penchant” for stopping payment on checks before he even drew them and, by honoring the stop-payment order in question, “connived” in the practice, thus making itself liable in exemplary damages to Wertz. We know of no authority which would support this position. The cross-points are without merit and are overruled. The judgment of the trial court is reversed and judgment here rendered that appellee Wertz take nothing by his suit against appellant Richardson Heights Bank and Trust. Appellee’s judgment against William E. Baker is not disturbed. All costs are taxed against appellee Wertz. Title 1 of Texas Business and Commerce Code.

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TRIUMPH SMOKES, INC., Appellant, v. George SARLO et al., Appellees. No. 623. Court of Civil Appeals of Texas, Tyler. June 29, 1972. Rehearing Denied July 20, 1972. Wynne & Wynne, Ben Monning, Jr., Wills Point for appellant. Atwell, Malouf, Musslewhite & Bynum, Dan M. Cain, Dallas, for appellees. MOORE, Justice. Appellant, Triumph Smokes, Inc., seeks a reversal of a summary judgment granted appellees George Sarlo and James C. Cur-rey. Appellee, George Sarlo, alleged that he was the owner and holder of two non-subordinated debentures issued by the appellant corporation in the face amount of $24,141.44 and $3,335.14. Appellee James C. Currey alleged that he was the owner and holder of a non-subordinated debenture issued by appellant in the face amount of $42,244.00. Appellees further alleged that the debentures were due and unpaid. Appellant, Triumph Smokes, Inc., answered with a general denial. Appellees filed a motion for summary judgment alleging that the pleading and other summary judgment evidence failed to raise a dispute upon any material issue of fact and that appellees were therefore entitled to a summary judgment as a matter of law as provided by Rule 166-A, Texas Rules of Civil Procedure. After a hearing the trial court rendered a summary judgment in favor of appellee George Sarlo for the sum of $27,476.58 and in favor of appellee James C. Currey for the sum of $42,244.00. Appellant, Triumph Smokes, Inc., duly perfected this appeal. The facts are undisputed. W. S. Wells, President of Triumph Smokes, Inc., testified by affidavit that the company issued the debentures to George Sarlo “to redeem from him 3,762 shares of Common Stock, 200 shares of Preferred Stock, and to reimburse him for his payment of a 14,000 dollar loan plus 650.63 dollar interest made to the company by the National Bank of Commerce guaranteed by Mr. Sarlo”; that “the debenture was issued to Mr. James C. Currey to redeem from him 42,244 shares of Common Stock.” He further stated in his affidavit that “at the time the debentures were issued, this company had no earned surplus and has not had any since that time. The decision to issue the debenture to plaintiff was made by the directors at a meeting held on June 10, 1969, and not by the stockholders.” It is undisputed that the debentures are past due and unpaid. Both parties concede that no disputed issue of fact exists and that the entire controversy amounts to a legal question involving the statutory authority of the corporation to repurchase its own stock. Appellant, Triumph Smokes, Inc., urges that the trial court erred in granting a summary judgment against it because of the provisions of the Business Corporation Act, Article 2.03, V.A.T.S., declaring that a corporation shall not purchase its own stock except to the extent of the earned surplus available therefor. Appellant takes the position that since it had no earned surplus at the time of the purchase or at any subsequent time, the corporate act in issuing the debentures in payment for the stock was illegal and void. We affirm the judgment of the trial court. Article 2.03 of the Texas Business Corporation Act, supra, provides in part, as follows: “A. A corporation shall not purchase directly or indirectly any of its own shares unless such purchase is authorized by this Article and not prohibited by its articles of incorporation. “B. A corporation may purchase its own shares to the extent of the aggregate of any unrestricted surplus available therefor and its stated capital when the purchase is authorized by the directors, acting in good faith to accomplish any of the following purposes: “(1) To eliminate fractional shares. “(2) To collect or compromise indebtedness owed by or to the corporation. “(3) To pay dissenting shareholders entitled to payment for their shares under the provisions of this Act. “(4) To effect the purchase or redemption of its redeemable shares in accordance with the provisions of this Act. “C. Upon resolution of its board of directors authorizing the purchase and upon compliance with any other requirements of its articles of incorporation, a corporation may purchase its own shares to the extent of unrestricted earned surplus available therefor if accrued cumulative preferential dividends and other current preferential dividends have been fully paid at the time of purchase.” Article 2.04 of the Act abolishes “lack of capacity” of a corporation as the basis of a defense at law or in equity. Inter-Continental Corporation v. Moody, 411 S.W.2d 578 (Tex.Civ.App., Houston, 1966, ref., n. r. e.). Appellant contends that since no earned surplus was available for the purchase of the stock, Article 2.03, supra, makes the action of the board of directors illegal and therefore the debentures are void and unenforceable. Appellees take the position that the repurchase of the stock was merely ultra vires. Consequently they argue that Article 2.04, supra, prohibits appellant from urging lack of capacity as a defense. Thus, we have this question: Was the repurchase of the stock under the circumstances illegal and void? We have concluded that it was not. A distinction is to be made between the act of a corporation which is merely without authority, and one which is illegal. In the one case, it is a question of authority; in the other, of legality. A corporate act becomes illegal when committed in violation of an express statute on a specific subject. Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994. Before the enactment of the Texas Business Corporation Act in 1955, there was no statutory prohibition against a corporation purchasing its own stock. By the enactment of Article 2.02, subd. A(8) of the act, the legislature specifically conferred power on corporations to purchase their own stock. This statute, by its own wording, constitutes a grant of such power. Article 2.03(c) of the act likewise recognizes that a corporation has power to purchase its own stock but restricts such purchases to the extent of its unrestricted earned surplus. The legislature did not declare that the repurchase by the corporation when no earned surplus was available therefor, would render the transaction void. Had such been the intention of the legislature it would have been easy to make it manifest. Thus it appears that Article 2.03(C) amounts only to a limitation upon the power granted, not to a positive prohibition. Whitten v. Republic National Bank of Dallas, 397 S.W.2d 415 (Tex.Sup., 1965). This, we think, is made clear because of Article 2.41, subd. A(2) of the Texas Business Corporation Act, which provides as follows: “A. (2) Directors of a corporation who vote for or assent to the purchase of its own shares contrary to the provisions of this Act shall be jointly and severally liable to the corporation for the amount of consideration paid for such shares which is in excess of the maximum amount which could have been paid therefor without violating the provisions of this Act.” If Article 2.03(C), supra, should be construed as declaring that the repurchase of stock by a corporation, when no earned surplus was available, was to be unlawful and void, then the provisions of Article 2.41, subd. A (2) would be meaningless. Obviously the corporation could not recover from the directors if the transaction was illegal and void. Thus, we are of the opinion that the repurchase of the stock in this instance was not illegal and that the debentures issued in payment for the stock are enforceable. The general rule is that the validity of a purchase by a corporation of its own stock may be attacked only by persons who are injured or whose rights are prejudiced thereby. The validity of the purchase may not be attacked by the corporation itself. Article 2.04, Texas Business Corporation Act, V.A.T.S.; Lanpar Company v. Stull, 405 S.W.2d 235 (Tex.Civ.App., Waco, 1966, writ ref., n. r. e.); Cavitch, Business Organizations, Sec. 147.04(3); La Voy Supply Co. v. Young, 84 Idaho 120, 369 P. 2d 45 (1962), citing 6A Fletcher, Cyclopedia Corporations (1950 revision), sec. 2861, pp. 413-415. The judgment of the trial court is affirmed.

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HOSPITAL SCIENCES OF NORTHERN CALIFORNIA, INC., et al., Appellants, v. MEDICAL COMPUTER SYSTEMS, INC., Appellee. No. 5127. Court of Civil Appeals of Texas, Waco. June 15, 1972. Rehearing Denied July 13, 1972. James A. Moore, T. D. Smith, Houston, for James Reed and O. B. Frasier. Margolis & Staffin, Dallas, for Hospital Sciences of Northern California, Inc. Michael Lowenberg, Akin, Gump, Strauss, Hauer & Feld, Dallas, for Medical Computer Systems, Inc. OPINION JAMES, Justice. This is a venue matter involving Subdivision 4 of Article 1995, Vernon’s Ann. Tex.Civ.St. Plaintiff-Appellee Medical Computer Systems, Inc. (hereinafter called MCSI, a Texas Corporation based at Dallas, Texas) brought this suit in Dallas County, Texas, against Hospital Sciences of Northern California, Inc. (hereinafter called HSNC, a California Corporation, based at Oakland, California) Eden Township Hospital District (a California Hospital District), West Contra Costa Hospital District (a California Hospital District), one Charles Johnson (a resident of California), Appellant James Reed (a resident of Texas) and Appellant O. B. Frasier (a resident of Harris County, Texas). MCSI’s suit arises out of a written contract between itself and HSNC, wherein MCSI agreed to perform data processing services through HSNC to its member hospitals, including Eden and Brookside. Performance of the contract called for the member hospitals in the San Francisco, California area, to gather and prepare their input data and turn it over to MCSI representatives stationed in California, who in turn would send the data either by leased wire or mail to MCSI computers located in Dallas, Texas. The computers would issue the types of reports required by the hospitals and transmit them back from Texas to California over a leased line and deliver them to HSNC and its member hospitals. The reports made by the computers included such things as patient billing, proration of hospital bills between the insurance companies and the patients, accounts receivable, accounts payable, and several other aspects of hospital business records. MCSI’s suit was in two counts, the first count being for the alleged unpaid balance due by HSNC, Eden, and Brookside to MCSI under the contract and for damages, with which count we are not concerned. The second count alleged a fraudulent conspiracy between Johnson, Reed and Frasier, wherein they were charged with interfering with the contractual relationship between MCSI and HSNC, causing HSNC to cancel its contract with MCSI and placing its work with another company called Medical Dimensions, Inc., (hereinafter called MDI), in which Reed and Frasier were interested. During the times material to the alleged conspiracy, Johnson was Executive Director of HSNC, and was a resident of California; Reed was Marketing Manager of MCSI and was alleged by Plaintiff-Appellee MCSI to be a resident of Dallas County, Texas, whereas Reed himself contended that he was a resident of Harris County, Texas; and Frasier was a resident of Harris County, Texas. Fra-sier had been an official of MCSI until May 31, 1970, when he was fired by MCSI, after which he had formed MDI with headquarters at Houston, Harris County, Texas, and was Chairman of the Board of Directors of MDI at the time of the alleged conspiracy. Reed and Frasier each filed pleas of privilege to be sued in Harris County, Texas, which were controverted by Plaintiff. The trial court after a hearing overruled both pleas of privilege, from which order Reed and Frasier prosecute this appeal. Appellants set out three points of error in their brief; however, in view of our ruling on the first point it will be unnecessary for us to discuss their second and third points. Their first point contends the trial court erred in overruling their pleas of privilege under Subdivision 4 of Article 1995 in that Plaintiff-Appellee failed to prove that any of the Defendants were residents of Dallas County and further that Plaintiff-Appellee failed to prove a cause of action against any Defendant alleged to be a resident of Dallas County. We overrule this point and affirm the order of the trial court. The pertinent language of Subdivision 4 is: “4. Defendants in different counties.— If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * We have carefully reviewed the entire record, and have found that there is ample evidence to show that Reed was a resident of Dallas County, and was therefore a resident Defendant. Frasier was without dispute a resident of Harris County and was therefore a nonresident Defendant. To maintain venue under Subdivision 4, Article 1995, VATS, where there is a resident and a nonresident Defendant, as here, it is not incumbent upon the Plaintiff to prove a cause of action against the nonresident Defendant, and he establishes his right to maintain venue where laid by (a) alleging a joint cause of action against both Defendants, or a cause of action against the resident Defendant so intimately connected with the cause of action alleged against the nonresident Defendant that the two may be joined under the rule intended to avoid a multiplicity of suits; (b) by proving by independent evidence that the resident Defendant in fact resides in such county; and (c) proving that the Plaintiff has a cause of action against the resident Defendant. Stockyards National Bank v. Maples (Comm.App.1936) 127 Tex. 633, 95 S.W.2d 1300, opinion adopted by the Supreme Court; Ladner v. Reliance Corporation (1956), 156 Tex. 158, 293 S.W.2d 758. In the case at bar, we believe the Plaintiff has met the burden imposed upon him to maintain venue under Subdivision 4. First, he has alleged a joint cause of action against Reed, Frasier, and Johnson, by its allegations that they entered into a fraudulent conspiracy to bring about a cancellation by HSNC of the contract with Plaintiff, and to cause HSNC to place their data processing business with MDI. See McCollum v. Merchants Factors Corp. of Texas (Dallas Tex.Civ.App.1962) 358 S.W.2d 183, no writ history. Second, we believe the Plaintiff proved Reed to be a resident of Dallas County. Reed together with his wife and mother-in-law owned a home at 3747 Vine-crest in the City of Dallas, in Dallas County, in which resided his wife and three children. Reed contended that his wife and he are permanently separated; however, there is no divorce suit pending nor is there any contemplated by himself or his wife. Reed resigned from MCSI on June 30, 1970, and went to work for MDI in July, 1970, in Houston. Since July 1970, he stayed for a time in a motel and then changed to an apartment in Houston where he was staying at the time of the trial court’s hearing. During all of this time he has been working in Houston, his apartment rent and his telephone bill have been paid or reimbursed by his employer MDI. Mr. Frasier, an officer of MDI, testified that his company maintained apartments for its employees as a “cost of doing business for distant locations that require various people to be in and out from time to time”. Meanwhile, Reed’s wife and three children live at the Dallas home, where Reed keeps his personal clothing and effects. He “visits” his family in Dallas two or three or more times per month, according to his testimony, and does not need to take a suitcase there since he has adequate clothes and effects in the Dallas home. He has a personal listing in the Dallas telephone directory, and pays all the household expenses either personally or through his wife; he pays property taxes in Dallas County; all his cars are registered in Dallas County, including the one he drives when in Houston; he pays taxes on his cars in Dallas County; he obtained his current automobile liability insurance in Dallas County; he periodically visits his personal physician in Dallas County. In short, we believe the proof is amply sufficient to show that Reed was a resident of Dallas County, and to support the tKal court’s implied finding to this effect. Third, we believe the Plaintiff proved a cause of action against Reed, the resident Defendant. Reed was an employee of Plaintiff MCSI until June 30, 1970, when he resigned and a few days later went to work for MDI in July 1970. While Reed worked for MCSI, one of his duties was to supervise the performance of the contract in question with HSNC. On June 26, 1970, Reed attended a meeting in Walnut Creek, California, at the residence of Defendant Johnson, together with Johnson, Frasier, and the hospital administrators of the various hospitals associated with HSNC. Reed testified that he attended the meeting at the invitation of Frasier and that the purpose of the meeting was to persuade HSNC and the hospitals to terminate their contract with MCSI and enter into a new data processing agreement with MDI. Reed participated in the discussion, helped Frasier to explain his new proposal, answered questions asked by the hospital administrators, and used his best efforts to help MDI get the contract. It was generally agreed that Reed enjoyed the confidence of the hospital administrators and the HSNC people, and therefore the things he told them carried considerable weight. He told them that if they would cancel their contract with MCSI, and make a new agreement with MDI, that he would quit his employment with MCSI and go to work for MDI. The next day after this meeting, on June 27, 1970, HSNC did terminate its contract with MCSI, and entered into a new contract with MDI. Three days later on June 30, 1970, Reed resigned his job with MCSI and went to work for MDI. On June 25, 1970, the day before the conference at Johnson’s residence, Reed and Frasier had a private talk in which Reed expressed a willingness to quit his job with MCSI and go to work for MDI if Frasier could get the HSNC contract for MDI. Frasier at this time told Reed he would be interested in having Reed come to work for MDI. Of course all of this time Reed was in the employ of MCSI, and testified that he ostensibly made this trip to California for the purpose of collecting money due MCSI from HSNC and the hospitals. We are of the opinion that the Plaintiff MCSI has proved a cause of action against Reed, the resident Defendant, by showing the conspiracy that he entered into with Frasier as hereinabove set out. The proof shows that Reed and Fra-sier did plot to induce the cancellation of the Plaintiff’s contract in question and get the business for MDI; that Reed was instrumental in carrying out the plot while an employee of Plaintiff; that Reed and Frasier were successful in their scheme, after which Reed quit his job with Plaintiff to go to work for MDI. In the instant case, no findings of fact and conclusions of law were filed, and none were requested by Appellants. This being true, the trial court’s judgment implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and the implied findings of fact incident thereto, it is proper to consider only that evidence most favorable to the issues and to disregard entirely that which is opposed to them or contradictory to their nature. Renfro Drug Co. v. Lewis (1950) 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. The foregoing test on appeal in a venue case is the same as in any other civil case. Banks v. Collins (1953) 152 Tex. 265, 257 S.W.2d 97. Also see Kirksey v. Warren (Dallas Tex.Civ.App.1961) 348 S.W.2d 33, no writ history. The trial court’s judgment overruling the Appellants’ pleas of privilege is accordingly affirmed. Affirmed.

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Johnny LOPEZ, Appellant, v. ROYAL INDEMNITY CO., Appellee. No. 15070. Court of Civil Appeals of Texas, San Antonio. June 28, 1972. Tinsman & Houser, Inc., Robert D. Sohn, San Antonio, for appellant. Loyd E. Bingham, Jr., House, Mercer, House & Brock, San Antonio, for appel-lee. PER CURIAM. This is an appeal by appellant from a take-nothing summary judgment granted Royal Indemnity Company in appellant’s suit against Harold Ushery and Royal Indemnity Company to recover damages for personal injuries and property damage sustained in an automobile collision. Summary judgment was granted Royal Indemnity Company upon the trial court’s conclusion that, as a matter of law, appellant had not given written notice as soon as practicable after the accident. The summary judgment makes reference to the fact that the suit is brought against two defendants; however, there is no disposition made of appellant’s claim against Harold Ushery, nor is there an order of severance in the record before us. Therefore, we do not have the power to review the partial summary judgment granted in this cause. See Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959); Travelers Insurance Company v. Appell, 471 S.W.2d 886 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). The appeal is dismissed for want of jurisdiction. . At the time of the accident, Harold Ushery carried liability insurance with Dealers National Insurance Company. Dealers National Insurance Company was placed in receivership before a settlement was consummated with Lopez, and he, therefore, seeks recovery from Royal Indemnity Company under the uninsured motorist’s coverage of his own policy.

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Raymond J. ROSE et ux., Appellants, v. STATE of Texas et al., Appellees. No. 15063. Court of Civil Appeals of Texas, San Antonio. May 24, 1972. Rehearing Denied June 21, 1972. Gordon L. Hollon, Edward G. Marion, Boerne, for appellants. Jack B. Peden, Boerne, Edward F. Yar-brough, San Antonio, for appellees. BARROW, Chief Justice. Raymond J. Rose and wife, Dolly Rose, have perfected this appeal from a judgment of the County Court of Kendall County signed on October 26, 1971, amending a judgment signed on February 9, 1971, whereby the award of the Special Commissioners in a condemnation action filed by State of Texas and Kendall County against Raymond J. Rose et ux. was made the judgment of the court pursuant to Article 3266, Subdivision 7, Vernon’s Annotated Civil Statutes. A question is raised at the outset as to whether we have jurisdiction to hear this appeal since neither party in said condemnation proceeding filed objections to the award of the commissioners. The background of this case presents a rather unusual situation. On October 20, 1971 [sic 1970], condemnors filed the original statement in eminent domain seeking to condemn for highway purposes a tract of land containing 0.910 acre of land which was described by metes and bounds. Special Commissioners were appointed, a hearing was had, and on January 4, 1971, an award was made whereby damages in the amount of $7,300.00 were assessed, and State was awarded title to the specifically described 0.910 acre tract of land. No objections were filed by either party, and on February 9, 1971, judgment was entered on this award by the county court where the 0.910 acre tract of land was again described by metes and bounds. On June 17, 1971, condemnors filed a motion in the county court to amend the judgment of February 9, 1971, wherein it was alleged that a tract containing 6.852 acres of land was omitted through inadvertence and mistake from the original statement and the commissioners’ award as well as the judgment entered thereon, and condemnors sought to amend said judgment to include this second tract. A hearing was had on this motion over condemn-ees’ objections and after hearing evidence relating to what land was considered at the original condemnation proceeding, the trial court entered the judgment complained of wherein both the 0.910 acre tract and 6.852 acre tract were awarded to State. It is recognized that under Article 3266, Subdivision 7, the county judge makes the commissioners’ award the judgment of the court purely as a ministerial act where no objections are timely filed to such award. The question before us is whether the county court assumed jurisdiction by hearing evidence relating to the condemnation hearing, whereby the proceeding became a civil case including the right of appeal. A similar question was presented in Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 939 (1958), wherein it was expressly held that “ . . . when no timely objections to the award are filed, there is no right of appeal from the judgment subsequently entered in the proceedings even though the same does not conform to the award.” In Pearson, the county court, after hearing evidence from several witnesses, including one of the commissioners, found that the lessee did not take p-ivc in the hearing by the commissioners and that no evidence was there offered as to the value of its interest. The county court then ordered that the entire amount be paid over to the landowner, although the commissioners’ award was apparently made to the landowner and lessee. No complaint was there made that the county court judgment had varied the amount of damages awarded by the commissioners. Here, we have the situation expressly considered by Justice Norvell in his dissenting opinion in Pearson in that the amended judgment of the county court does not conform to the award of the commissioners. In such dissenting opinion, it was very persuasively reasoned that such judgment would be void as beyond the ministerial power of such court and should be set aside on appeal. Nevertheless, such position was considered and expressly rejected by the majority in Pearson wherein it was held: “If the proceedings are regular through the commissioners’ decision, a party who is aggrieved by the county judge’s refusal to proceed or by the entry of a judgment that does not conform to the award has his remedy by a mandamus proceeding to compel the entry of judgment in accordance with the award. Questions pertaining to irregularities which might render the award or judgment void can be determined in such a proceeding as well as in a direct action to set aside the judgment, but could never be properly considered in an appeal from the judgment.” 315 S.W.2d at 939. See also Sanders v. City of Beaumont, 470 S.W.2d 80 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.); Hale v. Lavaca County Flood Control Dist., 344 S.W.2d 245 (Tex.Civ.App.—Houston 1961, no writ); Lemmon v. Giles, 342 S.W.2d 56 (Tex.Civ.App.—Dallas 1960, writ dism’d), holding approved in City of Dallas v. Dixon, 161 Tex. 618, 343 S.W.2d 697 (1961). Since there were no timely objections to the award filed herein, there is no right of appeal from the judgment subsequently entered in the administrative proceedings. Accordingly, we have no jurisdiction over this appeal. The appeal is dismissed. CADENA, Justice (dissenting). Whatever the merits of the reasoning which led the Texas Supreme Court in Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958), to the conclusion on which the majority opinion relies, there is no need for this Court to allow itself to be immobilized by the same conceptual straitjacket. Appellants here did not ask the county judge to set aside an award of the commissioners in condemnation to which they filed no objections. They do not ask this Court to review the purely “ministerial” act performed by the county judge in entering a “judgment” based on the award of the commissioners. Appellants here, as they did in the county court, are defending that judgment. Here it is the .State which, without filing objections to the award of the commissioners, has successfully “appealed” from the final result of the “administrative” process. In Pearson, the majority of the Supreme Court held that a party who is aggrieved by the “judgment” ministerially entered may air his grievances in a mandamus suit or “ . . . in a direct action to set aside the judgment, . . . . ” 315 S.W.2d at 939. In this case, the State of Texas, without objecting to the award and without making any effort to prevent the entry of the judgment based on such award, filed a “Motion Requesting Court to Amend Its Judgment.” This was followed by the filing of an instrument which was captioned “Plaintiffs First Amended Original Petition.” In both of these instruments, the State prayed that appellants be served “. . .in the manner and for the length of time required by law, . . . .” and that the court amend its judgment so as to embrace land which was not described in the statement in condemnation, the award of the commissioners, or the judgment based on such award. It is clear that in these proceedings, initiated after the administrative process had been concluded by the entry of the judgment, the State was not seeking the correction of a merely “clerical” error. Nor is this a case where the court below merely corrected its records because the judgment reflected by the records is not the judgment actually rendered. Under the pleadings in this case, the county judge had no power to enter a judgment embracing land not described in the statement in condemnation filed by the State. The judgment entered by the county judge was the only judgment which could have been entered, insofar as the amount of land taken is concerned. Rayburn, Texas Law of Condemnation, Section 37(2) (1960). This simple fact is true without reference to whether the action of the county judge in entering judgment on the award is described as a judicial or ministerial act. What we have before us, then, is clearly what the Supreme Court described in Pearson as a “direct action” attacking the “ministerial” judgment previously entered. It is, in fact, a new, separate and independent suit. The fact that it was initiated by the filing of a “motion” to “amend” that judgment is immaterial. Nor does the fact that it was filed in the same cause or proceeding as the condemnation proceedings themselves prevent us from recognizing it as a new and independent cause. Cf. Green v. Spell, 191 S.W.2d 92 [Tex.Civ.App.—Beaumont 1945, writ ref’d 144 Tex. 535, 192 S.W.2d 260 (1946)]. Under the facts of this case, I believe that the order of the county court “amending” the judgment entered on the award cannot be regarded as merely a continuation of the administrative process which had come to a conclusion with the entry of such judgment. The order of which appellants here complain is an order entered in a “direct action” assailing the validity of the judgment previously entered. It is, in every sense of the word, a “judicial” act which constitutes an appealable “judgment.” . It is true that the condemnors filed an amended motion which is erroneously styled “Plaintiff’s First Amended Original Petition,” however, the introductory paragraph of such instrument expressly designates same as a “ . . . motion for an amended judgment in this cause, . . ” Furthermore, petitioners pray “ . that this Court amend its judgment rendered on the 9th day of February, 1971, so as to embrace in that judgment the 6.852 acres described herein, . . . .” On October 26, 1971, the county court entered its decree which was styled “Judgment of Court Amending Prior Judgment Entered in Absence of Objections.” The body of this judgment provides that “ . • • said original judgment, dated February 9, 1971, should be amended to include the 6.852 acres of land, more or less, as set out and described in Plaintiff’s first amended original motion Thereafter both tracts are described by metes and bounds as being part of the award of the Special Commissioners which was being made a judgment in the absence of objections. It is therefore clear that the trial court, by the judgment of October 26, 1971, amended the judgment of February 9, 1971, to include both tracts. We cannot by the fiction of treating this as “a new suit” reassert the minority view asserted in Pearson. . “If no objections to the decision are filed within the time prescribed by Subdivision 6 of this Article, the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the court and issued the necessary process to enforce the same.” . The jurisdiction of the County Court is appellate and it has little jurisdiction to condemn land not described in the statement for condemnation. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 (1960); Stubblefield v. State, 425 S.W.2d 699 (Tex.Civ.App—Tyler, 1968, writ ref’d n. r. e.).

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W. A. SNELLINGS et al., Appellants, v. T. J. SNELLINGS et al., Appellees. No. 5107. Court of Civil Appeals of Texas, Waco. May 18, 1972. Rehearing Denied June 15,1972. C. O. McMillan, Stephenville, for appellants. Campbell & Crouch, Hamilton, for ap-pellees. OPINION McDONALD, Chief Justice. This is an appeal from judgment setting aside two deeds on ground of mutual mistake and decreeing plaintiffs and defendants an undivided one-half equal acreage, in a 229.24 acre tract of land. Plaintiffs are the children of A. O. Snellings; defendants are the children of H. E. Snellings. A. O. Snellings and H. E. Snellings were brothers, and the children of H. A. J. and Mary Snellings. Plaintiffs alleged that in April 1932, A. O. Snellings, their father, agreed with defendants, to partition the land left by their parents and grandparents H. A. J. and Mary Snellings; that the parties employed a surveyor J. R. McMillan to survey and divide the land into two tracts of equal acreage; that relying on the field notes of the surveyor the parties executed warranty deeds to each other conveying to the other what was thought to be one-half of the H. A. J. and Mary Snellings land; that surveyor McMillan erroneously computed the acreage of the land to be 240 acres, and erroneously computed his division of the same, which was conveyed by the parties to each other, to be two tracts containing 120 acres each; that all the parties relied on this erroneous and incorrect information, by mutual mistake accepted the field notes as equally dividing the land as to acreage, and executed their deeds to each other for 120 acres each, based on such erroneous information; that plaintiffs learned by a later survey that the total acreage is only 229.24 acres, and that the part deeded to A. O. Snellings was only 94.08 acres, while the part deeded by A. O. Snellings to defendants contained 135.16 acres. Plaintiffs plead a mutual mistake in the 1932 exchange of deeds, and prayed for judgment declaring such deeds invalid and void, and for a division and partition whereby one-half of the 229.24 acres be partitioned to plaintiffs, and one-half to defendants. Defendants by answer denied mutual mistake, alleged the division was made as intended by the parties; and plead the four-year statute of limitations in bar of plaintiffs’ suit. Trial was before the court which rendered judgment finding the 1932 deeds were executed by mutual mistake of the parties so as to render same void and invalid as partitioning the lands intended by the parties, and decreed plaintiffs and defendants entitled to recover an undivided one-half equal acreage of the 229.24.acre tract. The trial court further appointed Eugene Angerman, a surveyor, to survey and partition the land equally as to acreage, and report such partition survey to the court within 30 days. Defendants appeal on 7 points contending: 1) There is no evidence or insufficient evidence that all parties to the 1932 deeds were mutually mistaken at the time of the execution and delivery of such deeds. 2) The trial court erred in not sustaining defendants’ plea of the four-year statute of limitations. Defendants’ 1st contention that there is no evidence or insufficient evidence that all parties to the 1932 deeds were mutually mistaken at the time of the execution and delivery of such deeds. H. A. J. Snellings and wife Mary Snell-ings owned the land here involved. In 1932 after their deaths, A. O. Snellings (father and predecessor of plaintiffs), and defendants, employed surveyor McMillan to survey and (iivide such land into two equal parts. McMillan surveyed the tract, mistakenly found it to contain 240 acres, and surveyed two portions thereof, mistakenly found to contain 120 acres each, and prepared field notes for each tract, which A. O. Snellings and defendants used in executing and delivering partition deeds to each other. The two tracts were never fenced off from each other, but were treated as if an equal acreage division had been made from 1932 until 1969. J. B. Ratliff leased the entire tract for 18 years for $240. per year, for which he paid $120. per year to plaintiffs, and $120. per year to defendants. In 1969 in view of a possible sale of plaintiffs’ portion, a survey of the place was made by surveyor Angerman who found the tract contained a total acreage of 229.24 acres; the tract conveyed to A. O. Snellings contained 94.08 acres; and the tract conveyed to defendants contained 135.16 acres. Defendant W. A. Snellings, who participated in the employment of surveyor McMillan in 1932, testified as to the mistake of surveyor McMillan, that none of the parties were aware of it, but relied on his survey and field notes in executing the partition deeds. The evidence is ample to sustain the trial court’s finding of mutual mistake in the execution of the deeds. The mistake of the surveyor under the record is such mistake as to afford ground for reformation for mutual mistake. Louviere v. Power, Tex.Civ.App., NRE, 389 S.W.2d 333; Hill v. Brockman, Tex.Civ.App., NWH, 351 S.W.2d 934; Bates v. Lefforge, Com.App., 63 S.W.2d 360; Olvey v. Jones, 137 Tex. 639, 156 S.W.2d 977. Defendants’ 2nd contention is that the trial court erred in not sustaining their plea of the four-year statute of limitations. The deeds were executed and delivered in 1932. There was no attempt to physically divide the land and an equal division of lease revenues was made from 1932. No circumstance is shown to put any party on notice of the mutual mistake and division, which was contrary to the parties’ intention until the later survey was made by Angerman in 1969. The four-year statute of limitation (Article 5529, Vernon’s Ann.Tex.Civ.St.) does not begin to run on an action to correct mistakes in deeds, until the mistake is either discovered by the grantee or should have been discovered by the exercise of such diligence as would have been exercised by a person of ordinary care and prudence. Kennedy v. Ellisor, Tex.Civ.App., Er. Ref. 154 S.W.2d 284. The parties were in peaceable possession of the tracts through their joint tenant, and no portion of the land had ever been sold. As long as no rights of bona fide innocent purchasers have intervened, actions or defense by persons in peaceable possession, based on mutual mistake in deeds, are not barred by the four-year statute of limitation. (V.A.T.S. Art. 5529). Sullivan v. Barnett, Tex., 471 S.W.2d 39. The four-year statute of limitation under the record did not commence to run until 1969, thus does not bar the plaintiffs’ suit. All of defendants’ points and contentions have been considered and are overruled. Affirmed.

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VINCENT’S CONTINENTAL RESTAURANT, INC., Appellant, v. CITY OF DALLAS et al., Appellees. No. 4562. Court of Civil Appeals of Texas, Eastland. June 23, 1972. Norman A. Zable, Roy J. True, Dallas, for appellant. Ted P. MacMaster, Dallas, for appellees. WALTER, Justice. Vincent’s Continental Restaurant, Inc., hereinafter referred to as Corporation, has appealed from an order denying it a temporary injunction against the City of Dallas wherein it sought to have Section 3 of Ordinance No. 7469 declared unconstitutional. The ordinance provides that if any person violates the ordinance, he is guilty of a misdemeanor. The appellant purchased “Vick’s Continental Restaurant” in 1970. The Corporation changed the projecting sign which read “Vick’s Continental Restaurant” to “Vincent’s Continental Restaurant”. The appellant was charged with three violations under the ordinance. The appellant was found not guilty on the first charge. The final charge against the Corporation was for violation of Section 3 of said ordinance. Sections 3 and 4 of the said ordinance are as follows: “SECTION 3. That the name on any sign, including the name of a person, brand of merchandise or business concern, erected or suspended prior to the effective date of this ordinance on, across or about the streets and their abutting sidewalks enumerated in Section 1 of this ordinance shall not be changed subsequent to the effective date of this ordinance unless it can be made to conform with the provisions of Section 4 of this ordinance. SECTION 4. Nothing in the provisions of this ordinance shall be deemed to prohibit the erection or maintenance of wall signs, as defined in the Building Code of the City of Dallas, provided such wall signs do not project or extend more than eighteen (18) inches from the wall surface over any part of the streets and abutting sidewalks enumerated in Section 1 of this ordinance, and providing they conform to the applicable provisions of the Building ’ Code of the City of Dallas.” The Corporation contended that Section 3 was discriminatory against it as a member of a class, unreasonable in its operation, vague and indefinite and violative of due process and equal protection under the Federal and Texas Constitutions. In its first points the Corporation contends the court erred in refusing to admit evidence regarding the administration and interpretation of the ordinance by the officers charged with the responsibility of enforcing it. In support of its allegations that Section 3 was unconstitutional and that its enforcement was not uniform and was discriminatory against it, the Corporation called Mr. Good, an assistant building official with the City, and sought to elicit testimony from him regarding the purpose and manner of its enforcement by the City. The court refused to admit such testimony. The appellant says: “It was, therefore, Appellant’s position before the Trial Court and it is the Appellant’s position before this Court that examination of this witness and other witnesses which Appellant might wish to examine on the area of carrying out the purpose and interpretation of the purpose of Section 3 of the ordinance was entirely proper and that exclusion of such examination was erroneous and constituted fundamental error.” The City contends that the enforcement of the ordinance will not result in unreasonable restrictions on property rights because it was the purpose of the City to eliminate all signs extending over public sidewalks for a distance of more than eighteen (18) inches and that the ordinance contains a valid classification regulating signs in the commercial business district. The City further contends that the court does not possess the power to enjoin the enforcement of this criminal ordinance because it has not been shown that such enforcement would result in irreparable injury to vested property rights. The proffered testimony of the witness Good and “other witnesses which appellant might wish to examine” cannot be considered on appeal as the record does not show what the witnesses’ testimony would have been. Such testimony does not appear in the Statement of Facts or by Bill of Exception, therefore nothing is presented for review. 3 Tex.Jur.2d 670. In the City of Richardson v. Kaplan, 438 S.W.2d 366 (Tex.1969) the Court said: “ . . .a court of equity has no jurisdiction to enjoin the enforcement of a penal ordinance or statute in the absence of proof that such enforcement would result in irreparable injury to vested property rights. See City of Fort Worth v. Craik, 411 S.W.2d 541 (Tex.1967); State v. Logue, 376 S.W.2d 567 (Tex.1964); Crouch v. Craik, 369 S.W.2d 311 (Tex.1963); Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1932); City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894).” We hold that the Corporation has not discharged the burden placed upon it in City of Richardson v. Kaplan, supra. We have examined all of appellant’s points and find no merit in them. They are overruled. The judgment is affirmed.

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L. G. (Jack) THOMPSON, Appellant, v. J. G. O’DONOHOE, Appellee. No. 5167. Court of Civil Appeals of Texas, Waco. May 31, 1972. John M. Gillis, Dallas, for appellant. Sanders, Masters & Watson, Wichita Falls, for appellee. OPINION McDONALD, Chief Justice. This is an appeal by appellant Thompson from an order sustaining appellee O’Don-ohoe’s plea of privilege to be sued in Wichita County, the county of his residence. Appellant sued appellee in Dallas County. Appellee filed a single instrument containing a plea in abatement; a plea of privilege “subject to the plea in abatement”; and a general denial, subject to the foregoing pleas. Appellant controverted the plea of privilege. The trial court set and heard the plea of privilege and after hearing, entered an order reciting that appellee “moved to strike” from his plea of privilege the words “subject to the foregoing plea in abatement”, which motion “was granted”; that no evidence was presented by appellant, but appellant contended appellee “had waived his plea of privilege by arranging the plea in abatement * * * before his plea of privilege” in his answer; that all parts of appellee’s answer were filed simultaneously, and the first matter considered by the court was the plea of privilege; that the plea of privilege is sustained; and the cause transferred to Wichita County. Appellant appeals on one point: “The trial court erred in sustaining appellee’s plea of privilege, said plea having been filed subsequent to and subject to plea in abatement”. Appellee filed in one instrument: l).his plea in abatement; and 2) his plea of privilege, subject to his plea in abatement. Appellant controverted the plea of privilege. The trial court set hearing on the plea of privilege; the parties were present; appellant did not invoke any action of the court on the plea in abatement, but moved the court to strike from his plea of privilege, “subject to the foregoing plea in abatement”, which motion the court granted. The test as to whether appellee waived his plea of privilege is not whether he filed the plea in abatement, but whether he invoked the action of the court on such plea in abatement prior to insisting on his plea of privilege. Here appellee insisted only on his plea of privilege, and did not invoke action on the plea in abatement. In such situation appellee did not waive his plea of privilege. Hagood v. Dial, 43 Tex. 625; Martin v. Kieschnick, Tex.Com.App., 231 S.W. 330; O’Neal v. Texas Bank & Trust Co., 118 Tex. 133, 11 S.W.2d 791; Talbert v. Miles, Tex.Civ.App. (NWH), 477 S.W.2d 710. Appellant’s point is overruled. Affirmed.

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George S. LEMON, Jr., Appellant, v. Bertha Lee WALKER, a Widow, Appellee. No. 8274. Court of Civil Appeals of Texas, Amarillo. June 19, 1972. James M. Gerdeman, Harvey L. Morton, Lubbock, for appellant. Claude S. Cravens, Slaton, Hurley & Sowder, Lubbock, for appellee. REYNOLDS, Justice. A finding of liability upon a promissory note against the defense of want of consideration, and alternatively the failure of consideration, gave rise to this appeal. Affirmed. Appellant George S. Lemon, Jr., defendant in the trial court, prepared, executed and delivered to appellee Bertha Lee Walker, a widow, plaintiff in the court below, his promissory collateral note in the principal sum of $1,000.00, bearing interest from date at the rate of 6% per annum, made payable to the order of appellee on demand after date “for value received,” and received appellee’s personal check made payable to the order of appellant in the sum of $1,000.00. As collateral security, the note provided that 1,500 shares of ARCO Corporation stock, to be issued to appellant within 30 days, were to be immediately assigned to appellee. Appellee did not receive any stock and the note not being paid upon demand, appellee filed this suit, setting forth the above matters and seeking judgment on the note. Appellant’s verified answer consisted of a general denial and the affirmative defenses of want of consideration and, alternatively, the failure of consideration. Trial was to a jury. Appellee introduced in evidence the note sued upon, which recited that it was given “for value received,” and testified that the note was due and unpaid, thereby establishing a pri-ma facie entitlement to judgment, unless recovery could be defeated by proof of want or failure of consideration. Appellant’s sworn denial of consideration read to the jury did not shift the burden of proof from him, but merely put the matter in issue upon which he had the burden of proof. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67 (1933). In his attempt to discharge his burden of proof for his defense, appellant testified that he was only the means through which appellee’s $1,000.00 was converted into a gift or loan to one Nadean Arnold. The evidence was that at the time of the transaction, appellant was a practicing lawyer representing appellee, who was 67 years of age, without business experience, and her eyesight was impaired so that she could not see the note inscriptions. At the same time, appellant was representing Nadean Arnold, who operated a theater business by the name of Slaton Theaters, in the incorporation of the business under the name ARCO Corporation. It was appellant’s testimony that appellee wanted to make a gift of $1,000.00 to Nadean Arnold, who would not take the gift directly from ap-pellee, to alleviate financial problems Mrs. Arnold was having in operating her business. Appellee and her son, so appellant testified, were pressing him to complete the gift and, although appellant thought there might be some conflict of interest in his position, he felt that the gift should be in actuality a loan. Appellant admitted the preparation and execution of the note, his delivery of it to appellee upon receipt of her $1,000.00 check, its deposit to his account, and that neither he nor anyone else to his knowledge had made any payments on the note. Some four days after the receipt and deposit of appellee’s check, appellant drew a check, introduced in evidence, on his personal account made payable to Nadean Arnold in the sum of $891.48, and on the check wrote that it was for “Purchase of 10% or 500 shares of Slaton Theaters.” It was his intent, appellant deposed, that he would receive 30% of ARCO Corporation’s stock, retain 20% for his legal services in the amount of $2,000.-00 rendered to Mrs. Arnold and the corporation, and assign 10% of the stock to ap-pellee. The $108.52 difference between the amount of appellee’s check and the sum of appellant’s check made payable to Mrs. Arnold was retained, appellant stated, for incorporation expenses, although some four years previously he had testified by deposition that he transferred the proceeds from appellee’s check to Mrs. Arnold, except for $125.00 which he retained in payment of legal fees owed him by Mrs. Arnold. The theater business was incorporated and operated for some two years before it was sold, but no stock was ever delivered to ap-pellee. Appellant stated that he handled the transaction in this manner in order that appellee would have supporting documents to prove a business loss or tax deduction in the event appellee did not receive any money. At that time appellant represented a savings and loan association and a bank in loan transactions that were not processed in the same manner as this transaction, and he admitted that he would tell his clients not to sign a note if they did not intend to pay it. Appellee and her son, whom she consulted in business matters, contradicted appellant’s version of the transaction. Nadean Arnold did not testify. In this state of the record, the trial court submitted one special issue to the jury, inquiring whether appellant did not receive any consideration for the execution of the note. Appellant timely objected to the court’s charge on the basis that the special issue submitted a question of law without a definition of the term “consideration,” and, in the alternative, requested that the term “consideration” be defined so as not to submit a question of law, tendering a definition of the term “valuable consideration.” The objections were overruled, the jury answered the special issue “he did receive consideration,” appellant’s motion for new trial predicated on the same objections made to the court’s charge was denied, and judgment for appellee was entered on the jury’s verdict. Appellant has brought his two objections forward as his two points of error on which his appeal is enounced, specifically contending that failure to define the legal term “consideration” as required by Rule 277, Texas Rules of Civil Procedure, constitutes reversible error. While the special issue could have been submitted in a more factual manner, we do not subscribe to it the character of a pure question of law or condemn it for lack of a definition of the term “consideration” under the facts of this case. Appellant pleaded a want or failure of consideration for his execution of the note. After hearing the pleadings and the evidence, the jury could not be indefinite or uncertain as to appellant’s claim of lack of consideration. Appellant was merely a conduit for the transfer of appellee’s money to Mrs. Arnold as he asserted, or else he in fact did receive consideration for his execution of the note. Under this record, the special issue as cast fairly presented the fact issue of want or failure of consideration claimed by appellant, and properly placed on him the burden of proving his defense. Rules 272 and 277, T.R.C.P. Rule 277, T.R.C.P., dictates that “ * * * In submitting special issues the court shall submit such * * * definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues, * * * ”; however, it is only when a word has a distinct and fixed meaning in law not readily understood by the average person that the definition of a legal term shall be necessary to enable a jury to properly pass upon and render a verdict. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935). Although the word “consideration” was used in a legal sense in the special issue, it had no technical connotation removed from its commonly used meaning requiring a definition to enable the jury to properly pass upon the issue. To the juror of average intelligence, especially in this modern business world of credit extended upon the execution of promissory notes, the consideration for a promissory note means something of value moving from one person to another, or, as stated in 13 Tex.Jur.2d Contracts § 40, “ * * * Something that is given in exchange, or something that is mutual and the inducement for the contract, being both lawful and valuable.” This was the meaning, under the facts of this case, in which the word “consideration” was used in the special issue, and it was not used in such a legal sense as was contemplated by Rule 277, T.R.C.P., to require a definition. The use of the term “consideration” sans definition in a special issue is not a novel proposition. As early as 1929, the word “consideration” was employed in special issues inquiring whether certain promises were a part of the consideration for the promissory notes sued on, and the court held that it was not error to refuse to define the word which was used in its plain and simple meaning in the issues. Dunlop Tire & Rubber Co. v. Teel, 14 S.W.2d 104 (Tex.Civ.App.—Amarillo 1929, no writ). This holding that “consideration” required no definition was cited with approval by our Supreme Court in Magnolia Petroleum Co. v. Long, 126 Tex. 195, 86 S.W.2d 450 (1935) as an example of words of common use, the meaning of which the jury is presumed to be acquainted without any definition from the court. The submission of special issues similar to the one questioned in the case at bar in which the word “consideration” was used without definition was approved where the inquiry was as to the purpose for making the note that was the basis of the suit. Ross v. Cook, 151 S.W.2d 854 (Tex.Civ.App.—Galveston 1941, writ ref’d w. o. m.). We have carefully read and considered the numerous cases cited by appellant in which special issues inquired as to pure questions of law and in which definitions of legal terms used in the special issues were required, but it is sufficient to state, without extending this opinion for a case by case analysis, that the cases are distinguishable on the factual situations inquired about and the legal terms used. This review has not altered our belief that the legal principles set forth are controlling of the facts of the case on appeal. Appellant’s points of error are overruled. The judgment of the trial court is affirmed.

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Michael Joseph GRIFFIN, Appellant, v. Glenn C. BROWNE, Appellee. No. 15919. Court of Civil Appeals of Texas, Houston (1st Dist.). June 8, 1972. Rehearing Denied June 29, 1972. Vincent C. O’Brien, Houston, for appellant. Robert F. Hyatt, III, Houston, for ap-pellee. PEDEN, Justice. Petition for writ of error to set aside a default judgment. The facts are not in dispute. The appellant’s only point of error is that the trial court should not have entered a default judgment against him at a time when the record reflects that he had an answer on file. Appellee’s position is that appellant failed to use due diligence in obtaining correction of a judicial error while the trial court had authority to correct it, so he could not thereafter obtain relief by writ of error. Appellee brought suit on a promissory note for $5,000 plus interest and attorney’s fees. The face of the note showed that it was due and payable. The trial court had jurisdiction of the subject matter and of the parties to the suit. At 10 a. m. on Monday, July 19, 1971 the records showed that the case was ripe for judgment. On that day the defendant filed a general denial in the office of the district clerk, but on the next day, July 20, 1971, there was nothing in the case file in the trial court to indicate that an answer had been filed and the trial judge entered a default judgment against the defendant. The clerk of the court mailed a notice of the default judgment to the defendant on the day it was entered, July 20, 1971. Five months later, on December 20, 1971, the trial judge entered an order overruling the defendant’s “Motion to set aside Default Judgment Nunc Pro Tunc.” Contents of this motion and the date on which it was filed are not before us. On December 21, the defendant gave written notice of appeal from the default judgment. On January 19, 1972, within six months after entry of the default judgment, the defendant filed in the trial court his petition for writ of error. Rule 74, Texas Rules of Civil Procedure, specifies in part: “The filing of pleadings, . . . shall be made by filing them with the clerk of the court . ”, so the defendant’s answer in this case was properly on file when the default judgment was inadvertently entered. The defendant did not file either a motion for new trial or notice of appeal within ten days after entry of the judgment. He did not participate in any trial of the case. The invalidity of the default judgment is disclosed by the papers on file in the case. Texas statutes provide that in cases where a writ of error is allowed, one who has not participated in the actual trial of the case may sue out such a writ at any time within six months after final judgment is rendered against him. Articles 2249a and 2255, Vernon’s Civil Statutes. His right to relief by writ of error is dependent upon his showing that the invalidity of the judgment is disclosed by the papers on file in the case. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935). The appellee calls attention to this quotation from Finlay v. Jones, 435 S.W.2d 136 (Tex.1968): “Respondent Moulden is gravely concerned that he will be relegated to his bill of review to obtain relief from the default judgment if the nunc pro tunc judgment and the order granting a new trial are ordered set aside. That may well be so at this point in time, but it was not so in the beginning. The Rules of Civil Procedure provided him with specific tools for protecting himself against the judgment. Rule 239a required that notice of the default judgment be sent to his last known address. The notice was sent. The purpose of the notice was to give him ample opportunity to file a motion for new trial. The motion was duly and timely filed and there seems little doubt that it would have been granted if it had been presented to the trial judge. Having failed to obtain a new trial, Moulden could have rid himself of the judgment by appealing pursuant to Rules 352-355, or under Article 2255, which conferred upon him a right to appeal by writ of error at anytime within six months after the judgment became final. If an appeal had been taken, it is unlikely that any appellate court would have permitted the default judgment to stand. Having failed to avail himself of these simple and efficacious remedies, Moulden is now relegated to his bill of review for obtaining relief, but this is not because of shortcomings in the Rules and does not justify subverting other Rules to an unintended purpose.” Appellee argues that by this statement our Supreme Court does not suggest that one who has notice of entry of a default judgment within the ten day period could elect to either file a motion for new trial or seek a writ of error. Rather, appellee contends, since the appellant had prompt notice of the entry of the judgment, his failure to timely file a motion for new trial left available to him only the possible remedy of bill of review. Noting that the Texas Supreme Court stated in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961): “ . . . we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisictional power to render it. ”, we said in Carlson Boat Works v. Hauck, Tex.Civ.App., 459 S.W.2d 887 (1970, no writ) that it is clear from other language in McEwen that the word “appeal” used in the quoted paragraph includes appeal by writ of error. We hold that the right of appeal by writ of error is not lost by a defendant who, having learned of the entry of a default judgment against him within ten days thereafter, fails to file and present a motion for new trial. Of course it would be better practice to timely file and present such a motion, as was pointed out in Fin-lay v. Jones, supra, but we find no basis in law for holding such action to be a prerequisite to appeal by writ of error. See Carlson Boat Works v. Hauck, supra, and Anglo Mexicana de Seguros, S. A. v. Elizondo, 405 S.W.2d 722 (Tex.Civ.App.1966, writ ref. n. r. e.). We note that the record does not disclose that while the trial judge still had power a) to correct the recital in the judgment that the defendant had defaulted and b) to set the judgment aside, he was ever notified that an answer had been timely filed in the district clerk’s office. He lost authority to rectify the matter thirty days after entry of the judgment. Finlay v. Jones, supra, 435 S.W.2d at p. 139. The judgment of the trial court is reversed and the cause is remanded.

sw2d_482/html/0719-01.html

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2024-08-24T03:29:51.129235

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John Thomas BERRY, Appellant, v. Trellis Mitchell GUYER, Appellee. No. 657. Court of Civil Appeals of Texas, Houston (14th Dist.). June 28, 1972. Rehearing Denied Aug. 2, 1972. J. D. Davis, Jerry D. Patchen, Davis & Patchen, Houston, for appellant. Ralph E. Gustafson, J. W. Patten, Stafford & Patten, Houston, for appellee. BARRON, Justice. This suit involves the effectiveness of an alleged release of a claim for personal injuries allegedly sustained by John Thomas Berry on November 8, 1970, in Harris County, Texas. Berry filed suit against Trellis Mitchell Guyer on December 11, 1970, alleging negligence and praying for damages in the sum of $9,500.00. Guyer answered on February 2, 1971, and denied the allegations. At the time of the collision, Berry was driving his fiancee’s vehicle and was told by her that he would be required to sign the draft, and that it was made payable to the order of Josie Miller, the fiancee, and John /. Berry in the sum of $203.00. Mrs. Miller claimed that the insurance company wanted to pay her for damages to her car, and Berry stated by affidavit that he did not understand that the effect of his signing the draft would in any manner release the insurance company from its obligation to pay damages for his personal injuries. On the back of the draft sent to Mrs. Miller and Berry is a release as follows: “RELEASE By the acceptance and endorsement of this draft it is agreed that said draft is in full and final settlement of all liability and claims against the person, firm or corporation covered under the terms of the policy as an insured and/or the UNITED STATES FIDELITY AND GUARANTY COMPANY as insurer because of personal injuries or damage to property resulting from an accident which occurred on or about the date stated on the face hereof.” (Emphasis added) The bank was given written notice also not to cash the draft unless the release was signed by the person to whom payable, without modification, and that endorsement of “ALL” payees was required. A claim number was referred to on the draft, but no summary judgment evidence appears in that regard. The draft was endorsed and the release consequently was signed by John I, Berry and Josie Miller. Berry’s middle initial was a simple error. On January 20, 1972, the trial court after a hearing entered summary judgment in favor of defendant, Guyer. Appeal has been duly perfected by Berry as appellant. The construction of a release is governed by the general rules relating to construction of contracts, and an effort will primarily be made to ascertain and give effect to the intention of the parties as of the time a release was executed. Mutual Fire & Auto. Ins. Co. v. Green, 235 S.W.2d 739, 742 (Tex.Civ.App.-Fort Worth 1950, no writ); 50 Tex.Jur.2d Release Sec. 23, pp. 31, 32 (1963). Moreover, the rule that causes of action or items of damage cannot ordinarily be asserted in separate actions, and that a plaintiff must join in one suit all grounds of recovery, does not bar a plaintiff from releasing one item of damage and suing on the other. See Loy v. Kuykendall, 347 S.W.2d 726, 728 (Tex.Civ.App.-San Antonio 1961, writ ref’d n. r. e.). As a general rule, a release covers only claims in existence or being urged at the time the release was delivered. See Knox v. Damascus Corporation, 200 S.W.2d 656, 659 (Tex.Civ.App.-Galveston 1947, no writ). The insurance company’s draft was dated November 24, 1970, some 16 days after appellant’s accident made the basis of his suit. Certainly the claim was real, and he was shown to be asserting a claim for personal injuries. Appellant actually filed his lawsuit about 17 days later, on December 11, 1970. We cannot escape the simple, unambiguous and direct terms of the release above quoted. The draft was made payable to the order of Josie Miller and John H. Berry, and both, by their endorsements, signed the release which in its very words released the insurer and the insured (ap-pellee) from “personal injuries and damage to property” resulting from the accident. Mrs. Miller requested that appellant sign the draft and release, and Berry having damaged Mrs. Miller’s vehicle, it was to his legal interest to do so. Appellant merely claims by his affidavit that he did not understand that his signing of the draft would in any way release the insurance company in the payment of his claim for personal injuries. We see no possibility of mutual mistake under these circumstances. While an injustice may have occurred here, we believe that appellant has lawfully released his claims for personal injuries for which he sued. The trial court did not err in granting summary judgment in favor of appellee. See Fidelity-Southern Fire Insurance Co. v. Whitman, 422 S.W.2d 552, 557, 558 (Tex.Civ.App.-Houston (14th Dist.) 1967, writ ref’d n. r. e.). Affirmed.

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Lula Irene MAYBERRY et al., Plaintiffs-Respondents, v. CLARKSON CONSTRUCTION COMPANY, Defendant-Appellant. No. 55596. Supreme Court of Missouri, Division No. 2. July 17, 1972. Robert K. Ball II, Ben W. Swofford, Phillip L. Waisblum, Kansas City, for plaintiffs-respondents; Swofford & Waisblum, Kansas City, of counsel. Karl F. Schmidt, John E. Morrison, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for defendant-appellant. HENLEY, Judge. This is an action by a husband and wife for damages aggregating $80,000 for personal injuries of each and for loss of consortium each allegedly sustained when their automobile left the paved portion of an interchange being constructed by defendant at an intersection of two major highways and plunged into a ditch. Verdict and judgment were for defendant. The trial court sustained plaintiffs’ motion and granted them a new trial on the ground of misconduct of a juror and intentional concealment on voir dire by other jurors. Defendant appeals from that order. We affirm, not for the reasons assigned by the trial court, but for error in the giving of an instruction. Plaintiffs’ petition is in two counts. Count I is for Mrs. Mayberry’s damages for (1) her injuries, and (2) her loss of consortium of Mr. Mayberry as a result of his injuries. Count II is for Mr. Mayber-ry’s damages for (1) his injuries, and (2) his loss of consortium of Mrs. Mayberry as a result of her injuries. The petition alleges that on and prior to the date of the accident (November 26, 1965) defendant, under a contract with the State Highway Commission, was engaged in the construction of new U. S. 71 By-pass (hereinafter 1-470) south of its intersection with U. S. Highway 40 (hereinafter Highway 40) and an on-ramp for east-bound traffic leaving Highway 40 to travel south on 1-470; that at their intersection, 1-470, a four-lane divided highway running generally north-south, crosses Highway 40, an east-west four-lane divided highway, above the grade of the latter; that immediately north of the intersection, 1-470 and an off-ramp for its south-bound traffic is partially completed and open to traffic; that south-bound traffic desiring to reach old 71 By-pass south of the intersection must take the off-ramp at this point, cross the two north lanes and median strip of Highway 40 and turn left onto it's two south lanes for eastbound traffic; that on and prior to the date of this accident defendant was preparing the area immediately south of High- • way 40 and west of 1-470 for the construction of the on-ramp leading from the eastbound lanes of Highway 40 to 1-470, and in the process of preparation had cut back and away a rock bluff and was leveling and grading the right-of-way area and roadbed for the on-ramp; that a hole was excavated in this area on the south side of and adjacent to Highway 40 which was directly in front of vehicles traveling south on the off-ramp; that this hole constituted a dangerous hazard to south-bound motorists on the 1-470 off-ramp who desired to reach and continue south on old 71 Bypass ; that on the date mentioned Mr. May-berry, with Mrs. Mayberry as his passenger, drove south down the off-ramp, crossed Highway 40, and, as a result of the negligence of defendant, plunged into this hole. The negligence pleaded and submitted was that defendant created or maintained the hole and failed to exercise ordinary care to barricade it or warn southbound motorists of its existence and danger. Defendant contends the court erred in granting plaintiffs a new trial on the ground of misconduct of jurors because (1) the evidence on which the court based that ruling, admitted over defendant’s objection, came from members of the jury who may not be heard to impeach their verdict, and the evidence was, therefore, inadmissible and the court erred in admitting it; (2) the alleged misconduct of the jurors was not shown to have been prejudicial to plaintiffs; and (3) the testimony of the jurors, other than those alleged to have engaged in misconduct was hearsay and, therefore, inadmissible. Defendant also contends that the court erred in failing to direct a verdict in its favor, because (1) plaintiffs failed to plead or prove that defendant was legally obligated to place a barricade at the point where their automobile left the highway or warn them of the alleged danger; (2) plaintiffs failed to prove that defendant’s acts or omissions were the proximate cause of their injuries; and (3) plaintiff Luther Mayberry was guilty of contributory negligence as a matter of law. We consider the second contention first. There was substantial evidence from which the following could be found as fact. On the morning of November 26, 1965, at about 5 o’clock, before daylight, Mr. and Mrs. Mayberry were returning from a visit in Minnesota to their home at Louisburg, Missouri, driving south on 1-470. Mr. Mayberry was driving; Mrs. Mayberry asleep. As they approached the overpass across Highway 40, Mr. Mayberry saw ahead a barrel-type barricade extending across the roadway north of the overpass with arrows directing traffic to turn off to the right down a ramp. He reduced his speed to 25 or 30 miles per hour by the time he reached the ramp, drove onto the ramp, continued to reduce his speed, and was traveling 10 or 12 miles per hour when he reached the north edge of Highway 40. As he proceeded down the ramp he saw that the intersection was controlled by an overhead traffic signal light, that the light was green for south-bound traffic, and a highway sign on the right indicated by an arrow that old 71 By-pass was straight ahead. He turned his lights on lowbeam and, looking ahead, saw, when he reached the bottom of the ramp, what appeared to him to be an area directly across Highway 40 where old 71 By-pass continued straight ahead to the south. After reaching the north lanes of Highway 40, he accelerated his speed and continued straight ahead, but as he was about to cross the south lanes he realized, too late, that what he had seen before was deceptive, that old 71 By-pass did not continue directly ahead, but that that area was under construction. He immediately applied his brakes and turned left, but the momentum of his automobile carried it off the highway, across the shoulder, and into the hole causing injuries to Mrs. Mayberry and him. There was also substantial evidence from which the following could be found as fact. That the hole excavated south of the shoulder of Highway 40 was created by defendant to facilitate its preparation of the right-of-way and the construction of the on-ramp; that the hole is dangerous and the physical makeup of the area as viewed by a south-bound traveler at night is highly deceptive and, therefore, hazardous to a motorist seeking the continuation of old 71 By-pass south; that defendant knew or should have known of this hazard through the occurrence of several recent accidents (beginning November 21, 1965) in which other south-bound motorists ran off the highway and into this hole; that the situation as it existed at this interchange reasonably required that a barricade be erected at this point or other signs be posted timely warning the traveling public that the highway did not continue straight ahead to the south at this point, as it appeared, but that south-bound motorists had to make a sharp turn to their left, and the danger thereof; that defendant could have under its contract with the Highway Commission, and should have, erected a movable barricade with flashing lights for nighttime warning on or near the south shoulder of Highway 40 opposite the end of the 1-470 off-ramp, and could and should have installed other warning devices within the interchange, but negligently failed to do so. The recitation of the facts which could have been found demonstrates that the court did not err in failing to direct a verdict for defendant for any of the reasons it relied upon. Treon v. City of Hamilton, Mo., 363 S.W.2d 704; Eidson v. Dean Construction Co., Mo.App., 233 S.W.2d 820, 824 [8,9], We consider next defendant’s contention that the court erred and abused its discretion in granting plaintiffs a new trial on the ground that certain jurors were guilty of misconduct. Briefly, there was evidence and offers of proof by plaintiffs, the substance of which was (1) that two jurors failed to answer truthfully questions on voir dire as to their qualifications, and (2) that after the jury had retired to deliberate, one juror went to the scene of the accident during a recess, took measurements and made certain experiments, and furnished the information thus acquired to his fellow jurors on their return to the jury room. This evidence, relied upon by plaintiffs to support the court’s action, came from jurors over defendant’s objection. The evidence was inadmissible, because a juror may not, over objection, be heard to impeach his and the jury’s verdict. The court erred in admitting the evidence, should not have considered it, and, therefore, abused its discretion in granting a new trial based on this evidence. Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 595 [26, 27]; Davis v. Kansas City Public Service Co., Mo. banc, 233 S.W.2d 669, 676 [6]; Smugala v. Campana, Mo., 404 S.W.2d 713, 717 [7-11]; Baumle v. Smith, Mo., 420 S.W.2d 341, 348 [15-17]; McDaniel v. Lovelace, Mo., 439 S.W.2d 906, 909 [3, 4]; Thorn v. Cross, Mo.App., 201 S.W.2d 492, 496-97 [5, 6]; Cook v. Kansas City, Mo., 358 Mo. 296, 214 S.W.2d 430, 433-434 [7-11]. Plaintiffs make another, and rather novel, contention as to the significance of this evidence. They assert that the action of the juror who secured outside evidence and brought it into the jury room, and the acceptance and discussion of that information by the other jurors was an offense by all against the administration of justice, § 557.120, RSMo 1969 and V.A.M.S., and that this so corrupted the jury as to render its verdict void. No authority is cited in support of this contention and we find none. Our view is that the cases listed above, holding that this evidence is inadmissible to impeach the verdict, are controlling. We rule this contention against plaintiffs. Having held that the trial court erred in sustaining plaintiffs’ motion for new trial on the grounds specified by it, we look to the other grounds of the motion briefed by plaintiffs which they say will support the action of the trial court in granting them a new trial. Overton v. Tesson, Mo., 355 S.W.2d 909, 913 [5]; State ex rel. Sturm, et al. v. Allison, Mo. (banc), 384 S.W.2d 544, 547 [4]. Plaintiffs contend that the following ground, asserted in their motion for new trial, is sufficient to support the trial court’s order: that the court erred in giving instruction No. 11, because it jointly and conjunctively conversed both of the separate claims of Luther Mayberry with the separate claim of Mrs. Mayberry for the loss of his services and was, therefore, misleading and a misdirection. Instruction No. 11, tendered by defendant, is as follows: “Your verdict must be for defendant Clarkson Construction Company on Lula Mayberry’s claim for loss of services and Luther Mayberry’s claims on Count II unless you believe each proposition submitted to you in Instructions Nos. 8, 9 and 10. (MAI 33.13 — Modified)’’ Instruction 8 was the verdict-director submitting Lula Mayberry’s claim for loss of services of Mr. Mayberry, and instructions 9 and 10 were, respectively, separate verdict-directors submitting Luther Mayber-ry’s claim for personal injuries and his claim for loss of services of Mrs. Mayber-ry. Paragraphs First through Fourth of instructions 8, 9 and 10 were identical, except for a change in the second paragraph of No. 10 to reflect that the danger was to a person using ordinary care while riding as a passenger, and are as follows: “First, defendant created or maintained a ditch or excavation close to a public highway, and “Second, that such ditch or excavation was so close to a public highway that persons driving vehicles using the highway, in the exercise of the highest degree of care, were exposed to a danger of driving into the ditch or excavation, and “Third, defendant knew or should have known of such danger, and “Fourth, defendant failed to use ordinary care to barricade it or warn of it, and * * The opening and fifth paragraphs of each instruction stated which claim of which plaintiff the jury was to consider. The fifth paragraph of each was as follows : “Instruction No. 8 “Lula Mayberry: Loss of Mr. May-berry’s Services “Fifth, as a direct result of such failure, plaintiff Luther Mayberry was injured and as a direct result of such injury plaintiff Lula Irene Mayberry sustained damages, unless you believe that plaintiff Luther Mayberry is not entitled to recover by reason of Instruction No. 12” “Instruction No. 9 “Luther Mayberry: Personal Injuries “Fifth, as a direct result of such failure, plaintiff Luther Mayberry was injured, unless you believe he is not entitled to recover by reason of Instruction No. 12.” “Instruction No. 10 “Luther Mayberry: Loss of Mrs. Mayberry’s Services “Fifth, as a direct result of such failure plaintiff Lula Irene Mayberry was injured and as a direct result of such injury plaintiff Luther Mayberry sustained damages, unless you believe that plaintiff Luther Mayberry is not entitled to recover by reason of Instruction No. 12” Plaintiffs assert that instruction 11 means that before any of the claims referred to in it (i. e., for Mr. Mayberry’s personal injuries and loss of Mrs. Mayber-ry’s services and for Mrs. Mayberry’s loss of his services) could be allowed, the jury must believe each and all propositions submitted in instructions 8, 9 and 10. Plaintiffs contend that this is a reasonable interpretation of the instruction, and, if followed by the jury, one or more of the following prejudicial results would occur: (a) If the jury does not believe that Mrs. Mayberry sustained any loss of services (instruction 8) then Mr. Mayberry is barred on both of his claims; or (b) If the jury does not believe that Mr. Mayberry sustained any personal injury (instruction 9) then he is barred on his claim for loss of her services; or (c) If the jury does not believe that Mr. Mayberry sustained any loss of services (instruction 10), then he is barred on his claim for his personal injuries and Mrs. Mayberry is barred on her claim for loss of his services. Defendant contends that instruction 11 merely conversed in one instruction more than one verdict-directing instruction; that a logical reading of the instruction would be that the jury must find for defendant on Mrs. Mayberry’s claim for her loss of services of Mr. Mayberry unless they believe each proposition in instruction 8; that the jury must find for defendant on Mr. Mayberry’s claim for personal injuries unless they believe each proposition in instruction 9; and, that the jury must find for defendant on Mr. Mayberry’s claim for his loss of services of Mrs. Mayberry unless they believe each proposition in instruction 10. The fallacy in this contention is that to find for Mrs. Mayberry under instruction 8 the jury is not limited to believing only the requirements of that instruction; the jury is required by instruction 11 to believe not only the propositions submitted in instruction 8, but is also required to believe “ * * * each proposition submitted * * * in instructions * * * 9 and 10”, including those in the fifth paragraphs. To find for Mr. May-berry under instruction 9 the jury is not limited to believing only the requirements of that instruction; the jury is required by instruction 11 to believe not only the propositions submitted in instruction 9, but is also required to believe “ * * * each proposition submitted * * * in instructions 8 * * * and 10”, including those in the fifth paragraphs. To find for Mr. Mayberry under instruction 10 the jury is not limited to believing only the requirements of that instruction; the jury is required by instruction 11 to believe not only the propositions submitted in instruction 10, but is also required to believe “ * * * each proposition submitted * * * in instructions 8 [and] 9 * * * ”, including those in the fifth paragraphs. For example, as to instruction 8, the law does not limit Mrs. Mayberry’s right to recover for loss of Mr. Mayberry’s services on whether or not she was injured or that he sustained damages as a result of her injury, yet instruction 11 would require the jury to believe exactly that. We conclude that instruction 11 was confusing, misleading and erroneous and, therefore, the trial court erred in not granting a new trial on this point. The instruction places the three claims mentioned in the instruction in one category and tells the jury that either the plaintiffs are to recover on all three, or on none, “unless you believe each proposition submitted to you in Instructions Nos. 8, 9 and 10”. Defendant contends that Murphy v. Land, Mo., 420 S.W.2d 505, 507, limited it to giving only one converse instruction where, as here, two plaintiffs submit on the same theory of recovery. See also Scheele v. American Bakeries Company, Mo., 427 S.W.2d 361, 363 [1]; Nugent v. Hamilton & Son, Inc., Mo., 417 S.W.2d 939. Defendant is limited to tendering one converse in this case and he may be entitled to tender a general converse, but general converse 33.13 found in MAI, second edition, page 371, obviously cannot be adapted or modified so as to be used where, as here, there are multiple claims by multiple plaintiffs. There is no MAI general converse instruction applicable to this situation, but MAI 33.02(2) may, until the court’s committee on jury instructions recommends and the court approves another instruction, be modified to converse every element in a case involving multiple plaintiffs. It lends itself more readily to accurate modification than does MAI 33.-13. See Illustrations, 35.05, pp. 404-407, Instruction No. 5 (MAI 33.02(2) Modified). Other errors assigned by plaintiffs are not likely to arise in another trial, but we suggest that the court and the parties examine and consider carefully the forms of verdict in light of plaintiffs’ objection to instruction 18. The order of the trial court granting plaintiffs a new trial is affirmed and the cause is remanded. DONNELLY, J., concurs. MORGAN, P. J., concurs in result only.

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STATE of Missouri, Respondent, v. Louis Andrew SCOTT, Appellant. No. 54440. Supreme Court of Missouri, En Banc. July 17, 1972. John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent. Marvin Q. Silver, Murray Stone, St. Louis, for appellant. HENLEY, Judge. This is an appeal from a conviction of murder, first degree, for which the jury assessed punishment at death. Sections 559.-010 and 559.030. The state’s evidence is sufficient to support a finding by the jury that during the afternoon of April 28, 1967, the defendant and two companions, one armed with a sawed-off shotgun, robbed a Liberty Loan Company office in St. Louis and during the course of the robbery James Nol-kemper, an employee of the loan company, was, at the direction of defendant, shot and killed by the robber with the shotgun. Defendant did not testify and offered no evidence. Defendant contends that the trial court limited the scope of his voir dire examination as a result of which he was denied his Fifth Amendment right against compulsory self-incrimination and his Sixth Amendment right to trial by an impartial jury in that two veniremen, challenged by him for cause, were left on the panel although they had stated during voir dire examination that if he did not testify they would “hold this against him.” The state, asserting that the matter of determination of the qualifications of veniremen is within the discretion of the trial judge, contends that he exercised sound judicial discretion in overruling these challenges for cause. We conclude that, considering the facts and circumstances of this case, the court should have sustained the challenge to one of the veniremen (Mr. Cunningham) and that defendant should have a new trial for that reason. We said in State v. DeClue, Mo., 400 S.W.2d 50, l. c. 57, that “[m]any cases recognize that it rests within the sound judicial discretion of the trial judge to determine the qualifications of a venireman and that his decision thereon should not be disturbed unless there is a clear abuse of discretion. This does not mean, however, that this court should not and does not review the facts of each particular case, when such question is raised, to determine whether or not there was an abuse of discretion.” See also: State v. Spidle, Mo., 413 S.W.2d 509; State v. Crockett, Mo., 419 S.W.2d 22, 26. We quote the pertinent part of the voir dire examination of prospective jurors: “MR. STONE [counsel for defendant]: * * * The defendant, Louis Scott, has a right to take the stand and he also has the right not to take the stand, and this is right whether or not. If Mr. Scott would decide not to take the witness stand, would you ‘hold this against him’ for any reason, Mr. Erbs? A No. “Q Miss Theisen? A I would. “Q Even if the Court instructs you— “MR. FREDERICKS [counsel for the state] : One moment. “(The following proceedings took place at the bench without the hearing of the jury panel: “MR. FREDERICKS: The State objects to the question. There is a Statute right in point which prohibits the State from making any comment on the defendant’s failure to testify. We are getting into a matter where the defense is trying to get individuals to state whether or not they have any feeling about this defendant not taking the stand. Now, if he is going to have everyone say they would have some feeling against the defendant we are going to get into an area where they will give reasons or imply reasons why he does not take the stand. “THE COURT: I think we are getting into very thin ground. “MR. STONE: I just want to know whether or not he takes the stand. “THE COURT: I will permit you to ask questions of all jurors and tell them under the Law of the State the defendant is not required, the fact he does not, would any jurors hold that against him. “MR. FREDERICKS: I object to the use of the ‘hold that against’; it should be give the defendant and State of Missouri a fair trial, fair and impartial trial. “MR. SILVER [counsel for defendant] : We don’t know what the circumstances are. If he held it against him— “MR. FREDERICKS: The question of whether or not he takes the stand at the outsit [sic], not on depending what the circumstances may be. “THE COURT: What are you going to do ? “MR. SILVER: I would like the question as you framed it. “THE COURT: You may do so. “MR. FREDERICKS : I don’t think we can do that. “MR. SILVER: We already said that. What jurors would you have he would not get a fair trial. “THE COURT: I will permit the question.)” [End of proceedings at the Bench.] “MR. STONE: (continuing) Mr. Brookins, if Mr. Scott were not to take the stand, would you hold this against him? “A No. “Q Mr. Baker? “A It is hard to answer, but I think I would hold it against him. In my opinion, if he were innocent he would be glad to testify. “(The following proceedings took place at the bench without the hearing of the jury panel: “MR. FREDERICKS: This is the reason I made the objection. “THE COURT: I think, under the circumstances, we are getting a little far afield, and I ask you proceed in the manner in which the Court suggested. “MR. STONE: All right.)” [End of proceedings at the Bench.] “MR. STONE: (continuing) Mr. Cunningham, would you hold this against him? A Yes, I would. “Q Mr. Johnson— “THE COURT: May I say, I think we better clarify this jury now. Under the Law of the State of Missouri a defendant is not required to take the stand, the Statute specifically so provides, and if necessary the Court will instruct the jury on the mere fact he fails to take the stand is not to be used against him. The question is, will you follow the Law of the State of Missouri in arriving at your verdict in this case. “MR. STONE: (continuing) Mr. Johnson? “A I believe I would. “Q Mr. Jacobs? A Yes, Sir. “Q Mr. Beers? A Yes, Sir. “Q Mr. Dreyer? A Yes, Sir. “Q Mr. Van Fleet? A Yes, Sir. “Q Mr. Brown? A Yes, Sir. “Q Mr. Steffens? A. Yes. “Q Mrs. Thomure? A Yes, Sir. “Q Mr. Sullens? A Yes. “Q Mr. Smith? A Yes. “Q Mr. Purk? A Yes, Sir. “Q Mr. Younger? A Yes, Sir. “Q Mr. Sullens— “MR. FREDERICKS: Just a minute. “Are you still referring to the same question if he would object to his not taking the stand ? “THE COURT: The question is, will you follow the Law of the State of Missouri— “MR. STONE: Right. “THE COURT: And all of the instructions of the Court. “MR. STONE: Where does that leave my question? “(The following proceedings took place at the bench without the hearing of the jury panel: “MR. STONE: What does that do to my question ? “THE COURT: Do you think all of these people are answering yes, they would hold it against him? “MR. FREDERICKS: They are answering yes, they will follow the Law. “THE COURT: And the more we go on, in the manner it is put, Mr. Fredericks’ objection is probably correct. “I will instruct this jury the defendant is not required to take the stand. “MR. FREDERICKS: May I make a suggestion. Will you also instruct the jury the burden of guilt always rests with the State and Government, and the defendant is never required to take the stand in his defense. “THE COURT: Either you ask or I will. “MR. FREDERICKS: Judge, you ask. “MR. STONE: I still don’t think it gets to the basic thing. We had one man say if he did not take the stand he would consider he is guilty. “THE COURT: The question is further complicated, and the manner in which it is put you are, in effect, indicating there is a prejudice in not taking the stand. We will carry on as directed. “MR. FREDERICKS: Let the record show I object to the Court’s reasoning. “THE COURT: The record may show.)” [End of proceedings at the Bench.] “MR. STONE: (continuing) As you all know— “THE COURT: Pardon me. Mr. Cunningham, do you have a questions [sic] ? “MR. CUNNINGHAM: Judge, in fairness to the jurors I think you should take that whole question over again. First it was an opinion, then it was a fact. “MR. FREDERICKS: May I ask one question ? “THE COURT: In order to be fair to everyone I will permit the question to be asked. “MR. FREDERICKS: Very briefly, let me ask you this question, bearing in mind now that the State of Missouri, who brings the charge, has the burden of prooving [sic] the defendant’s guilt; you understand that. Whether the State or Government brings the charge, they have the burden of prooving [sic], the defendant’s guilt. Now, it is brought out by counsel that the defendant, according to our Statute, might not take the stand, if he does not want to. Whether he does or does not that is his business, everyone has that, and it has no bearing on the first premise of Law, that the burden of proof still rests with the State. “Now, the question I would like to ask is this; whether the defendant takes the stand or not, what decision he makes at the end of this trial is his business, would you still require the State to carry the burden of proof in judging his guilt? Would you still require the State of Missouri to carry the burden of proof, as is always required? “Mr. Erbs? “A Yes. “Q (Mr. Fredericks) Miss Theisen? A" Yes? “Q Mr. Brookins? A Yes. “Q Mr. Baker? A Yes. “Q Mr. Cunningham? A Yes. “MR. FREDERICKS: Does anybody have a question along that line ? “Thank you, Your Honor. “THE COURT: Mr. Stone, you may proceed. “MR. STONE: What about you, Miss Theisen ? “A I don’t really understand it, but if he would not testify it— “Q (Mr. Stone) Is there anybody else who did not understand Mr. Fredericks’ question? Miss Theisen? “A I know what he means but I,don’t know how to answer you. “(The following proceedings took place at the bench without the hearing of the jury panel: “THE COURT: I can see the way the question is being asked we are going to have a lot of trouble, we will never get a panel, and it has been clarified by Mr. Fredericks. “What do you want to do with this woman ? “MR. STONE: We will dismiss her. “MR. FREDERICKS: I will not agree with that. “THE COURT: You asked to come up, what do you want the Court to do? “MR. STONE: I want the Court to ask the question the way he started out. “THE COURT: I think it has been covered by subsequent questions asked. Now, a number of these spoke out they understand the defendant is innocent until proven guilty. “MR. STONE: Mr. Cunningham said he now understands, but if he don’t take the stand he must be guilty. “THE COURT: What do you want the Court to do as far as this panel is concerned ? “MR. STONE: I would like to strike Miss Theisen and Mr. Cunningham. “THE COURT: He said he understands the defendant is innocent until proven guilty and would so be governed. “MR. STONE: But before he stated if he doesn’t take the stand he must be guilty. “THE COURT: The question has been framed so another said he is prejudiced. And, your objection to Mr. Cunningham will be overruled. “I am somewhat concerned about Miss Theisen. “I am not going to let Mr. Fredericks tarry, you conclude and if Mr. Fredericks has any further questions you can again renew your challenge for cause and I will then determine whether or not it should be done.)” [End of proceedings at the Bench.] ⅛ ⅛ ‡ ¼ ‡ ‡ “MR. STONE: * * * “Mr. Fredericks asked many times if there was any reasons any of you feel you cannot sit; is there any reason any one of you feels they cannot sit on this jury and give Mr. Scott a fair trial as to his guilt or innocence; personal or whatsoever ? “Thank you, Ladies and Gentlemen. “MR. FREDERICKS: To that last question asked you did not raise your hand, therefore, I assume then you have no reason why you can’t sit as a juror; is that correct, Miss Theisen? “A No. “Q You understand, as I mentioned before, the State or Government has the burden of proof in every case ? “A Yes. “Q And in every Criminal proceeding the Statute is very clear, the defendant need not testify if he does not want to. That is a decision he makes. Whatever he decides to do we do not know because that comes at the end of a case, but whatever he decides to do at that time you understand that should have no bearing or affect [sic], because under the Law the State has the burden of proving his guilt. Now, will you require the State of Missouri, through myself, to prove this defendant guilty according to the Court’s instruction; could you do that, Miss Theisen ? A. Yes. “Q And, whatever he decides to do— “A I still feel, deep down in my heart, he should testify. “Q This is something you may not feel at the close of the case. “Let me ask, is there any reason why you could not give both sides a fair and impartial trial as it stands right now? “A No. “MR. FREDERICKS: All right. I have no further questions. “(The following proceedings took place at the bench without the hearing of the jury panel: jjc ⅜: * * >Jc “THE COURT: * * * Now, is there any action to he taken on the part of the defendant ? “MR. SILVER: [The defendant challenges] Number 2. “THE COURT: I sustain that, because she has not answered the question as far as I am concerned, she said deep down in her heart she could not do it. “MR. FREDERICKS: May I comment on that? “THE COURT: Yes. “MR. FREDERICKS : Defense counsel is asking what this woman would do when the defendant makes his decision. That decision cannot be made until close of the trial. This woman further testified, in the last questioning, that at this time, this stage, she knows no reason at all she could not give both the State and the defendant a fair trial. “MR. SILVER: I object. “THE COURT: The objection will be overruled, and she will be challenged. “MR. SILVER: Number 5, for cause. “THE COURT: Overruled. “MR. FREDERICKS: I would like to state for the record, that when he was questioned and asked if the defendant did take the stand— “THE COURT: Overruled. “MR. FREDERICKS: He said that if he didn’t take the stand he must be guilty, and for that reason I challenge him for cause. “THE COURT: Let the record show, a proper question was asked of Mr. Cunningham and in response to that question he indicated as far as he was concerned he would follow the Law and that the defendant is innocent until proven guilty. I do not think he disqualified himself as a juror. * [End of proceedings at the Bench.] To summarize, three veniremen said, in substance, that if defendant did not avail himself of his opportunity to testify they would consider this fact and hold it against him. Their attitude toward the possibility he might not testify in his own defense was no doubt that articulated by Mr. Baker: “ * * * if he were innocent he would be glad to testify.” In other words, these three were of the opinion that his failure to testify was a factor weighing against innocence which they could consider in arriving at their verdict. If either of these three, having the opinions expressed, were left on the jury, defendant certainly could not have a trial by an impartial jury. Were the statements or explanations made direct to the jury by the trial judge and counsel sufficient in themselves clearly to remove the opinions and disqualification held by these veniremen? We have the view they were not. It is obvious from the quoted portion of the voir dire examination (particularly that part of the proceedings held at the Bench outside the hearing of the panel) that the able trial judge was alert to the disqualification and to the potential danger of error lurking in the background when Miss Theisen answered that she would hold it against defendant if he failed to testify. But the judge took no action at this point other than to suggest that counsel might proceed with the examination using essentially the same statement made and question propounded to Mr. Erbs and Miss Theisen. Neither Miss Theisen nor any other member of the panel was informed directly by the court at this point, or later, that if the defendant did not testify, this fact could not be considered by them as raising any presumption of guilt. Only after Mr. Baker and Mr. Cunningham stated they would hold it against defendant if he failed to testify did the court take over and attempt to explain defendant’s rights under the Constitution and statutes. It would appear from Mr. Cunningham’s request that the judge “ * * * take that whole question over again * * * ” that he, and possibly others, probably understood that under the law defendant was not required to testify, but it was not made clear nor certain that if he did not this could not be considered by a juror as a fact or circumstance to be used against defendant. In telling the jury that under the law defendant was not required to testify the court said that “ * * * if necessary the court will instruct the jury on the mere fact he fails to take the stand is not to be used against him * * *.” (Emphasis supplied.) The court did not then nor later make it certain and clear to the panel that, although not required to do so, if defendant did not testify, a jur- or could not construe this as a deliberate omission inconsistent with innocence. Furthermore, since the instruction was not given (see footnote 4) along with the other instructions, the jurors could have believed that the judge had reconsidered, in light of all the evidence, and had concluded that defendant’s actual failure to testify could be considered by them and used against him and had, for that reason, decided it was not “necessary” to give such an instruction. Defendant challenged only two of the three veniremen who stated that they would hold it against him if he failed to testify and of these two, one, Miss Thei-sen, was excused for cause. The court overruled the challenge as to Mr. Cunningham. It is our judgment that under the facts and circumstances of this particular case a sound exercise of judicial discretion required that venireman Cunningham be excused for cause and that the court abused its discretion in not excusing him. We do not consider or rule on the other points relied on by defendant because it is unlikely they will arise on another trial. The judgment is reversed and the cause remanded. All concur. . References to statutes are to RSMo 1969 and V.A.M.S. . Article V of Amendments to the Constitution of the United States. See also: Article I, § 19, Constitution of Missouri, V.A.M.S., § 546.270 RSMo 1969, V.A.M.S.; and Rule 26.08 V.A. M.R. The statute and rule read, in part, as follows: “If the accused shall not avail himself * * ⅜ of his * * * right to testify * * * it shall not be construed to affect * * * [his] innocence or guilt * * * nor * * * raise any presumption of guilt, * * * nor be considered by the ⅜ * * jury ⅜ * * » rpjle pUrp0se 0f the rule and statute has been said to be to keep absolutely from the jury any reference to the constitutional right against self-incrimination. State v. Barker, Mo., 399 S.W.2d 1. .Article VI of Amendments to the Constitution of the United States. See also: Article I, § 18(a), Constitution of Missouri. . Later, at tlie bench, the court said to counsel, “I will so instruct the jury.” (Etaphasis supplied.) However, no such instruction was given, and it may be that the court concluded that the statute (§ 546.270) and Rule 26.08 prohibited the giving of the instruction. See State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455, and State v. Dennison, Mo., 428 S.W.2d 573, 578 [7]. We do not reach or rule the question whether the instruction should have been given, but it may be that in light of the problems presented by the voir dire examination in this case the court should reconsider the suggestion made in a concurring opinion by Donnelly, J., in State v. Hutchison, Mo., 458 S.W.2d 553, 556.

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Theodore R. WEST and Grace Goode, Appellants, v. Ira K. WITSCHNER et al., Respondents. No. 56301. Supreme Court of Missouri, Division No. 2. July 17, 1972. Claude L. Schenck, Blue Springs, for appellants. Lynn B. Nelson, William H. Ergovich, Kansas City, for respondents. HOUSER, Commissioner. This is the second appeal in a four-count suit in equity against Ira K. Witschner and J. J. Filsinger and wife. In Count I Theodore West sought to set aside a deed. In Count II Grace Goode sought to set aside a decree in a partition action filed by Witsch-ner against her. (Witschner’s cause of action was based upon a chain of title one link of which was the deed questioned in Count I.) In Counts III and IV Grace Goode sought actual and punitive damages against Witschner. Following trial before the judge of Division 9 of the Circuit Court of Jackson County plaintiffs lost on all counts. They appealed to this Court. The evidence introduced at the original hearing was fully developed in the opinion written on that appeal, West v. Witschner, Mo.Sup., 428 S.W.2d 538, in which we upheld the trial court’s finding on Count I that West failed to prove fraud on the part of Witschner’s agent in procuring the deed, but reversed the judgment on Count I and remanded the cause for a new trial in order that the parties might fully develop evidence on the issue whether the deed was signed in blank and whether the Wests acknowledged the deed before the notary public whose name appears in the acknowledgment; upheld the trial court’s finding on Count II that Witschner did not fraudulently procure the partition judgment and that Grace Goode’s interest was not purchased for an inadequate consideration, but reversed the judgment on Count II and remanded the cause for a new trial for the same reason and purpose for the remand of Count I; affirmed the trial court’s judgment on Counts III and IV, and ordered that the portions of the judgment affirmed be held in abeyance pending final disposition of the cause. On remand evidence pro and con was introduced on the two questions remaining in the case, i. e., whether the deed was signed in blank, and whether it was acknowledged. The court ruled that plaintiff West failed to establish that the deed was signed in blank but that it had been established by clear, cogent and convincing evidence that the Wests did not appear before a notary public to acknowledge execution of the deed; ordered that plaintiff West take nothing by his suit, except that the deed be stricken from the records of the recorder of deeds for want of a valid acknowledgment; and entered judgment that plaintiff Goode take nothing by Counts II, III and IV. Plaintiffs have appealed. At the second trial William J. Pine and Betty Ann Wilson, both of whom were referred to in our original opinion, testified. Pine testified that he and Betty Ann Wilson went to the home of the Wests, at which place he prepared the deed, the geneology and the receipt, all in his own handwriting, all at the same time and in the presence of the Wests. He stated positively that the deed was complete in all respects and all of the blanks in the printed form were filled in by him, including names of grantees and legal description of the property, before it was signed. He testified that Betty Ann Wilson waited in the automobile, parked in front of the West house, until the papers were ready, at which time she was called into the house, introduced to the Wests, and that she then and there took the acknowledgment of West and his wife to the deed. After so testifying Pine changed his testimony and stated that he wrote the deed before he went to the West house. Then he expressed uncertainty about the matter. These changes and modifications of his testimony were made after it became evident to him that the deed was dated December 17 and the acknowledgment was dated December 18. When cross-examined about his positive testimony that the blanks were all filled in before signing he stated he couldn’t remember, but that he assumed, and was sure, that this was so. When asked to explain the fact that the beginning words of the legal description (“An undivided one-half interest in the”) were crowded in between two lines as if interlined, he could not tell for sure but suggested that he may have thought about its being a one-half interest and “then put it in afterwards,” insisting however that these words were inserted before the grantors signed the deed. He agreed that the consideration actually paid may have been $150. The receipt was for $200. Betty Ann Wilson testified by deposition in 1966 that she had no recollection of having taken the acknowledgment of the Wests at their home, and did not know whether they appeared before her at her office or their home. At the second trial she appeared in person and testified positively to the contrary that she remembered going to 2438 College Street in an automobile with Mr. Pine; that she waited in the automobile; that Mr. Pine came out and got her when he was ready for the Wests to sign the deed; that she entered the house, was introduced to the Wests, who signed the deed before her, and that she took their acknowledgment at that time and place. For plaintiffs Charlene Betty Alexander (formerly the wife of plaintiff West) testified positively at both trials that Pine came to their home alone; that no one was with him; that no one waited in the automobile; that jdie young lady she saw coming out of the courtroom after testifying (Betty Ann Wilson) was not at the West home that day, and that Charlene had never seen her. She reiterated her testimony given at the first trial that the warranty deed form was blank, except for the printed matter and her then husband’s signature, when it was presented to her for signature. Plaintiffs offered to introduce evidence of three unsatisfied judgments against Pine in cases involving fraudulent practices but these were excluded as an improper method of impeachment. Three lawyers, including plaintiff’s counsel, were permitted to testify that the general reputation of William J. Pine for truthfulness, honesty and fair dealing in the community was bad. While as indicated in our original opinion we ordinarily defer to the findings of the trial judge in situations of this kind where the evidence is conflicting, we are not bound by the findings below. It is our duty to make our own determination of the facts on the record, de novo, on this review. We have reviewed the evidence given at both trials and have come to the same conclusion reached by the trial judge on the second issue tried at the second trial, namely, that the Wests did not appear before Notary Public Betty Ann Wilson or any other notary public or officer to acknowledge execution of the purported deed. We find that Betty Ann Wilson affixed her signature and seal to the paper the day after the Wests signed it, and did so out of the presence of the Wests. On the first issue, whether the printed warranty deed form was signed in blank, we have concluded that the trial judge’s finding that plaintiffs failed to establish this fact is clearly erroneous. The testimony of Charlene Betty Alexander on this issue is clear, consistent, and credible. At the time of both hearings she was divorced from Theodore R. West and therefore had no personal interest in the matter. She testified with assurance that she opened the folded paper, looked at its contents, saw only the printed matter and the signature of her husband; that there was nothing filled in, nothing on it, no writing; that there was no [documentary] stamp; that it was a blank deed; that the rest of the paper was blank. We consider that her testimony establishes the fact. Theodore R. West’s testimony sheds some additional light on this issue. He testified that he signed the paper without unfolding it, and saw nothing but the bottom fourth of the paper, but that at the time he signed there was no handwriting on the bottom fourth, whereas the words “them,” “they,” and “his” and the letter “y” after the printed word “part” appeared in Pine’s handwriting on the bottom fourth, when the paper was recorded. To reach the conclusion that the warranty deed form was filled in and completed in all respects when signed the testimony of Pine and Wilson would have to be accepted. Pine testified that his business is real estate, investments; that he deals principally in “distress property,” property in estates, in a bad physical condition, on which taxes are delinquent, fire-damaged property, vacant ground, hills, hollows, “something that is not too salable to the general public”; that he buys and sells. Formerly licensed as a real estate agent, he was not licensed at the time he testified. He claimed that his license had lapsed for nonpayment of fees. He bears a bad reputation for truthfulness, honesty and fair dealing. His testimony was inconsistent, indefinite and unconvincing. When asked about what investigation he made to ascertain who owned the property he testified that he checked the records at the courthouse “as to who the heirs were,” but the record indicates that there was no administration on the estate of Samantha Burkhead, deceased, the common source of title, from which he could have ascertained heirship. A suspicious, unexplained circumstance is the fact that Pine paid West $150 but took a receipt for $200. Pine had an interest in the matter, personally and as a long-time business associate of Witschner. He testified that the notary was present and took the acknowledgment but the trial judge found that Betty Ann Wilson did not take the acknowledgment, thereby indicating disbelief in Pine’s testimony that she performed that act, and we perceive no better reason to accept Pine’s testimony that he filled in the blanks before signature. Betty Ann Wilson’s testimony given by way of deposition in 1966 was inconsistent with her testimony at the second trial and, as pointed out by the trial judge, she did not satisfactorily reconcile the difference. The trial judge rejected her testimony about being present at the home of the Wests and taking their acknowledgment, and we see no better reason to accept her testimony that the blanks were completely filled in before signature. In sum, we now specifically find from all of the evidence at both trials that the purported warranty deed was signed in blank, not only as to names of grantees, but also as to legal description and all other handwriting now appearing on the face of the pretended deed, other than grantors’ signatures; that execution of the purported deed was never acknowledged before a notary public; and that the blanks were filled in by William J. Pine and the notary’s certificate attached after the paper was signed, without authority from grantors. Accordingly, we declare the deed void, under the authorities cited and quoted from in our first opinion. We further find that the defendants Filsinger, although duly served with process, did not appear but defaulted; that personal service was had upon defendant Ira K. Witschner, and that he tiled an answer and appeared in person and by attorney. Therefore, the judgment of October 23, 1970 on Counts I and II is reversed and the cause is remanded with directions to enter final judgment as follows: On Count I: For plaintiff West and against all three defendants, setting aside and cancelling the purported warranty deed dated December 17, 1963 from Theodore R. West and wife to J. J. Filsinger and ordering that it be stricken from records of the Recorder of Deeds of Jackson County in Book B-5659 at page 45, and awarding plaintiff West his costs on Count I. On Count II: For plaintiff Goode and against all three defendants, setting aside and declaring void the decree of the Circuit Court of Jackson County, Division 6, dated September 8, 1964 decreeing partition of the real estate in question in the case of Witschner v. Goode, Case No. 660309, and awarding plaintiff Goode her costs on Count II. On Counts III and IV: For defendant Witschner and against plaintiff Goode, awarding defendant Witschner his costs on said counts. It having been determined in the opinion on the first appeal that this purported deed was not fraudulently obtained, the purchaser of property whose deed is can-celled ordinarily being entitled to recover what he paid for the property, Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d 780 [20], and plaintiff West having specifically invoked the equity jurisdiction of the court thus indicating his willingness to make whatever restitution the case requires, Githens v. Butler County, 350 Mo. 295, 165 S.W.2d 650[10], the trial court is directed to make the effective date of the final judgment entered on Counts I and II conditional upon the deposit in the registry of the circuit court of the sum of $150 for the benefit of the grantees named in the purported warranty deed. STOCKARD, C., concurs. PER CURIAM. The foregoing opinion by HOUSER, C, is adopted as the opinion of the court. All of the Judges concur.

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The SQUIRE’S SHOP, INC., Plaintiff-Appellant, v. Robert H. BOEHLOW, Garnishee-Respondent, and Joanne Boehlow, Defendant-Respondent. No. 34216. Missouri Court of Appeals, St. Louis District. June 27, 1972. Richard M. Stout, John V. LaBarge, Jr., Kirkwood, for plaintiff-appellant. Herbert D. Schaeffer, Clayton, for defendant-respondent. DOWD, Presiding Judge. This is an appeal from a judgment sustaining defendant Joanne Boehiow’s motion to quash plaintiff’s garnishment on garnishee Robert H. Boehiow. The plaintiff obtained a judgment against the defendant Joanne Boehiow in the amount of $261.77 in the Magistrate Court of St. Louis County. Subsequently, a transcript of the judgment was filed in the St. Louis County Circuit Court. That court issued an execution against defendant Joanne Boehiow and a garnishment naming Robert H. Boehiow garnishee. Thereafter, and before the return term of the Writ issued by the Circuit Court, defendant Joanne Boehiow filed a “Motion to Quash Garnishment.” The motion alleged that the garnishee was not a personal debtor of the defendant. It further alleged that Joanne Boehiow and Robert H. Boehiow were divorced, and that under the terms of their divorce decree, defendant was merely a recipient of funds which the court required the garnishee to pay to the defendant for the support of their child, and that, therefore, the funds in question actually belong to the child. It was alleged that she received the funds only as a trustee, and for this reason, they are not subject to her personal debts, or any judgments or executions against her. The divorce decree, originally issued and as modified, was attached to defendant’s motion, showing an award to her of alimony, attorney fees and child support payments. The defendant Joanne Boehlow failed to file a brief in this court. However, we do not reach the merits of this case, since it is our conclusion that the defendant’s motion was premature and should not have been heard. The plaintiff has a statutory right to file interrogatories to the garnishee at the return term of the Writ. § 525.130 RSMo 1969 V.A.M.S. The return date of this Writ was June 22, 1971. This motion was sustained on April 15, 1971. Therefore, plaintiff was deprived of its right to inquire into the garnishee’s status as a debtor of the defendant. Since the terms of the divorce decree indicate, in addition to child support, that the garnishee is also obligated for alimony and attorney fees, it is entirely possible that the garnishee may be a personal debtor of the defendant. The plaintiff may not be deprived of its rights of discovery by a prematurely sustained motion to quash. Reversed and remanded. SMITH and SIMEONE, JJ., concur.

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DeWitt CRAWFORD, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri et al., Defendants-Respondents. No. 34275. Missouri Court of Appeals, St. Louis District. June 28, 1972. Robert J. Thomas, Jr., St. Louis, for plaintiff-appellant. Lloyd G. Poole, Jefferson City, for Industrial Comm. Curtis K. Cochell, Jefferson City, for Div. of Emp. Sec. Lloyd G. Hanley, Rick V. Morris, Jefferson City, Donald J. Meyer, St. Louis, for Westlake. BRADY, Chief Judge. This case involves a claim for benefits under the Missouri Employment Security Law, § 288, RSMo., V.A.M.S., which was denied by the Industrial Commission. The circuit court affirmed the Commission’s decision and from such judgment claimant appeals. On December 10, 1969 claimant, DeWitt Crawford, an employee of West Lake Ready Mix Company, and a member of Teamsters Local 682, asked his supervisor for a leave of absence for approximately three months to begin with the close of work on December 10. His supervisor granted the leave providing claimant could obtain approval of his Union. At the hearing before the referee, claimant testified that he then spoke with the business agent of his Union who told him it was satisfactory to take the leave, but that if another member filed a grievance claimant might lose his seniority if he failed to obtain a written letter from his employer. There is no evidence in this record of any such grievance having been filed. The employer’s witness testified he said nothing to claimant about having the Union approval in writing because: “As far as we were concerned it wasn’t necessary.” He further testified that while he did not know the terms of the Union contract well he had never seen or read anything requiring such a letter. The employer’s answer to the claim reads: “ ‘According to the union a leave of absence was not allowed. Therefore he had an absence without leave.’ ” The employer’s witness, Harold Geile, claimant’s supervisor, testified over strenuous objection that on December 12 the Union’s business agent informed him claimant had not filed the “customary” written letter and therefore the Union could not approve (“go along with” was the phrase used) the leave. There was no further contact with Mr. Crawford by either his employer or the Union representative at this time. Approximately March 10 the claimant contacted his supervisor concerning his return to work. He was told what had transpired between the supervisor and the Union agent and that he was treated as having quit. Claimant then contacted his Union agent but was told nothing could be done inasmuch as he had no letter. Thereafter claimant filed a grievance with his Union and a meeting was held in which claimant, his Union agent, the shop steward, and claimant’s supervisor were present. The decision was against the claimant returning to work but there is no evidence in this record of any official action by the Union disapproving claimant’s leave of absence which was offered or referred to by anyone at that meeting. Claimant then filed an initial claim under the Missouri Employment Security Law. March 8, 1970, and thereafter claimed benefits through the week ending June 27, 1970. A deputy determined that claimant was ineligible for benefits, finding that he had left work voluntarily without good cause attributable to his work or employer on December 10, 1969. Claimant filed an appeal as provided by § 288.190, RSMo., V.A.M.S., and after a hearing the referee affirmed the deputy’s decision, specifically finding that the Union did not approve claimant’s request for a leave of absence. The Industrial Commission denied claimant’s application for review of the referee’s decision (filed pursuant to § 288.-200, supra) on the grounds that the “ * * * findings of fact of the Appeals Tribunal are supported by competent and substantial evidence and that the decision of the Appeals Tribunal was made in accordance with the law.” As a result the decision of the Appeals Tribunal is deemed to be the decision of the Commission for the purpose of judicial review. § 288.-200(1), supra. Section 288.020(2), supra, requires a liberal construction of the Missouri Employment Security Law, the purpose of which is to provide benefits to “ * * * persons unemployed through no fault of their own.” However, the disqualifying provisions of § 288.050, supra, must be strictly construed. Citizens Bank of Shelbyville v. Industrial Commission, Mo.App., 428 S.W.2d 895. In reviewing the findings of the Industrial Commission that claimant is disqualified under § 288.050, supra, our duty is to determine the legislature’s intent by applying the plain natural meaning of the words to the statutory language to promote the object of the Act. Bussmann Mfg. Co. v. Industrial Commission, Division of Employment Sec., Mo.App., 335 S.W.2d 456. The Commission found that claimant voluntarily left his work. Voluntarily is defined in Webster’s Third New International Dictionary as: “of one’s own free will; spontaneously.” Decisions of the Industrial Commission upon questions of law are not binding upon this court. As to questions of fact, § 22, Article V, of the Constitution, V.A.M.S., requires that the findings of the Industrial Commission be supported by competent and substantial evidence upon the whole record. We are required to review the record in the light most favorable to the decision of the Industrial Commission and if it is supported by competent and substantial evidence and if the Commission could have reasonably made its findings from the evidence before it, we must affirm. Mercer v. Rowe Ford Sales, Mo.App., 446 S.W.2d 167, 171; Mid-Continent Aerial Sprayers, Inc. v. Industrial Commission, Division of Employment Sec., Mo.App., 420 S.W.2d 354; Handley v. State, Division of Employment Sec., Mo.App., 387 S.W.2d 247. The Industrial Commission found applicable the provisions of § 288.050, supra, disqualifying a claimant from waiting week credits or of benefits until he has earned wages equal to ten times his weekly benefit amount if it is found he left his work voluntarily without good cause attributable to his work or his employer. The Industrial Commission found claimant did so leave his work. Crucial to this determination was the finding that the Union did not approve claimant’s request for a leave of absence. The finding being in favor of the employer, it is the testimony of the employer’s witness with which we are primarily concerned. That testimony was that 'the Union representative informed the claimant’s supervisor about December 12 that claimant had not filed the “customary” letter and therefore the Union could not approve the leave. The testimony of the employer’s witness as to what the Union representative told him is the only evidence to support the finding that the Union did not approve the leave. It is therefore necessary to determine the admissibility and competency of hearsay evidence at an administrative hearing. Common law or statutory rules of evidence do not apply. § 288.190(2), supra. However, it is well settled “ * * * that hearsay evidence and conclusions based upon hearsay do not qualify as ‘competent and substantial evidence upon the whole record’ essential to the validity of a final decision, finding, rule or order of an administrative officer or body under § 22, Art. V of the Missouri constitution of 1945. * * * The fact that technical rules of evidence do not control has been considered to permit of leading questions and other informalities but not to abrogate the fundamental rules of evidence.” State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209. See also McCallister v. Priest, Mo, 422 S.W.2d 650; Bartholomew v. Board of Zoning Adjustment, Mo.App, 307 S.W.2d 730, 733; State ex rel. Bond v. Simmons, Mo.App, 299 S.W.2d 540. Hearsay evidence should not be considered by a referee in such proceedings and while the reception of hearsay evidence does not in and of itself dictate a reversal, that result will follow unless there is sufficient competent evidence to sustain the decision. McCallister v. Priest, supra. The only evidence being hearsay, it follows then that such finding is not supported by competent and substantial evidence and must be set aside. Respondents attempt to avoid the hearsay problem by arguing that the Labor Union is the agent of its members, that acts of the Union are the voluntary acts of its members, and that the employer was justified in relying on what he was told by the Union representative. But reasonable reliance by the employer upon the Union representative is not the issue here. § 288.050, supra, specifies the issue is whether claimant voluntarily left his work without good cause attributable to his work or his employer. The determinative fact in resolving the issue of whether claimant voluntarily left his work is whether the Union did in fact approve the leave of absence by claimant. The specific finding of the referee was that the Union did not. Having determined that this finding is not supported by competent and substantial evidence the decision of the circuit court affirming the Industrial Commission must be reversed. Respondents finally contend that if we disregard the supervisor’s hearsay testimony claimant’s hearsay testimony must also be ignored, and without this evidence respondent asserts that claimant has failed to carry his burden of proof establishing his right to benefits. This argument must fail. In Bussmann Mfg. Co. v. Industrial Commission of Mo., Mo.App., 327 S.W.2d 487, 492, this court held “ * * * that hearsay and self-serving declarations admitted into evidence without objection should be given their natural probative effect.” See also Tebeau v. Baden Equipment & Const. Co., Mo.App., 295 S.W.2d 184, 190; Nations v. Barr, Mo.App., 43 S.W.2d 858, 861. There was no objection to claimant’s testimony at the hearing, nor upon application for review to the Commission. Moreover, on review we consider the evidence in the light most favorable to the findings. LaPlante v. Industrial Commission, Mo.App., 367 S.W.2d 24, 27; Neeley v. Industrial Commission of Mo., Division of Employment Sec., Mo.App., 379 S.W.2d 201, 204. We have determined that the specific finding made by the referee is not supported by adequate evidence. We are not privileged to engage in speculation and conjecture as to additional bases to support the referee’s conclusions which, if they exist at all, do not appear in the record. To the contrary, the opinion of the referee and that of the Industrial Commission make clear the acceptance by each of the uncontroverted evidence that claimant did everything required of him to protect his position and that the factual determination of the question of the Union’s disapproval of the leave of absence constitutes the sole basis for their rulings against him. The judgment should be reversed and the cause remanded to the trial court with directions this case be remanded to the Industrial Commission for a hearing upon the factual issue of whether or not the Union approved or disapproved claimant’s request for leave of absence, and for such other proceedings as are not inconsistent with this opinion. It is so ordered. WEIER and CLEMENS, JJ., concur.

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Bruce Lee BOATMAN, Claimant-Respondent, v. SUPERIOR OUTDOOR ADVERTISING COMPANY, Incorporated, Employer-Appellant, and Aetna Casualty & Surety Company, Insurer-Appellant. No. 9178. Missouri Court of Appeals, Springfield District. June 30, 1972. John B. Newberry, Springfield, for claimant-respondent. Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for appellants. TITUS, Chief Judge. Question: Was claimant, a “contract painter” for Superior Outdoor Advertising Company, Incorporated, on or about Superior’s “premises” at the time he was injured so as to render Superior liable to him as its statutory employee for workmen’s compensation benefits? § 287.040, subd. 1 RSMo 1969, V.A.M.S. Erecting, painting, repainting and maintaining outdoor signboards owned by it were operations within the usual business of Superior. In the conduct of its business, Superior regularly engaged the services of “two, sometimes three contract painters” who were paid “so much a square foot” for the signs they repainted. These painters provided their own transportation, furnished all the ladders, walking planks, brushes, paint, and other items needed in the performance of their tasks; they worked at hours of their own choosing. When a sign needed repainting, Superior assigned a painter to a particular signboard and paid for his services when he submitted a photograph as proof that the work was completed. Harold Woelfel owned real estate 18 miles west of Springfield which was occupied, in part, by Cobb’s Restaurant. Superior agreed that upon being paid “so much a month” by Mr. Woelfel, it would erect and maintain upon his property a sign advertising the restaurant. The sign was erected in a field “two or three hundred feet from the business.” Superior claimed no ownership or leasehold interest in the real estate where the sign was erected, and considered its only right “to use the land that the sign was located on [was] whenever Mr. Woelfel wanted repair or painting done to his sign,” which was “maybe ever [sic] six months.” Claimant, as a “contract painter” on the terms above described, had repainted some six or seven signs for Superior before he was directed to repaint the Cobb’s Restaurant sign. In the process of repainting this sign, the ladders and walking plank slipped causing claimant to fall to the ground and be injured. Successive awards in claimant’s favor were entered by the Division of Workmen’s Compensation and the Industrial Commission of Missouri. The latter award was affirmed by the circuit court, and Superior has now appealed to this tribunal (§ 287.490 RSMo 1969, V.A.M.S.) contending that claimant was not a statutory employee of Superior because the accident did not occur on its “premises” as contemplated by § 287.040, subd. 1, supra. As used in § 287.040, subd. 1, the term “premises” is not restricted to the permanent site of the statutory employer’s business nor limited to property owned or leased by him, but contemplates any place under the exclusive control of the statutory employer where his usual business is being carried on or conducted. Sargent v. Clements, 337 Mo. 1127, 1134, 88 S.W.2d 174, 178(5); Dawson v. Clark Oil and Refining Corporation, Mo.App., 410 S.W.2d 353, 356; Nagle v. Drew, Mo.App., 409 S.W.2d 264, 266(1); Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, 95(2); Crabtree v. Ramsey, Mo.App., 115 S.W.2d 14, 16(1). “Premises” include locations that temporarily may be under the exclusive control of the statutory employer by virtue of the work being done (Raef v. Stock-Hartis, Inc., Mo.App., 416 S.W.2d 201, 208), and “exclusive control” indicates such a control in the “premises” by the statutory employer that the general public does not have an equal right to use them along with the employer and the independent contractor. Offutt v. Travelers Insurance Company, Mo.App., 437 S.W.2d 127, 130; Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, 76(5). If the alleged statutory employer is an invitee upon the premises under the same terms extended others to enter upon the premises for business purposes, it cannot be said that the premises are under the employer’s exclusive control. State ex rel. Potashnick v. Fulbright, 350 Mo. 858, 863, 169 S.W.2d 59, 62. The contract between Superior and Mr. Woelfel obligated Superior to repaint and repair Cobb’s Restaurant sign whenever the owner indicated such services were required. At the times Superior undertook to comply, it would, of necessity, have implied authority of ingress and egress [Baker v. Iowa-Missouri Walnut Log Co., supra, 270 S.W.2d at 78(7)], and would be an invitee upon the premises. Enloe v. Pittsburgh Plate Glass Company, Mo., 427 S.W.2d 519, 522(2); Feldewerth v. Great Eastern Oil Co., Mo.App., 149 S.W.2d 410, 413 (3). Of course, the general public, as customers at Cobb’s Restaurant, would be invitees while upon the restaurant property. However, should a customer exceed the bounds of his invitation and roam to an out-of-the-way place, such as into the field “two or three hundred feet from the business” where the sign was located, he would lose his status as an invitee and become, at most, a mere licensee. Moss v. Nooter Corporation, Mo.App., 344 S.W.2d 647, 653 (9, 10); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 136(4); Gayer v. J. C. Penney Company, Mo.App., 326 S.W.2d 413, 417(4). Therefore, when Superior, through its “paint contractor,” was upon the premises where the sign was located for the purpose of conducting its usual business, Superior was there under a right exclusive to it and not available to the general public. Certainly the public would not have a right equal to Superior’s to be on the land at the situs of the signboard for the purpose of repainting and maintaining the sign owned by Superior. While Superior’s customary work was being performed upon its sign by its “contract painter,” it had exclusive control of that particular portion of the premises and claimant was its statutory employee while so engaged. Originally the claim herein was filed against Pioneer Advertising Company as the employer. Predicated upon evidence adduced at the hearing, the claim was amended without objection and by leave of the referee to denominate Superior as the alleged employer. The division’s award was against Superior. Thereafter, however, the parties, the industrial commission and the circuit court ignored the amendment and erroneously referred to the employer as Pioneer. Although we affirm the judgment of the circuit court insofar as it would declare claimant entitled to workmen’s compensation benefits as a statutory employee of Superior, we must also remand the cause to the circuit court with directions that it (1) correct its records to show the employer to be Superior Outdoor Advertising Company, Incorporated and (2) in turn, remand to the industrial commission with direction that it amend its award to show the correct name of the employer. STONE and HOGAN, JJ., concur. . Sec. 287.040 — “1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, . . ., when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.” . A claimant, before being classified a statutory employee, must demonstrate (1) that the work was being performed under contract, (2) that the injury happened while claimant was doing work in the usual course of the business of the alleged statutory employer, and (3) that the injury occurred on or about the premises of the alleged statutory employer. Johnson v. Medlock, Mo.App., 420 S.W.2d 57, 61(6). Superior does not dispute the existence of the first two elements, hut does asseverate that the third essential element is missing in the case.

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Henry B. BUCHENBURGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. Frank E. Haddad, Jr., Kenny Grantz, Louisville, for appellant. Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, Edwin Schroering, Commonwealth’s Atty., Louisville, for appellee. VANCE, Commissioner. This is an appeal from a judgment sentencing appellant to confinement in the penitentiary for five years and imposing a $4,000.00 fine upon him for the offense' of unlawful possession of dangerous drugs for the purpose of sale. KRS 217.731(1) (b). The residence of appellant was searched pursuant to a search warrant. A large quantity of marijuana and approximately seven-hundred LSD tablets were found. This appeal questions the sufficiency of the affidavit for the search warrant and challenges the instructions which were given to the jury. The portion of the affidavit in question reads as follows: “On the 5th day of September 1970, at approximately 5:00 arisr/p.m., affiant received information from/observed a confidential informant who has in the past been reliable and has been responsable [sic] for two (2) narcotic arrests in the past year. Informant states that on this date, September 5, 1970 at 4:00 pm, he was at the home of Henry Buckenberger or Buchenburger (he was unsure of the spelling) at 6015 Bardstown Road and while there he observed Henry Bucken-berger or Buchenburger with a large quantity of marihuana. Informant states that Buchenburger or Buckenberger is a pusher and sells marihuana by the pound. Informant further states that he was asked by Buchenburger or Bucken-berger if he wanted to be a runner for him. Informant states that he was told his part of a $20.00 dollar bag would be $5.00 dollars.” In Kentucky the name of an informant need not be disclosed in an affidavit for a search warrant if the affidavit contains sufficient information upon which the issuing magistrate can make an independent judgment (1) as to the credibility or reliability of the informant, and (2) that facts were known to the informant sufficient to constitute probable cause and the basis of the knowledge of such facts shown. Thompson v. Commonwealth, Ky., 472 S.W.2d 884 (1971) and Berkshire v. Commonwealth, Ky., 471 S.W.2d 695 (1971). There is no question but that the informant had knowledge of facts sufficient to constitute probable cause for the issuance of the warrant. The question is whether the affidavit sufficiently established the credibility of the informant. In Berkshire the affiant stated that his information was received from a reliable, credible and confidential informant. In Thompson the affiant stated his information came from a white male, known to the affiant only as “Charlie” and in whom he believed. In both cases we held the statements in the affidavit to be no more than a conclusion of the affiant and insufficient to enable the magistrate to make an independent determination of the reliability of the informant. There are many things which a magistrate may consider in making his independent determination of the credibility of an informant. The length of time that the affiant has known the informant is an important factor. A statement by affiant of the reputation and standing of the informant in the community is relevant. That information previously furnished by the informant had always proved to be accurate would be indicative of reliability. Ideally an affidavit would state that af-fiant had known the informant for a number of years; that his reputation for truth and veracity was good; that his standing in the community was excellent and that on a number of occasions past the informant had furnished information to the af-fiant which had always been accurate. The affidavit could then set forth instances in which the informant had previously furnished correct information. Such an affidavit would clearly establish the credibility of the informant. The instant affidavit falls far short of the ideal yet it goes further than the affidavits condemned in Berkshire and Thompson for here in addition to an expression of affiant’s belief in the reliability of the informant there was added the statement that the informant had been responsible for two narcotics’ arrests within the past year. A statement to the effect that the informant was responsible for two arrests within the past year does not necessarily import that the information furnished by the informant was accurate or that it led to convictions. The language does not negate that the informant may have furnished false and spurious information which resulted only in the arrest of two innocent men on narcotics charges. But to read such a meaning into the language used in the affidavit would require a strained interpretation which does not comport with what laymen would ordinarily understand from the language used. We are confronted on one hand with the necessity to protect citizens from unreasonable searches and seizures as commanded by both the State and Federal Constitutions. On the other side of the coin is the loss of protection to society that comes about when supertechnical requirements as to affidavits for search warrants result in the absolute dismissal of criminal charges solely because some magistrate, county judge, or police judge, not learned in the law, did not appreciate or understand the technical niceties involved. With reference to affidavits for search warrants the United States Supreme Court said in United States v. Ventresca, 380 U. S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965): “ * * * Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. * * * The affidavit may reasonably be interpreted as stating that the affiant believed the informant to be reliable and that his belief was based upon the fact that on two previous occasions the informant had furnished information which proved to be accurate. This court believes that the issuing magistrate had reasonable grounds to consider the informant reliable and that to hold otherwise would constitute the type of hypertechnical interpretation denounced in Ventresca. The appellant also contends that the court should have instructed the jury as to the offense of unlawful possession of dangerous drugs for his own use [KRS 217.-731(1) (a)], which he contends is a lesser included offense. It is unnecessary in this case for us to decide whether unlawful possession of dangerous drugs for personal use is in fact a lesser included offense of unlawful possession of dangerous drugs for the purpose of sale. The appellant did not testify and there was no evidence whatever that appellant’s possession of the drugs was for his personal use. The large quantity of drugs found upon appellant’s premises; evidence of the unusual number of visitors to appellant’s quarters at night; evidence that appellant, after the arrival of visitors to his premises would frequently go out to his garage and get something out of a box, return to his apartment, and shortly thereafter the visitors would leave; evidence that during the raid a box covered with weeds and containing drugs was found in his garage; and testimony that at 2:00 a.m., during the raid, five teenagers came to appellant’s apartment all tend to establish that the drugs were possessed by appellant for the purpose of sale and not for personal use. Since there was no evidence to indicate that possession of the drugs was for the personal use of appellant no instruction as to that offense was necessary or proper. Cf. Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969). The judgment is affirmed. All concur.

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GLASGOW REALTY COMPANY, Appellant, v. Vivian L. METCALFE, Appellee. Court of Appeals of Kentucky. June 23, 1972. James H. Lucas, William J. Rudloff, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for appellant. Harry Berry, Glasgow, for appellee. EDWARD P. HILL, Jr., Judge. This appeal is from a judgment entered on the verdict of a jury which awarded appellee, Vivian Metcalfe, $47,500 damages for personal injuries she claimed resulted from appellant’s negligence in maintaining a glass window in one of its third-floor apartments. Appellant is the owner of a three-story building that stands flush with the sidewalk on the public square and in sight of the courthouse in Glasgow, Kentucky. The first floor is leased to merchants, the second floor as offices, and the third floor is divided into apartments. On August 1, 1969, nine-year-old Marty Stout, in the company of his parents, went to one of the third-floor apartments to visit Marty’s grandmother. Finding the place uninteresting, Marty wandered into a nearby apartment occupied by the William Mayo family. On this day the merchants of Glasgow were having a “Sidewalk Sale Day,” which attracted a large crowd to the public square. Young Marty Stout raised, or discovered raised, a lower sash of one of the windows immediately above the sidewalk on the public square. He naturally proceeded to enjoy his high perch by attracting the attention of interested and curious youngsters below by “hollering” to them. His conduct did not meet with the approval of seventeen-year-old Linda Mayo, one of the occupants of the apartment. She proceeded to pull the raised sash down to its proper position to abate Marty’s conduct. The latter placed both hands against the glass, either to prevent the closing of the window, or to assist Linda in closing it. Thereupon, the glass of the lower sash broke and fell to the sidewalk, striking an awning above the first floor causing the glass to further shatter. Numerous people, including appellee, were milling about the sidewalk when the glass fell. The crowd stampeded to avoid the falling glass. Some unknown person ran into appellee, Vivian L. Metcalfe, and knocked her down, as a result of which she received a fractured hip and numerous lacerations. Although appellee was only 52 years of age at the time, her injuries proved to be more serious than anticipated. She required constant care for over seven months and proved special damages of about $7,500. The testimony indicated that she is 25 to 35 percent permanently disabled. Appellant presents five grounds for reversal of the judgment, the first of which is that it was entitled to a directed verdict. The chain of events in the instant case suggests a number of interesting legal questions, such as of intervening and superseding cause and the foreseeability of the consequences of a defectively maintained glass window. First, however, we should get to the basic, fundamental question of appellant’s duty with respect to the maintenance of the glass window in question, and then determine from the facts whether appellant violated that duty. Before discussing appellant’s duty, we should get a birdseye view of the situation. The glass window in question was in a third-floor apartment where children were known to live. It was immediately above the sidewalk where pedestrians were known to be and had a right to be. A screen or storm window had been installed but was useless at the time due to the fact that the screen was out. The window cords at the lower sash were broken and inoperative. Unquestionably it was the duty of appellant to inspect its building for dangerous conditions that were likely to result in injury to persons using the sidewalk below. We now turn to the evidence that bears on the claimed defective condition of the window sash. This evidence consists of the testimony of William Mayo, his daughter Linda Mayo, nine-year-old Marty Stout, and Maurice Wolfe (appellant’s manager) together with certain photographs introduced in evidence, which appellant objected to to and argues here were incompetent. More about the photographs later. We quote the following testimony relative to the condition of the sash: WILLIAM MAYO “53. Billy, do you recall what the condition of this window that was broken out or broke out, what the condition of it was as to being fastened into the window frame prior to the time that it was broken out or broke out ? “A. It wasn’t too much putty in it. “54. Now, is that a condition of many of the windows in that building ? “A. Yes sir. “55. Are there several of these windows up there that have the screens torn off of them? “A. Yes sir. “56. And on the date of this accident, this screen was off this window? “A. Yes sir. ⅜ ⅜ ⅜ ⅜ ⅜ iji “58. Well, are there many glasses broken in this building all over there? “A. Yes sir. “65. Now, the window frame and wooden sash or frame was in good condition, wasn’t it? “A. No sir. ⅜ ⅝ 5-Í ⅜ ⅝ ⅝ “67. The window itself was in good condition, wasn’t it? “A. Yes. “68. It wasn’t cracked, was it? “A. No sir. “69. You didn’t have any difficulty pulling the window up and down by the handle, did you? “A. No sir. “70. These ropes that are supposed to be attached to the window, were they ever attached to the window ? “A. No sir. “71. And those are what you use to tie weights on, or weights are tied to them to lift the window up and down, aren’t they? “A. Yes sir.” LINDA MAYO “Q 26 And you pulled down the window ? “A Yes. “Q 27 And then what happened? “A Then I let down the window and then he pushed it out with two hands. I told him not to, and he did anyway. “Q 28 He pushed out the window pane? “A Yes. “Q 29 Did he put both hands on the pane and push ? “A I think he did. “Q 30 Well, did you see him do it ? “A Yes. “Q 31 Did you warn him not to push on the pane ? “A Yes, I did. “Q 32 All right. He pushed on the pane, and then what happened ? “A He knocked it out. “Q 33 Did the window pane break and fall out? “A I don’t know. “Q 34 Well, tell us what happened. Describe it in your own words — what happened ? “A Well, I think that’s what he done, what you said awhile ago. “Q 35 Well, you tell us. You tell us in your own words what happened. “A Well, I don’t know how to say it. “Q 36 Well, when the boy put his two hands up on the pane and pushed on it, did it break ? “A Yes, it did. “Q 37 After it broke, did it fall out? “A Well, not all of it, some of it. And then I took out the rest of the pieces that was on it — took it out. “Q 38 All right. And when it fell out, did it fall down on the sidewalk? “A Yeah, and they was some putty around it, too. “Q 39 Linda, was this glass broken or cracked in anyway before the accident? “A No. ⅜ ⅜ ⅜ ⅜ ⅜ i{c “Q 48 And you said this window was not cracked ? “A No. “Q 49 The pane was cracked, wasn’t it? “A Yeah, the pane was. ⅜ ⅜ ⅜ ⅜ ⅜ ⅜ “Q 51 I’m asking her: At the time this happened, was the window pane already cracked ? “A No, it wasn’t. * * * * ⅜ * “Q 53 And you say it had putty around it, or didn’t have putty around it? “A Well, it was put on the outside. “Q 54 All the way around the outside? “A I didn’t see that closely. ⅜ ⅜ ⅜ ⅜ ⅜ “Q 55 And it had things that pulled it up and down. They were tied in there good too, weren’t they, Linda ? “A There weren’t things in that window. ⅝ ‡ ⅝ ⅝ ⅜ ⅝ “Q 59 And is it hard to put up and down? “A (Witness nods her head in a negative answer). “Q 60 It’s not? “A No. “Q 61 Well, then what holds it up, Linda? “A I don’t know. “Q 62 If it just goes up and down real easy and there’s no weights to hold it, what holds it up ? “A I don’t know. “Q 63 The ropes are broke off, aren’t they? “A Yeah. “Q 64 And then the weights and the things that guide the window up and down aren’t on it, are they ? “A No. * * * * * * “Q 68 And ropes aren’t even tied to it to keep it from falling down? “A No. * * * * * * “Q 71 (Interrupting) He didn’t push the window up again ? “A No, he knocked the window out. “Q 72 You said he had his hand on the window when it went out. Is that correct ? “A He walked over there and put his hands on it and knocked it out. He pushed on it real hard. “Q 73 Oh, I know. What did he push on? “A On the window. ****** “Q 75 Well, you said he had his hands on it when— “A (Interrupting) He had it on the white thing around it. “Q 76 ‘He had his hand on it when it went, and he still had his hands on it.’ (Reading) Now, how could he have had his hands on it if it had gone out ? “A You know where the white thing is around the window ? “Q 78 He had his hands on the frame then is what he had his hands on. Right? “A Yeah. “Q 79 And not the window glass? “A Because the window was knocked out, yeah. “Q 80 But he really had his hands on the frame instead of the glass? “A Yeah. “Q 81 You stated before that he said he was trying to pull the window down. Is that correct? “A No, it isn’t. “Q 82 He didn’t say that ? “A He didn’t tell me that. “Q 83 Well, if he himself testified— “A (Interrupting) Yes, but he wanted me to lie about it— ****** “Q 85 Who did? “A Marty did, and his grandmother did, too.” MARTY STOUT “20. Now, Marty, what happened over there in regard to this window when the glass fell out? “A. We was pushing it down. “21. And who was pushing it down? “A. Linda Mayo and I. “22. And you. And just explain to the jury what you done as far as you remember. "A. I grabbed hold of it like that. I didn’t push it out. “23. Were you pulling it down or trying to get it down or what were you trying to do ? “A. Trying to get it down. “24. Was there any screen wire on that window ? “A. I don’t think so. There was one had glass in it before though. ⅜ 5*C ⅜ ⅝ ⅝ ⅜ “42. Now, why did Linda shut the window? “A. I don’t know. We was just shutting it. “43. Weren’t you hollering out the window at some people down on the sidewalk? “A. I was hollering at a boy. I wasn’t hollering at everybody. ⅜ ⅜ ⅜ ⅜ ⅝ ⅜ “45. And did Linda ask you to q'uit hollering out the window at the boy? “A. I don’t know. ⅝ Jj< ⅜ ⅝ ⅜ ⅜ “48. She didn’t have any trouble pulling the window down, did she? “A. No sir. I don’t know. I helped her anyway. I didn’t push it out. “49. Well, when you went over there to help her, did you put both hands on the window pane? “A. The window in the middle ? * * * * * * “Q52. You put both hands on the windowpane ? “A. Yes. “53. And did you push on the pane? “A. I didn’t push it out. “54. Sir? “A. I didn’t push it out. “55. Well, I mean did you push on the pane with your hands ? “A. I don’t know. “56. Well, did you, or didn’t you ? “A. I don’t know. “57. But you did put both hands up on the window pane like this and help her try to pull it down, is that right? “A. Yes. “58. So, necessarily, you had to push on the glass, didn’t you ? “A. I don’t know. “59. Didn’t Linda tell you not to push on the window ? “A. I don’t know that. “60. While you had your hands on this glass and were helping her with the window, as you say, the glass broke, didn’t it? “A. Yes sir. “61. And fell out? “A. Yes sir. “62. Now, Marty, I don’t want to embarrass you or anything, but I want to ask you one question. Think carefully about it. When you had your hands on that window pane, weren’t you pressing on the window pane ? “A. I don’t know. “63. Well, didn’t you have to press on the window pane to push it down ? “A. I guess. I don’t know. I might have, and I might not have. “64. Marty, did you notice — do you know what the putty around the window is that holds the glass in? “A. I don’t believe there was very much. “65. There wasn’t much around it. Was the window broken, or do you remember ? “A. It had a little crack in the top. ⅜ ⅜ ⅜ ⅜ ⅜ ⅜ “67. Marty, had you ever looked at this window before this accident happened ? “A. I don’t know. My grandmother said it was cracked. She was over there last weekend looking at it. “68. Truth of the matter is, you don’t know whether it was cracked or not, do you? “A. Might have been, and might not.’’ MAURICE WOLFE “113. Now, if the paint were gone and if the ropes that let it up and down were gone, and if part of the putty was gone from around the glass in the sash, wouldn’t that indicate a fairly deteriorated and poor condition? “A. And if all that was so, yes. * * * * * * “116. But the screen, if it were in the window at the time of this time that the window glass either fell out, broke out, anyway, came out, if it were in there at that time, unless somebody drove it with a terrific force, this screen would have caught all the glass in that window? “A. Right.” Appellee offered sixteen photographs of various views of the appellant’s building, only one of which showed the window in question. These photographs are of little assistance on the vital question in the case. The particular photograph of the window from which the glass fell is of no benefit as it shows no details of the conditions, only that the paint was old and cracked. From the foregoing evidence, two salient facts emerge: First, it is clear from the admission of appellant’s manager that there was a failure to inspect the condition of the window in question; secondly, the condition of the window was defective to the extent that at least some of the putty was gone from around the glass, and the screen was out. These facts made a jury issue on the question of appellant’s negligence in the maintenance of the premises in question. See Smith v. Earl Douglas Hanson, Inc., 9 Misc.2d 244, 170 N.Y.S.2d 866, and Beaumont Iron Works Co. v. Martin, (Tex.Civ.App.) 190 S.W.2d 491, 29 A.L.R. 77. Appellant’s next argument is directed at the admission of the photographs of various views of appellant’s building and of parts of it. Some of the pictures showed windows other than the one from which the glass fell. We think some of the photographs were not helpful on the real issue, but we do not find any of them portrayed anything detrimental to appellant. In fact, we believe they benefited appellant’s position. Appellant’s third question relates to the instructions given or offered. First it contends that Instruction I given by the court “deviated substantially from the language of the general standard of care, and inserted surplusage and extraneous wording, which actually held appellant to a higher standard of care than that required by law.” Instruction I placed upon the appellant the duty to “use ordinary care in the upkeep and maintenance of the window in said building from which the glass fell, so as to make and keep said window in said condition as would make it reasonably safe for persons, such as the plaintiff using * * * sidewalks adjacent to the building.” Instruction V defined ordinary care. We can find nothing wrong with this instruction. The second part of the argument pertaining to the instructions is that the court should have given appellant’s tendered instruction two», which covered “intervening or superseding” causes. The trial court covered all to which appellant was entitled in the third instruction when he instructed the jury that it could find for plaintiff if the falling glass was caused by the concurring negligence of appellant and Marty Stout. See Snydor v. Arnold, 122 Ky. 557, 92 S.W. 289; Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S.W. 1057; Brown v. Chesapeake & O. R. Co., 135 Ky. 798, 123 S.W. 298; and Commonwealth, Department of Highways v. Begley, Ky., 376 S.W.2d 295. Appellant’s fourth argument charges that two of the jurors trying the case were observed “inspecting and discussing” the appellant’s building. The affidavit of appellant’s manager stated that he observed two of the jurors “viewing the premises * * * and they engaged in conversation concerning the building and painted (sic) upward toward the window in question”; and that the two jurors “then stepped down to the Green Street side of the building and continued their inspection and discussion concerning the premises.” The affidavit does not state any of the details of the conversation. The affiant stated he observed these jurors while he, affiant, was walking to the courthouse. The appellant’s building is 150 feet and immediately across the public square from the courthouse and is in plain view. The trial court was not asked to investigate the occurrence. Appellant made a verbal motion “for a mistrial,” nothing more. Without question jurors should not discuss any subject pertaining to the case until the time for making a verdict. However, it was physically and humanly impossible to close the eyes of the jury to obvious conditions of the environment. One of the jurors mentioned in the affidavit voted for the verdict, and the other one did not sign the nine-juror verdict. While we do not approve of such conduct on the part of jurors, but condemn it, yet under the total circumstances we cannot say that the trial court abused a sound discretion in overruling the motion for a mistrial. Although appellant does not list the subject of intervening or superseding cause, except to complain that its offered instruction relative to intervening cause was refused by the court, since a substantial part of appellant’s brief and a large part of the appellee’s brief are devoted to the subject, we consider it appropriate to go into the question in some depth. The intervening cause refers to the action of Marty Stout in placing both hands against the glass window, as a result of which the glass or a part of it broke and fell to the street. There is no way the force applied by Marty can be measured. The fact that portions of the glass remained in the sash after part of it fell out is some evidence that considerable force was applied by Marty, and it is also some evidence that not all of the glass was unsupported (by putty or metal pins). Anyway, we think from all the evidence and all the circumstances that Marty’s act constituted a “contributing cause of the accident.” The question then is whether the contributing cause relieves appellant of liability. We go to Restatement of the Law (Torts) 2d, § 439, for some light on the subject. Therein it is written: “If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.” This court in Parker v. Redden, Ky., 421 S.W.2d 586, 595, said: “The principle involved here is simply the basic principle of the law of intervening or superseding causes — that the original negligent actor is not relieved of liability by the subsequent negligent acts of another if the subsequent acts might reasonably have been foreseen. See Ambrosius Industries, Inc. v. Adams, Ky., 293 S.W.2d 230; Mackey v. Spradlin, Ky., 397 S.W.2d 33.” Before concluding this opinion, we should discuss another phase of this case that has been treated in the briefs although not listed specifically in the “questions presented” part of the briefs. That phase' relates to the question of liability for the “unforeseeable consequences” of what the jury found to be negligence on the part of appellant. Appellant argues that even if it was guilty of some fault it could not anticipate or foresee that a stranger would come into its building and apply sufficient force to break out a glass window, and further that appellant would not reasonably foresee the extent of injury from falling, shattered glass, or that plaintiff would sustain a freak injury by being trampled over by the stampeding crowd. This question was ably discussed in Miller v. Mills, Ky., 257 S.W.2d 520, 522, wherein the court said: “We think it is clear that so far as foreseeability enters into the question of liability for negligence, it is not required that the particular, precise form of- injury be foreseeable — it is sufficient if the probability of injury of some kind to persons within the natural range of effect of the alleged negligent act could be foreseen. Morton’s Adm’r v. Kentucky-Tennessee L. & P. Co., 282 Ky. 174, 138 S.W.2d 345; Dixon v. Ky. Utilities Co., 295 Ky. 32, 174 S.W.2d 19, 155 A.L.R. 150.” The judgment is affirmed. STEINFELD, C. J., MILLIKEN, NEIKIRK, PALMORE, and REED, JJ., concur. OSBORNE, J., does not concur. . Putty lias two functions. Its primary use is to hold the glass in, although pointed metal wedges are first driven into the wooden window frames to hold the glass until the putty is spread in place and sets. Its second function is to protect the wooden window frame from the weather.

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Kyle CARMACK, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. A. Henry Ralston, Denham, Ralston & Nagle, Middlesboro, for appellant. Ed W. Hancock, Atty. Gen., John C. Ryan, Sp. Asst. Atty. Gen., Frankfort, for appellee. VANCE, Commissioner. This is an appeal from a judgment sentencing appellant to confinement for a term of twenty-one years for the crime of voluntary manslaughter. At the trial the appellant was represented by employed counsel. The verdict was returned on May 27, 1971. On May 31, 1971, before judgment was entered, appellant filed a pro se statement of appeal and moved for the appointment of counsel to prosecute the appeal. On June 1, 1971, appellant’s employed counsel filed motion and grounds for new trial which was overruled. Judgment was then entered and employed counsel filed a notice of appeal and designation of the record and moved for leave to withdraw as counsel of record for appellant. The motion to withdraw was sustained and appellant’s present counsel was appointed. None of the errors presented on this appeal by present counsel was preserved for review by a proper objection or the motion and grounds for new trial except the question of whether the verdict is so flagrantly against the evidence as to appear at first blush to be influenced by prejudice and passion on the part of the jury. The appellant admitted the shooting and attempted to justify it by way of self-defense. The testimony as to whether any circumstances existed from which appellant could reasonably have concluded that he was in danger of bodily harm was conflicting and the issue was one for the jury. There is no merit in the claim that the verdict is flagrantly contrary to the evidence. The main thrust of the appeal is that the instructions were erroneous and that other errors occurred during the trial which were prejudicial to appellant. Appellant concedes that the instructions were not objected to at the trial nor called to the attention of the court in the motion and grounds for new trial. He concedes also that the other trial errors of which he complains were not properly preserved for review. It is appellant’s contention that a review of the instructions should not be foreclosed merely because his trial counsel failed to preserve that issue when in fact he had requested the court to appoint counsel for appeal purposes at a time when the question as to the instructions could still have been presented in a motion and grounds for a new trial. RCr 10.06 requires a motion and grounds for new trial to be filed within five days after the return of the jury verdict. Trial counsel filed the motion on the fourth day after the trial. Even though the appellant had requested appointment of counsel for appeal purposes one day prior to the filing of the motion, new counsel had not been appointed and in fact trial counsel had not moved for leave to withdraw. Appellant at no time disavowed the services of his trial counsel and when the motion and grounds for new trial was filed the attorney who filed it was the counsel of record. We do not think the trial court erred in permitting the motion to be filed nor in his disposition of the motion. The judgment is affirmed. All concur.

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Regina BENNINGFIELD et al., Appellants, v. Joel Redman DIXON et al., Appellees. Court of Appeals of Kentucky. June 9, 1972. Gary L. Gardner, Eubanks, Gardner & Schaefer, Louisville, for appellants. James E. Bondurant, Hodgenville, for appellees. EDWARD P. HILL, Jr., Judge. Appellant Regina Benningfield lost, before a jury, in her action for damages growing out of a collision between the motorcycle of appellee Joel Dixon and the bicycle of appellant. Appellant argues two questions in her brief, only one of which is deserving of more than a “first blush” consideration. The first argument must fail for the reason that it presents in this court a question that was not presented in the circuit court. Some time after appellant filed her notice of appeal, she moved this court to file a supplemental record showing she made a motion for a new trial supported by the affidavits of two witnesses. The ground of the motion was that three of the jurors on the panel that tried the case were related by blood or marriage to the appellee Joel Dixon. Notice of appeal was filed November 14, 1969. The motion for a new trial referred to above was filed not in the circuit court, but in this court on January 7, 1971. This motion was overruled by this court by order of February 10, 1971. Appellant Regina Benningfield’s position is unimproved by the retort that she attempted to file her motion and grounds and supporting affidavits with the circuit court and was overruled for failure to file in time and before the appeal was taken. See CR 73.02 and 73.03. Appellant’s second argument, which requires consideration on its merits, is that she was entitled to an instruction placing a duty on the appellee Joel Dixon to sound his horn. This question necessitates a brief statement of the facts and a review of the pertinent evidence. The accident giving rise to this litigation occurred on Parker Grove Road, a two-lane, blacktop road in LaRue County, Kentucky, on July 26, 1967. It was a clear day and the surface of the road was dry. Parker Grove Road has a number of small, sharp hills jutting up all along, two of which are in the area of the accident. As the appellee Joel Dixon crossed the crest of the first hill, he passed Gilda Ben-ningfield, sister of appellant Regina Ben-ningfield, and her companion, Johny Heath, riding along in the direction in which Dixon was traveling on his motorcycle. Gilda was riding a bicycle and Johny was riding a small motorcycle. At the time appellee Dixon passed Gilda and Johny, he observed, according to his own evidence, the appellant Regina and her companion, Mike Catlett, going over the top of the next hill, which was “around a tenth and a half or two-tenths of a mile away.” The speed of Dixon, according to his own admission, was about twenty miles per hour as he topped the first hill, but by the time he crested the second hill, he was traveling “somewhere around thirty or thirty-five” miles per hour. As the appel-lee Dixon reached the top of the second hill, he observed the appellant, Regina Benningfield, and Mike Catlett on the downhill side. Mike had stopped his motorcycle on the left side of the highway, and according to all the evidence Regina was still on the blacktop surface of the road. Whether she had stopped her bicycle is in some conflict. Appellee Dixon says Regina was stopped, talking to Cat-lett; while Regina says that Mike “hollered” to her and told her that the motorcycle was approaching and for her to get out of the way. Regina says that she was in the process of moving her bicycle off the hard surface of the road when she was strick by Dixon’s motorcycle. It makes little difference whether Regina was moving or sitting still immediately before the accident. For all practical purposes she was “stopped” on the traveling portion of the highway. Certainly she was not “traveling in the same direction” as Dixon within the meaning of KRS 189.340. The statute (KRS 189.340) requires the operator of a vehicle overtaking and desiring to pass another vehicle traveling in the same direction to sound his horn before passing. This statute also requires the passing vehicle to “pass to the left” of the vehicle being passed. The statute has been construed as not requiring the sounding of the horn for vehicles parked on the shoulder of the road. Schultz v. Smith’s Adm’r, 314 Ky. 198, 234 S.W.2d 676. The pertinent part of KRS 189.340 is quoted herewith: “The person operating or in charge of the overtaking vehicle shall sound his horn or other sound device before passing.” We find no recorded case in this jurisdiction requiring operators of motorcycles and bicycles to sound their horns before passing another vehicle. However, in the light of KRS 189.080, we think it is an elementary proposition that operators of motorcycles and bicycles have the same duty to sound their horns in passing another vehicle as is required of operators of automobiles and other motor vehicles. We are supported in this theory by the very language of KRS 189.080(1), which is quoted herewith: “Every motor vehicle and bicycle, when in use on a highway shall be equipped with a horn or other device capable of making an abrupt sound sufficiently loud to be heard under all ordinary traffic conditions. Every person operating an automobile or bicycle shall sound the horn or sound device whenever necessary as a warning of the approach of such vehicle to pedestrians, or other vehicles, but shall not sound the horn or sound device unnecessarily.” So we conclude as a matter of law that the duty to sound a horn rests upon persons operating motorcycles and bicycles to the same extent as upon persons operating automobiles and other motor vehicles. The question is whether it was the duty of ap-pellee Dixon under the facts and circumstances of the instant case to sound his horn before attempting to pass appellant Regina Benningfield. If so, the appellant was entitled to have the jury so instructed, and failure of the trial court to give such an instruction was prejudicial. The statutory duty to sound his horn before passing another vehicle presupposes that a person under such duty has knowledge that he is about to pass another vehicle. Appellee Dixon had knowledge from his own observation and admission that appellant Regina and her companion, Catlett, had crested the second hill and had started down the other side. It is not shown in evidence how far the appellee Dixon could see as he approached the crest of the hill; but unless he had a vision ahead of less than ISO feet, he was under no duty to sound his horn for the benefit of persons whom he knew had recently crested the hill. Dixon was under no duty to anticipate that appellant Regina Ben-ningfield would stop or slow down to a walk after cresting the hill. It is concluded that under all the circumstances and facts of the instant case appel-lee Dixon was under no duty to sound his horn and that the trial judge properly declined to give such an instruction. As a matter of fact, it is extremely doubtful that appellee Dixon had sufficient time to sound his horn. The judgment is affirmed. All concur.

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LIGON PREPARATION PLANT COMPANY, Appellant, v. Allard HAMILTON et al., Appellees. Court of Appeals of Kentucky. June 23, 1972. Fred G. Francis, Prestonsburg, for appellant. Harold j. Stumbo> Prestonsburg, for ap-pellees Gemma M. Harding, Louisville, for Spe-Fund. CULLEN, Commissioner. The Workmen’s Compensation Board awarded compensation to Allard Hamilton for total permanent disability, the entire award being directed to be paid by his employer, Ligón Preparation Plant Company. On appeal by Ligón to the circuit court, judgment was entered affirming the award. Ligón is appealing here from that judgment. Ligón does not question the determination that Hamilton is totally disabled. The sole argument is that a portion of the award should have been charged against the Special Fund, under KRS 342.120(3). The award came in proceedings on claims of two separate accidents asserted by Hamilton, both occurring in his employment with Ligón. The first accident occurred on November 22, 1968. On that occasion a heavy piece of machinery descended upon Hamilton, breaking his pelvis and causing a lumbosacral strain. After a period of recuperation, Hamilton returned to his work, which involved using a heavy drill. On March 19, 1970, while operating the drill, he experienced severe pain in his back. Two doctors testified in the case. One was Hamilton’s attending physician and the other was an independent doctor appointed by the board under KRS 342.-121. The two doctors agreed that what occurred on the latter occasion was a change in the condition of several spinal discs. One doctor gave the opinion that Hamilton had suffered a herniated disc, attributable in part to a weakening of the in-terspaces sustained in the first accident. The other doctor described the condition as a narrowing of some of the spaces and a widening of others; he was of the opinion that the March 1970 injury consisted of an aggravation of a preexisting arthritic condition. One of the doctors estimated that the percentage of functional disability attributable to the first accident alone was 10 percent, and the percentage attributable to the second accident alone was 20 or 25 percent. He said that the disability from the combination of the two injuries was “much greater than it would be if you took the two separately or added the two together.” The other doctor, in his report to the board, stated that Hamilton had a 15 percent disability attributable to the first accident, and a 15 percent disability “directly due to” the second accident, and that the “total is 45 percent.” It is clear that both doctors considered that the degree of disability resulting from the combined effect of the separate injuries was greater than the degree that would be reached simply by adding the degrees separately attributable to each of the injuries by itself. The board, however, found that this was not true. It found that 29% of Hamilton’s occupational disability was attributable to the first accident and 71% to the second. The board’s determination is not sustainable. Under Young v. Fulkerson, Ky., 463 S.W.2d 118, and the cases on which it rests, if the board finds that the second injury alone would not have produced the entire disability, apportionment under KRS 342.120 becomes necessary. And under the reasoning of Young v. Campbell, Ky., 459 S.W.2d 781, and Young v. Young, Ky., 460 S.W.2d 832, in apportionment cases some percentage of occupational disability must be assigned for each percentage of functional disability established by the evidence. So the board in the instant case, having found that the second injury alone would not have produced total disability, could not refuse to assign some percentage of occupational disability to the percentage of functional disability that the doctors said resulted from the combination of the separate injuries. The percentage so assigned would be chargeable against the Special Fund. Our holding is that in a double-claim situation such as presented in this case, involving separate injuries in the same employment, the employer is liable for the disability attributable to the first injury alone. The employer is liable also for the disability attributable to the second injury alone, and if the latter injury would independently have totally disabled the employe, the employer is liable for compensation for total disability. But if the second injury alone would not have totally disabled the employe, and if the evidence establishes that the degree of functional disability resulting from the combination of the two injuries is greater than that which would have resulted from simply adding the percentages of functional disability attributable to the injuries separately, the board must make an apportionment, assigning some percentage of occupational disability to the combination factor, and charge that against the Special Fund. The judgment is reversed, with directions that judgment be entered remanding the case to the Workmen’s Compensation Board for the entry of an award in accordance with this opinion. All concur. . This case was heard after the 1970 amendment to KRS 342.121, so the report of the appointed doctor was not binding on the board.

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Jerry Lee MARSHALL and William T. Edwards, Appellants, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. William G. Kenton, Shuffett, Kenton & Anderson, Lexington, for appellants. Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., Frankfort, for appellee. MILLIKEN, Judge. Griffith’s Market, located in a densely settled section of Lexington, had been the target of so many break-ins that its management had an electronic detection system installed, which was switched on at the close of the working day. The electrodes noiselessly relayed sounds from the store over a telephone circuit to a control evaluation agency which, in turn, notified police immediately when the sounds suggested a break-in was in progress. On the occasion here in question, the police had checked the front and rear of the store less than ten minutes before receiving a radio dispatch to return, and had found nothing wrong on that first visit. But on their return, they found boards pulled off the back of the store, found a sledge hammer, a rusted hatchet, a tire tool and a pair of unmatched gloves on a nearby trash heap, and saw two men on the sidewalk in back of the store, who took off running when they realized the police had returned, but stopped running after warning shots from the officers. The men were the appellants, Jerry Lee Marshall and William T. Edwards, the first victims of Griffith’s Market’s electronic detection system. Marshall and Edwards were indicted for possession of burglary tools in violation of KRS 433.120 which authorizes punishment from two to ten years in prison on a finding of guilt; and for attempted breaking and entering, a common law offense (Roberson, Criminal Law, Section 248), punishable under KRS 431.075 at a maximum of a year in jail, a fine not to exceed $5,000, or both. The accused men pled not guilty, but were found guilty on each charge, receiving the maximum penalty of ten years’ imprisonment for possessing burglary tools with the intent to use them burglariously, and receiving the maximum jail sentence for the attempted break-in. The burglar tools, found near where the appellants were seen crouched near the sidewalk at the back of the store at approximately 2:30 A.M. that cold February morning, disclosed no finger-prints or other evidence which directly connected the tools with the appellants. The convictions are based on circumstantial evidence which able appointed counsel asserts is as consistent with innocence as it is with guilt. We think the skein of circumstances was sufficient to take the case to the jury, and a directed verdict for the accused would not have been proper. The prosecution obtained consent of the trial court to introduce the criminal records of the appellants as substantive evidence of their intent to burglarize the market, to show that they were the kind of characters who would do such a thing, and were not hardy, honest citizens having a casual social visit in back of the market at 2:30 A.M. on a cold morning. For example, it was shown that Marshall had convictions between 1953 and 1971 which involved disorderly conduct, receiving stolen property, drunkenness, carrying concealed a deadly weapon (two convictions), burglary, storehouse breaking, grand larceny (two convictions), and breach of peace (four convictions). .Edwards, comparatively, was a tenderfoot, with just one conviction of grand larceny and one of knowingly receiving stolen goods, and a record as a juvenile delinquent. The best we can say for this evidence of past records is that it indicates that the appellants were men morally capable of burglarizing Griffith’s Market at various times in their lives, but not that they necessarily intended to do it the night in question. Their specific intent on the night of the current crimes must be inferred from circumstances in which they were found at that particular time and place, and not from their past records. We think the law in this area was well summarized by Judge Walter V. Schaefer of Illinois in People v. Lehman, 5 Ill.2d 337, 125 N.E.2d 506 (1955) : “Evidence of other crimes is objectionable ‘not because it has no appreciable probative value, but because it has too much.’ (I Wigmore, Evidence, 3rd ed., sec. 194.) The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant it is admissible as, for example, where it shows motive or intent, identity, absence of mistake of accident, or the existence of a common scheme or design. I Wigmore, Evidence, 3rd ed., sec. 216.” The extent of the punishment imposed— maximum incarceration on each of the charges — suggests but, of course, does not necessarily establish the prejudicial effect of the objectionable evidence. Nevertheless, it was a violation of fundamental trial policy to admit the criminal records of the appellants as substantive evidence of their specific intent to commit the present crimes for which they were being tried, and as a consequence the judgments of convictions are reversed for a new trial. All concur.

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Ralph BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. Lester H. Burns, Jr., Somerset, for appellant. Ed W. Hancock, Atty. Gen., Jackson D. Guerrant, Asst. Atty. Gen., Frankfort, for appellee. MILLIKEN, Judge. The appellant, Ralph Baker, was indicted for the murder of his brother-in-law, Robert Jones, in a shoot-out in Leslie County, and was found guilty of voluntary manslaughter and sentenced to serve twenty-one years in the penitentiary, the maximum penalty for the offense. We affirm the conviction. The victim, Robert Jones, and his brother, Russell Jones, two young men in their early twenties, drove to town around noon in Robert’s truck to purchase a stereo tape player for installation in one of their vehicles, and about 2 P.M. returned to a store operated by another brother-in-law, Claude Henninger. They left there but returned about 6 P.M. By this time, it was clear that the Jones brothers had drunk their fill of beer. Whatever happened while they were in the store is not clear, but apparently the visit was unpleasant, for they left the store and bought gasoline from a merchant across the road and not from Hen-ninger. They returned about 10 P.M., parked the truck across the road where they had bought gasoline, Henninger went out to meet them, and as to what happened from that point on two conflicting tales have been told. According to the accused both Jones boys were drunk and were holding Hen-ninger at gunpoint, and Henninger’s wife urged him to intercede. He said he was about to drive his own wife and baby to their home when Henninger’s wife asked him, but delayed his departure, took time to get a scuttle of coal and stoke a stove, then got into his Chevrolet and drove to the scene of the confrontation, opening the car window en route so that he could talk to the Jones brothers. He stated that Robert fired his rifle at him, piercing the windshield, and he returned the fire through the open window of his car. He admitted that he fired four shots rapidly, but said Robert fired the first and last shots. Baker said that the other brother, Russell Jones, also fired at him, which Russell denied when he had his turn to testify. Baker said he saw Robert stoop by his truck and feared he was reloading his rifle, so he (Baker) left, gathered up his wife and baby and drove to his father’s home several miles away from where he tried unsuccessfully to notify the police by telephone, so went to bed and went to sleep. He said he did not know that Robert had been killed. His wife corroborated his version of events even to Baker’s telling Henninger that he was driving to his father’s to phone the police. On the other hand, the surviving brother, Russell Jones, testified that Baker fired first, that he (Russell) had no gun and did not take part in the fracas. Russell said as soon as Baker drove up, Claude Henninger left. Russell also said that after Robert had gotten out of his truck he reached back into it to get his rifle when he saw Baker arriving. At one point Russell said Robert fired first, but on redirect examination he reasserted that Baker fired first. In the face of such conflicting testimony, the admitted exchange of gunfire, the bullet riddled Chevrolet of Baker’s, the unquestionable identification of the firearms used and the coroner’s testimony as to the cause of Robert’s death, a case for the jury was made out. What became of Claude Henninger is an unanswered question except that he left the community while Baker was in jail before he made bail. In view of the verdict finding Baker guilty of the lesser offense of voluntary manslaughter instead of murder, we can not accept the contention that the jury acted through passion or prejudice despite the fact that they assessed the highest penalty for voluntary manslaughter, nor can we find the presence of the coroner and another witness in the courtroom during part of the trial before they testified, was a sufficient reason to justify a new trial. The coroner told only the cause of Robert’s death and the other witness testified in rebuttal to the effect that it was impossible for one of the defense witnesses to see what she said she saw from where she said she was when she saw it. One of the numerous issues raised in Baker’s motion for a new trial concerned the refusal of the trial court to permit the introduction of evidence of good reputation for peaceableness on the part of the accused. This sort of evidence is admissible in a criminal trial if properly introduced. Shell v. Commonwealth, 245 Ky. 223, 53 S.W.2d 524; Pickelseimer v. Commonwealth, 217 Ky. 608, 290 S.W. 498; Perara v. United States, 8 Cir., 235 F. 515, 10 A.L.R. 1. In the case at bar, the issue was raised in this way in questioning the accused: “Q. Have you ever in your lifetime been indicted for any violation of any law? Objection by Mr. Hieronymous (Commonwealth Attorney). Sustained by court. Q. Mr. Burns: I cannot open this up, his character? Objection by Mr. Hieronymous. Sustained by court. To which ruling of the court the defendant objects and excepts.” Whether Baker had ever been indicted was not relevant, but there was no avowal placed in the record as to what the accused or any of his reputation witnesses would say which, of course, counsel was entitled to have inserted in the record if he wished, RCr 9.52. The purpose of an avowal is to advise the trial court fully of the nature of the proposed evidence and to place it in the record for the scrutiny of a reviewing court in case of an appeal, and where the offer involves not only the witness on the stand, but other witnesses, counsel should have such other witnesses present in court or within call. In fact, error can not be predicated on rejection of evidence when no avowal is made which would disclose what answers would be given if the witness or witnesses were permitted to testify. (For collection of cases on this point, see Ky.Digest, Criminal Law, Section 670.) Appellant asserts that the trial court’s instruction, “If you find the defendant guilty of wilfull murder you will fix his punishment at death or confinement in the state penitentiary for life in your discretion,” was highly prejudicial in that it emphasized “death” by stating it first whereas the statute (KRS 435.010) says, “ * * * shall be punished by confinement in the penitentiary for life, or by death, in your discretion.” As stated in Stanley on Instructions, Section 869, of the 1971-72 Supplement, the instruction should be worded in conformity to the statute, but it is not prejudicial to list “death” first, Anderson v. Commonwealth, Ky., 353 S.W.2d 381 (1962). The order of punishment was reversed in the general statutory revision of 1942 in order to establish uniformity and consistency with other criminal statutes in the listing of alternative penalties. The jury saw the witnesses, judged their credibility, weighed the evidence, and reached its verdict. There was sufficient evidence to support the verdict, and we find there were no prejudicial errors committed at the trial. The judgment is affirmed. All concur.

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Willie ASHER et al., etc., Petitioners, v. Honorable Clay M. BISHOP, Judge, Clay Circuit Court, Respondent. Court of Appeals of Kentucky. June 30, 1972. Mark E. Gormley, James L. Gay, Versailles, for petitioners. Robert Milby, London, for respondent. MILLIKEN, Judge. The petitioners filed this original action in this court seeking to prohibit the respondent, Honorable Clay M. Bishop, judge of the Clay Circuit Court, from proceeding further in a suit they filed in his court. They contend that their suit in Clay County, filed in February 1971, was abandoned by them by their subsequent filing of a similar suit in the Woodford Circuit Court in March 1971. The litigation in both circuit courts involved damages for alleged trespass to land in Clay and Leslie Counties by the Shamrock Coal Company, a Tennessee corporation, which, upon learning of the actions, voluntarily filed its answer first in the Clay County suit and then in the one filed in Woodford County where one of the plaintiffs lived, the latter suit having been begun on the theory that our “long-arm” statute enacted in 1968, KRS 454.210, authorized it when it was discovered that Shamrock’s agent for the service of process was no longer living in Kentucky. In the Woodford Circuit Court, Shamrock sought dismissal of the action there for a number of reasons including lack of jurisdiction of the subject matter and improper venue. A civil action is begun by the filing of a complaint and the issuance of a summons or warning order in good faith, CR 3, and not by the actual service of process. The petitioners could have dismissed their Clay Circuit Court suit “without order of court, by filing a notice at any time before service by the adverse party of an answer * * CR 41.01, but this they did not do, but rather proceeded a few weeks later in the Woodford Circuit Court, apparently intending to abandon their Clay County suit. The Clay Circuit Court clearly had jurisdiction of the subject matter, the land involved, under KRS 452.400 which says: “Action must be brought in the county in which the subject of the action, or some part thereof, is situated: (1) for the recovery of real property, or of an estate or interest therein; ... (4) for an injury to real property.” We think the Clay Circuit Court had exclusive jurisdiction of this litigation, KRS 452.400 and Ky.Digest, Venue, &°5. We conclude that the petitioners have failed to show lack of jurisdiction in the Clay Circuit Court and that they -will suffer irreparable injury for which there is no adequate remedy by appeal, and so deny prohibition. All concur.

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Robert Kenclare CALL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. Athol Lee Taylor, Thomas L. Waller, Taylor & Waller, Burlyn Pike, Norman Lemme, Pike & Lemme, C. V. Sanders, J. D. Buckman, Jr., Shepherdsville, for appellant. Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, for appellee. EDWARD P. HILL, Judge. This appeal is from a judgment of the Bullitt Circuit Court, entered after a jury trial, imposing the death penalty for the offense of wilful murder and a ten-year sentence for the offense of armed robbery. On March 2, 1970, Paul Kidd, the victim, left Louisville via Preston Highway en route to Shepherdsville where he taught school. He was not heard from again until March 8, 1970, when his body was found in a barn near the Kentucky Turnpike by a small boy who lived nearby. Four .22 caliber bullets were removed from Kidd’s body. Three witnesses, Ollie Chelf, Raymond Reed and Gilbert Arnold, testified that on the afternoon of March 2, 1970, they observed the appellant in a service station located on Preston Highway; that he left on foot a short time after 5 p. m. and was apparently hitchhiking south. The appellant was located and apprehended in Florida a few weeks later in possession of the victim’s automobile, overcoat, briefcase, wallet, credit cards, and other personal papers. The appellant’s father testified that he found a .22 caliber pistol in the car and turned it over to FBI agents. The pistol was not introduced into evidence due to an illegal search and seizure. Also the appellant cashed a check by the victim’s wife payable to the victim. The store which cashed the check took a photograph of the appellant and the check presented. The check involved contained what purported to be the signature of the victim and the signature of the appellant. The manager of the store where the check was cashed stated that Call appeared to be reluctant to endorse the check. The appellant offered no proof, but his theory of defense, as brought out by cross-examination and closing argument, was that he bought Kidd’s car from someone named Terry Russo in the west end of Louisville. The price was $200 and Russo threw in the overcoat, briefcase, wallet, credit cards, and other papers. It is unnecessary to review the evidence in more detail because no question is raised regarding the sufficiency of such. Appellant presents the following arguments of reversible error. They will be discussed seriatim. First the appellant argues that jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The format on voir dire was as follows: “Do you feel like you have conscientious scruples about finding a person guilty, fixing their punishment at death under any case whatsoever ?” A “yes” answer resulted in the prospective juror’s being excused for cause. In Geary v. Commonwealth, Ky., (decided March 3, 1972), this court held that an essentially identical format was free of the error condemned in Witherspoon, supra, and related cases. We find no merit in this argument. Next the appellant contends that the trial court erred in permitting the jury to remain unsworn overnight after acceptance by both sides. The jurors were properly admonished and guarded and there is no allegation of any impropriety or irregularity. In the absence of such a showing the Rules of Criminal Procedure are satisfied by substantial compliance. See Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (decided February 4, 1972), and Cosby v. Commonwealth, Ky., 451 S.W.2d 653 (1970). The appellant also contends he was denied a fair trial because one of the jurors was guarded by the sheriff’s wife who was not properly appointed a deputy sheriff as required by KRS 70.030. The irregularity in her qualification was that the county judge had not approved the appointment. She was a de facto officer. Furthermore, all attorneys for appellant agreed that the sheriff’s wife be sworn to accompany the lady juror. Next the appellant argues that the court erred in refusing to allow him to show the manner in which the jury was guarded. This is a matter within the sound discretion of the trial judge and will not be disturbed unless clearly in error. Smith v. Commonwealth, Ky., 366 S.W.2d 902 (1962). Since no suggestion of improper conduct appears in the record, the decision was a proper one. In Cosby v. Commonwealth, supra, this court said at page 654 of 451 S.W.2d: “The gist of the matter is that absent some showing that a juror has been improperly approached, or that an opportunity for influencing a juror has occurred, substantial compliance with rules such as RCr 9.70 will suffice.” Therefore, since there is no hint of any improper action on the part of anyone, the trial judge cannot be said to have abused a sound discretion in overruling appellant’s motion. Had an allegation been made which, if true, would affect the fairness of the trial or raised a suspicion of irregularity, then the failure to hold a hearing might have been reversible error, and the burden of proof in event of a hearing would have been upon the Commonwealth. Hudson v. Commonwealth, Ky., 449 S.W.2d 218. Next the appellant claims error by the trial court in overruling his motion for a mistrial based upon interrogation of the witnesses. First he attacks the interrogation of Mr. Doer, an FBI agent. Appellant alleges that the county attorney, during Doer’s examination, referred to “which murder” thereby informing the jury of another murder charge in Florida. A thorough search of the record, as appellee points out, reveals no such comment. However, the prosecutor did ask Doer “what murder” he was referring to. The question was objected to and the trial judge admonished the jury not to consider the remark. The following excerpt comes from the direct testimony of the sheriff who brought the appellant back from Florida to stand trial: “2 Now, on the trip back, did you have any conversation with the defendant Call, and if so, please tell what you stated to him and what he stated to you? “A Yes. It was very little conversation, I’ll put it that way, but somewhere as we were approximately half way up through Georgia, we had ridden for miles and miles, and no one had any conversation, so Mr. Spurrier was driving and I was on the opposite side in the front of the automobile. Mr. Call was in the back, and I turned around to Mr. Call and of course, I told Mr. Call, I said ‘You were advised of your rights this morning when you left Florida,’ I said ‘I’m going to advise you again of your rights. I feel like you thoroughly understand everything’ and he said ‘I do.’ And I did advise him of his rights again, I said ‘Two or three questions just on my mind I would like an answer to.’ I said ‘Number 1, how do you feel about this situation that you’re faced with up in Kentucky?’ Mr. Call stated, he said ‘Sheriff, I have no feeling about it one way or the other.’ There was little more to that conversation. I don’t think you would permit it. Would you like for me. . “3 I don’t know what it is. Go ahead and tell what he said whatever it is. “A Well, Mr. Call stated, he said T have already been convicted in Florida and all I’m interested in is getting this thing over with, serve my time. I want to study’ and I forget what he told me he wanted to do, some reading and T want to do some studying’ and even made a remark what he wanted to be when he came out. I can’t remember just what he said there. I then asked him, I said ‘There are two further questions I would like to ask you . . .’ “OEJECTION BY COUNSEL FOR DEFENDANT and move for a mistrial and that the jury be discharged. “OJECTION AND MOTION OVERRULED “4 Go ahead. “A I asked Mr. Call, I said ‘There are two further question I would like to ask you.’ He never said either way. I said ‘Number 1, how did you manage to get into this automobile with Mr. Kidd ?’ And of course he never answered, and ‘Number 2, in my mind there is only one way the man, Mr. Kidd could have gotten into this stall, and I would like to have that answered. Did you walk him into the stall under his own power ?’ He did not answer the question, but he stated, said ‘Well, Sheriff, when this is all over someday, maybe I’ll tell you.’ And that was the complete gist of our conversation concerning the incident out here. I asked him no further questions I expected no further answers and he made no statement to me other than that. “THE COURT: Now, gentlemen of the jury, any reference to this man having been in prison cannot be considered as substantive evidence in this case, and statements that he made, that would only go to effect (sic) the credibility of his testimony, if it does so in your judgment. It cannot be considered otherwise.” We think that this evidence was admissible as substantive evidence. The fact that a part of the statement referred to the appellant’s having been convicted of a crime in Florida was such a part of his statement as to be inseparable from it. The admonition was harmless. The next question involves comments by the Commonwealth’s Attorney regarding a pistol and its exhibition before the jury during his opening statement. Counsel for the appellant previously had moved for a pretrial suppression hearing, and the trial judge had overruled that motion. This was a discretionary matter with the judge. Freeman v. Commonwealth, Ky., 425 S.W.2d 575. When an attempt was made to introduce the gun into evidence, the trial judge then conducted an in-chambers hearing on its admissibility. As a result of this hearing, the gun was declared to be the fruit of an illegal search and seizure, and its introduction in evidence was not permitted. The appellant was tried on the charge of wilful murder, and the evidence showed that the victim died of gunshot wounds. We believe that the actions on the part of the prosecuting attorney in his opening statement were not reversible error since it appears he acted in good faith, believing the gun to be admissible. Freeman v. Commonwealth, supra. Finally, the appellant complains that the trial court erred in appointing all eligible members of the Bullitt County Bar to represent the appellant and relies on Wedding v. Commonwealth, Ky., 394 S.W.2d 105 (1965), to support this proposition. The Wedding case involved an appeal in an RCr 11.42 proceeding in which the appellant alleged ineffective assistance of counsel. The court in reversing the judgment found that the record showed that there was ineffective assistance of counsel and that because all members of the Harrison County Bar had been appointed, everyone relied on everyone else to prepare a defense for the defendant. In Wedding, the chief defense counsel testified to substantial facts in support of the allegation of ineffective assistance of counsel. In the instant case, the record of the trial and on this appeal discloses that appellant has had the benefit of able, faithful, and loyal representation. In conclusion, let it be said that while the evidence on the question of guilt is circumstantial, it is of such consistency and force as to exclude every hypothesis of appellant’s innocence. It is clear and convincing. King v. Commonwealth, 143 Ky. 125, 136 S.W. 147; Peters v. Commonwealth, 154 Ky. 689, 159 S.W. 531; and Bowling v. Commonwealth, 193 Ky. 642, 237 S.W. 381. We find that appellant’s trial was free of error and affirm the judgment. All concur.

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TOM STILL TRANSFER COMPANY, Inc., and Aetna Casualty and Surety Company, Appellants, v. Jimmy Don WAY, Appellee. Supreme Court of Tennessee. July 3, 1972. Frank K. Moore, J. Patrick Ledford, Kingsport, for appellants. John S. McLellan, Preston H. Taylor, Kingsport, for appellee. OPINION JENKINS, Special Justice. This is a case wherein the employer, Tom Still Transfer Company, Inc., has appealed from a decree awarding certain benefits under the Workmen’s Compensation Laws to the employee, Jimmy Don Way. The employee was engaged as a helper on transfer trucks. On January 23, 1971, while unloading a container weighing approximately one hundred pounds, he experienced a sharp pain in his back following which he became dizzy and nauseous and so advised a fellow employee. Unable to continue working, the employee reported the incident to the company manager who personally accompanied him to the emergency room of Holston Valley Community Hospital, where the employee received medical treatment. The emergency room physician prescribed “pain pills” and rest with instructions to return in a few days. His back pain persisted and a few days later the employee returned to Holston Valley Community Hospital where he was treated again before returning home. Several days thereafter, his back ailment failing to improve, the employee went to Dr. John E. Munal at Munal Clinic where he was immediately hospitalized. The duration of the employee’s treatment was thirteen days following which he was re-hospitalized for an additional nine or ten days. After being discharged, and subsequent to filing this lawsuit, the employee was examined by Dr. Winston E. Pannell, a chiropractor. The Chancellor, upon hearing of the cause, found that the employee had suffered a compensable injury, and awarded benefits for temporary total disability from the date of injury to the date of trial, benefits for permanent partial disability of forty percent to the body as a whole, and finally awarded him all medical expenses. The employer asserts as error the Chancellor’s finding that the employee was entitled to recover all medical expenses. The employer concedes that it is liable for the medical bills of Holston Valley Community Hospital where the employee initially received treatment and in fact has paid for the same. The employer maintains, however, that it is not liable for the medical bills of Dr. John Munal, Munal Clinic and Chiropractor Pannell. This raises the question whether the employee, having accepted the offered medical treatment at Holston Valley Community Hospital, but feeling the need of further medical aid, was justified in incurring the expense of additional medical services. A correct answer depends upon careful consideration of the particular circumstances surrounding such action. T.C.A. Section 50-1004 outlines the liability of the employer for medical and hospital expenses incurred in treating the employee’s injuries under the Tennessee Workmen’s Compensation Act. This provision clearly states that the employer is to furnish and the employee shall accept the afforded medical aid. The statute further provides that the employer shall designate a group of at least three reputable physicians. The employer personally accompanied the injured employee to Holston Valley Community Hospital, and thereby afforded him the opportunity to receive all necessary medical assistance. It was shown that Holston Valley Community Hospital is the only public hospital in Kingsport, Tennessee, that this hospital and its doctors are totally independent of the employer, and that this facility is serviced by the majority of the medical doctors in Kingsport. Furthermore, the employee accepted the treátment initially afforded at Holston Valley Community Hospital and subsequently returned for additional medical assistance. Several days thereafter the employee voluntarily sought and received medical care from Dr. John Munal at Munal Clinic. The language as set forth in T.C.A. § 50-1004 makes it clear that the intent of this provision was for the employee to consult his employer before incurring the expenses called for by the statute if the employee expected the employer to pay for it. Proctor & Gamble Defense Corporation v. West, 203 Tenn. 138, 310 S.W.2d 175 (1958), Rice Bottling Company v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963). We find no evidence, material or otherwise, to support the Chancellor’s decision that the employer knew that his employee had sought medical treatment other than at the public hospital. The trial record indicates that the employer had received no notice whatsoever of his employee’s dissatisfaction with the Holston Valley Community Hospital or of the employee later being admitted to the independent clinic operated by Dr. John Munal. Inasmuch as both medical facilities are located in Kingsport, presumably it would have worked no undue hardship on the employee to go to the community hospital rather than to Munal Clinic for treatment. Moreover, the employer’s place of business is also located in Kingsport. The inference can be reasonably drawn that it would not have been difficult for the employee to have consulted with his employer concerning additional medical care. Finally, there is no evidence of any discord or disagreement between the employee and the physicians at the community hospital; the employee simply felt that he was not receiving adequate medical treatment for his injury. In Rice Bottling Company v. Humphreys, supra, this Court said: “We need to keep in mind the question is not whether employee needed further medical service, but whether employee was justified in obtaining further medical service, without consulting employer, yet expecting employer to pay for same.” In the instant case the employer furnished his employee with medical treatment and facilities at Holston Valley Community Hospital which in turn were accepted and used by the employee. Under the circumstances surrounding this action we believe that the employee was not justified in obtaining further medical service without first consulting his employer. Thus, the employer is not liable for the medical bills of Dr. John Munal and Munal Clinic where the employee went of his own volition, unknown to the employer. Furthermore, for the same reasons applicable to Dr. Munal and Munal Clinic, the employer is not liable for the bill of the chiropractor, Dr. Winston Pannell. The employer also alleges that the Chancellor’s finding that the employee suffered a forty percent permanent partial disability to his body as a whole is unsupported by any material evidence and thus in error. The employer contends that where the injury is as serious, and its medical effects are as complicated, as that suffered by the employee, the permanency of the injury and the causal relationship between the employee’s symptoms and his permanent disability can be established only by competent medical testimony. The employer maintains that this is especially true of the employee who has suffered three previous workmen’s compensation injuries, one of which resulted in thirty-nine percent permanent partial disability to the body as a whole from a back injury. The employer further asserts that the employee, as a layman and common laborer, has no way of knowing whether the symptoms he was suffering at the date of trial are permanent or just the residual effects of his previous injuries. In this case, as in all workmen’s compensation cases, the claimant’s own assessment of his physical condition and resulting disabilities is competent testimony and cannot be disregarded. The employee testified that from the date of his back injury he has experienced its painful effects and that despite intensive medical treatment, his physical condition was not improving. The employee further testified that as a result of this injury he can perform only light work and that even light work causes pain and discomfort which prevents him from sleeping at night. However, while lay testimony of the claimant is of probative value in establishing simple matters such as existence of pain, its location, inability to work, etc., there are areas in which lay testimony is obviously incompetent. It has been consistently held that lay testimony in all but the most obvious cases is insufficient to support a finding of medical causation or a finding of permanent disability. Magnavox Company of Tennessee v. Shepherd, 214 Tenn. 321, 379 S.W.2d 791 (1964); Floyd v. Tennessee Dickel Distilling Company, Tenn., 463 S.W.2d 684 (1971). A review of the trial record reveals that both medical doctors who examined the employee stated that he suffered no permanent injury to his back as a result of the accident. Dr. Munal, the general practitioner to whom the employee voluntarily went for treatment, and who cared for him over the longest period of time, testified that there were no residual effects from the injury. Dr. Robert T. Strang, the orthopedic surgeon to whom the employer sent the employee for evaluation, also testified that no permanent injury was sustained. The only evidence introduced by the employee, other than his own testimony, as to the permanency of his disability, was the testimony of Winston E. Pannell, the chiropractor. Dr. Pannell, whom the employee visited after receiving medical treatment from both the Holston Valley Community Hospital and Dr. Munal as well as after commencing this lawsuit, testified that the employee had suffered eighty to ninety percent permanent disability to the body as a whole. In Tennessee, a chiropractor is competent to testify as an expert only as to matters within the limited scope of his profession. Ward v. North American Rayon Company, 211 Tenn. 535, 366 S.W.2d 134 (1963). T.C.A. § 63-401 defines chiropractic as “the science of palpating, analyzing, and adjusting the articulations of the human spinal column and adjacent tissues by hand.” In Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964), the Tennessee Court of Appeals construed “the field of chiropractic to be limited to the treatment of those illnesses and diseases of the human body which doctors of chiropractic reasonably believe can be treated by the manual manipulation of the spine.” In the instant case the chiropractor admitted in his testimony that he could see nothing in his field of practice that would benefit the employee. Dr. Pannell further testified that he afforded the man no treatment and left it up to the employee whether to return to a medical physician or not. By his testimony Dr. Pannell revealed his belief that treatment of the employee’s injury was outside the field of chiropractic, thus completely disqualifying himself from offering expert opinion on the injury suffered. In all but the most obvious cases the permanency of the injury must be established by expert medical testimony. Floyd v. Tennessee Dickel Distilling Company, supra. Disqualified as an expert witness, the testimony of Dr. Pannell is not material evidence upon which a judgment of permanent disability can be based. All of the material evidence as testified to by the medical experts establishes that no permanent injury was sustained by the employee. Based upon the evidence in this case, it is this Court’s duty and obligation to limit the employee’s recovery to the medical expense incurred at Holston Valley Community Hospital and the temporary total disability awarded by the trial court. DYER, C. J., and CHATTIN and McCANLESS, JJ., concur. CRESON, J., not participating.

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Chester W. CAMPBELL, Appellee, v. The TRAVELERS INSURANCE COMPANY et al., Appellants. Supreme Court of Tennessee. June 19, 1972. Charles B. Lewis, Knoxville, for The Travelers Ins. Co. David M. Pack, Atty. Gen., of Tennessee, C. Hayes Cooney, Asst. Atty. Gen., of Tennessee, John Gill, Asst. Dist. Atty. Gen., Knoxville, for Thomas A. Wiseman, Jr. William D. Vines, III, Knoxville, for appellee. OPINION CRESON, Justice. The record in the instant case involves a suit commenced by Chester W. Campbell in the Chancery Court of Knox County, Part I, to recover benefits under the Workmen’s Compensation law. The suit was instituted against The Travelers Insurance Company, the workmen’s compensation insurance carrier of Campbell’s employer, and Thomas A. Wiseman, Jr., Treasurer of the State of Tennessee and Custodian of the Second Injury Fund. The Travelers Insurance Company has seasonably perfected an appeal-in-error to this Court from the final decree of the trial court holding that the insurance carrier was solely liable for payment of the permanent total disability benefits awarded to Campbell in the instant case. In the course of this opinion the parties will be referred to as follows: Chester W. Campbell, as petitioner; The Travelers Insurance Company, as defendant Travelers; and Thomas A. Wiseman, Jr., as defendant Wiseman. The complaint was filed on March 31, 1971, against defendant Travelers. It is alleged by petitioner that on March 3, 1971, he suffered “an injury to his back” while employed by Shelby Grocery and Milling Company of LaFollette, Tennessee; that this injury is compensable under the Workmen’s Compensation Act; and that defendant Travelers is workmen’s compensation carrier for petitioner’s employer. Petitioner avers that proper notice of injury was given to Shelby Grocery and Milling Company and defendant Travelers; that he is in need of hospitalization but defendant Travelers refuses to honor his claim and authorize hospitalization; and that petitioner is permanently disabled as a result of this injury. Petitioner prayed for an expeditious hearing to determine if the injury is compensable so that he might receive proper medical treatment. On May 3, 1971, defendant Travelers filed its answer denying that petitioner sustained any injury on March 3, 1971 while working for Shelby Grocery and Milling Company; that it had ever received any notice of injury; and that petitioner was a regular employee of Shelby Grocery and Milling Company. It is the allegation of defendant Travelers that petitioner “was a casual employee and not entitled to the benefits of the Workmen’s Compensation Act.” The cause was heard on May 25, 1971. The Chancellor determined that the injury sustained by petitioner on March 3, 1971, arose out of and in the course of his employment and was compensable under the Workmen’s Compensation law. Petitioner was awarded temporary total disability and medical benefits. The cause was passed to September 14, 1971, for a further hearing to determine if petitioner was entitled to any additional benefits. On May 27, 1971, petitioner amended his complaint to add defendant Wiseman as a party defendant. Petitioner alleges that in 1966 he sustained an injury to his back resulting in 62 per cent permanent partial disability to the body as a whole; that in 1968 petitioner sustained another injury to his back resulting in additional permanent partial disability to the body as a whole; and that as a result of the previous injuries and the injury on March 3, 1971, petitioner is now totally and permanently disabled. Defendant Wiseman filed a motion to dismiss the complaint for the reason that “the alleged prior injuries and the present or current injury were all to the back . and the current injury was not to another member as required by the provisions of Tennessee Code Annotated, Section 50-1027.” The trial court overruled the motion. An answer was filed by defendant Wise-man on August 2, 1971, reiterating the allegations presented in the motion to dismiss. The pertinent provisions of T.C.A. § 50-1027 are: “If an employee has previously sustained a permanent disability by reason of the loss of, or loss of use of, a hand, an arm, a foot, a leg, or an eye and becomes permanently and totally incapacitated through the loss, or loss of use of another member, he shall be entitled to compensation from his employer or the employer’s insurance carrier only for the disability that would have resulted from the latter injury, and such earlier injury shall not be considered in estimating the compensation to which the employee may be entitled under this law from the employer or the employer’s insurance carrier; provided, however, that in addition to such compensation for said subsequent injury, and after completion of the payments therefor, then such employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the ‘second injury fund’ herein created.” The record reflects that on March 3, 1971, petitioner was employed by Shelby Grocery and Milling Company. On the aforementioned date petitioner was assigned to unload fertilizer from a tractor-trailer truck. While he was performing this duty a bag of fertilizer fell from a hand truck, which petitioner was using. As the load on the hand truck was shifting, petitioner fell and injured his back. Petitioner had injured his back on two previous occasions. The first occurrence was in 1966 when petitioner “fell out of a tree”. As a result of this accident petitioner was adjudged to have sustained a 62% permanent partial disability to the body as a whole. The 1966 injury was to the middle area of petitioner’s back. The second injury occurred in 1968 in Massachusetts. In 1968 petitioner injured “the lower part” of his back. Petitioner received additional permanent partial disability benefits as a result of this accident. The current injury was approximately an inch below the 1968 injury. The record reflects that the parties stipulated that petitioner was 90% permanently partially disabled as a result of the two prior injuries. The trial judge determined: (1) that petitioner was 90% permanently partially disabled as a result of the 1966 and 1968 injuries; (2) that as a result of the current injury petitioner is totally and permanently disabled; and (3) that the Second Injury Fund is not liable for any part of the judgment since the current injury did not involve another member. The trial court entered judgment on November 10, 1971, against defendant Travelers in the amount of $14,103.34. From this adverse judgment in the trial court defendant Travelers has seasonably perfected an appeal-in-error to this Court. The sole assignment of error presented m the case at bar is as follows: “The Honorable Chancellor erred in determining that separate injuries to different parts of the back, which rendered the Petitioner permanently and totally disabled, did not meet the requirement of injury to ‘another member’, TCA § 50-1027, thereby releasing the State of Tennessee’s Second Injury Fund from all liability.” Defendant Travelers argues that this Court’s opinion in Stovall v. General Shoe Corporation (1959) 204 Tenn. 358, 321 S.W.2d 559, is controlling in the case at bar. While it is true this Court determined that the back was another member under T.C.A. § 50-1027 in Stovall v. General Shoe Corporation, supra, the facts of the prior case clearly show that it is not applicable to the case at bar. The Stovall case involved a prior injury to the leg with a current injury to the back resulting in permanent total disability. The facts present in Stovall v. General Shoe Corporation, supra, demonstrate that the prior and current injuries involved separate and distinct members. Under no stretch of the imagination can it be said the Stovall case stands for the proposition that a prior and current injury to different parts of the same member is an injury to another member. In Murray Ohio Manufacturing Co. v. Yarber (1969) 223 Tenn. 404, 446 S.W.2d 256, this Court was presented with a claim against the Second Injury Fund based on a prior and current injury to the same leg. In denying recovery against the Second Injury Fund, this Court noted that the prior and present injuries were “related to the same member”. Murray Ohio Manufacturing Co. v. Yarber, supra, shows defendant Travelers’ assertion, that separate injuries to separate parts of the same member are injuries to another member, is without merit. We pointed out that the correct test is “total incapacity ‘through the loss or loss of use of another member’ ...” The assignment of error is overruled and the decree of the Chancellor affirmed. Costs of this appeal are taxed to The Travelers Insurance Company. DYER, C. J., CHATTIN and McCANLESS, JJ., and JENKINS, Special Judge, concur.

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The TOWN OF BARTLETT, a Municipal Corporation, Appellee, v. The CITY OF MEMPHIS, BY AND THROUGH Its Mayor, Henry LOEB, et al., Appellants. Court of Appeals of Tennessee, Western Section. March 2, 1972. Certiorari Denied by Supreme Court .Tune 5, 1972. Frierson M. Graves and John J. Thom-ason, Memphis, for appellants; Thomason, Crawford & Hendrix, Memphis, of counsel. James W. Watson, Memphis, for appel-lee. MATHERNE, Judge. The City of Memphis appeals from a decree of the Chancellor which upheld an annexation proceeding by the Town of Bartlett of a certain area in Shelby County known as Elmore Park, and denied the City of Memphis the right to annex that area. The single question presented is whether the City of Memphis can legally annex the territory known as Elmore Park. It is admitted by all parties that the Town of Bartlett did by ordinance complete the annexation of the Elmore Park area. The ordinance of annexation being No. 70-2 of that municipality which passed third and final reading on April 21, 1970, with an effective date 30 days after final passage. The City of Memphis insists that it initiated annexation by ordinance procedures in February, 1970 when its planning commission submitted to its city council a plan of annexation which recommended the annexation of the Elmore Park area. The City further insists if that action not be deemed the initiation of annexation proceedings, then it did so initiate such proceedings when its city council passed a Resolution on May 12, 1970 “to determine if it is possible and proper for the City of Memphis to annex on December 31, 1975” an area including Elmore Park. That resolution called for a public hearing on June 19, 1970. A notice for the public hearing was published on May 30, 1970. At the June 19, 1970 public hearing before the city council, that body was advised by the attorney for the Town of Bartlett that the City of Memphis could not annex the El-more Park area because that area did not adjoin the existing boundaries of the City of Memphis, and the Town of Bartlett had already annexed the area. The public hearing was thereupon recessed until July 7, 1970, and on that date recessed again to July 14, 1970, at which latter date the city council of the City of Memphis passed Ordinance No. 765, which amended Ordinance No. 325, the latter ordinance having been passed in 1968 and which annexed an area known as the Raleigh area, effective December 31, 1972. The amendment, Ordinance No. 765, added El-more Park to the area known as the Raleigh area, and made the effective date December 31, 1972. This amendment was obviously enacted because the parties admit Elmore Park did not adjoin the boundaries of the City of Memphis, but it did adjoin the boundaries of the Raleigh area which would become a part of the City of Memphis on December 31, 1972. Ordinance No. 765 passed final reading on August 11, 1970; the present lawsuit was filed by the Town of Bartlett on September 1, 1970, well within 30 days after final passage of Ordinance No. 765. The Town of Bartlett filed for a declaratory judgment that it had lawfully annexed Elmore Park, and that the attempts by the City of Memphis to annex that area be declared null and void. The Chancellor’s decree held: (1)Ordinance 70-2 passed by the Town of Bartlett is valid and effective pursuant to the annexation law prescribed for municipalities. (2) That T.C.A. § 6-317 is inapplicable because the City of Memphis did not initiate annexation proceedings prior to the effective date of Ordinance No. 70-2 of the Town of Bartlett. (3) That Ordinance No. 765 of the City of Memphis is void insofar as it attempts to annex territory encompassed in the area described in Ordinance 70-2 of the Town of Bartlett. The City of Memphis relies upon its priority to annex as given by T.C.A. § 6-317, which provides in part: “6-317. Priority of larger municipalities in annexation. — * * * If two (2) municipalities shall initiate annexation proceedings with respect to the same territory, the proceedings of the municipality having the larger population shall have precedence and the smaller municipality’s proceedings shall be held in abeyance pending the outcome of the proceedings of such larger municipality. * * ” It is admitted that Memphis is the larger municipality. Most of the brief and argument presented to this Court deals with the legislative intent by the enactment of Chapter 113, Public Acts of 1955, T.C.A. §§ 6-308 et seq., and with the interpretation given by the Chancellor to the words “shall initiate annexation proceedings” as used in the above quotation. We do not deem those questions as decisive, because as we view the facts the City of Memphis could not legally initiate proceedings to annex Elmore Park. T.C.A. § 6-317 merely designates the priority of annexation; that statute does not provide a different method of procedure, nor does it define differently the areas which may be annexed by the preferred municipality. All those matters are governed by T.C.A. § 6-309, which Section provides in part: “6-309. Annexation by ordinance. — A municipality when petitioned by a majority of the residents and property owners of the affected territory, or upon its own initiative when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered, after notice and public hearing, by ordinance, may extend its corporate limits by annexation of such territory adjoining its existing boundaries as may be deemed necessary for the welfare of the residents and property owners of the affected territory as well as the municipality as a whole, provided said ordinance shall not become operative until thirty (30) days after final passage thereof. * * * ” (Emphasis added). By the enactment of T.C.A. § 6-309 the Legislature delegated to the municipalities of Tennessee the power to extend municipal boundaries by ordinance. Chapter 113 of the Public Acts of 1955, as amended, has been held constitutional, and an ordinance enacted under its provisions is valid if the ordinance and procedures of annexation followed meet the requirements of that Act. Witt v. McCanless (1956) 200 Tenn. 360, 292 S.W.2d 392; State ex rel. Stall v. Knoxville (1962) 211 Tenn. 271, 364 S.W.2d 898; State ex rel. Bastnagel v. City of Memphis (1970) 224 Tenn. 514, 457 S.W.2d 532. In the case at bar the City of Memphis has no right or authority to annex Elmore Park by ordinance, because that territory did not at the time of the procedures being reviewed, nor does it to this day, adjoin the existing boundaries of the City of Memphis. Any plans adopted by the City of Memphis, any notice given and hearings held under the annexation statutes, and any ordinance thus passed would be null and void insofar as constituting a procedure to annex that area. The city council of the City of Memphis cannot circumvent the clear legislative mandate by its attempted amendment of a previously passed ordinance. If such an amendment were otherwise legal, it cannot stand in the present case because the Raleigh area does not become a part of the City of Memphis until December 31, 1972. The issue here is not a question of priorities, or of legislative intent; this lawsuit reflects an illegal attempt by the City of Memphis to annex by ordinance an area that does not adjoin its existing boundaries. It results the Assignment of Error is overruled. A decree may be entered in this Court that Ordinance No. 70-2 passed by the Town of Bartlett is valid and effective pursuant to the annexation law prescribed for municipalities; and, that Ordinance No. 765 of the City of Memphis is void insofar as it attempts to annex territory which does not adjoin the existing boundaries of that municipality. All costs in the Chancery Court and in this Court are adjudged against the City of Memphis. CARNEY, P. J., and NEARN, J., concur.

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LING AND COMPANY, INC., Petitioner, v. TRINITY SAVINGS AND LOAN ASSOCIATION, Respondent. No. B-3019. Supreme Court of Texas. May 17, 1972. Geary, Brice, Barron & Stahl, G. Leroy Street, Dallas, Tex., for petitioner. Freedman, Day & Waters, Harry I. Freedman, Dallas, Tex., for respondent. REAVLEY, Justice. Trinity Savings and Loan Association sued Bruce W. Bowman for the balance owed on a promissory note and also to foreclose on a certificate for 1500 shares of Class A Common Stock in Ling & Company, Inc. pledged by Bowman to secure payment of the note. Ling & Company was made a party to the suit by Trinity Savings and Loan because of Ling & Company’s insistence that the transfer of its stock was subject to restrictions that were unfulfilled. Bowman did not appear and has not appealed from the judgment against him. The trial court entered summary judgment in favor of Trinity Savings and Loan, against the contentions of Ling & Company, foreclosing the security interest in the stock and ordering it sold. The court of civil appeals affirmed. 470 S.W.2d 441. We reverse the judgments and remand the case to the trial court. The objection to the foreclosure and public sale of this stock is based upon restrictions imposed upon the transfer of the stock by the articles of incorporation of Ling' & Company. It is conceded that no offer of sale has been made to the other holders of this class of stock and that the approval of the pledge of the stock has not been obtained from the New York Stock Exchange. It is the position of Trinity Savings and Loan that all of the restrictions upon the transfer of any interest in this stock are invalid and of no effect. This has been the holding of the courts below. The face and back of the stock certificate are reproduced and attached to this opinion. The restrictions appear in Article Four of the Ling & Company articles of incorporation, as amended and filed with the Secretary of State in 1968. Section D requires the holder to obtain written approval of the New York Stock Exchange prior to the sale or encumbrance of the stock if, at the time, Ling & Company is a member corporation of the Exchange. Then Section E(4) prevents the sale of the stock without first affording the corporation the opportunity to buy and, if it fails to purchase, giving that opportunity to all holders of the same class of stock. The method of computation of the price, based upon the corporate books, is provided in this section of the articles. The court of civil appeals struck down the restrictions for three reasons: the lack of conspicuous notice thereof on the stock certificate, the unreasonableness of the restrictions, and statutory prohibition against an option in favor of other stockholders whenever they number more than twenty. These objections will be examined in that order. CONSPICUÓUSNESS The Texas Business Corporation Act as amended in 1957, V.A.T.S. Bus. Corp.Act, art. 2.22, subd. A, provides that a corporation may impose restrictions on the transfer of its stock if they are “expressly set forth in the articles of incorporation . . and . . . copied at length or in summary form on the face or so copied on the back and referred to on the face of each certificate ...” Article 2.19, subd. F, enacted by the Legislature at the same time, permits the incorporation by reference on the face or back of the certificate of the provision of the articles of incorporation which restricts the transfer of the stock. The court of civil appeals objected to the general reference to the articles of incorporation and the failure to print the full conditions imposed upon the transfer of the shares. However, reference is made on the face of the certificate to the restrictions described on the reverse side; the notice on the reverse side refers to the particular article of the articles of incorporation as restricting the transfer or encumbrance and requiring “the holder hereof to grant options to purchase the shares represented hereby first to the Corporation and then pro rata to the other holders of the class A Common Stock . We hold that the content of the certificate complies with the requirements of the Texas Business Corporation Act. There remains the requirement of the Texas Business and Commerce Code that the restriction or reference thereto on the certificate must be conspicuous. Sec. 8.204, V.T.C.A. Bus. & C., requires that a restriction on transferability be “noted conspicuously on the security.” Sec. 1.201(10) of the Business and Commerce Code defines “conspicuous” and makes the determination a question of law for the court to decide. It is provided that a conspicuous term is so written as to be noticed by a reasonable person. Examples of conspicuous matter are given there as a “printed heading in capitals . . . [or] larger or other contrasting type or color.” This means that something must appear on the face of the certificate to attract the attention of a reasonable person when he looks at it. Hunt v. Perkins Machinery Co., 352 Mass. 535, 226 N.E.2d 228 (1967); Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964); 1 Anderson, Uniform Commercial Code 87 (2nd ed. 1970). The line of print on the face of the Ling & Company certificate does not stand out and cannot be considered conspicuous. Our holding that the restriction is not noted conspicuously on the certificate does not entitle Trinity Savings and Loan to a summary judgment under this record. Sec. 8.204 of the Business and Commerce Code provides that the restriction is effective against a person with actual knowledge of it. The record does not establish conclusively that Trinity Savings and Loan lacked knowledge of the restriction on January 28, 1969, the date the record indicates when Bowman executed an assignment of this stock to Trinity Savings and Loan. REASONABLENESS Art. 2.22, subd. A of the Texas Business Corporation Act provides that a corporation may impose restrictions on disposition of its stock if the restrictions “do not unreasonably restrain or prohibit transferability.” The court of civil appeals has held that the restrictions on the transferability of this stock are unreasonable for two reasons: because of the required approval of the New York Stock Exchange and because of successive options to purchase given the corporation and the other holders of the same class of stock. Ling & Company in its brief states that it was a brokerage house member of the New York Stock Exchange at an earlier time and that Rule 315 of the Exchange required approval of any sale or pledge of the stock. Under these circumstances we must disagree with the court of civil appeals holding that this provision of article 4D of the articles of incorporation is “arbitrary, capricious, and unreasonable.” Nothing appears in the summary judgment proof on this matter, and the mere provision in the article is no cause for vitiating the restrictions as a matter of law. It was also held by the intermediate court that it is unreasonable to require a shareholder to notify all other record holders of Class A Common Stock of his intent to sell and to give the other holders a ten day option to buy. The record does not reveal the number of holders of this class of stock; we only know that there are more than twenty. We find nothing unusual or oppressive in these first option provisions. See Coleman v. Kettering, 289 S.W.2d 953 (Tex.Civ.App.1956, no writ); 2 O’Neal, Close Corporations, § 7.13 (1971). Conceivably the number of stockholders might be so great as to make the burden too heavy upon the stockholder who wishes to sell and, at the same time, dispel any justification for contending that there exists a reasonable corporate purpose in restricting the ownership. Bu,t there is no showing of that nature in this summary judgment record. STATUTORY LIMIT ON OPTIONEES Art. 2.22, subd. B of the Texas Business Corporation Act provides that, in addition to other reasonable restrictions, any of the following restrictions may be imposed upon the transfer of corporate shares: (1) Restrictions reasonably defining pre-emptive or prior rights of the corporation or its shareholders of record, to purchase any of its shares offered for transfer. (2) Restrictions reasonably defining rights and obligations of the holders of shares of any class, in connection with buy-and-sell agreements binding on all holders of shares of that class, so long as there are no more than twenty (20) holders of record of such class. (3) Restrictions reasonably defining rights of the corporation or of any other person or persons, granted as an option or options or refusal or refusals on any shares. The court of civil appeals regarded subsection (2) as being applicable to the stock restriction in this case. Since it was stipulated that there were more than twenty holders of record of Class A stock, it has been held that the restriction fails for this reason. We disagree. Subsection (2) is not applicable to the Ling & Company restriction. It seems that a “buy and sell agreement” usually refers to a contract between shareholders rather than a restriction imposed by the corporation. In any event, there is no obligation to purchase this stock placed upon anyone, and these restrictions can only be considered as options and not “buy and sell agreements.” 2 O’Neal, Close Corporations, § 7.10 (1971); Fletcher Cyc. Corp. § 5461.1 (1971). The summary judgment proof does not justify the holding that restrictions on the transfer of this stock were ineffective as to Trinity Savings and Loan Association. The judgment below is reversed and the cause is remanded to the trial court. DANIEL, L, concurs in result. NOTICE l The shares represented by this certificate are subject to all the terms, conditions and provisions of the Articles of Incorporation of the Corporation, as the same may be amended from time to time, which Articles are incorporated herein by reference as though fully set forth herein. Copies of the Articles of Incorporation may be obtained from the Secretary of State of the State of Texas or upon written request therefor from the Secretary of the Corporation. Reference is specifically made to the provisions of Article Four of the Articles of Incorporation which set forth the designations, preferences, limitations and relative rights of tiie shares of each class of capital stock authorized to be issued, which deny pre-emptive rights, prohibit cumulative voting, restrict the transfer, sale, assignment, pledge, hypothecation or encumbrance of any of the shares represented hereby under certain conditions, and which under certain conditions require the holder hereof to grant options to purchase the shares represented hereby first to the Corporation and then pro rata to the other holders of the Class A Common Stock, all as set forth in said Article Four. Reference is also specifically made to the provisions of Article Nine which vests the power to adopt, alter, amend or repeal the by-laws in the Board of Directors except to the extent such power may be modified or divested by action of shareholders representing a majority of the holders of the Class A Common Stock. EA5775]

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R. G. PARKER, Independent Executor, Petitioner, v. Paul DONALD et al., Respondents. No. B-3330. Supreme Court of Texas. June 28, 1972. Rehearing Denied July 26, 1972. Kuykendall & Kuykendall, Kirk Kuyken-dall, Austin, for petitioner. Jack Connell, Bowie, Vinson, Elkins, Searls & Smith, Jarrel D. McDaniel and Ben H. Sheppard, Jr., Houston, Clayton Kramer, Wichita Falls, for respondents. PER CURIAM. R. G. Parker, as Independent Executor of the estate of Dixie Donald, sued Paul Donald, Robert Donald, Sr., Agricultural Livestock Corporation and Montague Cattle Company to have declared his interests in properties formerly owned by the law partnership of Donald & Donald and in the properties acquired after 1961 by Robert Donald, Sr. and/or Paul Donald. Trial court granted each defendant’s motion for summary judgment and the court of civil appeals affirmed. 477 S.W.2d 947. Dixie Donald married Paul Donald in 1961. She died on June 17, 1966, and R. G. Parker qualified as Independent Executor under her will. In 1967, Parker in his representative capacity obtained a judgment against Paul Donald. That judgment vested Parker with title “to an undivided one-half interest in and to all effects of Paul Donald and/or Mrs. Dixie Donald” which were in their possession on June 17, 1966, and title to an undivided one-half interest in all real property acquired by the couple during their marriage. See Parker v. Holland, 444 S.W.2d 581 (Tex.1969). In attempting to define his interests under the 1967 judgment, Parker seeks in this lawsuit a declaratory judgment that he is entitled to recover as “effects” real property formerly owned by the law partnership of Donald & Donald. Also, Parker seeks an accounting of properties acquired between 1961 and 1966 by an entity called “Donald & Son” and of properties purchased by Robert for the benefit of Paul Donald. The trial court and the court of civil appeals held that the depositions and affidavits on file establish as a matter of law that the law partnership of Donald & Donald dissolved in 1959 when Paul Donald’s partner, J. M. Donald, sold all his interests in the partnership to defendant Montague Cattle Company; consequently, Parker does not have a claim in that partnership under the 1967 judgment. We agree with that holding. Parker contends that under the Uniform Partnership Act, Art. 6132b, Sec. 30, Vernon’s Ann.Civ.St, a partnership is not terminated until after the partnership winds-up its affairs. The court of civil appeals correctly held that the Act is not applicable here since the effective date of the Act was subsequent to the partner’s sale. At common-law, a partnership ceases to exist as such when one partner sells his interest to a third party. Moore v. Steele, 67 Tex. 435, 3 S.W. 448 (1887); Traders’ & General Ins. Co. v. Emmert, 76 S.W.2d 208 (Tex.Civ.App.1934, writ ref’d). Since we are remanding this case without granting the application for writ of error, no severance is made here. We do hold, however, that the proof in this record justifies the summary judgment rendered in Montague Cattle Company’s favor. As to Parker’s prayer for accounting, the courts below held that the depositions and affidavits on file in this case establish as a matter of law that Paul Donald did not acquire any real property after 1961. The record in this case will not support that holding. H. C. Boswell, Vice-President for defendant Agricultural Livestock Corporation, summarized in his affidavit the mortgage transactions his company had with Robert Donald, Sr. and Paul Donald. Exhibits attached to his affidavit and incorporated therein for all purposes show that Robert and/or Paul Donald acquired legal title to various tracts of land between 1961 and 1966. Furthermore, Weldon Dennis stated in his affidavit that he conveyed 1,292 acres of land to Robert Donald, Sr. in 1964, but that he believed Paul Donald to be the actual owner for these reasons: Paul Donald paid the $25,000 down payment, Paul Donald had the trees fertilized and the gravel hauled out, and it was Paul Donald who refused to accept his offer to purchase the property back. The state of the record as outlined above cannot support the motions for summary judgment against Parker’s suit for accounting. The judgment of the trial court and the court of civil appeals in this regard is in direct conflict with Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). We, therefore, reverse the judgments below and remand the case to the trial court without granting the application for writ of error. Rule 483, Texas Rules of Civil Procedure.

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Sandra DOYLE, Petitioner, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent. No. B-2767. Supreme Court of Texas. May 24, 1972. Hicks, Hirsch, Glover & Kane, Jay D. Hirsch and Marc Allan Sheiness, Houston, for petitioner. Baker & Botts, Robert J. Malinak and Charles W. Wofford, Houston, for respondent. WALKER, Justice. This is a suit by Sandra Doyle, petitioner, against United Services Automobile Association, respondent, on the “uninsured motorist” provisions of two automobile insurance policies issued by respondent to James D. Robinson. Respondent’s motion for summary judgment was granted by the trial court on the sole ground that petitioner had not filed with respondent within thirty days the sworn statement required by the policy “definition” of the term “hit-and-run automobile.” The Court of Civil Appeals affirmed. 466 S.W.2d 843. We hold that respondent failed to establish that it is entitled to judgment as a matter of law. On March 7, 1970, petitioner was injured while traveling as a passenger in an automobile owned by National Car Rental and operated by James D. Robinson. This automobile was covered by a policy issued to National Car Rental by Allstate Insurance Company. Petitioner was injured when the car in which she was riding was struck by another automobile, and the driver of the latter vehicle left the scene without being identified. Respondent had in effect policies covering two automobiles owned by Robinson, and petitioner was admittedly an additional insured thereunder. On June 1, 1970, petitioner filed suit against Allstate and respondent seeking a recovery under the uninsured motorist provisions of the policies. When summary judgment was rendered in favor of respondent, petitioner’s claim against Allstate was severed and went out of the case. The material allegations of her petition with respect to respondent are as follows: . . . In the policy of insurance in question the corporate Defendant United Services Automobile Association agreed to furnish your plaintiff Sandra Doyle protection in the event that the plaintiff sustained injuries and damages as a result of being struck by an uninsured automobile. . Your plaintiff . . . Sandra Doyle was traveling as a passenger in a 1970 Javelin automobile being driven by James David Robinson in the 1100 block of Main Street, when suddenly and without warning the 1970 Javelin automobile was struck from the rear by another automobile, identified as a 1962 Mercury vehicle that was shown to have Arizona license plates and the driver of said vehicle left the scene of the accident without waiting for the police to arrive to make a proper investigation of the accident in question. . . . Plaintiff would further show this Honorable Court that the vehicle that caused the damages and injuries to the plaintiff Sandra Doyle was being operated by an unknown party and that said vehicle was uninsured within the meaning of the policy of insurance issued by the corporate defendants, . Part IV of the policies issued by respondent to Robinson is entitled “Protection Against Uninsured Motorists.” Provision is there made for the payment, subject to certain limits, of all sums the insured is legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury caused by accident and arising out of the ownership, maintenance or use of an uninsured automobile. Two of the definitions set out in Part IV of the policy are as follows : “Uninsured automobile” includes a trailer of any type and means: (a) An automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable. at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder; or (b) a hit-and-run automobile; or (c) an automobile with respect to which there is a bodily injury liability insurance policy applicable at the time of the accident but the company writing the same is or becomes insolvent; “hit-and-run automobile” means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such “hit-and-run automobile” ; (b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascer-tainable, and setting forth the facts in support thereof; and (c) at the company’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident. Part IV of the policy thus provides two separate and distinct coverages. Subject to certain limitations not material here, the insurer undertakes to pay damages arising from the ownership, maintenance or use of either: (1) an automobile not covered by a liability policy or covered by a policy issued by a company that denies liability or is insolvent; or (2) an automobile owned and operated by a person or persons whose identity cannot be ascertained. It is in connection with the second or “hit-and-run” coverage that the policy purports to require, as part of the “definition” of a hit- and-run automobile, that a sworn statement be furnished by the insured to the company within thirty days. After the summary judgment was granted, petitioner learned the identity of the driver of the 1962 Mercury. She accordingly contended in the Court of Civil Appeals, and says here, that the trial court erred in restricting her to the “hit-and-run” coverage and in denying her an opportunity to recover under the other uninsured motorist coverage. We sustain this contention although there is a substantial basis in the record for the conclusions reached by the trial court and the Court of Civil Appeals. Petitioner’s pleadings are sufficiently broad to authorize a judgment in her favor under either of the coverages mentioned above. The responses of her attorney to certain interrogatories propounded by respondent indicate that at the time they were made she was expecting to recover only on the theory that the Mercury was a “hit-and-run” automobile within the meaning of the policy. Her answer to the motion for summary judgment was filed about two months later, however, and she there took the position that: There is a fact question as to whether the accident of March 7, 1970, is a hit- and-run accident or an accident caused by an uninsured motorist as that term is defined by law. While this statement is not as clear as it might be, it seems to us that petitioner was pointing out that there had been no proof that would confine her to one coverage or the other. From a practical standpoint, the two coverages are mutually exclusive. If the owner or operator of the automobile cannot be identified, it will be virtually impossible to establish that the vehicle was uninsured so as to bring the case within the first coverage. If the owner or operator can be identified, the second coverage has no application because the vehicle does not satisfy the policy definition of a hit-and-run automobile. In the ordinary “uninsured motorist” case, therefore, it is usually necessary to determine at the outset whether the identity of the owner or operator of the vehicle is ascertainable. Until that question is resolved, neither the parties nor the court can know which of the coverages afforded by the policy may be applicable. The importance of this threshold question was recognized by respondent in its answers to interrogatories propounded by petitioner. Two of the interrogatories inquired whether, and if so why, respondent contended the Mercury was not a “hit-and-run automobile.” Respondent answered that the contention was made for two reasons: (1) the required statement under oath had not been filed within thirty days, and (2) petitioner had not established that the identity of neither the owner nor the operator of the Mercury could be ascertained. Petitioner alleged that the Mercury was operated by an unknown party. In her answers to interrogatories, she stated that she had no information regarding the driver. Her affidavit states that she does not know the name of the driver or whether he was carrying a policy of liability insurance. Neither party attempted to show, and the summary judgment proof does not establish as a matter of law, that the identity of neither the owner nor the operator can be ascertained. Since that showing was not made, it is our opinion that the failure to furnish the sworn statement within thirty days affords no basis for rendering summary judgment in respondent’s favor. If we assume that the policy provision requiring the statement is valid and effective and that respondent is not liable under the “hit-and-run” coverage, petitioner may yet establish her right to recover by proving that the Mercury was not insured and that the driver is legally liable for her injuries. There is no proof in this record that the Mercury was insured. One of the general conditions of the policy requires that written notice of an accident be given by the insured to the company or any of its authorized agents as soon as practicable. Respondent has not contended that petitioner failed to comply with this provision, perhaps because she was unable to learn the name of Robinson’s insurer until shortly before the present suit was filed. Be that as it may, we express no opinion as to the effect of the general notice provision in the present case. Several months after this case was decided by the intermediate court, another Court of Civil Appeals held that the sworn statement requirement in the policy “definition” of “hit-and-run automobile” is void under the provisions of Art. 5546, Vernon’s Ann.Tex.Civ.Stat. Latham v. Mountain States Mut. Cas. Co., Tex.Civ.App., 482 S.W.2d 655. That question has not been raised in the present case, and we express no opinion thereon. The judgments of the courts below are reversed and the cause is remanded to the district court.

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Linda WETHERBY, Appellant, v. The STATE of Texas, Appellee. No. 45103. Court of Criminal Appeals of Texas. June 21, 1972. Roy Q. Minton, Charles R. Burton, John L. Foster, Austin, for appellant. Robert O. Smith, Dist. Atty., Michael J. McCormick, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from a conviction for possession of marihuana. The punishment was assessed at four years, probated. The record reflects that about 12:25 a. m., on October 25, 1970, police officers went to appellant’s apartment at 1910 Nueces in the City of Austin and executed a search warrant. The search revealed a brown paper bag containing marihuana on a shelf in the living room and a “roach” in an ashtray between two mattresses on the floor. Syringes, pipes, barbiturates, LSD, and other items were also recovered. The appellant, who had “needle tracks” on her arm, and her three companions were arrested. In her sole ground of error, the appellant contends the “trial court erred in admitting the seized narcotics into evidence inasmuch as they were seized pursuant to the execution of a search warrant based upon an affidavit which failed to state probable cause.” It is appellant’s claim that the search warrant affidavit fails to meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The relevant portion of the affidavit presented by Officer Baker to the magistrate who issued the warrant is as follows: “ . . . on or about the 23rd day of October, A.D., 1970, affiant received information from a reliable, creditable informant that Linda Weatherby, white female, is keeping, using and selling narcotics, to wit marijuana from her residence at 1910 Nueces, Apt. 3, Austin, Travis County, Texas. “Informant has been in the apartment within the past 48 hours and has seen Linda Weatherby use and sell marijuana. “Informant further states that the marijuana is normally kept in paper bag on floor by coffee table. “Although I do not desire to name my informant and he has not given information in the past, his reliability and creditability [sic] have been established by the fact that he is gainfully employed and is well thought of by the people in the community in which he lives. Further, he has no criminal record with this department or with the Department of Public Safety. Members of this detail have maintained surveillance at above location and have seen numerous hippy type subjects go to front door, enter and stay from 3 to 5 minutes and leave.” In determining the sufficiency of such affidavit to reflect probable cause for the issuance of the search warrant, this court is bound by the four corners thereof. Article I § 9, Texas Constitution, Vernon’s Ann.St.; Article 18.01, Vernon’s Ann.C. C.P.; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447, 448 (Tex.Cr.App.1928); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969) (concurring opinion); Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970) (concurring opinion). In Aguilar v. Texas, supra, the Supreme Court wrote: “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, [78 A.L.R.2d 233,] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, [11 L.Ed.2d 887,] was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114, 84 S.Ct. at 1514. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the above stated rule was referred to as “Aguilar’s two'-pronged test.” It is clear from this rule that underlying circumstances of both the informant’s conclusion of guilt and the affiant’s conclusion that the informer is reliable must be put forth before the reviewing magistrate. The affidavit reveals that it is sufficient to satisfy the first prong of the Aguilar test. The informer stated that he had been in the apartment within the last 48 hours and had seen the appellant sell and use marihuana. Further, he revealed where the marihuana was normally kept and the type of container. Such information appears to have come from the personal knowledge of the informer and his observations. Thus, we are left with the question of whether or not the second prong of the Aguilar test is satisfied, particularly since the unidentified informant was of previously untested reliability. Only recently this court has been confronted with questions of the sufficiency of underlying circumstances to sustain the second prong of the Aguilar test where the informant was a “first time informer.” Adair and Via v. State, 482 S.W.2d 247 (Tex.Cr.App.1972, No. 43,666), Yantis v. State, 476 S.W.2d 24 (Tex.Cr.App.1972). See, also, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In Adair and Via v. State, supra, it was observed that the absence of an allegation of prior reliability is not, ipso facto, a fatal defect in the affidavit. In such case, after some discussion of the problem of the first-time informant, the court held that, although no model, the following were sufficient underlying circumstances to sustain the second prong of the Aguilar test where a first-time informer was involved. “ . . . Although the informant has not given information in the past, their [sic] reliability, and credibility has been established by the fact of their [sic] lack of a criminal record, the reputation in the neighborhood, and are [sic] well thought of by their [sic] fellow associates.” Adair and Via v. State, 482 S.W.2d 247 (Tex.Cr.App.1972, No. 43,666). Likewise, in Yantis v. State, supra, the following underlying circumstances were held sufficient to satisfy the so-called second prong where a first-time informant was involved: “ . . . ‘Though the informant has not given information in the past, the credibility and reliability has been established by his excellent reputation in the neighborhood in which he resides, the lack of a criminal record and his continuous gainful employment.’ ” 476 S.W.2d at 27. If the foregoing were sufficient underlying circumstances, it would appear that those in the instant affidavit are also sufficient for the reasons discussed in Yantis and Adair and Via. The State urges that the affidavit is not based entirely upon hearsay, but is supported by independent corroboration. Attention is called to the fact that the affidavit reveals that “members of this detail” had set up a surveillance and observed “hippy type subjects” entering and leaving the apartment within the span of a few minutes. This added little in the form of independent corroboration. See Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972). We need not consider the same in reaching the conclusion that the affidavit was sufficient. Appellant points out that Officer Baker (the affiant) testified on the motion to suppress that he had received his information from the first-time unidentified informant over the telephone; that he subsequently checked the place of employment given by the informant; checked to see if the name given had either a local or a statewide criminal record, etc., but he “accepted without question that the person with whom he spoke was the person whose name was given.” He contends the “named person could have been contacted personally to verify that he was, indeed, the person who had called earlier” and that this “could have been done by calling him on the job or at the home address listed in the telephone directory.” While the same would certainly have been better police practice, under the circumstances, we must assess probable cause from the four corners of the affidavit presented to the magistrate. And, it is well settled “that a court will not look behind the allegations of an affidavit for the issuance of a search warrant.” Brown v. State, 437 S.W.2d 828 (Tex.Cr.App.1968); Hernandez v. State, 158 Tex.Cr.R. 296, 255 S.W.2d 219 (1953). Finding no reversible error, the judgment is affirmed.

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J. D. HAYWOOD, Appellant, v. The STATE of Texas, Appellee. No. 45166. Court of Criminal Appeals of Texas. July 12, 1972. Sam A. Westergren, Jr., Corpus Christi, for appellant. Wm. B. Mobley, Jr., Dist. Atty., Thomas D. McDowell, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the jury at 75 years. Initially, appellant complains of the court’s failure to charge the jury on the defense of entrapment. A timely special requested charge was presented. In 16 Tex.Jur.2d, Criminal Law, Sec. 102, Entrapment, at page 234, it is written: “Where one is induced to do an act and the inducement prevents the act from being criminal, the fact of inducement constitutes a defense. However, the mere fact that one person affords another an opportunity to commit a crime, with a view to prosecuting the other person, is no defense.” In Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, this court stated: “It is the general rule that where the criminal intent originates in the mind of an accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the criminal design originates in the mind of the officer, and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense.” In McKelva v. State, Tex.Cr.App., 453 S.W.2d 298, this court held that: “Unless an accused has established as a matter of law that he was entrapped, the factual issue is a question for the jury when the evidence raises an issue as to whether the intent to commit the crime originated in the mind of the accused or in the officer’s mind. (Citations omitted) Where, however, the evidence does not raise such an issue it is not error to refuse a charge on entrapment. (Citations omitted.)” In the case at bar the evidence shows that two deputy sheriffs with the Nueces County Sheriff’s Department entered the Blue Note Lounge in Corpus Christi and purchased a “paper” of heroin from the appellant. One of the officers stated that he was "dressed like a merchant seaman with a knit stocking cap, a black turtleneck sweater, bell bottom blue denim pants and boots,” and that his partner “had on slacks, a long sleeved yellow shirt, sport coat, no tie, and shoulder length hair.” After they entered the lounge they ordered beer from the appellant, who was apparently the manager of the premises. One of the officers testified that after he was served the beer the appellant “asked if I was looking for a lady. I said yes, and he said, ‘Well, she ain’t here, but I got the stuff.’ I said, ‘All right,’ and he went over to the cigarette machine, pushed it back, shook it two or three times, and four or five packages fell out. He picked them up, however, then we went to the bar. He asked if I had the money. I said, ‘Yes’. I took the matchbox out with a ten dollar bill in it, and handed it to him. He looked at it and gave me two packages of heroin. I said, ‘No, I just have money for one.’ I took one, he had the money, and we left.” The officer was asked: “As between you and the defendant, J. D. Haywood, who initiated this sale? A. The defendant.” On cross-examination the officer was asked: “Q. You all didn’t make any statements at all you needed some drugs, would like to buy some drugs there? “A. No, sir. “Q. That is a fact? “A. That is a fact.” We conclude that the trial court did not err in refusing to charge the jury on the defense of entrapment. While the officers furnished the opportunity for the appellant to participate in the commission of the offense, the evidence shows that the criminal design originated in the mind of the appellant. See Shott v. State, Tex.Cr.App., 475 S.W.2d 791, and cases cited therein. Next, appellant complains of improper jury argument, contending that the state’s attorney “committed reversible error by commenting to the jury on the fact that the appellant did not testify on his own behalf on the issue of guilt or innocence.” The complained of argument is as follows : “The only evidence you heard, and if there was anything to the contrary, if there was anything that would dispute— “MR. WESTERGREN: I object to his reference, referring to the defendant not testifying, Your Honor, which is an improper argument. “THE COURT: Sustained. “It is entirely uncontradicted evidence. If there had been any witnesses on behalf of the defendant— “MR. WESTERGREN: Again I object, Your Honor, to his referring to the defendant not testifying. “THE COURT: Sustained. “MR. WESTERGREN: I request the Court to instruct the jury not to consider that portion of the State’s argument. “THE COURT: The jury is so instructed.” In the recent case of Hawk v. State, Tex.Cr.App., 482 S.W.2d 183 (1972) this court reversed the conviction where the prosecutor argued: “ . . . There was silence out there that night of that arrest because nobody denied . . . .” However, in Hawk, the trial court overruled the objection to the argument. In the case at bar, the court sustained the objection and instructed the jury to disregard such argument. No motion for mistrial was made. Appellant received all the relief he requested. We conclude that, under the facts of this case, the error in the argument, if any, was cured by the court’s instruction. See Alvarez v. State, Tex.Cr.App., 478 S.W.2d 450; Ellis v. State, Tex.Cr.App., 468 S.W.2d 406. Appellant’s contention that “there was an unexplained break in the chain of custody of certain evidence” is not supported by the record. Instead, the record reflects that: heroin was purchased from appellant by two deputy sheriffs; preliminary examination of the substance purchased by these officers revealed that it was heroin; one of the officers marked the package containing this substance for identification purposes; this same package was mailed to the Texas Department of Public Safety Laboratory in Austin, where it was received by the chemist who analyzed the contents and determined that it was heroin; the chemist also marked the package containing the heroin, for identification purposes. Both the officer and the chemist identified the exhibit. The fact that there was an interval between the date of the sale and the date the package was mailed does not warrant excluding this exhibit from evidence. During this period the exhibit was kept in an evidence locker to which only one other deputy had access. Appellant’s objections on the basis of these factors, at most, go to the weight to be given to the evidence, not to its admissibility. Walker v. State, Tex.Cr.App., 470 S.W.2d 669. Appellant complains of the “reference” by the prosecutor to a “rap sheet” during the punishment hearing. At the punishment stage of the trial appellant’s sister and sister-in-law testified that appellant’s reputation was good. On cross-examination they were asked if they had heard of certain convictions and arrests in the past. Thereafter, appellant took the stand in his own behalf and introduced the “rap sheet” in question. He admitted: that he “gave” the officer the heroin in question; that he was an addict; that he had served two terms in the penitentiary; that he had been, in fact, arrested on all dates inquired about in the “have you heard” questions propounded to his character witnesses except one. No error is shown. Next, appellant contends the punishment was excessive. The punishment assessed was within the range set by the legislature. Article 725b, Sec. 23(c), Vernon’s Ann.P.C., fixes the punishment as “ . . . imprisonment in the penitentiary for not less than five years nor more than life.” See Stallings v. State, Tex.Cr.App., 476 S.W.2d 679; Deeds v. State, Tex.Cr.App., 474 S.W.2d 718; Wilson v. State, Tex.Cr.App., 473 S.W.2d 532. Appellant also complains of jury misconduct. He has not shown such by affidavit or otherwise. Hence, no error. Finally, appellant asserts that “the verdict in this case is contrary to the law and evidence.” This ground of error is overruled. The evidence is sufficient to support the verdict. The judgment is affirmed. . The record shows that other persons were in the bar on the date in question, so references to the lack of defense testimony (no defense testimony was offered at the guilt or innocence stage of the trial) could possibly relate to them not being called as witnesses. In such event, the remarks should have been so predicated. . Had appellant moved for a mistrial a different result might very well be reached. It should be noted that to obtain a mistrial, a motion is necessary. The risk of jeopardy attaching is too great for the trial court to grant a mistrial on its own motion. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543; Taylor v. State, Tex.Cr.App., 474 S.W.2d 207.

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Ex parte Joe Lawrence WAMMACK. No 45839. Court of Criminal Appeals of Texas. July 26, 1972. Harkness, Friedman & Kusin, by Sherman A. Kusin, Texarkana, for appellant. Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ODOM, Judge. This is an appeal from a court order, after habeas corpus hearing, remanding appellant to custody for extradition to the State of Nevada. The record reflects that appellant was taken into custody on the basis of a fugitive warrant, alleging that he had committed the offense of attempted murder, issuing from the State of Nevada. At the extradition hearing, the trial court found the Governor’s Warrant to be regular in all respects. Initially, appellant challenges the sufficiency of the papers supporting the issuance of the Executive Warrant by the Governor of Texas. Specifically, he contends “that the affidavit upon which the extradition proceeding was heard was one based upon an affidavit before a notary public, and not before a magistrate, and that it is essential that the affidavit be before a magistrate.” Article 51.13(3), Vernon’s Ann.C.C.P., provides in part: “No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless in writing, alleging . that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, . . .” In construing this provision, this court, in Ex parte Peairs, 162 Tex.Cr.R. 243, 283 S.W.2d 755, stated: “We have concluded that the demand . . . does not require the affidavit to be made before a magistrate.” This holding was recently reaffirmed in Ex parte Binette, Tex.Cr.App., 465 S.W.2d 373. See also, Ex parte Posey, Tex.Cr.App., 453 S.W.2d 833. Appellant next contends that the Governor’s Warrant was illegally issued in “that it was done on an information which is in variance with the laws of the State of Texas.” In Ex parte Posey, supra, this court held that: “ . . . where a person charged with a felony in the demanding state may be extradited from Texas upon an affidavit before a magistrate and warrant issued thereon, the question of whether, upon his return to the demanding state, he is to be prosecuted upon an indictment or information is not a question for the courts of Texas to decide in extradition proceedings, but a question for the courts of the demanding state.” Finally, appellant complains that he was denied due process of law because he was not apprised of his right to appear before the Governor and Secretary of State to'present his reasons why the extradition papers should not be issued. Article 51.13, V.A.C.C.P., provides, in part: “Sec. 4. When a demand shall be made upon the Governor of this State by the Executive Authority of another State for the surrender of a person so charged with crime, the Governor may call upon the Secretary of State, Attorney General or any prosecuting officer in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered. “Sec. 20. The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.” In interpreting these provisions, this court has held that the failure to notify the accused of an executive hearing on an extradition demand is not a ground upon which the discharge of the accused may be predicated. Ex parte Falkman, 162 Tex.Cr.R. 230, 284 S.W.2d 153. See also, 25 Tex.Jur. 2d, Extradition, Sec. 15. Contrary to appellant’s contention, he has not been denied a right to challenge the basis for extradition. A procedure for challenge is provided by Article 51.13, Sec. 10, V.A.CC.P. In the instant case, appellant availed himself of such rights under this provision and was heard. No harm is shown by the failure to hold a preissuance adversary hearing. No motion for rehearing will be entertained or filed with the Clerk except by leave of this court after good cause has been shown. The judgment is affirmed. . Article 61.13, Sec. 10, V.A.C.C.P., provides : “No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for bis surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such a writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding State.”

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Charles Norman ADAMS, Appellant, v. The STATE of Texas, Appellee. No. 45662. Court of Criminal Appeals of Texas. July 28, 1972. Ray Montgomery, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. The conviction was for robbery by assault with the punishment being assessed at 10 years. On August 27, 1971, the appellant Adams, who had been jointly indicted with Jody Lee Wharton, was granted a severance. On the same date, he entered a plea of guilty before the court after waiving trial by jury. He was duly admonished of the consequences of his plea before the plea was accepted by the court. The evidence was stipulated in accordance with Article 1.15, Vernon’s Ann.C.C. P. Included in the written stipulations, which were introduced into evidence, was a written sworn “judicial confession.” On the same date, after the entry of judgment, the appellant waived the time in which to file a motion for new trial or in arrest of judgment and was sentenced. No notice of appeal was given. Subsequently, he was permitted to give belated notice of appeal on October 8, 1971. See Article 44.08(e), Vernon’s Ann. C.C.P. Appellant’s appointed counsel, who also represented him at the trial, filed a brief in which he determined that the appeal was wholly frivolous. Aware of his duties under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the procedure recommended in Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), he urges one ground of error that might arguably support the appeal. He contends the trial court, at the hearing to determine if belated notice of appeal should be permitted, “ . . . should have allowed the Defendant to testify as to his reason or reasons for wanting a Motion for New Trial and his reasons for demanding that he be returned to the State of California. The record reflects that a copy of the brief was served upon the appellant, and that, subsequently, the record on appeal was made available to the appellant without time limitation for the purpose of filing a pro se brief. The appellant refused and stated he wanted to be furnished a copy of the record in lieu of examining the appellate record in the sheriff’s office. No pro se brief has been filed. It appears there was compliance with the procedure required by Anders and Gainous. Cf. Garcia v. State, 436 S.W.2d 139 (Tex.Cr.App.1969); Price v. State, 449 S.W.2d 73 (Tex.Cr.App.1969); Perry v. State, 447 S.W.2d 910 (Tex.Cr.App.1969). See, also, Wilson v. State, 445 S.W.2d 745 (Tex.Cr.App.1969, concurring opinion); Houston v. State, 446 S.W.2d 309 (Tex.Cr.App.1969, concurring opinion); Pitts v. State, 442 S.W.2d 389 (Tex.Cr.App.1969, concurring opinion); DeGay v. State, 455 S.W.2d 205 (Tex.Cr.App.1970). The judgment is affirmed. ROBERTS, J., not participating.

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Lawrence C. ALEXANDER, Appellant, v. The STATE of Texas, Appellee (three cases). Nos. 45075-45077. Court of Criminal Appeals of Texas. March 29, 1972. Rehearing Denied June 7, 1972. Kerry P. FitzGerald, Dallas, for appellant. Henry Wade, Dist. Atty., and W. T. Westmoreland, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. These are appeals from convictions for robbery by assault. Appellant entered pleas of guilty before a jury which assessed the punishment at 35 years’ confinement in each case. Appellant, in open court, agreed that all three causes should be tried together, and the appeals were perfected in all three cases. There was one brief filed in all three cases. Appellant’s first ground of error complains that, “The trial court committed reversible error in accepting appellant’s plea of guilty as said court did not properly and adequately admonish appellant as to the consequences of his plea of guilty in each case.” The record reflects that each indictment was read separately to the appellant and after each indictment was read he entered his plea of guilty before the next indictment was read. After all three indictments had been read and plead to, the court admonished the appellant as to the meaning and effect of his pleas. It is apparent, from the record, that the appellant understood the admonishment and that the admonishment fully complied with Article 26.13, Vernon’s Ann.C.C.P. Appellant is apparently complaining because there was only one admonishment and the court did not admonish appellant separately after each indictment was read. The language used by the court in the admonishment fully informed the appellant that it applied to each of the cases in which he had entered a plea of guilty. Appellant’s second ground of error complains that the court committed reversible error in that the court incorrectly advised appellant that the jury could recommend probation in each case. Appellant is aware of the fact that this Court, in Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1968), stated as follows: “We do not agree that it was necessary for the court to inform appellant as to the jury’s authority to recommend probation when admonishing him — the consequences of his plea.” See also, Gonzales v. State, 456 S.W.2d 137 (Tex.Cr.App.1970). However, it is appellant’s contention that the court incorrectly admonished appellant because the jury could not give probation in each of said cases. Article 42.12, Sec. 3a, V.A.C.C.P., provides : “Where there is a conviction in any court of this State and the punishment assessed by the jury shall not exceed ten years, the jury may recommend probation upon written sworn motion made therefor by the defendant, filed before the trial begins. . . . In no case shall probation be recommended by the jury except when the sworn motion and proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this or any other State. ... In all eligible cases, probation shall be granted by the court if the jury recommends it in their verdict.” Appellant contends that under this statute “the jury was foreclosed as a matter of law from returning more than one probated sentence in the three robbery cases.” The issue of probation was submitted to the jury in each case and a verdict of 35 years was returned in each case. Therefore, the question is moot as to whether or not the jury could or would have granted probation. Appellant’s third ground of error complains that error was made in the final argument by the prosecutor to the jury in that the prosecutor made a direct comment on how long appellant would be required to serve any sentence of confinement in the Texas Department of Corrections. The complained of argument was as follows: “You will give three separate punishments for the offenses, but they will all run together, at the same time, they won’t be stacked one on top of the other, so think about that, they will all run together, at the same time.” There was no objection by appellant to this argument and nothing is presented for review by this Court. Van Bibber v. State, 371 S.W.2d 880 (Tex.Cr.App.1963). Further, the sentences were not cumulated. There being no reversible error, the judgments are affirmed.

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Patricia Ann JACKSON, Appellant, v. The STATE of Texas, Appellee. No. 45102. Court of Criminal Appeals of Texas. July 12, 1972. Percy Foreman, Houston (on appeal only), Dick DeGuerin, Houston (on appeal only), for appellant. Robert O. Smith, Dist. Atty., and Michael J. McCormick, Asst. Dist. Atty., Austin, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction of murder. The jury assessed the punishment at twelve years. The sufficiency of the evidence is challenged. Harvey L. Merida and Edward Lee Warren were the key witnesses for the State. Merida testified that on May 2, 1970, he went to bed at Warren’s house around midnight after Warren had left. Sometime between 5:00 and 6:00 a.m., Irving Wayne “Bird” Fowler, the deceased, the appellant and another woman arrived. Merida got up and had a few drinks with them before the second woman left. Because the appellant was “sarcastic” with the deceased, Merida went back to bed leaving the two alone. Merida also testified that the next thing he recalled was the appellant shaking him and saying, “Wake up; I just shot Bird.” Merida went into the other room and found Fowler slumped on the sofa with a gun in his hand. The appellant was crying, and Merida removed the gun from Fowler’s hand and put it somewhere in his bed. Merida placed Fowler in the front seat of his car and appellant got in the back. While Merida drove Fowler to the hospital, the appellant “was crying and she was talking about losing her kids for what had happened.” Merida testified that appellant also said, “I am sorry,” and, “I loved him, but he kept shooting me over the edge.” Merida explained this latter phrase as slang for hurting someone and that it also meant or showed jealousy. After taking Fowler to the hospital Mer-ida took the appellant with him to get Warren. While returning with the appellant and Warren to the hospital Merida testified that Warren asked the appellant, “Why did you shoot Bird?” The appellant replied, “He kept shooting me over the edge.” Fowler died in the hospital from what the testifying pathologist stated was bleeding as a result of a gunshot wound. Around 4:30 p.m. on May 3, Merida called Sergeant Kelton at the Austin Police Department and told him he was bringing him something. Merida then got the pistol and shells and took them to the officer. On cross-examination Merida testified that the appellant had always maintained the shooting was an accident. Edward Lee Warren, whose nickname was “Lee Baby,” testified that on May 3, 1970, Merida came to get him at a friend’s house around 9:00 a.m. and told him the appellant had shot “Bird.” On the way to the hospital the appellant said she shot him “because he kept shooting her over the edge.” Warren also testified that she said something about losing her little girl. He did not recall her saying anything about an accident until after the date of the shooting when the appellant called him and said it was an accident. On cross-examination Warren stated that the appellant might have told him it was an accident on the way to the hospital. Warren also testified that appellant carried a gun with her. Prior to May 3, she had pulled the gun and pointed it at him and possibly at Fowler. He had heard appellant and Fowler when they were having arguments. In her third ground of error, appellant contends the trial court erred in excluding evidence of the bias and prejudice of Warren. The trial court refused to allow appellant to cross-examine Warren regarding his activity in distributing certain handbills and about animus, bias or interest. A copy of a hand printed handbill which had been reproduced was introduced before the court for the appellant’s bill of exception. It reads as follows: The “BLACK” Trial JUSTICE IN AUSTIN Pat Ann Jackson (Accused Murderess of ERVIN WAYNE FOWLER) “BIRD”. COME AND SEE JUSTICE IN YOUR VERY OWN CITY. “MONDAY” May 24 — 9:30 “COUNTY COURTHOUSE” On cross-examination of Warren the following occurred: “Q. Since the shooting, is it not true that you have been attempting to gain or get witnesses in this case so as to convict Mrs. Jackson? “A. No. “Q. It is not. Have you been passing out — ” Objection was made and the jury retired. Then the following took place: “Q. Mr. Warren, isn’t it true that you have been passing out in East Austin handbills concerning this trial? “A. Yes, I passed out a few. “Q. And you have been attempting, have you not, to have people come up here and hear the case — have you not? “A. Right. “Q. Alleging, in effect, that this case will not be tried in accordance with justice? “A. I don’t think so. “Q. You don’t think so ? “A. No. “Q. Why? “A. Because I don’t believe there is any justice in Austin.” The appellant’s attorney offered the handbill into evidence. An objection by the State was sustained. The jury was returned and appellant’s counsel asked Warren if he had been “going out attempting to obtain witnesses against Mrs. Jackson, attempting to find them and attempting to get people to testify against her.” Again Warren denied having done this. He was asked: “Have you been going out and talking about this case to various people, attempting to have them come up here into the courtroom?” and he answered, “Yes.” On redirect examination Warren testified as follows: “Q. All right. Mr. Warren, Mr. Ma-loney (counsel for the defense) has intimated you wanted to get the Defendant convicted; is that correct? “A. Yes. “Q. Would you come up here and testify and lie to this jury in order to get her convicted ? “A. No, I wouldn’t. “Q. Are you here to tell the truth and nothing but the truth ? “A. I will definitely do that.” On recross-examination Warren was asked: “You have been going all over town, have you not, telling people that you wanted to see Mrs. Jackson convicted, and you would do anything in your power to see that it was done?” He answered, “No.” Later, for the purpose of the bill of exception, Mrs. Carrie Denman testified that she had seen Warren passing out the handbill. In Ogburn v. State, 101 Tex.Cr.R. 180, 274 S.W. 638, Judge Berry wrote for the Court: “It is well settled that motive or animus that actuates a witness at the time of his testimony is never regarded as immaterial or collateral matter, and the adverse party has the right to prove any motive or declaration of a witness which will tend to show his bias, interest or prejudice, or any other mental condition of the witness which in any manner tends to affect his credibility.” The Court stated the same rule in Curry v. State, 72 Tex.Cr.R. 463, 162 S.W. 851, 857, and wrote: “Great latitude is allowed in asking questions on cross-examination. A witness may be asked any question, the answer to which may have a tendency to affect his credibility. And if he denies anything that would show a motive for, or animus to, testify against a party, it may be shown by other witnesses and by independent facts.” Wide latitude is allowed in cross-examination when its purpose is to bring out facts which will give to the jury the attitude, motive and interest which may be affecting the testimony of a witness. Blake v. State, Tex.Cr.App., 365 S.W.2d 795. See 1 Branch’s Ann.P.C.2d, Section 185, pages 192-195, and the many cases there cited. In the present case Warren admitted while testifying a desire to see the appellant convicted. He further admitted talking to various people about the case and attempting to get them to come to the courtroom. The State contends that since the witness made it clear that he was interested in seeing the appellant convicted, the appellant could not ask for more. This Court has held, however, that when a witness admits bias and prejudice proof of particular acts tending to show this bias and prejudice is admissible to show its extent. Smith v. State, 106 Tex.Cr.R. 202, 291 S.W. 544. See also Powitzky v. State, 134 Tex.Cr.R. 613, 117 S.W.2d 72. The handbill in question does not on its face necessarily indicate any prejudice toward the appellant. The bias and prejudice from the handbill and Warren’s testimony outside the jury’s presence was toward the system of justice in Austin. What is significant, however, is not toward whom the bias and prejudice is directed but whether the bias and prejudice is such as would tend to affect the witness’ credibility, Ogburn v. State, supra, where the witness testifies to facts hurtful to the defendant, Molloy v. State, 111 Tex.Cr.R. 493, 14 S.W.2d 1032. It is appellant’s theory that since she is white and both the deceased and Warren are black the root of the bias and prejudice is in this racial factor. The theory is, and Warren testified, that he did not believe there was any justice in Austin because no white person could be convicted for killing a black. Appellant contends that showing Warren to have distributed the handbills would have demonstrated this bias and prejudice to the jurors and would have been relevant on the issue of his credibility. The question before this Court is whether cross-examination of Warren regarding his distribution of the handbills would have been relevant and material on the issue of his credibility in this case. The test of such relevancy is: “. . . Evidence to show bias or interest of a witness in a cause covers a wide range and the field of external circumstances from which probable bias or interest may be inferred is infinite. The rule encompasses all facts and circumstances which, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only. . . .” Aetna Insurance Company v. Paddock, 301 F.2d 807, 812 (5th Cir. 1962). It is impossible for this Court to ascertain what effect knowledge of the contents of the handbills and that Warren distributed them would have had upon his credibility in the minds of the jurors. It is clear, however, that such excluded evidence tended to show a bias and prejudice toward the system of justice in Austin with reference to this particular case. Despite Warren’s testimony that he would not tell anything but the truth, it is a reasonable conclusion from human experience that bias and prejudice could have affected his testimony, especially pertaining to his remembrance (or lack of it) of appellant’s explanation of the shooting as accidental. A prior written statement of the witness reflected that the appellant had stated the shooting was an accident. He had to be reminded of this on cross-examination. The excluded evidence is particularly crucial since appellant’s main defense was accident. We hold that the trial court should have allowed the appellant to cross-examine Warren regarding the distribution of copies of the handbill, including his reasons for doing so. Also the court should have allowed introduction of the handbill into evidence before the jury for the purpose of showing bias and prejudice which may have affected the credibility of Warren’s testimony. In view of our disposition of this case, the other complaints will not be discussed. For the above reason, the judgment is reversed and the cause is remanded. . Clark v. State, 67 Tex.Cr.R. 38, 148 S.W. 801, is sometimes cited to the contrary. In Clark, however, the trial court’s denial of continued cross-examination on the witness’ bias and prejudice was upheld because it required “going over the same matter time and again” and, also, because the bills of exception were “imperfect and not in such condition as really to be reviewed.”

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Jackie Wayne WHITLEY, Appellant, v. The STATE of Texas, Appellee. No. 45658. Court of Criminal Appeals of Texas. July 28, 1972. J. Charles Whitfield, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. The conviction was for passing as true a forged instrument. The punishment was assessed at 5 years. On September 7, 1971, the appellant waived trial by jury and entered a plea of guilty before the court. After the entry of the judgment on the same date, the appellant waived the time in which to file a motion for new trial or in arrest of judgment and was sentenced. Notice of appeal was given. The appeal bond was set at $500.00 and was duly executed. The appellant is free on bail. There is no transcription of the court reporter’s notes in the record before us, and there are no bills of exception. The appellant’s retained counsel filed a brief in the trial court which candidly states that the appeal was taken at the insistence of the appellant “for the purpose of obtaining time to handle personal affairs.” No grounds of error are set forth as required by Article 40.09 § 9, Vernon’s Ann. C.C.P. Nothing is presented for review. While the candor of appellant’s counsel is appreciated, the bench and the bar should discourage appeals which are taken for the sake of delay alone. Our criminal appellate system is already overburdened without the necessity of taking time to dispose of appeals for delay only. The judgment is affirmed. ROBERTS, J., not participating.

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Robert Vincent SHIPP, Appellant, v. The STATE of Texas, Appellee. No. 45199. Court of Criminal Appeals of Texas. July 26, 1972. John K. Coil, Dallas, for appellant. Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is attempted burglary; the punishment, three (3) years. Appellant’s first ground of error challenges the sufficiency of the evidence. The record reflects that Dallas police officers, responding to a silent burglar alarm, apprehended the appellant, in an alley behind a business owned by Elmer Sitton, wearing gloves and in possession of a pry bar. There were fresh pry marks on the door and a portion of one of the bolts on the door had been forced off. In res ges-tae statements to the officers and by his testimony at trial, the appellant stated that he intended to burglarize the establishment next door, since he knew it was not equipped with an alarm. The appellant contends that since the record reflects he intended to break into the establishment next door, the evidence does not support the jury finding that he intended to steal from Sitton. However, the appellant admitted he intended to break into the building where he was apprehended, thinking it was the one next door. The fact that he mistakenly attempted to enter the wrong building makes him no less culpable. The evidence is amply sufficient to support the verdict. Ground of error number one is overruled. Ground of error number two contends that appellant was denied the right to cross-examine a witness who testified against him. He claims that the prosecutor, in his argument, made two statements in the nature of testimony. We have examined the argument in question and find that, in the first instance, the appellant did not pursue his objections until he received an adverse ruling which is required in order to preserve his point for review. Burks v. State, Tex.Cr.App., 432 S.W.2d 925. In the second instance, the District Attorney stated: “DISTRICT ATTORNEY: . . . now, in listening to his argument about the only thing I am struck by is that he is not satisfied with the State’s case. I don’t think it very unusual. Defense lawyers are paid not to be. It is my experience that the more important the State’s case is that we bring— “APPELLANT’S ATTORNEY: Object to the State’s attorney testifying to 'the jury unless it is coming from the stand. “THE COURT: Overruled. “DISTRICT ATTORNEY: It has been my experience that the stronger the State’s case is we bring you, the more desperate and more ridiculous the defenses are. . . ” The appellant’s objection was properly overruled. The prosecutor’s remark represented permissible adversary comment. Appellant’s ground of error number two is overruled. Ground of error number three relates to the court’s charge. The appellant’s objection to the charge requested the court to omit the portion of the charge relating to transferred intent. We find nothing in the charge relating to “transferred intent” and nothing is presented for review. Ground of error number three is overruled. The judgment is affirmed. ROBERTS, J., not participating.

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Dan Cornell ROSEMOND, Appellant, v. The STATE of Texas, Appellee. No. 43910. Court of Criminal Appeals of Texas. July 28, 1972. See also Tex.Cr.App., 464 S.W.2d 156. Charles W. Yuill, Jr., Dallas, for appellant. Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION MORRISON, Judge. This is an appeal from an order revoking probation. Appellant was convicted of felony theft on March IS, 1968; his punishment was assessed at ten (10) years and he was placed on probation. Among the conditions of probation were that he: “(a) Commit no offenses against the laws of this or any other State or of the United States . . .” “(d) . . .” “(j) • • •” "(k) • • •” On April 16, 1970, the State filed a motion to revoke appellant’s probation alleging he violated the following probationary conditions: “. . . Commit no offenses against the laws of this or any other State or of the United States . . . (D) . . (j) . . . (k) . . . .” The State in its brief concedes that the evidence is insufficient to support the revocation under paragraphs (d), (j) and (k). We must, therefore, determine if the evidence is sufficient to support the order of revocation under paragraph (a). The State offered no proof in support of (a). Appellant testifying in his own behalf admitted on cross-examination that he had been convicted of a misdemeanor offense of carrying a prohibited weapon on March 2, 1970 and that he was arrested for such offense which had occurred during the term of his probation on February 20, 1970. Appellant’s admissions are sufficient to sustain the revocation of appellant’s probation. Sasueda v. State, Tex.Cr.App., 476 S.W.2d 289. Accordingly, the judgment is affirmed. ROBERTS, J., not participating.

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John Edgar MALVEAUX, Appellant, v. The STATE of Texas, Appellee. No. 45605. Court of Criminal Appeals of Texas. July 12, 1972. William Dale Gillam, Victoria, for appellant. Carl S. Vance, Dist. Atty., James C. Brough and Rick Stover, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This is an appeal from an order revoking probation. Appellant entered a plea of guilty before the court on October 14, 1969, and was adjudged guilty of the offense of robbery by assault, with punishment assessed at ten years imprisonment. Imposition of sentence was suspended and appellant was placed on probation. On September 24, 1971, a hearing was conducted on the State’s amended motion to revoke appellant’s probation which alleged that the appellant had violated the condition of his probation that he “commit no offense against the laws of this or any other state or the United States” in that appellant “on or about the 8th day of June, 1971, did commit the offense of Carrying a Pistol . . . ” The court, having found that appellant had violated the terms of his probation, entered an order revoking appellant’s probation and pronounced sentence. On June 7, 1971, Officer J. L. Hobson, Houston Police Department, went to the Southern Pacific Railroad Building at the intersection of Franklin and Travis Streets in Houston in response to a police radio dispatch “in regards to an intoxicated male down on the steps.” Hobson said that upon arriving at the scene he observed appellant on the steps of the building, apparently asleep. “There was an empty bottle of wine sitting beside him and he had regurgitated all over himself and on his clothes and he was passed out. He smelled of alcohol — a strong odor of alcohol.” Officer Hobson testified that his initial attempts at awakening the appellant were unsuccessful. After Hobson “bodily picked [appellant] up . . ” to put him in the police vehicle, appellant “finally got on his feet . . . [and] kind of opened his eyes and half walked along.” The officer testified that the appellant, who was having trouble walking, appeared to be intoxicated. As the officer tried to put appellant in the car the appellant “slumped over in the seat * * * halfway in the car and about half out.” Officer Hobson testified that when the appellant was “slumped over the butt of a pistol was sticking out of his back pocket.” Under the circumstances shown, the officer had good reason to believe and did believe that appellant was intoxicated in a public place. He had the right and the duty to arrest the appellant. Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200 (1951); King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501 (1958); Henderson v. State, 422 S.W.2d 175 (Tex.Cr.App.1967) and Gorrell v. State, 468 S.W.2d 95 (Tex.Cr.App.1971). While performing his duties, Officer Hobson observed the pistol protruding from appellant’s pocket. The carrying of the pistol by the appellant was a violation of Article 483, Vernon’s Ann.P.C., and consequently a violation of the conditions of probation. The appellant’s contention that probation should not be revoked without a jury trial is without merit; Article 42.12 § 8, Vernon’s Ann.C.C.P.; Hood v. State, 458 S.W.2d 662 (Tex.Cr.App.1970); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); Shelby v. State, 434 S.W.2d 871 (Tex.Cr.App.1968); Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774 (1951), as is his contention that probation should not be revoked until he was finally convicted of the offense of unlawfully carrying a pistol. Carr v. State, 476 S.W.2d 329 (Tex.Cr.App.1972); Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972); Farmer v. State, 475 S.W.2d 753 (Tex.Cr.App.1972); Hall v. State, 452 S.W.2d 490 (Tex.Cr.App.1970). We have examined each of appellant’s other contentions, including the alleged unreasonable search and seizure and find them without merit. No abuse of discretion in the revocation of appellant’s probation has been shown. The judgment is affirmed. Opinion approved by the Court.

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Michael Ordell OLIVER, Appellant, v. The STATE of Texas, Appellee. No. 45578. Court of Criminal Appeals of Texas. July 12, 1972. Guy H. McNeely, Wichita Falls (by Court appointment), for appellant. Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This is an appeal from an order revoking probation. The appellant entered a plea of guilty before the court on November 17, 1970, and was adjudged guilty of the offense of felony theft with punishment assessed at five years imprisonment. Imposition of sentence was suspended and the appellant was placed on probation. On July 22, 1971, a hearing was conducted on the State’s motion to revoke probation, which alleged that the appellant had violated the condition of his probation that he “commit no offense against the laws of this state . . . ” in that the appellant “committed the offense of assault with intent to kill on the 19th day of February, 1971, in Wichita Falls, Wichita County, Texas.” The court found that the appellant had violated the terms of probation and entered an order revoking his probation and pronounced sentence on August 27, 1971. The appellant’s contention is that there was an abuse of discretion in revoking probation before there was a final conviction for the offense which is the basis of the revocation. The law is well established contrary to the contention of the appellant. Malveaux v. State, 482 S.W.2d 872 (Tex.Cr.App.1972); Carr v. State, 476 S.W.2d 329 (Tex.Cr.App.1972); Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972); Farmer v. State, 475 S.W.2d 753 (Tex.Cr.App.1972); Mason v. State, 473 S.W.2d 15 (Tex.Cr.App.1971), and Hall v. State, 452 S.W.2d 490 (Tex.Cr.App.1970). The evidence shows that the appellant attacked Benito Rangel with “a board about one inch thick, four inches wide and about three feet long.” Rangel was hospitalized for about one month for treatment of head injuries received as a result of the attack. We find no abuse of discretion in the revocation of probation. The judgment is affirmed. Opinion approved by the Court.

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William S. CARTER, Jr., Appellant, v. The STATE of Texas, Appellee. No. 45510. Court of Criminal Appeals of Texas. July 26, 1972. O. M. Calhoun, Amarillo, for appellant. Tom Curtis, Dist. Atty., and F. G. Shackelford, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This is an appeal from an order revoking probation. The appellant was convicted on a plea of guilty for passing a forged instrument; punishment was assessed by the court at four years imprisonment. On September 14, 1970, imposition of sentence was suspended and appellant was placed on probation. Among the conditions of appellant’s probation were the provisions that he “Report to E. L. Booch, Potter County, Texas, who is hereby designated Probation Officer, as such officer may direct, but at least once each thirty days;” and “Remain within the confines of Potter, Randall and Armstrong Counties of the State of Texas during the term of his probation except by written permission of this court, to be filed with the clerk of this court.” On August 27, 1971, the State filed an amended motion to revoke probation, wherein it was alleged that: “(a) The defendant . . . subsequent to the above mentioned conviction and since October 5, 1970 has not reported to . . . his probation officer, absconded from supervision and was a fugitive. “(b) The defendant . . . subsequent to the above mentioned conviction, was apprehended in Green Bay, Wisconsin, without written permission to travel there. “(c) Further, the defendant . . . subsequent to the above mentioned conviction, has failed to make restitution.” A hearing was conducted on the State’s amended motion to revoke probation on September 9, 1971. The court found that the appellant “failed to comply with the conditions of his probation, as set forth in the [State’s motion].” An order was entered revoking probation and imposing sentence. Appellant urges that the trial court abused its discretion in revoking appellant’s probation because “The evidence introduced by the State . . . was insufficient to support the revocation of appellant’s probation.” On October 5, 1970, appellant was granted a travel permit whereby he was allowed to leave Amarillo and go to Lubbock, Waco, Beaumont and Baton Rouge, Louisiana, “as long as he was working with the Bill Haimes circus or shows.” The permit expired November 9, 1970. Appellant was informed that he would be allowed to continue to travel as long as he was working with those shows provided he either reported to the probation office in Amarillo in person the ninth of November, or requested and received an extension of his travel permit upon its expiration. Appellant neither made an appearance before the probation officer nor corresponded with him. Glenn Fauske, Assistant Adult Probation Officer for Potter County, testified that his office had no contact with appellant until “just a few days” prior to the hearing on the motion to revoke probation, at which time Fauske traveled to Green Bay, Wisconsin, to take custody of appellant under a fugitive warrant issued March 31, 1971. Fauske stated that he had attempted to reach appellant with the Bill Haimes Show after the expiration of appellant’s travel permit but that the show had gone to its winter quarters and appellant was not working with them at that time. Appellant testified that he did not understand that he could only go to the towns specifically named on his travel permit, but that he believed that the permit gave him permission to travel “as long as [he] was with the show.” On cross-examination appellant testified that he did not have authorization to go to Green Bay, Wisconsin, and that he was not working with the “Bill Haimes Show” at the time he went there. He stated that he had not written his probation officer, but that he “would start [a written report to his probation officer] . would word it wrong and end up throwing it away,” and that he never attempted to call the probation office. Appellant contends that “condition number 4 ... is ambiguous and . . . that it is an abuse of discretion to revoke probation if there is an absence of evidence as to when the probationer was directed to report to the probation officer.” Appellant urges that De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971), “is an exact case in point.” In De Leon, one of the conditions of probation was that the probationer “(d) Report to the Probation Officer as directed.” This court said: “The condition as set forth in the judgment by the court which was shown to have been served upon the appellant does not indicate when or how frequently the appellant was to report to the probation officer. While the motion to revoke probation alleged that the appellant had failed to report to ‘probation office as directed, and at least once per month/ there was no evidence offered that the court had so directed or made such requirement a part of the probationary conditions.” (emphasis supplied.) De Leon, then, is distinguishable from the cause before us. Condition number 4, as set out above, expressly directed that appellant, “Report to E. L. Booch, Potter County, Texas, who is hereby designated Probation Officer, as such officer may direct, but at least once each thirty days.” See Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969). The appellant reported to probation officers on three occasions prior to leaving Amarillo and his testimony reflects an awareness that he was to communicate with and make periodical reports to his probation officer. The failure to do so was a violation of the conditions of probation. Cox v. State, supra, and compare, Cotton v. State, 472 S.W.2d 526 (Tex.Cr.App.1971); De Leon v. State, supra. Appellant testified that on eight separate occasions he attempted to return to Amarillo to contact the probation officer but stated that in each instance officers of the Amarillo Police Department “run me out” of town. Appellant urges that reversal is required because this testimony was “undisputed.” The court, as the trier of facts, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of a witness’s testimony. Aldridge v. State, 482 S.W.2d 171 (1972); Nalls v. State, 476 S.W.2d 297 (Tex.Cr.App.1972); Aguilar v. State, 471 S.W.2d 58 (Tex.Cr.App.1971); Maddox v. State, 466 S.W.2d 755 (Tex.Cr.App.1971); Ellis v. State, 456 S.W.2d 398 (Tex.Cr.App.1970). This contention is overruled. Finding no abuse of discretion in the revocation of appellant’s probation, the judgment is affirmed. Opinion approved by the court. ROBERTS, J., not participating. . The record reflects that at the time of the hearing the State abandoned its allegation (c), that appellant “failed to make restitution.” . Appellant testified that he was arrested in Green Bay, Wisconsin, in a stolen automobile. He stated that he had not been charged with a violation of any law in Wisconsin “because [he] turned State’s evidence.”

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Ben Elick CANNADY, Appellant, v. The STATE of Texas, Appellee. No. 45188. Court of Criminal Appeals of Texas. July 19, 1972. Bill Pemberton, Greenville (Court Appointed), Larry Green, Greenville (Court Appointed), for appellant. Larry Miller, Dist. Atty., Greenville, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This appeal arises out of a conviction for robbery by firearms where the punishment was assessed at 20 years. In his sole ground of error, appellant “contends that the trial Court erred in admitting evidence that a lineup was conducted wherein Appellant was identified by the victim for the reason that Appellant was placed in same lineup with another subject (Joe Ben Cannady, . . . ) involved in the same alleged offense wherein victim identified both Appellant and Joe Ben Can-nady and in doing so, the lineup was so suggestive as to render it illegal.” Appellant cites no aiifhority and confesses he has been unable to find any precedent. He does not attack the lineup identification on any other basis; but urges that “[t]wo suspects and one witness is more than the one-to-one confrontation and constitutes prejudicial suggestion. The record reflects that before permitting the complaining witness, Pauline Taylor, to make an in-court identification, the jury was removed and the court conducted a separate hearing to determine its admissibility. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). At such hearing, it was established that the witness Taylor, who had been robbed at approximately 1 p. m. on February 19, 1970, viewed a lineup in the Hunt County Courthouse about 9:30 p. m. on the same date. The lineup consisted of eight white males of the same approximate size but of varying ages. Both the appellant and Joe Ben Cannady were in such lineup and were identified by the witness Taylor, who testified that her view of both men during the course of the robbery was better than at the lineup. At the conclusion of the hearing, the trial judge found “that the lineup was legally conducted and there was an intelligent waiver of the right to counsel of the defendant.” It is obvious that the in-court identification was not tainted by the lineup identification. After such hearing, the witness Taylor, in the jury’s presence, made an in-court identification of the appellant as the oldest of the two men who robbed her. At no time was evidence of the lineup identification offered in the jury’s presence to bolster such in-court identification. Under the circumstances, we fail to see how there could possibly be any merit to appellant’s contention. The judgment is affirmed.

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Ex parte Ivory Winston NAGGLES. No. 45627. Court of Criminal Appeals of Texas. July 12, 1972. James Sparks, Jr., Beaumont, for appellant. Tom Hanna, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from an order entered in a habeas corpus proceeding in the Criminal District Court of Jefferson County remanding appellant to custody for extradition to the State of California for violation of parole after convictions for burglary, receiving stolen property and possession of marihuana. At the habeas corpus hearing on January 10, 1972, the State offered into evidence the Executive Warrant of the Governor of Texas, regular on its face, and, in addition, all of the supporting papers. The appellant offered no evidence. It is well settled that the introduction of the Governor’s warrant, regular on its face, makes out a prima facie case for extradition. And, nothing in the supporting papers tended to defeat such prima fa-cie case, but in fact supported the same. In his sole contention, appellant claims that there was a failure to comply with Article 51.13, § 3, Vernon’s Ann.C.C.P., which provides, in part, “. . . that all such copies of the aforesaid instruments shall be in duplicate, one complete set of such instruments (supporting papers) to be delivered to the defendant or to his attorney.” He advances the claim that he was denied a copy of the supporting papers. This is not supported by the record. When the State offered the Executive Warrant and original supporting papers into evidence, the prosecutor tendered to appellant’s appointed counsel a xerox copy of such instruments. The prosecutor also noted that the copy had been on file in the District Clerk’s office for several weeks and available to the appellant and his counsel. The prosecutor also observed that appellant’s counsel had made a written notion or request for such instruments which were filed among the papers of the cause several weeks earlier, but noted that the motion had never been called to the trial judge’s attention nor acted upon by him. After receiving a copy of the supporting papers, the appellant made no motion for continuance nor requested additional time in which to study such instruments before proceeding with the hearing. The right of the accused to a copy of such instruments is a valuable right conferred by statute. Ex parte Tucker, 168 Tex.Cr.R. 286, 324 S.W.2d 853 (1959); Ex parte Moore, 158 Tex.Cr.R. 407, 256 S.W.2d 103 (1953), held, however, that the provision of the statute involved is directory and becomes mandatory only when a request is made for such supporting papers. In Ex parte Dodson, 387 S.W.2d 406 (Tex.Cr.App.1965), this court said that absent a request therefor, “failure to furnish appellant with copies would not be error where no request is shown.” If a request is made though, a failure to furnish the defendant with a duplicate copy of the papers supporting extradition is reversible error. See Ex parte Kronhaus, 410 S.W.2d 442 (Tex.Cr.App.1967), and cases there cited. It is true that the appellant made a timely pretrial written request for such instruments, but did not call the matter to the trial court’s attention. Subsequently, he announced ready for the hearing, and when he was furnished a copy of the instruments, he made no motion for continuance nor requested time in which to study the instruments. See Ex parte Wiggins, 435 S.W.2d 517 (Tex.Cr.App.1968). Appellant’s contention is without merit. No motion for rehearing will be filed by the clerk of this court except upon leave of the court for good cause shown. The judgment is affirmed.

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Charles David BUCKHOLTZ, Appellant, v. AUGUST, FRIMENT, GOREN & MURPHY, P. C., Appellee. No. 4554. Court of Civil Appeals of Texas, Eastland. June 23, 1972. Green, Gilmore, Crutcher, Rothpletz & Burke, David A. Newsom, Dallas, for appellant. Berman, Fichtner & Mitchell, Linda A. Whitley, Dallas, for appellee. McCLOUD, Chief Justice. This is a summary judgment case. August, Friment, Goren & Murphy, P. C., a professional corporation, sued Charles David Buckholtz on a Michigan divorce judgment which ordered Buckholtz to pay attorneys’ fees to August, Friment, Goren & Murphy. The trial court granted the professional corporation a summary judgment. Charles David Buckholtz has appealed. We affirm. Appellant, Charles David Buckholtz, contends that the trial court erred in failing to take judicial notice of his discharge in bankruptcy. Appellee’s summary judgment evidence consisted of written interrogatories and answers, an affidavit, and requests for admissions of facts and genuineness of documents, which were deemed admitted by order of the court. Appellant filed no response to the motion for summary judgment. Appellant, in his original answer, alleged that the debt had been discharged in bankruptcy and attached to his answer an exhibit which purports to be a copy of an order of discharge. Appellant’s pleadings cannot be regarded as summary judgment evidence. The Court in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960), stated the rule as follows: “Defendants argued in the Court of Civil Appeals that summary judgment for the plaintiff was improper because they had alleged conditional delivery. There is no merit in this contention. When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. See Gulf, Colorado & Santa Fe Railway Co. v. McBride, Tex., 322 S.W.2d 492. ... If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with ‘evidence’ sufficient to raise that question.” Appellant argues that at the summary judgment hearing he orally requested the trial court to take judicial notice of his discharge in bankruptcy. We do not think that such request alone would satisfy the rules regarding summary judgment proof. However, we do not reach that question because there is nothing in the record to show that such oral request was made by appellant. We have considered all of appellant’s points of error and all are overruled. The judgment of the trial court is affirmed.

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Elijah DAWSON, Jr., Appellant, v. RELIANCE INSURANCE COMPANY et al., Appellees. No. 4550. Court of Civil Appeals of Texas, Eastland. June 9, 1972. Rehearing Denied July 14, 1972. Bailey, Williams, Westfall & Henderson, David Westfall, Dallas, for appellant. John D. Griggs, Dallas, for appellees. WALTER, Justice. Elijah Dawson, Jr. recovered a judgment against Mrs. Z. Anita McMillan and Louie J. McMillan for $900 actual damages and against Louie J. McMillan for $2,000 exemplary damages. The McMillans were principals on a surety bond executed by the Standard Accident Insurance Company and Reliance Insurance Company is its successor in interest. Dawson filed suit against Reliance to recover on the bond and recovered a judgment for $900 and he has appealed from such judgment because the court refused to award him a judgment for the $2,000 exemplary damages he recovered against Louie. The parties agree that the question to be decided is whether the court erred in failing to award him exemplary damages under the bond. The parties stipulated that two real estate brokers or salesman’s license bonds with Louie J. McMillan and Mrs. Z. Anita McMillan as principals were in effect with the insurance company, and the company did not participate in any action that the McMillans had with Dawson. United States Fire Insurance Company v. McDaniel, 408 S.W.2d 134 (Tex.Civ.App.-Beaumont 1966, no writ hist.) passes upon the question involved in this case as follows : “We find no valid distinction between the coverage under the bond in the present case and the sequestration and attachment bonds, as to exemplary damages. We do not think the words ‘any judgment’ were intended to define the coverage under the Real Estate Broker’s bond, but were intended to designate the condition of liability. That is, that a judgment must first be obtained against the principal before the surety becomes liable. The words ‘for damages or injuries caused by violation of this act’ define the coverage. We find no more reason to hold a surety liable for exemplary damages under this bond than the sequestration and attachment bonds. We feel that we are compelled to follow the precedence set in those cases cited to us.” The appellant has presented no authority to support his point of error. His point is overruled. The judgment is affirmed.

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Walter ATCHLEY et al., Appellants, v. The SUPERIOR OIL COMPANY et al., Appellees. No. 7351. Court of Civil Appeals of Texas, Beaumont. May 25, 1972. Rehearing Denied June 29, 1972. Pat S. Holloway, Dallas, Crawford C. Martin, Atty. Gen., J. Milton Richardson, Asst. Atty. Gen., Austin, for appellants. E. E. Shouse, Frederic Johnson, Herbert Varner, Thomas H. Lee, Barrow, Bland & Rehmet, William S. Clarke, Houston, William E. Nicholas, Sinton, Guittard & Henderson, Richard Henderson, Victoria, Warren B. Leach, Jr., Houston, Clayton L. Orn, William H. Holloway, Vinson, Elkins, Searls & Smith, Murray Christian, Herbert W. Varner, R. T. Robberson, David T. Searls, Dave C. McNeill, Jr., Harry M. Reasoner, David T. Harvin, Houston, Morrill & Patton, Beeville, John H. Miller, Jr., John H. Flinn, Dist. Atty., Richard D. Hatch, County Atty., Burnett & Burnett, Sinton, Luther E. Jones, Jr., Corpus Christi, for appellees. KEITH, Justice. This is a vacancy case in which the trial court entered a summary judgment in favor of the defendants, finding that no vacancy existed. We review a tremendous record which takes up four drawers of a legal filing cabinet; and, it is obvious that while we must make a lengthy statement from the record, many facets thereof will escape mention. I. Statement of Case Walter C. Atchley, plaintiff below, instituted suit in the District Court of San Pa-tricio County under the provisions of § 6, Art. 5421c, Vernon’s Ann.Civ.St., following the rejection of his vacancy application by the Commissioner of the General Land Office. Plaintiff named as defendants hundreds of individuals, oil companies, and other corporations, alleging that the defendants claimed interests in the alleged vacancy or adjacent lands. Plaintiff, pursuant to statute, also named the State of Texas as a party defendant. The State intervened in the proceedings, aligned itself with the plaintiff, and sought recovery of the land described in plaintiff’s petition as well as hundreds of millions of dollars from the several oil companies for the oil and gas produced from the lands in dispute. The State’s plea in intervention was in the form of a trespass to try title action, named the same defendants sued in plaintiff’s original suit, and sought recovery of the land described in plaintiff’s pleadings. Later, during the course of the litigation, the State filed its first amended petition in intervention as a straight trespass to try title suit for the recovery from the defendants title and possession of the land involved in plaintiff’s original suit. This action was severed from Atchley’s original suit, docketed under another number, and is still pending. At issue between the parties is the true location upon the ground of the divisional line between the seven and a half league Portilla grant and the void five and a half league Power and Hewetson grant, both of which are located between the Aransas River on the north and the Chiltipin Creek on the south in what is now San Patricio County. The Power and Hewetson grant was adjudicated to be a void grant in a series of cases originating in Smith v. Power, 2 Tex. 57 (1847), which included: Commissioner of General Land Office v. Smith, 5 Tex. 471 (1849); Smith v. Power, 14 Tex. 146 (1855); Smith v. Power, 23 Tex. 30 (1859); Wood v. Welder, 42 Tex. 396 (1875); and Plummer v. Power, 29 Tex. 6 (1867). The location of the boundary line in question was also the subject of controversy in Welder v. Carroll, 29 Tex. 317 (1867), and in Welder v. Hunt, 34 Tex. 44 (1870). In bringing our discussion of this basic question into proper focus, a lengthy statement is necessary. To a large extent we take this statement from the brief of the defendants, after examining the record and being convinced of its correctness. The seven and one-half league Portilla grants comprise a single body of land between the Aransas River on the north and Chiltipin Creek on the south. They were titled to settlers in the Power and Hewet-son Colony by the State of Coahuila and Texas on October 23, 1834, in five separate grants. Each grant conveyed a separate and distinct parcel of the seven and one-half leagues. One of the grants for one league was to Felipe Roque Portilla; another for four leagues to four of Portilla’s sons; another for one-half of a league to two other sons of Portilla; another for one league to Miguel Musquiz, and another for one league to Antonio Gozeascochechea, the son of Maria Jacinta de la Garza. Each grant recites that a special plat of the seven and one-half leagues “shall be”, or as to one grant, “will be” attached to the title for “security of the interested party.” Each title also recites that the lands granted are contained within the survey which one of the appointed surveyors made on the Aransas River. Portilla and his sons, in the applications for their three grants, state that two years prior to their applications, which bear date of September 11, 1834, they introduced stock into the colony and settled and occupied a ranch on the Aransas. Each title recites that the lands included in the grant were adjudicated to the colonist named in the title; that he was put in possession; that he took possession “quietly and peaceably without any contradiction, and performing all of the acts of real and true possession; haying been informed that within one year he shall construct fixed boundaries and shall observe that part of the Colonization Law which pertains to them.” The original grants (protocols) were deposited in the General Land Office of the Republic of Texas on November 1, 1837, and had been of record for nearly 130 years when this vacancy action was brought. The plats, however, to which the grants refer are not in the General Land Office. Some seven days after the State of Coa-huila and Texas executed the five Portilla titles, it granted to the empresarios Power and Hewetson on October 30, 1834, a tract of land said to contain five and a half leagues. The lands granted to them called to be bounded on the west by lands of Don Felipe Roque Portilla, on the north by the Aransas River, on the south by Chiltipin Creek, and on the east by the confluence of the Aransas and Chiltipin. The five and a half leagues were described as being “an imperfect triangle,” as “shown by the special plat which is attached.” Recitals of the delivery of juridicial possession, similar to those found in the five grants to the seven and a half leagues, are also contained in the grant to the em-presarios. The five and a half leagues granted to the empresarios were some of the lands they had selected under a purchase they made on December 24, 1829, from the Mexican Government of two concessions of eleven leagues each. Their application dated September 23, 1834, states that they acquired by purchase two concessions of eleven leagues each; that they had taken only seven and a half leagues, and asks that ten leagues more “be surveyed and adjudicated” to them between the Chiltipin and Aransas Creeks. Vidaurri, the Commissioner for the Power and Hewetson Colony, approved their application for the lands requested “provided they are entirely vacant.” In subsequent litigation involving the validity of grants made to the empresarios of lands under the two eleven-league concessions, the Supreme Court of Texas held that all grants under the two eleven-league concessions to the empresarios of lands situated within ten littoral leagues of the coast, which were made by the State of Coahuila and Texas without the approval of the General (Federal) Government of Mexico, were invalid. Smith v. Power, supra (2 Tex. 57); Smith v. Power, supra (14 Tex. 146); Smith v. Power, supra (23 Tex. 30); Plummer v. Power, supra (29 Tex. 6). Still later, in a trespass to try title action brought by John H. Wood, who had made entries and locations of land certificates on parts of the five and a half leagues titled to the empresarios and conveyed by them to John Welder, the Supreme Court in Wood v. Welder, supra (42 Tex. 396), refused to reopen the question of the validity of the two eleven-league concessions to the empresarios, thus holding that the grant of the five and a half leagues to Power and Hewetson was invalid. As a result of these decisions the State of Texas gained the title to the five and a half leagues which were bounded on the west by lands of Don Felipe Roque Portilla according to the calls in the Mexican grant to the empresarios. The location of the common line between the lands titled to Portilla and the five and a half leagues titled to the empresarios and recovered by the State was in litigation from September 24, 1853, when Wilkins Hunt brought an action in trespass to try title against John Welder, until January 11, 1872, when a final judgment was entered in favor of John Welder on a jury verdict. Hunt, the assignee of Johnston Roselle to whom the State had issued a land certificate, made an entry and location on two tracts of 320 acres each. The two tracts were surveyed by the Deputy Surveyor of the San Patricio Land District on June 25, 1853, and field notes returned to the General Land Office, but the State never patented the lands. Hunt contended in his trespass to try title suit that his entry and location and the field notes returned to the General Land Office covered lands in the five and a half leagues which had been invalidly granted to the empresarios; whereas, Welder contended they covered lands in the seven and a half league Portilla grants which he owned. Thus, the controlling issue in the case was the location of the division line between the five and a half and seven and a half league grants. On the first trial a jury verdict was returned adverse to Welder, who took an appeal to the Supreme Court from a judgment rendered against him. The judgment was reversed and the cause remanded on March 6, 1867. On the second trial a jury verdict was again returned adverse to'Welder, but only after the jury had failed to agree and the parties accepted less than a unanimous verdict. From a judgment entered against Welder, he took his second appeal to the Supreme Court, where the judgment of the District Court was again reversed and the case remanded for a third trial. Welder v. Hunt, supra (34 Tex. 44). In the third trial a jury verdict was returned for Welder, and a take nothing judgment entered against the plaintiff Wilkins Hunt on January 11, 1872, from which no appeal was taken. The two 320-acre tracts Hunt sued to recover had not been patented to him when he sued Welder nor were such tracts ever patented to him. Instead, he brought and maintained his suit under the Act of February 5, 1841, 2 Gammel’s Laws, § 23, 627 at p. 634 (1898), reading as follows: “Sec. 23. Be it further enacted, That all certificates for headrights, land scrip, bounty warrant, or any other evidence of right to land recognized by the laws of this government, which have been located or surveyed, shall be deemed and held as sufficient title to authorize the maintenance of actions or ejectment, trespass, or any other legal remedy given by law; all laws to the contrary notwithstanding.” The substance of this early statute now appears as Art. 7375, V.A.C.S. During the course of the third trial, Welder offered in evidence “Map B” mentioned in the opinion of the Supreme Court in Welder v. Hunt (34 Tex. at p. 47), again contending that the line XY thereon was the eastern boundary of the Portilla grants. This is the identical line which defendants now assert to be the true boundary line on the ground. The map which we find in our record, proved to be a true copy of the one actually introduced in evidence upon the third trial of Hunt v. Welder, located the two tracts claimed by Hunt in the litigation west of the XY line of Map B. The charge of the trial court, also in our record, may be summarized in the following manner. The jury was told that the question for their determination was the “location of the eastern boundary of a grant by the Mexican Government to Felipe Roque Por-tilla in 1834.” They were charged that Hunt had shown valid locations and surveys for 640 acres of land claimed in his petition, and was entitled to a verdict, unless Welder had shown a superior title. They were told that for them to render a verdict against Hunt they must be satisfied that the 640 acres sued for were within the boundaries of the Portilla grant. They were instructed to find for Welder if they were “satisfied from all the evidence that a line was established by the surveyor of the colony which was recognized at the time as separating said tracts,” and if they found “that said line was east of and included the old rancho of Portillo” and if they also found that “the lands claimed by plaintiff lies west of said line and Rancho and on the lands claimed by defendant.” The jury found for the defendant, Welder, and judgment was entered in conformity thereto on January 11, 1872, — now more than one hundred years ago. From certified copies of instruments on file in the General Land Office, we know that shortly after the final judgment in Hunt v. Welder (January 11, 1872), the State patented three surveys immediately to the east of the Portilla grant; and, the three junior surveys each called for join-der to the east line of the Portilla. The Isaac Clover certificate was issued on January 24, 1872 and transferred to John Welder on April 10, 1872. After Welder had made his location and entry, the lands were surveyed by James O. Gaffney, county surveyor of San Patricio County. The field notes were filed with the General Land Office on May 31, 1873, endorsed: “Correct on map of San Patricio County June 28, 1873.” The patent to the Clover was issued on November 17,1874. Gaffney’s field notes on the Clover call for it to begin on the north bank of the Chiltipin Creek “at a stake in L. S. Hatch’s yard, the southeast corner of a Mexican grant of seven and a half leagues of land to the Portillas from which the S. E. corner of said Hatch’s house hears S 70° W 12½ varas and a hackberry marked W bears S 27° W 19 varas.” Thus, the Clover call was for joinder to the Portilla. The N. J. Devenny survey, issued May 24, 1839, was transferred to Welder on April 10, 1872, in the same instrument by which he acquired the Clover certificate. Welder again made his location in the language quoted in the footnote immediately preceding and Gaffney made the survey on March 18, 1873, three days after he had surveyed the Clover just to the south. Field notes on the Devenny were returned to the Land Office on July 5, 1873, and endorsed: “Correct on map of San Patricio Oct 15/73” with the patent issued thereon August 24, 1874. The calls for the Devenny began at the northwest corner of the Clover and concluded at “a stake set on the east line of a seven and a half league grant made by the Mexican Government to F. R. Portilla for the N.W. corner of this survey, thence south with said line 2654.86 varas to the place of beginning.” The Juan Armendaris survey, patented on October 10, 1879, called for joinder with the “N.E. corner of a Mexican grant of 7½ leagues made to the Portillas a stake for said corner and the N.W. corner this survey set near the mouth of a gully; thence south with said grant 844 vrs. to the N.W. corner of a survey in the name of N. J. Devenny for S.W. corner of this survey.” Similar certifications were made by Gaffney as were made in connection with the clover and Devenny surveys. Under instructions then prevailing, issued by Francis M. White, Commissioner of the General Land Office in 1858, Gaff-ney, as county surveyor, was required to include in field notes calls “for all the adjoining surveys, if their corners or lines have really been found on the ground; if not, the fact should be stated.” Gaffney did call for the adjoining Portilla grant and thereby certified that such “corners or lines have really been found on the ground.” There is yet another significant fact which emerges from these old records from the General Land Office — the abandoned Kelly survey. The John Kelly certificate was issued in 1847, and was transferred to one Egery who caused a survey to be made by William R. Reid, surveyor for San Patricio County. The field notes were filed in the General Land Office on November 11, 1854, and bear the endorsement: “In conflict with a survey of Felipe Roque Portilla titled October 23/34 otherwise correct on map. November 8/73.” Again Gaffney made a survey of the Kelly on October 8, 1874, and his certificate, filed with the General Land Office on December 4, 1874, stated that the John Kelly “conflicts with a Mexican grant of seven and a half leagues, known as the ‘Portilla Grant’, according to its present boundaries as defined by a recent decision of the Supreme Court, and as noted by me in making actual surveys near and adjoining the aforesaid Kelly location and Mexican grant . . . ” The Kelly certificate was “floated” to other lands. We note also that significant notations appear in two other instances: The Amasa Turner two tracts were those involved in the case of Welder v. Carroll, supra (29 Tex. 317), and the Johnston Roselle survey-involved in the case of Welder v. Hunt, supra (34 Tex. 44). The Land Office records show that the Amasa Turner was “floated” on April 29, 1876, because of the conflict with the Portilla while the Johnston Roselle was “abandoned” and “floated” on the same day because of its conflict with the Portilla grant. In three other instances (Alexander Dunlap, D. D. Parmer, and Wiley Jones), the surveys being laid on top of the Portil-la grant, bear Land Office notations made in the 1860’s that they conflict with the Portilla grant. The locations of the several surveys mentioned are shown upon Map B which we append. Map A is a portion of the official map of San Patricio County from the General Land Office dated August, 1939. The locations of the several surveys material to this case are shown thereon more legibly than on the copy of the General Land Office map dated November 24, 1896; but the locations are identical on each map. It will be seen from an examination of Map A that the Portilla east line and the west lines of the Clover, Devenny and Armendaris surveys are identical and there is no vacancy existing between the Portilla grant and the junior surveys. The second map, Map B, is a portion of the Blucher Map B mentioned by the Supreme Court in Welder v. Hunt (34 Tex. at p. 47). This map has been relettered so as to more clearly reflect the conditions which are shown upon the original, also in our file. This Blucher Map (Map B) shows the locations of the 'Dunlap, Turner, Jones, Roselle, and Kelly surveys just mentioned. It also shows the location of the Robert Montgomery survey mentioned in Welder’s application (footnote 3, supra) and the XY line mentioned in the Supreme Court opinion. It is shown as a matter of law by certificates from the proper authorities that: (a) titles to the Portilla grant have been of record in the General Land Office since being deposited there on November 1, 1837; (b) no suit was ever filed in Travis County by either the Republic of Texas or the State of Texas against Felipe Roque Portilla or his descendants or John Welder and his descendants; and (c) before the plea in intervention filed by the State in this suit, no action of any kind had ever been instituted in the District Court of San Patricio by either the Republic of Texas or the State of Texas seeking to recover the twelve thousand plus acres involved in this suit. Surveyor Byron L. Simpson prepared the third map, Map C, in connection with the pending litigation. It is to be noted that his vacancy, designated as “M.A. 58291” containing 12,068.37 acres, has as its easterly line the line which is located upon the first two maps as the easterly line of the Portilla grant. This map, if accepted by the court, would tear apart the join-der of the Portilla grant and the junior surveys shown upon the other two maps appended hereto. II. Summary Judgment Rule We recognize, as all parties agree, that our review of the contentions advanced by the parties must be made under the rules announced in the recent series of cases by our Supreme Court governing review of summary judgment proceedings. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Harrington v. Young Men’s Christian Ass’n of Houston, 452 S.W.2d 423 (Tex.Sup.1970); Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.Sup.1970). See also, Great American Reserve Ins. Co. v. San Antonio Plumbing Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup.1965); Tigner v. First Nat. Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954); and Guidry v. Neches Butane Products Company, 476 S.W.2d 666, 668 (Tex.Sup.1972). The rule is set out in this language taken from Gibbs, supra (450 S.W.2d at p. 828): “[T]he 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 a 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.” (emphasis by the Supreme Court) Recognizing, as we must, the scope of our review under the decisions just mentioned, we also recognize the rule which is stated in concise form in Blaffer v. State, 31 S.W.2d 172, 191 (Tex.Civ.App., Austin, 1930, error ref.). The court said: “The public policy of this state, as announced in repeated decisions, demands the security of land titles emanating from the state, and, where ancient boundary lines have been recognized for long periods of years, they will not be lightly disturbed, to the detriment of those who have dealt upon the faith of them. . . . Property rights, extending into the millions of dollars, are based upon that location and its recognition.” Without discussing each of the several points brought forward by diligent counsel representing the vacancy claimant and the State, we affirm the decision of the trial court and now proceed to state our reasons for so doing. III. Presumption from Pleading of State By their first point, appellants contend that it was error for the trial court to sustain the motions for summary judgment “thereby holding that the summary judgment record conclusively established some fact or facts sufficient to defeat the prima facie case which existed in favor of the State by virtue of the existence on file in the papers of this case of the State’s trial pleading,” Whatever may be said for the justness of such a rule as applied to this type of an expropriation action, the existence of the rule cannot now be questioned by an intermediate court. The rule is stated in State v. Post, 169 S.W. 401, 406 [Tex.Civ.App., Austin, 1913; on certified questions, 106 Tex. 468, 169 S.W. 407 (1914); and reversed, 106 Tex. 500, 171 S.W. 707 (1914)], in this manner: “The court takes judicial cognizance of the fact that the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state. “This presumption makes a prima fa-cie case in favor of the state as to any lands for which it may bring suit, and such prima facie case can be met only by showing a grant to such lands. The state is the common source, and whatever title appellee had must have been derived from the state.” Although Post involved a grant from the State of Texas, the rule has been followed in cases involving grants from the Mexican Government and from the Republic of Texas. While we recognize the rule as being applicable generally, we do not believe that it added to the already onerous burden assumed by appellees when they invoked the summary judgment procedure in this case. Appellees were required to establish as a matter of law that there was so genuine fact issue as to the State’s claimed title and the presumption invoked by appellants did not add to that burden. Point one is overruled. IV. Juridical Possession Appellees contend that the doctrine of juridical possession operates as a complete defense to the challenge of Atchley and the State against their title. We have mentioned previously that each of the Portilla grants contained language indicating that the Portillas had been put into possession of the respective grants. This language found in the Felipe Roque Portilla grant is included over the signature of Commissioner Vidaurri, as evidenced by a certified copy of an official translation of the original grant from the General Land Office: “ . . . I, the undersigned Commissioner, pursuant to the foregoing decree and consent granted by the Empresarios with regard to the admission of Citizen Roque Portilla, adjudicate to him in legal form [the land] . . . whom, by the exercise of my authority and in the name of the Supreme Powers of the Mexican Nation and the State, I put in possession of said league of land, above mentioned, which he took quietly and peaceably without any contradiction, and performing all the acts of real and true possession; . . .” One of the more authoritative discussions of the doctrine of juridical possession is to be found in Malarin v. United States, 68 U.S. 282, 17 L.Ed. 594, 595 (1864), wherein Justice Field likened the proceeding to the common law tradition of livery of seisin, spelled out in detail the proceedings had in connection therewith, and concluded that: “The solemnities attending this official delivery of possession were well calculated to make an impression upon the minds of the spectators, and to preserve the recollection of the act. The ownership, extent and general location of the land were matters thus brought within the knowledge of the neighborhood, and were no doubt afterwards the subjects of frequent reference among the adjoining proprietors.” Responding to appellees’ claim under the doctrine of juridical possession, appellants say in their post-submission reply brief: “The formal act of juridical possession constituted a part of the title procedure in Spanish grants, and in some grants issued by the Mexican government in the State of Tamaulipas, but the act of juridical possession never constituted a part of the title procedure in grants issued in the State of Coahuila and Texas under which the grants involved in this case and most of the Mexican grants in Texas were issued.” It is true that there are some differences in the wording of the colonization laws of the State of Tamaulipas and those of the State of Coahuila and Texas; but basically they are similar — and neither actually used the term “juridical possession.” However, both provide that the grantee shall be put in possession of the lands to which he is entitled. Thus, Art. 4, Instruction to the Commissioner, reads: “He shall issue the land titles in the name of the State, in conformity to the law, giving the new settlers possession of the same in legal form, and previously citing the adjoining proprietors, should there be any.” Laws and Decrees of Coahuila and Texas, 1 Gammel’s Laws, 180, 181 (1898). Art. 22 of the Colonization Laws of the State of Tamaulipas provided: “All adjudication and possession of lands designated for settling shall be made with previous citation of the adjoining proprietors.” 1 Gammel’s Laws, 4S4, 457 (1898). As early as 1854, our Supreme Court considered a title to land in the Power and Hewetson Colony wherein the recitals in the grant bear remarkable similarity to that involved in this case. In White v. Holliday, 11 Tex. 606, 614 (1854), the court said: "The title introduced in evidence was the final title, vesting the fee, with the possession, in the grantees. It is less formal in its statements and recitals than colonial titles usually are; but it is not, on that account, the less effectual to pass to the grantees the ultimate proprietorship of the soil. It adjudges to the grantees the title and possession of the land, which had been surveyed for them by a Surveyor appointed for that purpose; the Commissioner recites that he puts the grantees in possession, ‘performing all the acts of true possession;’ and he formally executed to them the title. There remained no act to be done on the part of the government to complete the title. No further act of confirmation or investiture of title was contemplated or required by the law; and nothing further was requisite to vest in the grantees a perfect title.” We agree with appellees when they say, "This is a complete description and application of the effect of juridical possession without the use of the term itself.” The grant under consideration by Justice Wheeler in White v. Holliday, supra, was not from the State of Tamaulipas but from the State of Coahuila and Texas. See also, Hanrick v. Dodd, 62 Tex. 75, 85 (1884), wherein the court, in dealing with a grant in the Austin and Williams Colony • — a part of Coahuila and Texas — mentioned that “[o]n that day, juridical possession was delivered to him, and final title extended.” We are of the opinion that the doctrine of juridical possession clearly is applicable to grants made by the government of Coahuila and Texas. So holding, we turn to the leading case in Texas: State v. Balli, 144 Tex. 195, 190 S.W.2d 71, 98 (1944), wherein the court said: “We are of the opinion that doubts, if any, as to the extent and boundaries of a Mexican grant are resolved by the act of juridical possession. “The act of juridical possession has always been considered a judicial construction or interpretation of an earlier survey.” In Balli, the court cited and relied on the case of State v. Russell, 38 Tex.Civ.App. 13, 85 S.W. 288 (Tex.Civ.App., Austin, 1905, writ ref.). Russell was a boundary case involving two Mexican grants. A conflict arose between the grants’ calls for adjoinder with the north line of the Santanita survey as their south boundary and their calls for course and distance and acreage. The Court of Civil Appeals resolved this conflict in favor of the calls for adjoinder, in spite of the excess created thereby, relying primarily on juridical possession. “[I]f there should be any doubt as to which of the calls should prevail, that for course and distance or that for the north line of the Santanita, it should be resolved in favor of the long-asserted right under the juridical possession which is shown in this case. There is some evidence relating to the act of juridical possession which would justify the conclusion that it extended to the north line of the Santanita; and whatever doubts at this late date could be indulged in with reference to which of the calls should prevail should be resolved in favor of that construction that would include and embrace the land determined by the act of juridical possession.” (85 S.W. at p. 294) In Balli, the court quoted this language with approval. The Russell Case relied upon the opinion of the United States Supreme Court in United States v. Pico, 72 U.S. 536, 539, 18 L.Ed. 695 (1867). In that case the court said: “Were there any doubt of the intention of the governor to cede all the land contained within the boundaries designated by him, it would be removed by the juridical possession delivered to the grantees. This proceeding involved an ascertainment and settlement of the boundaries of the lands granted by the appropriate officers of the government, specially designated for that purpose, and has all the force and efficacy of a judicial determination. It bound the former government, and is equally binding upon the officers of our government. “Such is the purport of the recent decision in the case of Graham v. U. S., 4 Wall. 259 [78 L.Ed. 334] [ante, 334], . In other words, the case decided that the juridical possession was conclusive as to the boundaries and extent ■iof the land granted." Corrigan v. State, 42 Tex.Civ.App. 171, 94 S.W. 95 (Tex.Civ.App., Austin, 1906, writ ref. 94 S.W. 101), concerned the boundaries of a Mexican grant to Diego Ynojosa. The court noted, at p. 97, “The documentary evidence accompanying the ti-tie show[s] that at the proper time the proper steps were taken to establish the juridicial possession” and that the “land had been in possession of those claiming under the original grant for a number of years, and they were asserting a claim to the extent of the boundaries defined in the [original] . . . survey." The court cited with approval State v. Russell, supra, saying at p. 100: “In that case we also laid stress upon the fact that, if there was any uncertainty or doubt in the calls, or as to which class of calls should prevail, effect should be given to the extent of the juridical possession, in order to ascertain and determine what land was embraced in the original grant — citing the case of United States v. Pico, 72 U.S. [536] 540, 18 L.Ed. 695.” In reversing the judgment entered in favor of the State of Texas and rendering for the defendant Corrigan, the court concluded at p. 101: “In fact, as we construe the evidence in the record concerning the calls and the evidence of the location of the surrounding surveys, in connection with the juridical possession, there can be no controversy, in our opinion, as to the fact that the original Diego Ynojosa includes all of the land sued for.” The courts have continued to give effect to the delivery of juridical possession and long continued occupancy under such possession to preclude the existence of a vacancy. In Strong v. Delhi-Taylor Oil Corporation, 405 S.W.2d 351 (Tex.Civ.App., Corpus Christi, 1966, error ref. n. r. e.), a case bearing many similarities to this one, the vacancy hunter and the State appealed from an adverse summary judgment, contending that a fact issue had been made out on the location of a boundary. The court first noted that the natural objects of the original survey had long since disappeared and that the surveys were then laid out with less than the meticulous nicety prevalent in modern surveying. However, the court said at p. 369: “The record is clear, from the positive statements of the surveyors and of the Captain that, juridical possession was given to each grantee.” The legal effect of such juridical possession was clear. The court said at p. 377: “If there should be any doubt as to which of two possible constructions should prevail — that for course and distance or that of the adjoinder with Los Torritos and other grants, it should be resolved in favor of the long asserted right under juridical possession which is shown in this case. State v. Sais, 47 Tex. 307; State v. Russell, 38 Tex.Civ.App. 13, 85 S.W. 288 (1905) writ ref.; Corrigan v. State, 94 S.W. 95, 100, Tex.Civ.App. (1906) writ ref., at 94 S.W. 101; United States v. Pico, 5 Wall. 536, 72 U.S. 536, 540, 18 L.Ed. 695; Carmichall v. Stanolind Oil and Gas Co. [Tex.Civ.App.], 256 S.W.2d 129, wr. ref.” Indeed, the court concluded, at pages 377 and 378: “The long continued occupancy (juridical possession) of Porcion 72 with which is conceded to be a valid grant, its ad-joinder to the Los Torritos under claim of title and ownership at least since 1876 and probably since 1834, is sufficient to preclude the existence of a vacancy as defined by Art. 5421c [V.A.C.S.].” In Strong v. Sunray DX Oil Company, 448 S.W.2d 728 (Tex.Civ.App., Corpus Christi, 1969, error ref. n. r. e.), the court said at p. 746: “A study of the various applications convinces us that the citizens of the colony were placed in juridical possession of the various grants. Many were previous settlers who had built homes and established settlements up and down the river. The tracts were known by the names of the original owners. The Vairin-Fernet Grant recited that ‘placing him in possession of that which he represents for himself and his principal of the leagues of land which he has designated, he has taken quiet and peaceful possession, in which act he had made all the necessary demonstrations of true ownership.’ If there are are doubts as to the extent of the boundaries of these Mexican grants they are resolved by the act of juridical possession. State v. Balli, 144 Tex. 195, 190 S.W.2d 71 (Tex.Sup.1944). Juridical possession is shown by the evidence of the grants themselves.” The court continued at p. 747: “Here the lands in question were titled and the grants have not been cancelled or annulled. The long, continued undisturbed and uncontested occupancy of one hundred thirty five years beginning with juridical possession and the adjoinder calls on either side, precludes the existence of any vacancy as defined by Article 5421c, V.A.C.S.” Another important case utilizing the doctrine of juridical possession is that of Harris v. O’Connor, 185 S.W.2d 993, 1014 (Tex.Civ.App., El Paso, 1944, error ref. w. o. m.). There, as here, no maps accompanied the grants and the descriptions “are not as definite and certain as could be desired.” The court continued: “As has been said, the papers introduced do not appear to reflect all the steps in the granting of these lands. If a survey was made, and the grants recite a survey, and you could hardly expect evidence to be on the ground after the lapse of something over one hundred and eight years, the grantee assumed the obligation of erecting the monuments. Unless a survey had been made, this might be a difficult task. In cases of grants it would seem to be the custom of surveyors to make a map of their field notes. No map of the surveyor or surveyors acting under Commissioner Vidaurri appears. But in view of the long lapse of time, attended not only with the ordinary casualties of time, but with war and revolution, it would not be stranger if same had disappeared. “In our opinion, the delivery of possession has some bearing here on the location of these grants. White v. Holliday, 11 Tex. 606; State v. Russell, 38 Tex.Civ.App. 13, 85 S.W. 288; Corrigan v. State, 42 Tex.Civ.App. 171, 94 S.W. 95; State v. Corrigan, Tex.Sup., 95 S.W. 101; State v. Palacios, Tex.Civ.App., 150 S.W. 229; Graham v. United States, 71 U.S. 259, 4 Wall. 259, 18 L.Ed. 334. “Without some marking or indication of boundaries, temporary though they might be, a delivery of juridical possession to an area would seem impossible. Many positive acts and forbearances on the part of the State of Texas extended continuously over a long period of years evidences the area involved in the delivery of such possession.” In their post-submission brief, plaintiffs say: “Assuming . . . that true acts of juridical possession were performed with respect to the grants involved, the question remains, what lands were covered by such acts of juridical possession since the grants do not describe any acts of juridical possession? Where does one go to determine the extent of the hypothetical acts of juridical possession?” In answering plaintiffs’ rhetorical questions, we go to Harris v. O’Connor, supra, where we find that Chief Justice Price posed a similar question and then proceeded to answer it in this manner: “What land did Commissioner Vidaur-ri deliver to Dr. James Hewetson on or prior to November 19, 1834? The answer is, we think, the land now bounded on the north by the south line of the Swisher Surveys, as marked and established by O’Sullivan. This answer is justified by over one hundred years acquiescence by the Governments of Coa-huila and Texas, the Republic of Texas, and the State of Texas; not only by acquiescence, but by numerous other particular acts, particularly by the State of Texas, attesting that the aforesaid line is as before stated. Thus is such line established as a matter of law. Any other holding would impugn the fidelity and integrity of each Attorney General holding office in the State of Texas, and so as to the Land Commissioners.” (185 S.W.2d at pp. 1014-1015) What was said in Harris applies with equal vigor to the case at bar. The same Commissioner Vidaurri mentioned in Harris having placed the Portillas in juridical possession of their grants, acted again seven days later when he placed the Em-presarios Power and Hewetson in possession of their adjoining five and one-half league grant. V. Res Judicata, Collateral Estoppel, and Stare Decisis Although appellees strenuously assert that res judicata and collateral estop-pel constitute valid defenses to the challenge of their title, we disagree. It is true that the location of the easterly boundary of the Portilla grants was the only fact issue actually litigated in the conclusive trial of Welder v. Hunt, and we agree that such fact was established by the summary judgment proof. The very recent case of Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.Sup.1971), holds that the rule of collateral estoppel bars relitigation in a subsequent action fact issues actually litigated and essential to a prior judgment. (468 S.W.2d at p. 362) However, the rule is that such prior judgment is binding only upon a party and those in privity with him. (Id. at p. 363); Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946). Further, the rule to be applicable, the judgment must be mutually binding in order to be available as an estoppel in behalf of either of the parties or their privies, Kirby Case, supra (196 S.W.2d at p. 389). Other cases cited in Kirby contain similar holdings, e. g., Read v. Allen, 56 Tex. 182, 193 (1882); Horton v. Hamilton, 20 Tex. 606, 611 (1857); Davis v. First Nat. Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 473, 144 A.L.R. 1 (1942). See also, Masterson v. Harris, 107 Tex. 73, 174 S.W. 570, 575 (1915). We will assume, for the purpose of our discussion of the point under consideration, that the requirement of mutuality is still a part of our law. In Cockrell v. Work, 122 Tex. 406, 61 S.W.2d 787 (1933), the Supreme Court held that under the acts there under consideration, the private litigant had no power or authority to “bring a suit to establish a vacancy. The state never authorized such a proceeding, and that right never existed in behalf of any applicant to purchase the public lands until the statute of 1919 (article 5323), under which the plaintiff in error filed this suit.” (61 S.W.2d at p. 790). The court reasoned that under the earlier statutes, “The state had exclusively conferred” upon the Attorney General the power to institute “appropriate proceedings” to determine the existence of a vacancy. (Id. at p. 791) Finally, the court concluded: “Until article 5323 was enacted [in 1919], there was no law in existence except that of the Act of April 15, 1905, which authorized any one to bring a suit against adversaries claiming land as patented, except the Attorney General and except where the commissioner of the general land office had sold the land, and, under the provisions of the Act of April 15, 1905, a purchaser was authorized to bring suit.” (Id.) Although the Supreme Court in Welder v. Hunt, supra, discussing the XY line on Map B — the precise line involved in this case — invoked the rule of judicial estoppel, we do not find the doctrine applicable to this case. There the court said: “And we go further, and say that Welder will be estopped from claiming any of the land east of the line XY, on Map B, by virtue of the proceedings in this case —having set up and notoriously claimed that as his eastern boundary line in this proceeding, nor can he be forced back westwardly by a junior grant.” (34 Tex. at p. 47) It seems clear to us that while Welder might have been estopped from moving his line to the east, this sentence will not estop the State in this proceeding. The State not being a party to that suit is not es-topped because, as was said in Davis v. First Nat. Bank, supra (161 S.W.2d at p. 473), “A party who is not bound by a judgment is not permitted to assert that another is estopped by it.” We interpose the converse of the rule so stated. In our opinion, the doctrine of res judi-cata and estoppel by judgment is not available to the appellees in this instance. When we turn to their reliance upon the doctrine of stare decisis, however, we enter an entirely new field. Thirty years ago, Professor Hodges cried out for an authoritative answer to the question posed in his article, “Stare Decisis in Boundary Disputes: Let There Be Light,” 21 Tex.Law Rev. 241 (1942). Although Justice Walker said, “No light can be thrown on that problem here,” Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.Sup.1964), his discussion of the differences between the doctrine of res ju-dicata and the rule of stare decisis is helpful. Res judicata, extending both to questions of law and issues of fact, binds only the parties to the first suit and those who claim under them; and, it may not he invoked by one who is not bound by the judgment in the earlier proceeding. (Id. at p. 874) Stare decisis, on the other hand, does not depend upon identity of the parties. A principle, rule, or proposition of law having been squarely decided by the Supreme Court is accepted by all courts “when the very point is again presented in a subsequent suit between different parties.” (Id. at p. 875) Justice Walker then continues: “As a general rule the determination of a disputed issue of fact is not conclusive, under the doctrine of stare decisis, when the same issue later arises in another case between persons who are strangers to the record in the first suit.” In discussing the rule of star-. Acisis, it was held in Benavides v. Garcia, 290 S.W. 739, 740 (Tex.Comm.App.1927), that “public policy and sound legal administration requires the courts in the decision of cases to observe a proper respect for the prior decisions of the highest court.” The court continued (at p. 741) : “It is obvious this rule of decision [stare decisis] is something entirely apart from the conception of res adjudi-cata or estoppel of any sort. Certain elements enter into the consideration of the binding force of a judgment, or the operation of an estoppel, that have no place whatever in the rule of stare decis-is, and the force of the rule is the same whether the parties to the two suits are identical or not, and, as to estoppel, whether they or either of them knew of the prior decision or any of the facts inducing it. Concretely stated, the doctrine merely means that the decisions of law made by the highest court of the state become the law of that state.” This decision was followed by the Supreme Court in Short v. W. T. Carter & Brother, 133 Tex. 202, 126 S.W.2d 953, 964 (1939), and Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352, 354 (1957). See also, Case-Pomeroy Oil Corporation v. Pure Oil Company, 279 S.W.2d 886, 889 (Tex.Civ.App., Waco, 1955, error ref.); Benson v. Greenville Nat. Exchange Bank, 253 S.W.2d 918, 924 (Tex.Civ.App., Texarkana, 1953, error ref. n. r. e.). Porter v. State, 15 S.W.2d 191 (Tex.Civ.App., Austin, 1929, no writ), is one of the most persuasive cases on the subject. It was held in Porter that prior litigation was controlling under the rule of stare decisis. There had been a lawsuit, Wilson v. Giraud, 234 S.W. 110 (Tex.Civ.App., Galveston, 1917, no writ), involving a boundary suit. Only Wilson and Giraud were parties to this suit. The Supreme Court, answering certified questions, determined the location of the disputed line. Wilson v. Giraud, 111 Tex. 253, 231 S.W. 1074 (1921). The State recovered certain lands as vacant public lands in its litigation with Porter, after introducing the pleadings and judgment in the prior Wilson v. Giraud suit. The court in Porter, recognizing that the general rule prohibits the introduction of the judgment record in another suit, said: “Though different parties and different lands were involved in that case [Wilson v. Giraud], the same original surveys, boundary lines, and acts of the same surveyors, which determine the result of this suit, were involved. And the court’s determination of those matters, ‘even though it is presented by different parties and concerns different properties,’ becomes binding and conclusive in subsequent litigation involving them, not as res adjudicata, but under the doctrine of stare decisis. Benavides v. Garcia (Tex.Civ.App.) 283 S.W. 611.” (15 S.W.2d at p. 194) In Blaffer v. State, supra (31 S.W.2d 172, 190), there were two suits involving alleged vacancies in that case. The earlier litigation was had in 1906 and resulted in judgments denying the existence of a vacancy. The State was not a party to either of these suits. Long after the trial court judgments had become final, it was learned that the plaintiffs in the two suits had procured their patents under fraudulent circumstances and the State claimed in the Blaffer litigation that the “Tomey and Goldman locations were absolutely void ab initio.” (31 S.W.2d at 186) Upon appeal in Blaffer it was said at p. 190: “The state contends that the judgments in the Tomey and Goldman suits are not binding upon the state, and are therefore as to the state not competent evidence in locating the boundaries involved. We do not agree with this holding. The general rule of law relied upon is that a judgment is binding only as to those party or privy to it. In the establishment of ancient boundaries, however, a relaxation of the strict rules of evidence, ordinarily applied in establishing other facts, is frequently met with. See Texas Jurisprudence, vol. 7, pp. 209, et seq. “In Porter v. State, 15 S.W.2d 191 (error refused) this court held (Justice Baugh writing) that, ‘though the parties to and lands involved in two actions are different, yet the same original surveys, boundary lines, and acts of the same surveyors, which determine the second action, having been involved in the other prior action, the determination of those matters by the highest court of the state in the prior action are binding and conclusive in the subsequent action, not as res judicata, but under the doctrine of stare decisis.’ (Quotation is from the syllabus.) The record here shows that in the two contested cases, which were tried more than 20 years before the trial of this case and involved the same boundaries here in issue, a number of witnesses, now deceased, had testified, and much evidence had been obliterated, due to intensive oil development, fires, etc. While the above announced rule of stare decisis only applies to the decisions of the Supreme Court, we think the judgments of the trial courts, under, the circumstances shown, were admissible as circumstances along with other shown recognition.” The judgments under discussion in Blaf-fer were less than a quarter of a century old; in our case, the judgments are dated more than one hundred years ago. When we come to consider some of the “circumstances” as done in Blaffer, we note that the official map of San Patricio in the General Land Office, dated November 24, 1896, locates the easterly line of the Portil-la grant on the north-south line between the Aransas and Chiltipin Creek, with this notation: “Tit. Oct. 23, ’34. B.17.P.32” Shown immediately to the east of the easterly line of the Portilla grant there appear the J. Armendaris, the N. J. Devenny and the Isaac Clover surveys, all junior to the Portilla grant and located upon the westerly portion of the void Power and Hewetson five and one-half league grant. A later map of the General Land Office dated August 30, 1939, is identical to the first insofar as this particular area is concerned. The doctrine of stare decisis was utilized by the court in a boundary case, Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993, 996 (1936), (known as the Whiteside Case), where the court cited Porter v. State, supra (15 S.W.2d 191); Blaffer v. State, supra (31 S.W.2d 172); McDonald v. Humble Oil & Refining Co., 78 S.W.2d 1068 (Tex.Civ.App., Beaumont, 1935, error dism.); and 26 Tex.Jur., § 368, pp. 46, et seq.; id. § 493, pp. 303, et seq. [now to be found in 34 Tex.Jur.2d, Judgments, § 452, pp. 495, et seq. (1962)]. Justice Walker noted that the late Justice Norvell in Horne v. Moody, 146 S.W.2d 505 (Tex.Civ.App., San Antonio, 1940, error dism., judgm. cor.), “refused to disregard orthodox limitations on the doctrine of stare decisis even in boundary cases.” Swilley v. McCain, supra (374 S.W.2d at p. 875). Justice Walker also noted another case — Dunn v. Land, 193 S.W. 698 (Tex.Civ.App., San Antonio, 1917, no writ) — as refusing “to disregard orthodox limitations.” Thus, the two conflicting lines of cases which could not be reconciled or harmonized in Swilley, continue with unimpaired vitality. Being forced to choose between the two lines, we choose what might be termed, in Justice Walker’s language, the “unorthodox” view, and follow Federal Royalty, supra, and cases therein cited. We conclude, from our examination of the record and the authorities, only some of which are set out above, that the XY line on Map B, as mentioned in Welder v. Hunt, supra (34 Tex. at p. 47), is “binding and conclusive in [this] subsequent litigation.” Benavides v. Garcia, supra (290 S.W. at p. 740); Porter v. State, supra (15 S.W.2d at p. 194); Blaffer v. State, supra (31 S.W.2d at p. 190); Eppenauer v. Ohio Oil Co. (5th Cir. 1938), 98 F.2d 524, 525. VI. Presumption In United States v. Devereux (4th Cir. 1898), 90 F. 182, 187, the court was considering a claim by the United States to certain land which it claimed under an instrument executed in 1816. The defendants had gone into possession of the land in 1829 and had been in possession “for over 60 years.” The court, in disposing of this belated claim of the sovereign, said: “After this great lapse of time, courts will presume anything and everything to have been done which, if done, would be a bar to the claim. Id. 869 [2 Lewin, Trusts, 868]; Roe v. Ireland, 11 East, 280. This rule of presumption is one of policy as well as of convenience, and necessary for the peace and security of society. ‘If time,’ said Lord Plunkett, ‘destroys the evidence of title, the law has wisely and humanely made length of possession a substitute for that which has been destroyed. He comes with a scythe in one hand to mow down the mu-niments of our rights, but in his other hand the lawgiver has placed an hourglass, by which he metes out incessantly those portions of duration which render needless the evidence he has swept away. Whart Ev. § 1338, note 5.’ “Presumption does not operate like the statute of limitations, and bar a right which is known to exist; or like laches, which deprives one of a right which did exist. It operates as evidence, and establishes the conclusion that the right which did exist has been duly relinquished by the possessor of it. “Wharton, in his Law of Evidence (section 1348, note 1), puts it in this way: “ ‘Thus, the lapse of time does not of itself furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, “Nullum tempus,” etc., yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement after many years of uninterrupted adverse possession or enjoyment.’ “Laches and the statute of limitations affect the remedy. Presumption clothes with a right. The statute of limitations ripens a trespass into a legal title because of neglect of the true owner. Presumption concludes that a lawful origin existed.” The attack upon the precise location of the XY line — the easterly line of the Por-tilla grant — was made for the first time and, in this case, more than a hundred and thirty years after the act of juridical possession had been celebrated. Judge Wheeler in Baker v. Coe, 20 Tex. 430, 437 (1857), was speaking of the presumed regularity of probate proceedings when he said : “Presumptions must be indulged in favor of those proceedings, especially when they are ancient, and titles have been acquired and transmitted under them, or it would indeed be true that time, instead of healing, as it should, the defects of these titles, would gradually undermine, and eventually destroy them.” And, we adopt Chief Justice Green’s remarks made in Page v. Pan American Petroleum Corporation, 381 S.W.2d 949, 954 (Tex.Civ.App., Corpus Christi, 1964, error ref. n. r. e.): “If the necessity for a legal presumption existed back in Judge Wheeler’s time, it is many fold more essential today.” Ordinarily, such a presumption is one of fact, but, as was said in Clements v. Texas Co., 273 S.W. 993, 998 (Tex.Civ.App., Galveston, 1925, error ref.) : “[S]uch a presumption, having to do with a transaction 80 years in the past, becomes, for all practical purposes, one of law, for generally the great age which raises the presumption also obliterates the evidence which might have overthrown it. It becomes immaterial, in short, whether it be considered a rebuttal or conclusive presumption.” In this expropriation action, we recount only a small portion of the family history of Felipe Roque Portilla — whose easterly boundary is in issue here — in order to show the long connection of the defendants with the land in question. Felipe Roque Portilla had six sons and two daughters. Insofar as material to this point, we mention only one, Dolores, who married the Empresario James (Santiago) Power in 1832. There was born to this union a daughter, also named Dolores, who married the original John Welder in 1850. Many descendants of the original John Welder are defendants in this action, there even being one named John J. Welder (Defendant No. 103) who is sued as Executor and Trustee of the Estate of R. H. Welder, deceased. The defendants all claim and exhibited record title under the original John Welder. Insofar as our record shows, once John Welder, then owning the Felipe Roque Portilla grant, had obtained his patents to the Clover, Devenny, and J. Armendaris surveys to the east thereof in the middle 1870’s, no one challenged his title until Atchley came on the scene nearly a hundred years later. In the meanwhile, there was an entirely new ball game in existence. From an unsettled wilderness the area had been developed into an extremely valuable oil field as well as being profitably used for other purposes by the original John Welder’s descendants. Undoubtedly, the State of Texas has collected large sums of money from the oil and gas produced from the lands in controversy under the provisions of Title 122A, Chapters 3 et seq., V.A.C.S., as well as ad valorem taxes before and after the discovery of oil. We are thoroughly familiar with the rule that doctrines of waiver, estoppel, and limitations are not applicable in suits in which the State is a party. But, we are also familiar with the rule “that the law presumes that a public official has rightly performed his duty.” Anderson v. Polk, 117 Tex. 73, 297 S.W. 219, 222 (1927). In the important case of Harris v. O’Connor, supra (185 S.W.2d 993, 1010), commenting upon the legislative enactments making it the duty of the Attorney General to institute suits on behalf of the State to recover the public lands (a portion of which now appears as Art. 5420, V.A. C.S.), the court spoke of the illustrious men who had served in the office of Attorney General of Texas, naming some twenty-one in number. The court continued: “Some of these gentlemen, after their services as Attorney General ceased, were honored by the people of the State by election to the highest executive and judicial positions within the gift of the people. Before the Act of 1901, above quoted, we think it was in the purview of the duties of the Attorney General to recover for the State land illegally withheld. The Act quoted made it their specific duty to institute legal proceedings on behalf of the State under the conditions named in the law quoted. Are we to assume that these honored, distinguished and able gentlemen neglected their duty? or are we to apply the presumptions that they discharged their official duty with fidelity and diligence? The answer is, we think, that they are presumed to have discharged their official duty with fidelity and diligence.” To the twenty-one so named by Judge Price, we add the names of Gerald C. Mann, Grover Sellers, Price Daniel, John Ben Shepperd, Will Wilson, and Waggoner Carr, and note that we consider them likewise to be “honored, distinguished and able gentlemen” who “are presumed to have discharged their official duty with fidelity and diligence.” The Portilla grants were governed by the law of the State of Coahuila and Texas, and the validity thereof must be determined by such laws. Thus, as stated in Harris v. O’Connor, supra (185 S.W.2d at p. 1015): “These grants were not to citizens either of the Republic of Texas or the State of Texas, for neither of these governments was in existence on the date of the grants. A proprietary title to any part of the territory in controversy was never vested in the State of Texas. “Even though a boundary may not be fixed between the State and a grantee claiming under a Mexican grant by a long acquiescence, operating as a contract or by the way of estoppel, absent better evidence it may be considered in establishing the actual boundary.” The presumption which we apply here does not depend on the lapse of time alone. The fact here presumed is that the grants from the State of Coahuila and Texas included the area claimed by the defendants. The basis of such presumption is, as we have indicated earlier, the course of conduct on the part of the duly authorized officers of the State of Texas inconsistent with any other reasonable conclusion. Harris v. O’Connor, supra. We adopt this language from Barrow v. Boyles, 122 Tex. 416, 61 S.W.2d 783, 787 (1933) : “Should we accept plaintiff in error’s views, we should adjudge that the officials of no less than three governments, including our own Texas commissioners of the general land office and Attorneys General, have been derelict in duty during the periods of some three generations. Not a fact is averred at all sufficing to negative the presumption of the rightful exercise of official power as it is disclosed by plaintiff in error’s own petition.” Excepting the fact that we have more than three gener-aions involved, the quotation is applicable here. Our conclusion in this regard is strengthened when we recall that more than a hundred years ago our Supreme Court in Welder v. Hunt commented upon the very contention now urged upon us by the appellants, that is to say, “that there was no eastern boundary line fixed to the Portilla grant, and it was not governed by courses and distances.” (34 Tex. at p. 47) This was an open caveat to the then occupant of the office of Attorney General (William Alexander) and to every one of his successors during the following century. We must remember, too, that presumptively the Commissioner of the General Land Office knew of this pronouncement by our Supreme Court. Yet, within a few years thereafter, he patented the junior surveys (the Clover, Devenny, and J. Ar-mendaris) each of which called for joinder to the easterly line of the Portilla grant, as found on the ground by the official surveyor. We do not extend the doctrine of presumption in this case. It is present and the facts compel its recognition and application to the undisputed facts we review in this record. VII. Abandonment This theory of the plaintiffs is advanced under their eighth point which we reproduce in the footnote. By a laborious process of sifting through the mass of pleadings and “summary judgment proof” we learn that one of the principal bases of the contention so advanced is that Dolores Portilla Power, the daughter of Felipe de la Portilla and mother of the first John Welder’s wife, wrote a letter in July of 1836 to her husband wherein she said: “Ever since the . . . Indians killed my brother at the ranch, . my father decided to abandon everything and c(om)e with the whole family to this [town] of Matamoros where we arrived on the eighth day of last June with much difficulty.” Plaintiffs contend that the Mexican law in effect in 1836 upon which they rely is Law 50, Title 28, Third Part, Las Siete Partidas, [“Las Siete Partidas,” Translation and Notes of Samuel Parsons Scott, 1931, published for the Comparative Law Bureau of the American Bar Association by Commerce Clearing House, Inc., at page 837] which we reproduce from their brief: “ ‘When a man abandons any immoveable property which belongs to him, for the reason that he does not like it, as soon as he actually leaves it with the intention of not claiming it afterwards as his, whoever first enters upon it will become its owner. But where he does not leave it, although he may state that he does not desire it to be considered his from that time forth, nevertheless while he still holds it in this way no one else has the right to enter upon it; and if he does, he will not obtain its ownership until the party actually leaves it, and abandons its possession.’ ” Their principal case is Sydeck v. Duran, 67 Tex. 256, 3 S.W. 264 (1887), and its progeny. Defendants, relying upon the first sentence in the quotation above, aptly reply that even upon abandonment title to the land does not revert to the sovereign but passes from the landowner to the first entrant, and conclude: “Thus, even if the Portillas abandoned the land, under the clear language of the statute, the land became the property of John Welder, ‘who first enter[ed] thereon.’ ” We agree. In one of the briefs filed in the trial court and now assimilated into appellants’ brief here by reference, we find that plaintiffs below recognized that their contention now made is contrary to the holding of Chief Justice Wheeler in Kilpatrick v. Sisneros, 23 Tex. 113, 125, et seq. (1859). They argued below that Judge Wheeler’s interpretation of Article 30 of the Coloniation Law of 1825 “is obviously erroneous.” (Appendix to Appellants’ Brief, Tab. 4, p. 15.) The cases cited by plaintiffs do not support their contention that the land, in effect, escheated to the sovereign when the country was abandoned. The cited provision of the colonization law plainly provides that title passes from the landowner to the first entrant. In Kilpatrick the court reviewed the earlier cases and said: “These references will suffice to show, that it has been settled by repeated decisions of this court, that removing from the republic of Texas into Mexico, did not, ipso facto, vacate the title of the owner to his lands, acquired under the colonization laws.” (23 Tex. at 130) Harris v. O’Connor, supra, which we have cited many times herein, had this to say about plaintiffs’ contentions: “This provision of the Partidas does not seem to provide that the title to land upon abandonment shall vest in the State. It seems to be in accordance with the common law as to the abandonment of corporeal personal property.” (185 S.W.2d at p. 1012) We have carefully considered the Sydeck Case and do not agree with plaintiffs’ analysis thereof. Judge Gaines in Sydeck quoted the section of the Partidas, and noted that abandoned lands “ ‘become the property of him who first enters thereon.’ ” (3 S.W. at p. 267) Furthermore, there is no such similarity of facts in Sydeck and Kilpatrick as to bring about a conflict in the two cases. Musquis v. Blake, 24 Tex. 461, 466 (1859) found the court re-examining its then recent decision in Kilpatrick, saying:. “A re-examination of the subject here, is therefore unnecessary. The revolution did not divest or impair the plaintiff’s right of property in the land, which had been granted to him; nor did his removal to Mexico incapacitate him to maintain this action for its recovery." Although plaintiffs place reliance upon this court’s opinion in Foster v. Gulf Oil Corporation, 335 S.W.2d 845, 849 (Tex.Civ.App., Beaumont, 1960, error ref. n. r. e.), we feel that the reliance is misplaced. There, Chief Justice Anderson made several assumptions, including “that he did abandon the land and even the country,” before coming to the crux of his holding: “[T]he status of the land has not under either theory been altered from that of surveyed and titled land, there having been no assertion of the escheat or forfeiture nor any regrant of the land prior to — nor since — the time at which the State of Texas came into being and its Constitution of 1845 was adopted.” That is precisely the situation which we face here. Insofar as our record discloses, John Welder was the first one who entered upon the land after it had been abandoned, if it was, by the Portillas. Plaintiffs may not prevail upon their theory of abandonment. For, as was said in Hanrick v. Dodd, supra (62 Tex. at 89): “Under Mexican law, as under the common law, an estate granted by the government cannot afterwards be divested upon mere surmise or suggestion. A formal conveyance, or a regular proceeding, is requisite.” There has never been either a formal conveyance or a regular proceeding divesting the Portilla title to the land involved herein. VIII. Conchision We have purposely refrained from commenting upon plaintiffs’ points contending that the testimony of their survey- or Simpson raised fact issues for determination. In our opinion, for the reasons heretofore stated, as a matter of law, there is no vacancy existing and such testimony of Simpson was immaterial to any issue before the trial court. So holding, all of such points are overruled. However, out of an abundance of precaution, and in the event the Supreme Court should disagree with us as to the basis of our affirmation of the judgment, then and in such event we hold that Simpson’s testimony, if material to any issue in the case, raised fact issues for determination in a full adversary trial. Under the rationale of Gibbs, supra (450 S.W.2d 827), the trial court committed error in granting defendants’ motions for summary judgment. However, as stated above, we do not reach the question of surveying by Simpson. We have likewise refrained from commenting upon many of the subsidiary points brought forward by the plaintiffs. The nature of the scheme of briefing followed by plaintiffs has made our task unusually difficult, but each of the points has been considered and found to be without merit. It follows from what has been said that we are of the opinion that the defendants have discharged their onerous burden and the judgment of the trial court in granting the summary judgment was correct. Judge Thornberry in Humphries v. Texas Gulf Sulphur Company (5th Cir. 1968), 393 F.2d 69, 74, effectively expressed our conclusion applicable to this case when he said: “It is simply not rational to assume that more than 125 years would have passed without a claim being made to the land if there were any substance to the claims. Such a policy is anchored on a practical and correct view of human nature, as reflected by the Texas cases, that men seldom have rights of value which are unknown to them, and more seldom still will men suffer themselves to be deprived of the enjoyment of these rights for any length of time. It also prevents time, which should heal the scars on title, from gradually undermining the title to land.” The judgment of the trial court is in all things affirmed. APPENDIX . The Supreme Court of the United States, commenting upon the second and third decisions of the Supreme Court of Texas in the Smith v. Power series set out above said: “We receive the decisions as having a binding force almost equivalent to positive law.” League v. Egery, 65 U.S. 264, 267, 16 L.Ed. 655, 656 (1861). . The Supreme Court wrote its opinion in Welder v. Carroll, supra (29 Tex. 317), and then in effect adopted that opinion as the reasons for reversing and remanding Welder v. Hunt, supra (34 Tex. 44). . Welder’s location, entry, and application for the survey was for “the vacant land between the surveys on the Chiltipin and the surveys on the Aransas, bounding west by the Portilla grant and taking the land on the Chiltipin between said Portilla grant and the Robert Montgomery survey on said creek.” . “The certificate of the county surveyor as to the correctness of such field notes was necessary before they could be filed in tlie General Land Office. His certificate was therefore an official act of a public officer.” State v. Sun Oil Co., 114 S.W.2d 936, 945 (Tex.Civ.App., Austin, 1938, error ref.). . All emphasis herein has been supplied unless otherwise indicated. . These instructions from the Commissioner of the General Land Office, when promulgated became “a part of the law regulating the subject matter to which they refer.” Lewis v. Durst, 10 Tex. 398, 415 (1853). . On September 23, 1970, the State filed its Second Amended Original Petition in Intervention. It fixed the date of ouster as March 28,1942 and further alleged that since that date certain defendants “have drilled 147 oil and/or gas wells on said land and have produced therefrom about 82,218,492 barrels of oil and 105,786,410 Mcf. of gas of a reasonable market value at said time and place of drilling and production to the amount of $262,523,-437.” The State did “not limit its damage” to said sum, but sought a strict accounting and judgment for interest on the value “of the oil and gas produced and converted from the date of such conversion at the rate of 6% per annum.” . State v. Balli, 173 S.W.2d 522, 524 [Tex.Civ.App., San Antonio, 1943; aff’d 144 Tex. 195, 190 S.W.2d 71 (1944)]; Hamilton v. State, 152 S.W. 1117, 1120 (Tex.Civ.App., Austin, 1912, error ref.). . State v. Jadwin, 85 S.W. 490, 491 (Tex.Civ.App., Galveston, 1904, error ref.); Producers’ Oil Co. v. State, 213 S.W. 349, 353 (Tex.Civ.App., San Antonio, 1919, no writ). . E. g.: “ [T] lie parties went to the center of the land, and there the judge directed the grantee to enter into the possession, which he did, and gave evidence of the fact ‘by pulling up grass and making demonstrations as owner of the land.’ ” (68 U.S. at p. 290) . The land involved in this case was claimed under a grant from Coahuila and Texas and was located in the Power and Hewetson Colony. (185 S.W.2d at p. 993). The terms and conditions of the contract of the Empresarios Power and Hewetson are set out in Welder v. Lambert, 91 Tex. 510, 44 S.W. 281, 282 (1898). As was said in Strong v. Sun-ray DX, supra, “The contract provisions of this colony are so well known that they are a matter of judicial knowledge.” (448 S.W.2d at p. 733) . If we substitute “Clover, Devenny, and J. Armendaris” for the words “Swisher Surveys,” and “Gaffney” for “O’Sullivan,” this quotation fits our case precisely. Judge Price was speaking of the junior survey established by surveyor O’Sullivan. We speak of the junior surveys established by Gaffney. Both were official acts of public officials charged with the legal duties of fixing the boundary lines in the re spective cases. . The courts of several states have abolished this requirement e. g., New York in the case of DeWitt, Inc. v. Hall, 19 N.Y.2d 141. 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967), the court saying “that the ‘doctrine of mutuality’ is a dead letter.” See also, annotation in 31 A.L.R. 3d 1044. . Justice Walker was not considering' a boundary dispute in Swilley, and liad lie tried to throw light on the subject, such would have been obiter dictum. . Although Porter has been cited in at least six Supreme Court opinions, the holding has not been disapproved. See State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228 (1936); Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936); Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009 (1937); Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801, 104 S.W.2d 1 (1937); Short v. W. T. Carter & Brother, supra; and Swilley v. McCain, supra (374 S.W.2d 871). This list of citations could be multiplied by listing opinions from the several courts of civil appeals. . Some of the early genealogy of the Welder family is to be found in Welder v. Lambert, supra (44 S.W. at 282-283). . Cf. Superior Oil Co. v. Sinton Independent School Dist., 431 S.W.2d 383, 389 (Tex.Civ.App., Corpus Christi, 1968, no writ), wherein the oil company tendered in excess of two hundred thousand dollars into the registry of the court in payment of what it contended were the legal ad valorem taxes due upon its properties for a single year. In all probability, the dispute was over taxes upon the land involved in this suit. . Chief Justice Price in Harris v. O’Connor, supra, said: “We shall not enumerate them all, but mention only a few: James Wille, William Steadman, W. M. Walton, George Clark, John D. Templeton, James S. Hogg, Charles A. Culberson, M. M. Crane, T. S. Smith, Charles IC Bell, R. V. Davidson, Jewell P. Lightfoot, James D. Walthall, B. L. Looney, C. M. Cureton, W. A. Keeling, Dan Moody, Claude Pollard, Robert Lee Bobbitt, James Y. Allred, William McCfraw.” . Athough this opinion was by the Semi Colon Court, it has been cited by our Supreme Court at least three times. See in this connection, Norvell, “Oran M. Roberts and the Semi Colon Court,” 37 Tex. Law Rev. 279 (1959). . “The trial court erred in granting ap-pellees’ motions for summary judgment and in thereby depriving appellants of a jury trial as to the ground of recovery asserted in Section IX of Appelant Ateh-ley’s trial pleadings.” .We are advised by a footnote, “These documents, and translations thereof, are attached to the State’s Motion for Summary Judgment, and the First, Second and Third Supplements thereto, and are concisely summarized in such pleadings. (5.1, 5.2, 5.3, and 5.4)”

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2024-08-24T03:29:51.129683

R. L. BAKER, Appellant, v. Allen ALFORD et al., Appellees. No. 15942. Court of Civil Appeals of Texas, Houston (1st Dist.). July 13, 1972. J. Milton Stewart, Baytown, for appellant. No brief filed for appellees. COLEMAN, Justice. This is a building restrictions case. After a trial to the court a judgment was entered enjoining appellant from violating certain quoted restrictions and ordering him to remove from Lots 29 and 30 of the Sunrise Courts subdivision, Harris County, Texas, a certain “second hand house”. Appellees introduced into evidence a plat of the Subdivision. This plat contains a total of forty lots. A “Plat Dedication” executed by T. C. Dent dedicates certain property to public use, including the streets shown on the plat. This paragraph also appears in the “Plat Dedication”: “Further, all the property subdivided in adjacent map shall be restricted in its use, which restrictions shall run with the title to the property, and shall be enforceable at the option of Harris County, by Harris County, or any citizen thereof by injunction as follows There follow two restrictions, one relating to septic tanks, and the other to drainage structures under private driveways. A deed from T. C. Dent conveying Lots 29 and 30 of said subdivision to Orval Burke was introduced. This deed recites: “This conveyance is made by Grantor and accepted by Grantees subject to the following conditions, restrictions and limitations as follows: "... and the following restrictions: “5. No trailer houses, temporary housing or the moving in of second hand houses shall be permitted in said Subdivision . . . ” A deed from T. C. Dent conveying Lot 35 of said subdivision to Wilmer B. Anderson and Peggy Anderson was introduced into evidence. This deed recites: “This conveyance is made by Grantor and accepted by Grantees subject to the covenants, conditions and restrictions binding on Grantor affecting the use and occupancy of the above described property.” There is no evidence of any such covenants, conditions or restrictions. Wilmer B. Anderson is one of the plaintiffs in the case. Mr. Anderson testified that R. L. Baker’s property was in Sunrise Courts Addition on the same street as his house. R. L. Baker moved a second hand house into the subdivision; that it is on “Lots 29 or 30”, and that it is the only second hand house in the subdivision. No other deeds out of the developer were introduced into evidence. There is no evidence that the restrictions found in the Burke deed were made applicable to substantially all of the lots in the subdivision by an instrument of dedication or otherwise. Those seeking to enforce a restrictive covenant have the burden of establishing that the covenant was imposed on the land for the benefit of land owned by them. In the absence of such proof a deed restriction is construed as a personal covenant with the grantor. In such a case the deed restrictions cannot be enforced by the owners of other lots in the subdivision unless there is proof of a general plan or scheme for restricting the entire subdivision. Brehmer v. City of Kerrville, 320 S.W.2d 193 (Tex.Civ.App.-San Antonio 1959); Interstate Circuit, Inc. v. Pine Forest Country Club, 409 S.W.2d 922 (Tex.Civ.App.-Houston 1966, writ ref., n. r. e.). Appellees completely failed to sustain their burden of proof. There is no evidence to support the conclusion of the trial court that appellees, or any one of them, had a legal right to enforce the deed restriction. The trial court erred in granting injunctive relief. The judgment of the trial court is reversed and judgment is here rendered that appellees take nothing by their suit. Reversed and rendered.

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Jack EGGLESTON, Successor to Vapor Honing Company, Inc., Appellant, v. HUMBLE PIPE LINE COMPANY, Appellee. No. 501. Court of Civil Appeals of Texas, Houston (14th Dist.). June 14, 1972. Rehearing Denied July 12, 1972. William W. Kilgarlin, Warren E. Hancock, Jr., Houston, for appellant. Frank L. Heard, Jr., Dillard Baker, Houston, for appellee. SAM D. JOHNSON, Justice. Jack Eggleston, as successor to Vapor Honing Company, Inc., brought this suit seeking damages on the theories of breach of contract or quantum meruit, and exemplary damages and attorney’s fees. Defendants in the trial court were Humble Pipe Line Company and its inspector, F. S. Parsons. A take nothing judgment was rendered as to both defendants and Eggle-ston, as appellant, now complains only of Humble Pipe Line’s exoneration. In March of 1961 appellant Vapor Honing, as lowest bidder, was awarded a contract by Humble Pipe Line to sandblast and apply a protective coating to nineteen storage tanks located at its Satsuma, Sugarland and Webster tank farms. Work on nine of the tanks was to be performed on a contract or turn-key basis. Work on the balance of the tanks was to be performed on a time and material or force account basis. This suit focuses upon the contract or turnkey portion of the agreement between the parties. Under the contract Humble’s inspector Parsons was clothed with rather broad authority, a part of which was the right to inspect the appellant’s equipment and to approve all blasting and the thickness of the coats applied to the tanks. It was Vapor Honing’s contention in the trial court that Parsons, from the inception of the contract, commenced a course of interference, harassment, arbitrary rejection of work and other capricious action which was calculated to — and did — make it impossible to complete the work. Vapor Honing contended that Parsons virtually took over the entire operation and ultimately forced Vapor Honing to terminate its endeavor. Appellant commenced operations on the job March 30, 1961, beginning at the Satsuma farm. Work soon fell behind schedule and on May 13, 1961, a meeting was held which was attended by Vapor Honing officials, Parsons, and two Humble Pipe Line officials. At this meeting a new job superintendent designated by Parsons was chosen from among the workmen and installed. This individual and others subsequently hired were usual employees of Vapor Honing’s chief competitor. The work continued to progress badly. When Vapor Honing’s former superintendent later came to the Webster jobsite, there is evidence that Parsons, on July 15, 1961, ordered Vapor Honing’s men and equipment off the job, saying that the contract was cancelled. On the following day appellant began moving off its equipment. The parties’ working association culminated when Parsons and his superior, W. D. Price, met with Vapor Honing officials in Vapor Honing’s office to discuss the various difficulties which had arisen. At that meeting it was agreed that Vapor Honing would discontinue the contract and accept 15% of the contract price for work then completed at the Webster farm. Price testified that George Moss, general manager and vice-president of Vapor Honing, agreed to give Humble Pipe Line a letter indicating that Vapor Honing was “giving up” the contract. On Monday or Tuesday of the following week Price called Moss in regard to the letter Moss was to give to Humble. The letter from Moss bearing a date of July 18, 1961, was sent to' Humble Pipe Line. In a subsequent call Price informed Moss that Humble Pipe Line would require a similar letter from Vapor Honing’s chief executive officer. Still another individual representing Humble Pipe Line called Jack Eggleston, Vapor Honing’s president and principal stockholder, regarding the additional letter. Some two to three weeks after Moss’s letter Eggleston sent Humble Pipe Line a letter identical to Moss’s. Both letters stated as follows: “Gentlemen: Our Company has contracted to perform certain work for you which is fully described and set out in the contract which you have styled ETA-8. We have pursued this contract diligently thus far, although in our performance, we have incurred a very substantial loss. In conference on Saturday, July 15, 1961, your Mr. W. D. Price and Mr. F. S. Parsons suggested that we surrender the unfulfilled portion of this contract and accept 15% of the contract price for the work completed as of July 15th on Tank No. 118 at Webster. This letter is to advise you that we concur with their request and suggestion. Please be advised, therefore, that we are hereby surrendering Contract No. ETA-8 without additional penalty other than that which may be incurred by our accepting 15% completion on Tank No. 118. We regret our inability to consummate this work on an economically sound basis.” A few days after the events of July 15 appellant Jack Eggleston and George Moss met with the president of Humble Pipe Line, W. S. Spangler, to voice complaints as to Vapor Honing’s treatment at the hands of Humble Pipe Line. Spangler ordered an investigation. A second meeting was held approximately a week after the first. In early August, 1961, a third meeting was held at which Humble Pipe Line was represented by W. A. Castille, vice-president of operations. At this meeting Humble Pipe Line expressed its satisfaction with the performance by Humble Pipe Line personnel and declined to pay approximately $10,000 in retainage. Mounting costs, enforcement of a federal tax lien and foreclosure on promissory notes given for loans to meet payrolls ultimately proved too burdensome and Vapor Honing went bankrupt within a few months of termination of the Humble Pipe Line contract. This suit was filed in March, 1965. Plaintiff’s case focused upon alleged harassment and interference with its enterprise by Humble Pipe Line’s employee Parsons, which conduct Humble Pipe Line allegedly ratified, and Humble Pipe Line’s takeover of Vapor Honing’s labor, materials and equipment on the job. On these bases plaintiff alleged a right to recover damages for breach of contract, in quantum meruit and punitive damages. Defendant Humble Pipe Line responded with the defenses of rescission, abandonment of the contract, payment, accord and satisfaction, and estoppel, most of which were based upon the letter sent by Eggleston to Humble Pipe Line. Plaintiff countered with the contention that Eggleston’s letter was the product of duress. In reply to special issues the jury found, inter alia, that Parsons had interfered with Vapor Honing’s work, proximately causing damage to Vapor Honing; that Humble Pipe Line ratified such conduct although Parsons’ conduct was beyond the course and scope of his duties; that Humble Pipe Line, after May 17, 1961, took over Vapor Honing’s men, materials and equipment, for which reasonable compensation would be $46,016; that in view of Humble Pipe Line’s ratification of Parsons’ conduct, exemplary damages in the sum of $500,000 were justified; that recovery of $45,000 as attorney’s fees on the basis of the quantum meruit plea was proper; that Vapor Honing did rescind the contract; that Vapor Honing did not abandon the contract; that Humble Pipe Line still owed certain sums under the contract but that Vapor Honing had agreed to accept a lesser sum in satisfaction of its rights pertaining to the contract; that Vapor Honing had represented that it was surrendering its rights, and that Humble Pipe Line had relied upon that representation and but for that reliance would not have contracted with a third party for completion of the job at Webster. The jury failed to find that Humble Pipe Line’s recontracting was a detriment to it, but did find that Vapor Honing had acted under duress when Eggleston’s letter of July 18, 1961, was signed. The trial court set aside the jury’s answers to special issue 42 relative to detriment and special issue 43 relative to duress and rendered a take nothing judgment. In this appeal appellant limits himself to three issues: (1) the propriety of the trial court’s disregarding the jury’s response to special issue 42; (2) the propriety of the trial court’s disregarding the jury’s reply to special issue 43; and (3) alleged error in the trial court’s refusal to render judgment for appellant in accordance with appellant’s motion for judgment by which appellant proposed to recover $594,266 from defendant Humble Pipe Line, and to take nothing from defendant F. S. Parsons. Appellant’s first point of error complains of the trial court’s disregarding of the jury’s failure to find that Humble Pipe Line suffered detriment by having to contract with a third party for completion of the Webster work. Appellant contends that the record contains some evidence “to support the jury’s findings to such issue.” We will treat the trial court’s action as a holding that, as a matter of law, Humble Pipe Line did suffer detriment, and we will treat the first point of error as a contention that there is some evidence to show Humble Pipe Line did not suffer detriment and thus a contrary holding as a matter of law was improper. The matter of detriment is an element of estoppel, a defensive issue upon which Humble Pipe Line had the burden of proof. The contract between the parties revealed that Vapor Honing was to prepare and recoat nine tanks on a turn-key basis for a total consideration of $46,129. The evidence showed that Humble Pipe Line paid Vapor Honing on the turn-key portion $31,972.08 for work actually done, leaving a balance of $14,156.92. Subsequent to Vapor Honing’s withdrawal from the job Humble Pipe Line contracted with Gulf Coast Painters, Inc. for completion of the original turn-key work for a total consideration of $24,610, or $10,453.08 more than the price for which Vapor Honing had contracted to perform the balance of the turn-key work. We are of the opinion that the jury’s answers to special issues 39 through 41, finding a representation by Vapor Honing that it was surrendering the contract, reliance upon that representation by Humble Pipe Line and recontracting upon the strength of that reliance, establish all the requisite elements of equitable estop-pel in this case. Given that the Gulf Coast contract cost Humble Pipe Line $10,000 more, establishing the representation of contract surrender and reliance upon that representation by recontracting with Gulf Coast necessarily means Humble Pipe Line suffered a detriment of $10,000. Thus the recited evidence establishes a prima facie case of estoppel and the inquiry now is whether or not appellant produced any probative evidence beyond a scintilla to demonstrate that Humble Pipe Line did not in fact suffer detriment. Appellant questions whether or not Humble Pipe Line actually entertained competitive bidding for the contract to complete the Webster job and thus whether or not Humble Pipe Line necessarily suffered detriment. The only evidence in this respect, however, tends to demonstrate that Humble Pipe Line did invite bids, rather than merely negotiate the completion contract with Gulf Coast. Humble personnel F. S. Parsons, W. D. Price, and W. A. Castille all gave testimony supporting ap-pellee’s position that the Gulf Coast contract was a result of competitive bidding. Appellant produced no contrary evidence. Moreover, appellant’s assertion that Humble Pipe Line was under no obligation to accept any of the bids and form a new contract is of little avail. The question raised by special issue 42 here challenged is not, as in issue 41, what Humble Pipe Line could or would have done but, once it did recon-tract, did it suffer detriment by so recon-tracting? In addition, the fact that Gulf Coast’s completion contract quoted prices per tank higher than its quotations in the original bid for the whole job is equally unavailing. The comparison is not between Gulf Coast’s bids, but between Gulf Coast’s bid as opposed to Vapor Honing’s bid. Appellant cites Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.Sup.1968) for the proposition that exposure to the real facts, careless indifference to the means of information reasonably at hand, or exposure to highly suspicious circumstances preclude a party’s reliance upon another’s representation. In the present case, regardless of who or what led to Vapor Honing’s terminating its contract with Humble Pipe Line, Vapor Honing did represent to Humble that it was forfeiting all rights under and accepting satisfaction of the contract. The letters dated July 18, 1961, are in evidence and clearly state “we are surrendering Contract No. ETA-8” and “accepting 15% completion on Tank No. 118.” Both of these letters predated the contract with Gulf Coast signed August 18, 1961. There is nothing to suggest that Vapor Honing’s officials were unaware of the legal effect of the letter. Indeed, George Moss, when asked in trial regarding Humble Pipe Line’s stated reason for wanting a letter agreeing “to give up” the contract, responded that the reason for the letters was “ . . .to make it legal and binding; in other words, we were willing to give up”. Appellant argues under the rule in Barfield, supra, that Humble Pipe Line knew or clearly should have known the real facts as to why Vapor Honing left the job. That is not the character of knowledge to which the Barfield rule pertains. Rather, that case speaks of knowing or being in a position to know that the representation is not true or is deceiving. Appellant does not suggest that Vapor Honing or its management did not really intend to surrender the contract. He argues that Vapor Honing was compelled to surrender it, and that is a separate matter, one properly discussed under the second point of error. The contention, based upon the case of Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.Sup.1967), that no detriment can exist because Vapor Honing discovered Gulf Coast workmen on the job at Sugarland prior to the Vapor Honing letter, is unconvincing. In the cited case Tyra’s claim of estoppel was of no merit because the action upon which he claimed estoppel occurred some three months after the claimed detriment he was to have suffered. In the present case appellant effectively concedes that the detriment to Humble Pipe Line, if any, was the contract with Gulf Coast, bearing a date of August 18, 1961. This was a full month subsequent to July 18, the date of the first Vapor Honing letter. Even should Eggleston’s letter not have been sent prior to that date (and the evidence suggests that it probably was), Eggleston testified that Moss showed him the original letter before it was mailed, and thus Eggleston impliedly ratified it. The jury found in response to special issue 41 that Humble Pipe Line would not have recontracted except for Vapor Honing’s representation which, under issue 39, came “on or after” July 18, 1961. No contest is made of this finding. In addition appellant submits no proof whatsoever to show that the Gulf Coast workers discovered at the Sugarland jobsite were there in pursuance of a contract with Humble Pipe Line or that they were performing work that Vapor Honing was contracted to do. This one bit of testimony was not pursued by appellant’s attorney, was not corroborated, and was never again alluded to in over 1,830 pages of statement of facts. When viewed in light of all the above this testimony can be considered as no more than a scintilla of evidence negativing the fact of detriment incurred by Humble Pipe Line because of its contract with Gulf Coast. Appellant’s second point of error concerns his theory to nullify appellee’s defensive issues, i. e., that Eggleston’s letter dated July 18, 1961, was written under duress. Three examples of duress are stressed: (1) alleged threats by Humble Pipe Line to remove Vapor Honing from its bidding list for future jobs; (2) alleged threats to sue Vapor Honing for unpaid bills; and (3) alleged threats to charge and sue Vapor Honing for “down time”, i. e., time during which completion of the re-coating operations rendered Humble Pipe Line tanks useless. Regarding the alleged threat of omission from future bidding lists, the evidence breaks into two episodes. The first involved a representation by W. D. Price to George Moss, in response to Moss’s inquiry that giving the letter of July 18, 1961, would preclude excision from Humble Pipe Line’s future bidding lists. Secondly, Jack Eggleston testified that he personally was “reminded that the letter was originally written so that we would not be blackballed for future bidding . . . ”. This evidence is scant proof of a threat, an item the trial court’s definition of duress expressly required. Regardless, we are cited to no Texas authority which recognizes duress in a threat to remove a contractor from one’s future bidding list. It is still a rule of general application in this state, with only a most limited possible modification, that threat to do that which an individual has a legal right to do will not form duress, unless it is a threat of criminal prosecution. Ulmer v. Ulmer, 139 Tex. 326, 162 S.W.2d 944 (1942); McDonald v. Republic National Bank of Dallas, 404 S.W.2d 874 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.). Humble Pipe Line had a right to remove or add to its bidding list any contractor it might choose. The second complaint pertains to Humble Pipe Line’s alleged threat to sue for any bills Vapor Honing left unpaid. This, again, Humble Pipe Line had a perfect right to do. Threat of a law suit for the enforcement of a claim does not constitute duress. Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App.—Tyler 1965, no writ); Riggs v. Bartlett, 310 S.W.2d 690 (Tex.Civ.App.—Dallas 1957, writ ref’d n. r. e.). Vapor Honing has in the courts “an adequate means of protection, and there is no imminent threat.” See Dale v. Simon, 267 S.W. 467 (Tex.Comm’n App.1924, judgment adopted). The third complaint concerns alleged threats to charge for and sue for “down time”. The contract between the parties is silent as to down time. That, of course, does not mean that Humble Pipe Line necessarily has no “legal right” to seek compensation for down time. If it is charged that Humble threatened to sue for down time, under the above authorities such a threat would not be duress because it is not imminent. And, appellant has not established that such a threat embodies a matter it lacks a legal right to assert. If Humble Pipe Line’s threat is said to be just to charge for down time, short of suing to enforce that claim, appellant has failed to demonstrate that such a charge would be wrongful and that merely by so charging Humble Pipe Line would unlawfully injure the property and business of Vapor Honing. There is language in appellant’s brief to suggest that it was duress merely for Humble Pipe Line to possess the power to withhold payment prior to proof of payment of labor and materialmen bills, or at least that the prospect of retainage was a factor in persuading Eggleston to submit his letter of July 18, 1961, to Humble Pipe Line. There is nothing in Eggleston’s testimony to hint that the power of retainage was a factor. Even so, this power was expressly provided for in the contract. Nothing in the record tends to prove that retain-age was threatened, much less than an exercise of the power would have been wrongful. The record suggests that Humble Pipe Line paid out some $31,000 of a total $46,-000 contract price when it legally could have declined to issue such payment. Appellant also suggests as factors in the decision to give the July 18, 1961, letter Vapor Honing’s desire not to endanger negotiations with Humble Pipe Line for payment of additional sums and Vapor Honing’s fear of soiling its reputation in the business community. These matters relate to anticipated possible disadvantageous side effects of the demise of Vapor Honing’s contract with Humble Pipe Line. They are not coercive devices applied by Humble Pipe Line but are foreseeable ramifications of a breakdown by Vapor Honing in the performance of its contractual obligation, whatever the reason for that breakdown. This is not the duress contemplated by the Texas authorities. Cases cited by appellant in his brief are distinguishable as involving either a threat of criminal prosecution or a threat of some wrongful character. The lone exception is Mitchell v. C. C. Sanitation Company, 430 S.W.2d 933 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref’d n. r. e.). We believe that case to be factually dissimilar to the instant case and therefore not controlling. In Mitchell an employer threatened to discharge an employee who had been involved in a collision unless the employee signed a release freeing the other driver in the accident from further liability for damages. The employer sought the release so as to receive compensation for its vehicle involved in the collision. This Court held that, although the employer had a right to discharge appellant any time it chose to, it was duress for the employer to threaten discharge where the employer acted in concert with the other driver’s employer, for its own economic advantage, so as to destroy its employee’s cause of action. Attention is drawn to the “inequality in the terms, sacrifice of benefits and rights on the part of the employee . . . and advantage taken of the weaker party . ”. In the present case Humble Pipe Line acted in concert with no one. Nor did Humble Pipe Line threaten to terminate any existing relationship with Vapor Honing. Moreover, Humble Pipe Line acted to protect itself under a contract for performance of a service, not to cover its equipment loss occasioned by an employee’s accident. And, crucially, no employer-employee relationship existed between the parties to the alleged duress. There is here no genuine taking advantage of a weaker party comparable to that in the Mitchell case. Because we find no error in the trial court disregarding the jury’s answers to special issues 42 and 43, a take nothing judgment was not improper. It is, therefore, unnecessary to discuss appellant’s third point of error seeking judgment in accord with his motion for judgment. The trial court’s disposition of the case is affirmed. Affirmed. TUNKS, C. J., concurring. TUNKS, Chief Justice (concurring). I concur in the result reached by the majority opinion. However, I respectfully disagree with the majority opinion in its conclusion that the holding therein is effectively distinguishable from the holding of the majority of this Court in Mitchell v. C. C. Sanitation Company, 430 S.W.2d 933 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref’d n. r. e.). My concurrence herein is based upon my disagreement with the holding in the Mitchell case.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Stanley E. MARTIN, Appellant, v. Mary L. LOTT, Independent Executrix of the Estate of Patricia Patterson, Appellee. No. 17881. Court of Civil Appeals of Texas, Dallas. May 25, 1972. Rehearing Denied June 22, 1972. Richard Jones, Rain, Harrell, Emery, Young & Doke, Dallas, for appellant. Mark R. Saiter, Passman, Jones, Stewart, Andrews & Co., Dallas, for appellee. GUITTARD, Justice. This appeal is from a summary judgment denying plaintiff Stanley Martin specific’ performance of a letter agreement concerning repurchase of a certain overriding royalty he had previously conveyed to Patricia Patterson, deceased. The court ruled that by accepting payments made to him as life tenant under Miss Patterson’s will, plaintiff made a binding election which bars him from enforcing the letter agreement, We hold that plaintiff was required to elect, but that such an election has not been established as a matter of law, and we remand for further proceedings. The letter agreement, dated August 7, 1961, is as follows : “Miss Patricia Patterson 1426 Fidelity Union Building Dallas 1, Texas Dear Pat: In consideration of your willingness to purchase one-half of my one-fourth of the overriding royalty on the Carroll, Dempsey-Montooth, Ellison, Fry Lease and LeForce Lease, I agree that: Any time you wish to sell your interest, I will re-purchase it for $2,575.00, minus all payments which have been paid thereon from date of purchase until date of re-sale to me. Sincerely, /s/ Stanley E. Martin STANLEY E. MARTIN In consideration of your guarantee of re-purchase of the above described one-half of one-fourth overriding royalty, I agree that: I will not sell or transfer this interest to anyone without first offering it to you. The purchase price to you shall be not more than four times my purchase price, minus all payments which have been paid thereon from date of my purchase to date of re-sale to you. /s/ Patricia Patterson PATRICIA PATTERSON” Miss Patterson died October 31, 1970 after receiving more than $16,000 in royalty payments. Her will leaves all income from her oil royalties to plaintiff Martin for his life, with remainder to Mary Lott and Theda Vannoy. Mary Lott qualified as executrix. On December 1, 1970, counsel for the executrix wrote to plaintiff enclosing a copy of the will and advising that his rights under the letter agreement became “null and void” on the death of Miss Patterson, but that he was entitled under the will to receive the income from the royalties during his life. The record shows that plaintiff accepted from the executrix checks for nine monthly payments beginning December IS, 1970. On February 22, 1971 by letter addressed to counsel for the executrix, plaintiff gave notice that he was electing to exercise the “option” provided in the letter agreement. Upon her refusal to convey, he filed this suit for specific performance. The executrix counterclaimed, praying for declaration of rights as to whether the royalties in question were subject to the agreement. Both parties moved for summary judgment. The sole ground of defendant’s motion, which the trial court sustained, was that plaintiff could not enforce the agreement because he had elected to take under the will. Plaintiff appeals on the single point that this ruling was error. Although the only counterpoint presented in the brief of defendant executrix seeks to support the summary judgment on the ground that plaintiff made an election as a matter of law to take under the will, she also contends that the letter agreement is unenforceable. She argues that by this agreement Miss Patterson did not actually give plaintiff an option to repurchase the royalty but only agreed to make him an offer before selling or transferring to anyone else, and, since she has made no offer, there is nothing he can accept to form a binding contract. Defendant is correct in saying that the agreement does not give plaintiff an option in the usual sense of a contract conferring a continuing power to accept a specified offer. However, she is incorrect in asserting that a promise to make an offer to the promisee on specified terms before selling to anyone else cannot be enforced. Such a promise, when supported by consideration, creates a “pre-emptive right,” “preferential right of purchase,” or “right of first refusal,” under which a sale or transfer contrary to such right has the effect of an offer and confers such a power of acceptance. A sale or transfer without making such an offer is a breach of contract for which the remedy of specific performance is available. The original conveyance of royalty to Miss Patterson as well as plaintiff’s contemporaneous promise to repurchase at her request provides adequate consideration for her promise not to sell or transfer without first offering the royalty to him at a price to be determined as provided in the agreement. Neither do we find any uncertainty or ambiguity arising from specification of two purchase prices. Each price applies in a different' situation. Miss Patterson has a continuing option to resell to plaintiff at a price to be determined according to one formula, and if she desires to sell or transfer to someone else, plaintiff has a preemptive right at a price determined according to another formula. This pre-emptive right is unusual in that the purchase price on exercise of the pre-emptive right amounts to zero under the circumstances of this case, since it is limited to four times the original purchase price of $2,575 less all royalty payments received by Miss Patterson, and she had already received more than four times that amount at the time of her death. However, this circumstance does not affect the enforceability of the agreement, if otherwise legal, since, as we have already pointed out, plaintiff’s original conveyance to Miss Patterson and his promise to repurchase on certain terms provide adequate consideration for her grant of the preemptive right. Since defendant has not raised in the trial court or on this appeal the question of whether the letter agreement by its terms indicates an intention that the pre-emptive right should terminate on Miss Patterson’s death or whether the will amounts to a transfer subject to the agreement rather than one in violation of the agreement, we shall dispose of the appeal on the main question presented, that is, whether plaintiff’s acceptance of the royalty payments made to him as life tenant under the will was an election which precludes him from exercising his pre-emptive right. This is not the usual question of construction of a will to determine whether it requires an election or attempts to dispose of property which the testator did not own. The suit is an attack on the will itself as a breach of contract. In order to recover plaintiff must contend, and he does contend, that the devise of the royalty in the will was a breach of the letter agreement. The question is whether plaintiff can maintain such action after having accepted benefits as a life tenant under the will. We hold that an election is required because plaintiff cannot attack a provision in the will and at the same time accept and retain benefits under that same provision. A similar question was before this court in Lieber v. Mercantile National Bank, 331 S.W.2d 463 (Tex.Civ.App., Dallas 1960, writ ref’d n. r. e.), and we held that a beneficiary who accepted a legacy under a will was barred from claiming specific performance of a contract to make a will providing for her an annual income. Chief Justice Dixon pointed out that the suit was an attack on the will and that to sustain it would have the effect of defeating and preventing full operation of other parts of the will. Likewise, to sustain the present attack on the will would have the effect of defeating the remainder devised to Mary Lott and Theda Vannoy. Consequently, plaintiff was required to elect whether to take his life estate or to exercise his right under the letter agreement. Plaintiff contends that acceptance of the royalty payments could not amount to an election because he was entitled to such payments in either event, that is, if he elected to take as life tenant or if he elected to exercise his pre-emptive right under the letter agreement. This contention is unsound because he was not entitled to such payments under the letter agreement until he exercised his pre-emptive right, and he did not exercise it until his letter of February 22, 1971. His only right to retain payments accepted before that date is his right under the will to receive the income for his life. We hold, however, that the summary judgment is erroneous because defendant has not established such election as a matter of law. The summary judgment proof fails to show that when plaintiff accepted the checks he knew that he was required to elect between the life estate provided in the will and his rights under the letter agreement and that he intended to elect to take under the will. Election to take under a will is a question of intention, express or implied. When no express election is made, the intention must be determined from all the circumstances of the case, and the party charged with election must have had knowledge of his inconsistent rights and of his duty to choose between them. This is a question of fact for a jury unless the circumstances are so clear that only one reasonable inference can be drawn. So far as appears in this record, plaintiff first learned of the terms of the will from the letter of December 1, 1970 from counsel for the executrix. This letter did not advise him that he was required to elect but rather that his “option” under the letter agreement had terminated on death of the testatrix. Defendant’s motion for summary judgment shows that after receiving this letter plaintiff received and cashed two checks for monthly royalty payments in December, 1970, and one in January, 1971. Then on February 22, 1971, he undertook to exercise his right under the letter agreement by written notice to counsel for the executrix. The record does not show when he discovered that the letter agreement may still have been effective notwithstanding counsel’s advice to the contrary. Though a person may ordinarily be presumed to know his legal rights, that presumption does not apply when the issue is his intention to elect between inconsistent rights, particularly when he has been advised by adverse counsel that one of those rights has expired. The question of election may be approached from another point of view. When the owner of property subject to a pre-emptive right declares his intention to sell, the holder of the right has an election to purchase the property or decline to purchase it and let the owner sell it to another. A transfer in violation of the pre-emptive right is equivalent to such a declaration. In a suit for specific performance of an agreement not to sell or transfer without first making an offer to the plaintiff, such a transfer is considered equivalent to the offer which the owner has failed to make and gives the plaintiff an election to accept or reject, that is, to purchase or to decline to purchase. As in the case of any other offer specifying no time for acceptance, the power of acceptance does not continue indefinitely but terminates on expiration of a reasonable time or by express rejection, or by conduct clearly inconsistent with an intention to purchase. Acquiescence in a transfer made in violation of the preemptive right would be conduct inconsistent with an intention to purchase. In this case, when plaintiff learned of the terms of the will, not later than December 2, 1970, he had an election to exercise his pre-emptive right and demand transfer to him of the overriding royalty interest, or to decline to exercise that right and acquiesce in the transfer made by the will in breach of the agreement. His acceptance of royalty payments before giving notice of exercise of his pre-emptive right may be evidence of his election to acquiesce in the transfer made by the will. We cannot say that it establishes such an election as a matter of law, since this type of election also is a matter of intention and the record fails to show that plaintiff knew about his inconsistent rights and intended to choose between them. Plaintiff contends that upon reversing the judgment below we should not remand for further proceedings but should sustain his motion for summary judgment. We cannot sustain his motion because, although the stipulated facts do not establish as a matter of law that plaintiff has made a binding election to take under the will rather than to exercise his pre-emptive right, neither do they establish as a matter of law that he has not made such an election. Moreover, important questions remain concerning the duration and effect of the letter agreement, as we have already pointed out. Reversed and remanded. . Since no ground of illegality is pleaded under Texas Rule of Civil Procedure, rule 94 or argued on this appeal, we do not decide whether the agreement is void as a perpetuity or restraint on alienation; but see Mattern v. Herzog, 367 S.W.2d 312 (Tex.1963); Sibley v. Hill, 331 S.W.2d 227 (Tex.Civ.App., El Paso 1960, no writ); Atchison v. City of Englewood, 170 Colo. 295, 463 P.2d 297 (1970); H. J. Lewis Oyster Co. v. West, 93 Conn. 518, 107 A. 138 (1919); Restatement, Property § 413 (1944) ; Reasoner, Preferential Purchase Rights in Oil and Oas Instruments, 46 Tex.L.Rev. 57 (1967); 6 American Law of Property § 26.64 (1952). . 1A Corbin, Contracts § 261 (1963) ; 6 American Law of Property, op. cit. supra note 1, § 26.64; Reasoner, supra note 1 at 64 et seq. See Draper v. Gochman, 400 S.W.2d 545 (Tex.Sup.1966). .On this point see Maynard v. Polhemus, 74 Cal. 141, 15 P. 451 (1887); and cf. Old Mission Peninsula School District v. French, 362 Mich. 546, 107 N.W.2d 758 (1961). At our request counsel have submitted briefs on this point, but they agree that the point is not before us for the purpose of determining the correctness of the judgment below. . Cf. Draper v. Gochman, 400 S.W.2d 545 (1966). . See for example, Davis v. East Texas Savings & Loan Ass’n, 163 Tex. 361, 354 S.W.2d 926 (1962) and Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955). . Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Dunn v. Vinyard, 251 S.W. 1043 (Tex.Com.App.1923); Wurth v. Scher, 327 S.W.2d 72 (Tex.Civ.App., Fort Worth 1959); cf. Bumpass v. Johnson, 285 S.W. 272 (Tex.Com.App.1926, motions for rehearing overruled, 287 S.W. 243, 290 S.W. 739, reversing Johnson v. Bumpass, 275 S.W. 1108, Tex.Civ.App., Beaumont 1925). . Corbin op. cit. supra note 1, § 261 at 474. .Restatement, Contracts §§ 35, 36, 37 (1932). See W. T. Rawleigh & Co. v. Izard, 113 S.W.2d 620 (Tex.Civ.App., Eastland 1938, no writ); Goodwin v. Hidalgo County Water Control & Improvement Dist., 58 S.W.2d 1092 (Tex.Civ.App., San Antonio 1933, writ dism’d). The present agreement is not an option which gives a power of acceptance at any time within a specified period notwithstanding previous rejection, as in Humble Oil & Refining Co. v. Westside Investment Corp., 428 S.W.2d 92 (Tex.Sup.1968).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BANK OF NORTH AMERICA, Appellant, v. STATE BANKING BOARD of the State of Texas et al., Appellees. No. 11959. Court of Civil Appeals of Texas, Austin. July 12, 1972. Rehearing Denied Aug. 2, 1972. Byron Lockhart, Austin, for appellant. Crawford C. Martin, Atty. Gen., John H. Banks, Asst. Atty. Gen., Jacobsen & Long, Joe R. Long, Austin, Liddell, Sapp, Zivley & Brown, W. Robert Brown, Houston, for appellees. SHANNON, Justice. Appellant, Bank of North America, appeals from the judgment of the district court of Travis County sustaining the order of the State Banking Board approving a charter for Southeast Bank. We will affirm that judgment. In a prior opinion this Court affirmed the judgment of the district court in refusing appellant’s application for a temporary injunction to enjoin the Board from making effective its approval of the charter for Southeast Bank. Bank of North America v. State Banking Board of State of Texas, et al., 468 S.W.2d 529 (Tex.Civ.App.1971, no writ). The important question on appeal is raised by the order of the trial court refusing to reinstate the case on the jury docket. The validity of that order, in turn, depends upon the determination of the character of review, whether one of substantial evidence or de novo, to be accorded by the trial court of the appeal of the order of the Board. If the trial were to be conducted by the substantial evidence rule, appellant was not entitled to have the case tried to a jury, but if the case were to be tried de novo, appellant was entitled to a jury. The issue determined below, was succinctly stated in the judgment as, “All parties agreed in open court that the issue remaining in the case to be tried by the court was whether the applicants for Southeast Bank were acting in good faith as required by Chapter Three, Article 5A(5) of the Texas Banking Code (1943) (Article 342-305A (5) Vernon’s Annotated Texas Statutes)”. The case was heard before the court under the substantial evidence rule, and judgment was entered in which it was specifically found that substantial evidence existed that the applicants for Southeast Bank were acting in good faith. In its trial pleading, the third amended original petition, appellant pleaded, among other things, that the order of the Board should be set aside because Southeast Bank was a branch of Texas Commerce Bank in violation of the Constitutional prohibition against branch banking and of the antitrust laws of Texas, and that these arrangements had been concealed from the Board. While certain special exceptions to this petition were sustained, an examination of that instrument after the special exceptions were sustained reveals that appellant’s contentions, alluded to above remained a viable part of that pleading. Appellant argues on appeal that violations of the prohibition against branch banking and of the anti-trust laws are not within the province of the Board’s authority to consider in its hearing on the application for the bank charter and, independently of the appeal of the Board’s order, appellant is entitled to a jury determination of the factual matters making up the alleged violations. We do not decide whether or not the alleged violations are matters properly considered by the Board in hearing the application for the charter since it is only on appeal that this contention has been voiced. It appears from the pleadings and judgment that in the trial of the case, it was at least assumed by all that the matter of these violations was properly before the Board. In passing, we do observe in this connection that the opinion of Attorney General Price Daniel dated August 18, 1952, relating to the charter application of Inwood State Bank, states that the Board has the duty of determining whether a charter, if granted, would violate the prohibition against branch banking and the anti-trust laws. The sole issue before the trial court, as characterized by the trial court and agreed to by the parties was whether the applicants for Southeast Bank were acting in good faith as required by Article 342-305, subd. A(5). It appears from the appellant’s pleadings that the thrust of its case below was to attempt to rebut the evidence of the applicants’ good faith by showing that Southeast Bank was but a branch of Texas Commerce Bank in violation of the Constitution and the anti-trust laws of Texas, and that these arrangements were concealed from the Board. If these violations were proved, it would seem that the applicants could not be acting in good faith. A jury determination of the facts underlying these violations is appellant’s claimed right. The issue of good faith is one of five findings required by Article 342-305, subd. A to be made by the Board incident to the granting of a charter. In this case, the other four required findings made by the Board were not controverted. The appeal of the Board’s order granting a charter, although limited to the issue of good faith, is triable under the substantial evidence rule. See Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427 (Tex.1963). We are of the opinion that evidence of violations of the constitutional prohibition against branch banking and of the anti-trust laws was but ground for rebuttal to the applicants’ proof of good faith, all to be determined in this case within the framework of a substantial evidence trial. Appellant’s second and final point of error is that the court erred in overruling its motion for summary judgment to set aside the Board’s order because of ex parte communications from a stockholder in Southeast Bank to a Board member. Some time prior to trial, both appellant and appellees filed motions for summary judgment, both of which were denied. In this posture, the order denying the motion for summary judgment is not appealable. Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966). The judgment is affirmed. Affirmed. . Called the “Board” in this opinion. . Tex.Const. art. XVI, section 16, Vernon’s Civ.St. . In Southern Canal Co. v. State Board of Water Eng., 159 Tex. 227, 318 S.W.2d 619, 623 (1958) Justice Calvert stated that the courts cannot conduct both a substantial evidence rule and a de novo type trial, or even a hybrid type of trial, in the same suit. This is so since the two are diametrically opposed to one another.

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2024-08-24T03:29:51.129235

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RIVER OAKS CHRYSLER-PLYMOUTH, INC., et al., Appellants, v. Mary Josephine BARFIELD, Appellee. No. 649. Court of Civil Appeals of Texas, Houston (14th Dist.). June 14, 1972. Rehearing Denied July 12, 1972. Jerry Nathe Parks, Don E. Harris, Don W. Graul, Harris, Archer, Parks & Graul, Houston, for appellants. John E. Cahoon, Jr., Cahoon & Cahoon, Houston, for appellee. BARRON, Justice. This is a suit by Mary Josephine Barfield for alleged conversion of her automobile and a sum of money allegedly in the car when taken, for damages occasioned by the loss of a cow, and for damages resulting from loss of use of her automobile. On March 26, 1970, Mrs. Barfield left her car with River Oaks Chrysler-Plymouth, Inc., to have certain repairs performed on it. When the repairs were completed she picked up the car and tendered a check in the amount of $151.66 to defray the cost of the work. After she had returned home with the car she stopped payment on the check. An employee of River Oaks Chrysler-Plymouth called Mrs. Barfield and told her the car would be repossessed unless payment was made. On the morning of April 16, 1970, Mrs. Barfield discovered that her front gate was open, her cattle were gone and her automobile was missing. She subsequently learned that River Oaks Chrysler-Plymouth, Inc., had the car in its possession. Approximately two weeks later this suit was filed. The trial court, sitting without a jury, rendered judgment in favor of plaintiff in the amount of $3,333.95 and River Oaks Chrysler-Plymouth, Inc., now appeals that judgment. An automobile repair agency, by virtue of Tex.Const. art. 16, sec. 37, Vernon’s Ann.St. acquires a valid artisan’s lien on the automobile undergoing repairs. Christian v. Boyd, 222 S.W.2d 157 (Tex.Civ.App.—Fort Worth 1949, no writ). And loss of possession by the repair agency does not extinguish or waive the lien it holds. Shirley-Self Motor Co. v. Simpson, 195 S.W.2d 951 (Tex.Civ.App.—Fort Worth 1946, no writ). However, we found no authority which authorizes an artisan’s lienholder summarily to repossess the chattel upon which he has labored once he has surrendered possession of it unless contractually provided. Thus, while appellant’s artisan’s lien can serve as a basis for a suit for recovery of payment for services, it will not serve as a defense to an action for conversion. Appellant contends that it also retained a “security interest” in the automobile in question under the terms of a document entitled “Customer Repair Order”. This instrument is a sheet listing the services performed, parts used and labor expended in the repair of appellant’s car, and the charge for each. The repair order is personally signed by appellee. In the lower left-hand corner of the repair order appear these provisions: “I hereby authorize the above repair work to be done along with the necessary material, and hereby grant you and/or your employees permission to operate the car or truck herein described on streets, highways or elsewhere for the purpose of testing and/or inspection. In consideration of repair and/or service work on the motor vehicle described herein, performed or to be performed by River Oaks Chrysler-Plymouth, Inc. (DEALER), and as security of the payment of charges to said work, CUSTOMER, whose signature appears hereon, either as Owner or Agent of Owner, hereby grants to DEALER a security interest in said vehicle (hereinafter called COLLATERAL). CUSTOMER agrees that DEALER’S acceptance of partial or delinquent payments or failure of DEALER to exercise any right or remedy shall not be a waiver of any obligation of CUSTOMER or rights of DEALER or constitute a waiver of any other similar default subsequently occurring. CUSTOMER shall be in default under this combined Security Agreement upon the happening of any of the following events or conditions: 1. Failure of CUSTOMER to pay DEALER’S charges in full at the time possession of COLLATERAL is returned to CUSTOMER, or, in the event CUSTOMER is approved for credit by DEALER, failure to pay DEALER’S charges in full within thirty (30) days from date of DEALER’S Invoice. 2. Any time DEALER believes that the prospect for payment of the obligation secured hereby is impaired. In the event of default, DEALER shall have the right at DEALER’S option to collect maximum delinquency finance charge of 1½% per month on the first $500.00 of CUSTOMER’S unpaid balance and 1% per month on CUSTOMER’S unpaid balance in excess of $500.00, such charge to become part of CUSTOMER’S obligation (U/2% PER MONTH IS AN ANNUAL PERCENTAGE RATE OF 18%. 1% per month is an annual percentage rate of 12%), repossess and sell, without Court order, COLLATERAL at public or private sale, and DEALER may be the Purchaser at such sale for reasonable value, and CUSTOMER SHALL pay all reasonable attorney’s fees and costs of repossession, storage and sale of Collateral. In the event repossession occurs, CUSTOMER agrees to surrender Title Certificate to COLLATERAL and assign same to DEALER. CUSTOMER authorizes DEALER, in event of default, to repossess COLLATERAL without demand, and for this purpose to enter upon any premises where the COLLATERAL is located. DEALER shall, in addition, have all the rights and remedies provided by the Uniform Commercial Code. CUSTOMER hereby acknowledges that this combined Security Agreement and Charge Account Agreement was completed before signature by CUSTOMER and a copy hereof was delivered to CUSTOMER at time of signing.” (emphasis added) Appellee does not claim lack of knowledge of these terms. This document constitutes a valid chattel mortgage by which appellant received a lien on appellee’s automobile to secure payment for repairs. The terms of the mortgage expressly entitled appellant to repossess the car without court order and to enter upon any premises where the car was situated. Where, as here, the mortgagee avails himself of the terms of the mortgage he is not guilty of a conversion. 12 Tex. Jur.2d Chattel Mortgages sec. 52 (1960). Moreover, the record in the present case reveals that the repossession was completely peaceful and lacking in any wrongful character. One obstacle remains in the way of enforceability of appellant’s security interest against appellee. Tex.Bus. & Comm.Code Ann. sec. 9.203 (1967), V.T.C.A. provides that, “(a) ... a security interest is not enforceable against the debtor or third parties unless (1) the collateral is in the possession of the secured party; or (2) the debtor has signed a security agreement which contains a description of the collateral. . . .” Possession of the automobile was surrendered by appellant to appellee at the time appellee tendered her check in payment. Thereafter, in order for appellant legally to have recovered the automobile so as to enforce its lien, appellant must have had an agreement signed by the appellee which contained a description of the collateral automobile. We think the repair order reserving a security interest in the automobile in appellant’s favor and signed by appellee does contain a description of the automobile sufficient to satisfy Article 9.-203. The order contains notations as to the brand of the automobile, the year, the model, the speedometer reading and the license number. Tex.Bus. & Comm.Code Ann. sec. 9.110 (1967) provides that: “For the purposes of this chapter any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.” We think the information recounted above “reasonably identifies” the automobile in question. This is particularly so in light of the fact that the current dispute is between the creditor and debtor, not between the creditor and a third party. The debtor is fully aware of what collateral is concerned and does not need any information in addition to that found in the work order in order to identify the car. Because appellant was fully entitled to repossession by virtue of the signed repair order imposing a lien upon appellee’s automobile, the trial court was in error when it allowed appellee recovery for conversion of the automobile. We think the record amply supports an award of $333.95, the amount of cash allegedly in the glove compartment of the car when it was removed from appellee’s garage. Appellee is entitled to possession of her vehicle subject to her liability, if any, for the cost of repairs, which we do not pass upon. Affirmed in part and reversed and rendered in part.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Harold W. KAHLA et ux., Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee. No. 661. Court of Civil Appeals of Texas, Houston (14th Dist.). July 12, 1972. Rehearing Denied Aug. 2, 1972. Russell T. Van Keuren, Matthew H. Talty, III, Baggett, Kirk, Van Keuren & Gordon, Houston, for appellants. Frank E. Catón, Baker & Botts, Houston, for appellee. BARRON, Justice. This is an action brought by plaintiffs, Harold W. Kahla and wife, Julia W. Kahla, the latter being injured in a hit and run collision with a pickup truck alleged to have occurred on February 2, 1967. This suit was filed in the District Court of Harris County, Texas, on September 19, 1969. The owner of the involved pickup truck was James Edward Compton, but the truck was allegedly being operated at the time of the collision by Gary Warner. The Kahlas brought suit in 1967 in the District Court of Harris County, Texas in cause number 725,754 against James Edward Compton claiming personal injuries as a result of Mrs. Kahla’s accident with the pickup truck owned by Compton. Later in that proceeding, Gary Warner was added as a party under allegations that Warner was the permissive operator of the truck at the time of the collision. A jury fee was deposited, and a jury was selected to try the prior case. At the conclusion of the evidence the trial court instructed a verdict for Compton and held that the Kahlas take nothing as against Compton and entered judgment against Warner and in favor of the Kahlas for $10,000.00. Although Warner had been served with citation, he filed no answer and none was filed for him. However the Kahlas presented their entire case to the court and jury. At the conclusion of the trial, the Kahlas moved for a severance, and separate judgments were entered with the Kahlas recovering a judgment against Warner in a cause designated number 725,754A. The above judgment against Warner was signed and entered on June 23, 1969. During every stage of the trial court proceeding in cause number 725,754, the defendant Compton was defended by attorneys for the Travelers Insurance Company under its policy of liability insurance with Compton, which was a Texas Standard Form Automobile Policy with an omnibus clause, issued under the Texas Assigned Risk Plan to Compton as owner by virtue of the Safety Responsibility Law of Texas, Vernon’s Tex.Rev.Civ.Stat.Ann. art. 6701h (1969). The foregoing is generally proven and is not controverted by any party, but on the other hand it is assumed by •Travelers to be true and is so admitted in Travelers’ brief. No effort was made by Travelers to defend Warner, and no objection was made to the judgment entered against him. Travelers relied throughout that trial upon a non-waiver agreement it had taken from Warner prior to the suit. The non-waiver agreement was signed by Gary Warner in favor of Travelers “Indemnity” Company on March 21, 1967, a short time after the accident above mentioned, and was in the usual form. In the Kahlas’ trial pleadings in the suit against Compton and Warner (of which Travelers had notice) it was clearly alleged that “the Defendant Warner was acting within the course and scope of his employment for the Defendant Compton on the occasion in question and/or with his permission, and/or on a joint venture . . .”. (Emphasis added) Nevertheless, Travelers refused to defend Warner at the trial, though it was clearly alleged that Warner was an omnibus insured under the assigned risk policy of insurance above referred to, and Travelers knew the facts by reason of its defense of Compton in this suit and for other reasons. The instant case was brought by the Kahlas against Travelers directly under Travelers’ policy of insurance in which Warner was alleged to be the omnibus insured. After a hearing without a jury, the trial court rendered judgment in favor of Travelers and ordered that the Kahlas take nothing. The Kahlas have appealed as appellants, and The Travelers Insurance Company is appellee. The parties will hereafter usually be so designated. Contention is made by appellants that there is no evidence and insufficient evidence to support the judgment of the trial court; that the exclusions from coverage claimed by Travelers were not pleaded under Rule 94, Tex.R.Civ.P.; and that the trial court erred in excluding from evidence the deposition of Compton in the prior case and in overruling appellants’ bill of exceptions based thereon. At the outset, we believe the judgment against Gary Warner is perfectly valid. All evidence was presented to the court and the jury on the issues as to both Warner and Compton, motion for instructed verdict was granted in favor of Compton, and after the cases were severed by the trial court, judgment was entered against Warner. We have no statement of facts in such prior case, and we presume the regularity of the judgments under these circumstances. However, a court is authorized to render judgment without submitting the case to the jury if the facts upon which the judgments are based are supported by undisputed evidence. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 384 (1945). We have no means of determining the state of that evidence, and we do not disturb the prior judgments, partiularly in view of the severance granted by the trial court. While the amended Rule 220, Tex.R.Civ.P.,.effective January 1, 1971, is not applicable here, the rule has been changed to provide that failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury. As stated above, the policy issued by Travelers to Compton was an assigned risk policy under the Texas Assigned Risk Plan. See Art. 6701h, Sec. 21(f) 1, Tex. Rev.Civ.Stat.Ann. (1969); and see McCarthy v. Insurance Company of Texas, 271 S.W.2d 836 (Tex.Civ.App.—San Antonio 1954, no writ). The above statutory provision reads in part as follows: “1. The liability of the insurance company with respect to the insurance required by this Act shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs.; said policy may not be canceled or annulled as to such liability by any agreement between the insurance company and the insured after the occurrence of the injury or damage; no statement made by the insured or on his behalf and no violation of said policy shall defeat or void said policy;” (Emphasis added). The above provision governs the particular policy in the instant case. The statute eliminates any argument concerning unreasonable risks. This policy is not subject to the defenses that the insured breached provisions of the policy. Lumbermens Mutual Insurance Company v. Grayson, 422 S.W.2d 755 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.); Pan American Insurance Company v. Claunch, 398 S.W.2d 792 (Tex.Civ.App.—Amarillo 1965, no writ). As the statute says, the policy becomes absolute when injury occurs. However, Travelers relies upon the assigned risk case of Vidaurri v. Maryland Casualty Company, 444 S.W.2d 767 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.), which holds, inter alia, that an insurer can contest liability to an insured on the contention that the alleged assigned risk insured driver was driving without the named insured owner’s permission at the time of the accident, on the ground that no coverage exists in such a situation. In such case, the driver was using an alleged substitute vehicle without permission of the owner. We find, however, in this case that permission was given by Compton to Warner at all material times. Compton and Warner were partners in the meat business known as C and W Meat Company, meat distributors. See Royal Indemnity Company v. H. E. Abbott & Sons, Inc., 399 S.W.2d 343 (Tex.Sup.1966). In answers to interrogatories requested by appellants in the prior case and which were filed and signed by the identical attorney representing the identical party as in the present case, James Edward Compton, the named insured owner of the pickup truck stated under oath that Gary Warner had been given permission by him to use the pickup truck on the occasion made the basis of the suit, and Compton assumed that Warner was driving it. The truck was being driven for Warner’s pleasure. We believe that such answers to interrogatories in this case are competent evidence herein, since appel-lee’s counsel stated that he had no objection to the evidence at the time it was admitted. While we recognize that the matter of permission was immaterial to the judgment in favor of appellants against Warner and did not work an estoppel against appellee to deny permission in the present case, Employers Mutual Casualty Company v. Lee, 352 S.W.2d 155, 157-158 (Tex.Civ.App.—Houston 1961, no writ), we believe that Compton’s statements are admissible under the circumstances in the present case regardless of the restrictions placed on them ordinarily under Rule 168, Tex.R.Civ.P., particularly in view of a virtual agreement as to admissibility. A default judgment against an insured is no defense to an action on a policy of the type involved here. Art. 6701h, supra; 8 Appleman, Insurance Law and Practice sec. 4854, p. 267 (1961). And see Pioneer Casualty Company v. Jefferson, 456 S.W.2d 410 (Tex.Civ.App.—Houston (14th Dist.) 1970, writ ref’d n. r. e.). Appellee well knew of Warner’s involvement before March 21, 1967. Besides, the judgment should not under the circumstances have been by default, though it was shown that full proof of their cause of action was made by appellants. Under the pleadings of appellants in the first suit, the appellee clearly had the duty under its policy contract to defend Warner as an omnibus insured under the allegations of the petition and under the provisions of its contract. The above is true even though such suit may have been groundless, false or fraudulent. 7A Appleman, Insurance Law- and Practice secs. 4682, 4683, p. 428 (1961); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co, 387 S.W.2d 22 (Tex.Sup.1965); Maryland Casualty Co. v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App.—Austin 1940, writ ref’d). Appellee’s refusal to defend the suit against Warner under the circumstances, considering the assigned risk policy involved, was improper, and Travelers was not aided by the non-waiver agreement. This is not a question of waiver but one of affirmative duty under the contract. When a clear duty is breached in this manner, the insurer should be held under the rule that where the insurer conducts (or ought to conduct) the insured’s defense in a suit for damages, the insurer' is bound by material issues determined or impliedly determined therein. See Massachusetts Bonding & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396, 400 (Tex.Sup.1967). Permission to operate the vehicle by the named insured lies at the foundation of appellant’s right to recover under the policy in the instant suit. 7 Appleman, Insurance Law and Practice sec. 4354, p. 244 (1962). If established, protection then vests in the additional or omnibus insured, Warner, to the same extent as if Warner were the named insured who had been driving. Considering the nature of the evidence and the circumstances of this case, we believe that appellants have fully discharged their duty and burden of proof. All material issues in the Warner judgment are settled against appellee. Long v. Worth-am, 4 Tex. 381 (1849). This includes the identity of the operator at the time, as alleged in the first suit. Moreover, appellee did not plead lack of coverage under the policy on the part of the omnibus insured, Warner, as we believe should be required under Rule 94, Tex.R.Civ.P. (See Opinion of Subcommittee, Actions on Insurance Contracts). Under the circumstances, the defense of policy coverage was lost to appellee, as was the defense of any limitation thereon, as well as defenses under Art. 6701h. See National Mut. Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, 1091 (1940). We think the case of T. I. M. E., Inc. v. Maryland Casualty Company, 157 Tex. 121, 300 S.W.2d 68, 72-73 (Tex.Sup.1957), in effect requires the application of Rule 94 here. See also First National Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 676-677 (Tex.Sup.1969); Manhatten Fire & Marine Insurance Co. v. Melton, 329 S.W.2d 338, 341 (Tex.Civ.App.—Texarkana 1959, writ ref’d n. r. e.); 32 Tex.Jur. 2d sec. 515, Insurance, p. 753 (1962). In the absence of permission of the named insured, the exception to liability is just as true and real as if the form of the policy had made it so by a numbered and specific exception. The salutary requirements of Rule 94 are of doubtful value if they are to be dependent upon the form of the policy and if the rule is riddled with exceptions or doubtful logic created by judicial construction. See T. I. M. E., supra, 300 S.W.2d p. 73. Simple allegations of the plaintiff should not change the basic requirements of the rule. A plaintiff claiming rights under a policy of insurance is fully entitled to definite pleadings and specific information upon which the insurance company relies to defeat the liability under its policy. Under the circumstances, we see no possible benefit to appellee by a remand of this case. The judgment of the trial court is reversed and is here rendered in favor of appellants, Harold W. Kahla and Julia W. Kahla. . Depositions of Compton in the earlier suit were offered by appellants which showed that Compton and Warner were partners; that Warner had a set of keys to the truck; and had blanket permission to use the vehicle whenever he desired. The trial court denied admission of such testimony on grounds that the depositions were taken in another suit. While we do not pass upon the question, it seems that in view of only technical dissimilarity of parties and causes of action under the circumstances here, such statements by Compton should have been admitted, or at least we can think of no sound reason ordinarily for denial of such evidence, except that Compton’s availability as a witness was not shown. See 3 Jones, The Law of Evidence sec. 712 (5th ed. 1958); 1 C. McCormick and R. Ray, Texas Evidence secs. 953,1121 et seq. (2d ed. 1956).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

WALTON NEON COMPANY, Inc., Appellant, v. TRAVEL-TEX CORPORATION et al., Appellees. No. 716. Court of Civil Appeals of Texas, Corpus Christi. June 29, 1972. Rehearing Denied July 31, 1972. Porter, Taylor & Gonzalez, Rick Rogers, Corpus Christi, for appellant. Jack P. Kelso, Corpus Christi, for appel-lees. OPINION SHARPE, Justice. This appeal is from a judgment rendered after jury trial that plaintiff-appellant, Walton Neon Company, Inc., take nothing from the appellees Travel-Tex Corporation, Paul Kinstley, Jack Kelso and Robert T. Sullivan. Appellant’s single point of error asserts that “The trial court abused its discretion in denying Plaintiff’s timely motion to reopen and put on additional evidence pursuant to Rule 270 of the Texas Rules of Civil Procedure.” Appellant’s motion to re-open was made while the jury was deliberating and after it had sent a note to the judge, all of which will be more fully hereafter discussed. Appellant sued appellees on a lease contract dated February 23, 1970 which provided for the construction and maintenance of a sign by appellant to be erected and used at appellees’ motel located at Aransas Pass, Texas. The primary term of the agreement was for five years. Appellees agreed to pay $135.05 per month for the use and maintenance of the sign. The agreement provided, among other things,that in event of default by lessees that they should be liable for 80% of the rental for each month of the unexpired term of the contract. Appellant alleged that appellees had breached the agreement and were liable for $5,726.12 and attorneys fees in the amount of $2,500.00, plus interest, all aggregating $8,913.53, plus interest and costs. Defendants-appellees filed an answer in which they alleged in substance that the sign was erected in a place not agreed to by the parties; that the sign when erected could not be seen as was contemplated and agreed upon by the parties; that the sign was not erected to the height as agreed to by the parties; that because of these deficiencies the sign was practically useless to appellees; that appellees refused to make payments and requested appellant to remove the sign; that appellant took no action and the sign was removed by appellees after it was severely damaged by Hurricane Celia in August 1970. The motel in question was located at the intersection of three highways. Prior to the transaction herein involved some signs were on the motel premises but appellees desired a higher and larger sign which could be seen from all the approaching highways. A place for locating the new sign was originally agreed upon but it was later discovered that the location was on the highway right of way and a permit to install it there could not be obtained. There was a conflict in the evidence concerning the determination of a different location for the sign. No specific special issue was submitted to the jury on this phase of the case. Appellant’s evidence tended to show (particularly the testimony of Mr. Utah Hamilton and T. W. Anderson, appellant’s employees) that the sign had ultimately been placed at a location designated by the manager of the motel, a Mrs. Jean Cox. Appellees’ evidence tended to show that they or their motel manager had not specifically agreed to the location of the sign where it was ultimately erected. In any event, the evidence established that appellant installed the sign at a location different from that originally agreed on and there was a dispute between the parties as to whether the sign at its final location could be seen by approaching motorists and whether it was useful for the purpose for which it was intended. The trial court submitted two special issues to the jury. The second issue related to appellant’s attorneys fees, was answered “None”, and is not material to this appeal. Special Issue No. 1 and the jury answer read as follows: “Do you find from a preponderance of the evidence that the sign in question, as erected, failed to reasonably serve the purpose for which it was intended ? Answer ‘It did fail’ or ‘It did not fail.’ Answer It did fail” While the jury was deliberating the foreman sent a note to the trial judge reading as follows: “There is a question as to whether Mr. Hamilton testified that the sign was actually placed in operation by the Travel-Tex Corporation. Would it be possible to review this portion of the testimony” The parties agree in their briefs that the jury was returned to the court room and the court reporter read portions of the testimony of the witness Hamilton to the jury and the jury then retired for further deliberation; although such action is not actually shown by the record. Appellant then orally made its motion to re-open and put on additional evidence. The transcript reflects the proceedings at that stage of the trial as follows: “BY MR. ROGERS: If it please the Court, today is November the 10th 1971, and the jury in the case of Walton Neon Company versus Travel-Tex Corporation, having been out all the morning of November the 10th, has returned a note to the Court requesting —a note that states as follows: ‘The Jury disagrees as to whether Mr. Hamilton testified that he actually saw that the sign had been placed in operation subsequent to its installation by Walton Neon.’ And it’s signed by Mr. Gearhart, the foreman. Walton Neon Company, pursuant to Rule 270 of the Rules of Civil Procedure, requests the Court and at a time prior to a verdict being rendered in this case to re-open to put on additional evidence because of the jury’s disagreement with regard to this particular point. It apparently appears that the verdict of the jury depends on whether or not this sign was illuminated by the Defendant Travel-Tex, Jack Kelso, Paul Kinstley and Robert T. Sullivan, and there will be no — that it’s necessary for the due administration of justice that this additional testimony be received. It is believed that the witness Mr. Kinstley, as well as a witness by the name of Johnson from Aransas Pass can testify that the sign was illuminated; thereby clarifying this matter for the jury and it is respectfully submitted, Porter, Taylor and Gonzalez. We respectfully request that the Court allow the Plaintiffs in this case to reopen the testimony for this limited purpose of offering evidence that the sign was illuminated. THE COURT: Request is considered and denied. BY MR. PORTER: In making this motion to re-open, the Plaintiffs do not waive the position that it’s immaterial whether the sign was illuminated or not in that it’s the contrac-tural obligation as per Plaintiff’s Exhibit 1 herein that it’s the sole responsibility of Defendant to connect said sign to the electrical system and not the duty or responsibility of Plaintiff. THE COURT: Okay. The request is considered, noted and denied.” Later on the same day the jury returned its verdict and answered Special Issue No. 1 “It did fail”. Appellant filed a motion for new trial in which it complained among other things of the refusal of the trial court to grant the motion to reopen and present additional evidence. Four affidavits were attached to the motion for new trial; three of these were by jurors who sat in the case and the fourth was made by Mr. Wardell Jorner. The jurors’ affidavits were in identical form and all to the effect that the jury was unable to agree whether the sign as installed had ever been illuminated by Travel-Tex Corporation; that the above-mentioned note was sent to the court; that after the testimony of Mr. Hamilton was read to the jury the same disagreement existed; that if there had been evidence that the sign had been illuminated or placed in operation by Travel-Tex Corporation, each of the three juror-affiants would have voted to answer special issue No. 1 “It did not fail.” The affidavit of Warded Jorner stated in substance that Jorner had worked at a filling station across the street from the Travelers Motel; that prior to Hurricane Celia on August 3, 1970 he observed that a sign had been erected near to the entrance of the liquor store of the motel. He described the sign and said that he personally saw it illuminated and in operation at night; and that the sign was damaged by Hurricane Celia and has since been taken down. None of the jurors or Mr. Jorner was called to testify on the hearing of appellant’s motion for new trial. Neither was Mr. Kinstley or the witness Johnson (referred to in appellant’s motion to re-open) called as witnesses in support of the motion for new trial. Appellant offered no evidence in support of its said motion but relied solely on the motion and affidavits hereinabove mentioned. Rule 270, Texas Rules of Civil Procedure, provides as follows: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Provided in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Under this rule it has been held that it is within the court's discretion to grant or refuse permission to re-open and put on additional evidence. See 56 Tex.Jur.2d, Trial, Secs. 118-121, pp. 464-470, and cases therein cited. The difficulty with appellant’s position in this case is that the showing required on motion to re-open and present additional evidence was not made. The record shows that counsel for appellant stated to the court in part that “It apparently appears that the verdict of the jury depends on whether or not this sign was illuminated by the Defendant, Travel-Tex, Jack Kelso, Paul Kinstley and Robert T. Sullivan and there will be no — that it’s necessary for the due administration of justice that this additional testimony be received. It is believed that the witness Mr. Kinstley, as well as a witness by the name of Johnson from Aransas Pass can testify that the sign was illuminated; thereby clarifying this matter for the jury. . . . ” The court immediately overruled appellant’s request to re-open the testimony for the limited purpose of offering evidence that the sign was illuminated. At that point, appellant did not do anything further to preserve error in connection with the ruling of the trial judge. Although appellant states in its brief that the witness Kinstley was present in the court room, such fact is not shown by the record. But even assuming the accuracy of appellant’s statement in such connection, it was then appellant’s duty (if error was to be preserved) to offer to call Mr. Kinstley to the stand for the purpose of making a bill of exception. See Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App., El Paso, 1969, n. w. h.); Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App., Dallas, 1965, wr. ref. n. r. e.); Rules 372, 373, T.R.C.P. Since that action was not taken by appellant, neither the trial court nor this Court can determine what Mr. Kinstley’s testimony would have been, and the alleged error is not preserved for review. The same ruling applies to the witness Johnson, referred to by counsel for appellant. There is nothing in the record to show that he was available or that the court was requested to hear his testimony on bill of exception. Under the circumstances we cannot say that the trial court abused its discretion in denying appellant’s motion to re-open and present additional evidence. See McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299, 305 (Tex.Civ.App., Dallas, 1968, wr.ref. n. r. e.); Burris v. Wilson, 363 S.W.2d 885 (Tex.Civ.App., Amarillo, 1962, n. w. h.); Mosesman v. Robertson, 301 S.W.2d 279, 283 (Tex.Civ.App., Waco, 1957, n. w. h.); 56 Tex.Jur.2d, Trial, Sections 118-123, pp. 464-471. The affidavits attached to appellant’s motion for new trial did not add anything in support of appellant’s claim of prejudicial error, particularly since evidence was not actually offered in support of the motion or affidavits. Appellant’s point of error is overruled. The judgment of the trial court is affirmed.

sw2d_482/html/0937-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Odelia H. BLOSSMAN et al., Appellants, v. STATE of Texas et al., Appellees. No. 702. Court of Civil Appeals of Texas, Corpus Christi. June 22, 1972. Horkin & Dorsey, Patrick J. Horkin, Jr., J. R. Keeling, Corpus Christi, for appellants. C. Edwin Prichard, Jr., Asst. County Atty., Corpus Christi, for appellees. OPINION BISSETT, Justice. This is a condemnation case. Suit was brought by the State of Texas and the County of Nueces against Odelia H. Bloss-man, et al, to acquire a 3.273 acre tract of land in Nueces County, Texas, hereinafter sometimes called the “Blossman tract”, for highway purposes. It was stipulated that the only fact issue to be determined was the market value of the land that was taken by condemnation. The landowners waived their right to any claim for damages to the remainder of their land out of which the 3.273 acre tract was taken. After a jury trial, a judgment in favor of the landowners was entered on the jury finding that the market value of the land which was condemned was $7,200.60. Odelia H. Bloss-man, et al, the landowners, have duly perfected their appeal from the judgment entered. We affirm. The land that was taken is located immediately west of the unincorporated community of Violet and is about 2.8 miles east of the city limits of Robstown and about 3.1 miles west of the city limits of Corpus Christi. It is a “panhandle” shape tract of land, 82% of which fronts 539.87 feet on the south side of Highway 44. That portion fronting on the highway is 230 feet deep on the west side and about 200 feet deep on the east side. The remaining 18% is in the “panhandle” portion, about 417 feet in length and varying in depth from about 72 feet on the west to 51.51 feet on the east. Appellants, by their first two points of error, complain of the trial court’s refusal to admit the testimony of Mr. Bob Crow, an expert witness, relative to two sales, the “Ramon tract” and the “Cotton tract”, as comparables to support his opinion as to the market value of the Blossman tract, the land acquired by condemnation. These points cannot be sustained. It is undisputed that the Blossman tract was unimproved at the time it was taken. The “Ramon tract” was improved with a residence and the sale price thereof included the house and improvements. Our Supreme Court has held that sales of improved property are not admissible as compara-bles in determining the value of unimproved property. State v. Chavers, 454 S.W.2d 395 (Tex.1970). Concerning the “Cotton tract”, the record shows that it is in or very near the city limits of Robstown, some distance from the land involved in this appeal. “The general rule in such cases is that the question of the degree of similarity in the land involved in a claimed comparable sale, including the relative nearness of time and distance to the sale and land under consideration, is left largely to the discretion of the trial court”. State v. Childress, 331 S.W.2d 230 (Tex.Civ.App.—Eastland 1960, writ ref’d n. r. e.). The trial court did not abuse its discretion in excluding the testimony as regards the sale of the “Cotton tract”. The witness Crow did testify as to other sales, which he used as comparables to support his opinion as to the market value of the land in question. We have read the statements in the briefs of both parties and have examined the unchallenged representations made by the attorneys for both condemnors and condemnees relative to the “Ramon sale” and the “Cotton sale”, and are of opinion that even if the matter of the testimony relating to the excluded sales was properly before this Court, reversible error would not be shown. Mr. Crow placed the value of the Blossman tract at a figure considerably higher than that found by the jury. The exclusion of such testimony as primary evidence of a comparable sale or as corroborative evidence of Crow’s expert opinion of the market value of the condemned tract, was not of such nature as to be reasonably calculated to cause nor did it cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. In addition, the statement of facts does not set out or show either of the two transactions, nor is there a bill of exception showing the substance of the excluded testimony. We cannot say that the trial court erred in excluding such testimony. Field v. Sosby, 226 S.W.2d 484 (Tex.Civ.App.—Waco 1950, writ ref’d); Appellate Procedure in Texas, § 9.8(3). Appellants’ first and second points are overruled. Appellants, in their point three, say that the trial court erred in admitting the testimony of appellees’ witness, Mr. Ralph Cobb, as to his opinion of the market value of the condemned land on the date it was taken, for the reason that he was neither qualified as an expert witness nor as a lay witness with the knowledge of the condemned land necessary to support a market value opinion. We do not agree. It is true that the witness Cobb did not make an appraisal of the condemned land, had no knowledge of the land at the date of its taking on December 9, 1968, and never saw the land until August 9, 1971, a few days before the trial. However, he testified that he was a real estate broker and had been actively engaged in the real estate business and field continuously since 1954. He performed services at various times for a number of clients who were interested in buying lands located in the general area of the land involved. Since 1954, he had been an active broker in the area between Corpus Christi and Robstown in the general area of Highway 44, selling over 500 acres in 13 parcels in that area. His real estate company had a sales value of $1,300,000.00 for the period January 1, 1971 to August 9, 1971, the date of trial. He further testified that from his experience as a real estate broker and particularly the experience he had had in the general area of the condemned tract that he had an opinion as to values of lands in that locale as of the date of its taking in December, 1968. Prior to trial he had actually visited the property that was taken by condemnation and was familiar with its layout. The qualification of a witness to testify as to the market value of property is largely within the discretion of the trial court, and the appellate court should not disturb the action of the trial court in the absence of a clear abuse of that discretion. State v. Evans, 340 S.W.2d 99 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.); Premier Petroleum Co. v. Box, 255 S.W.2d 298 (Tex.Civ.App.—Eastland 1953, writ ref’d n. r. e.). It is, however, essential that the expert witness have some acquaintance with the land and its market value at the time of trial. Hubbard v. Harris County Flood Control District, 286 S.W.2d 285 (Tex.Civ.App.—Galveston 1956, writ ref’d n. r. e.); Texas Pacific Coal & Oil Co. v. Taylor, 47 S.W.2d 1110 (Tex.Civ.App.—Eastland 1932, n. w. h.); Houston Lighting & Power Co. v. Daily, 291 S.W. 317 (Tex.Civ.App.—Galveston 1927, writ dism’d). “The rule undoubtedly is that, where it appears a witness’ testimony is predicated upon both personal knowledge and upon hearsay, his testimony is admissible.” Norris v. Lancaster, 280 S.W. 574 (Tex.Comm’n App.1926). When a witness testifies that he is acquainted with the market value of the real estate in that market, he is qualified to testify concerning such value. Natural Gas Pipeline Company of America v. Towler, 396 S.W.2d 917, 922 (Tex.Civ.App.—Corpus Christi 1965, n. w. h.); Texas Sanitation Co. v. Marek, 381 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1964, n. w. h.); State v. Newton, 391 S.W.2d 758 (Tex.Civ.App.—Waco 1965, n. w. h.). See Texas Land of Condemnation, § 126, pp. 400-402. In this case, the witness Cobb was qualified to give his opinion as to market value of the Blossman tract. Appellants’ criticisms of Mr. Cobb’s qualifications go to the weight of his testimony rather than to its admissibility. Appellants’ third point is overruled. We next consider appellants’ sixth point of error, wherein it is claimed that the verdict of the jury and the judgment rendered thereon are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Appellants presented testimony of three witnesses concerning the market value of the 3,273 acre tract at the time of taking. Mr. Kilgore and Mr. Winship were lay witnesses, and Mr. Crow was an expert. Testimony as to the sales price of several tracts was received in evidence. One such sale involved a lot (the Kilgore lot) located about 450 feet east of the most northerly northeast corner of the 3.273 acre tract, fronting 50 feet on Highway 44 and 168.5 feet deep, containing .19 acres that was sold by Mr. Kilgore under a contract sale for $2,500.00. The terms of the contract were $30.00 down and $30.00 per month, bearing 7% interest. Other sales relied upon by appellants were sales of small tracts out of an 18.7 acre tract (the Tidwell tract) located about 1.5 miles west of the condemned tract. These tracts fronted on Highway 44. The 18.7 acre tract fronted 1,000 feet on the highway and was over 800 feet deep; one of the small tracts, above mentioned, fronted 300 feet on the highway; each of the three other tracts fronted 100 feet on the highway; they varied in depth from about 600 feet to over 800 feet; the tracts contained 5.7, 1.9, 1.4 and 1.88 acres, respectively. Using a front foot basis, the tracts sold from $36.50 to $49.50 per front foot. Using an acreage basis, the lands sold from $1,900.00 to $2,934.00 per acre. Mr. Crow, after considering the above sales, placed a market value of $20,853.12 on the Blossman tract. Appellees presented testimony of two witnesses, Mr. Cobb and Mr. Erickson, concerning the market value of the Blossman tract at the time in question. These witnesses also relied on the sales of the small tracts out of the “Tidwell tract” as com-parables in determining market value of the condemned tract. It was pointed out that these sales were of lands that were long and narrow in dimensions, rectangular in shape, with the narrow side fronting on Highway 44. In their opinion, the sales price was properly based on an acreage basis. Mr. Erickson explained why he did not use the sale of the Kilgore 50 foot lot as a basis for his opinion on market value. Mr. Cobb testified that the market value of the land at the time it was taken was $6,500.-00; Mr. Erickson’s opinion was that its market value at that time was $6,400.00. The evidence in the record reasonably supports the market value of $7,200.60 as found by the jury. The jury verdict is for considerably less than the value placed on the land by appellants’ witnesses, but is more than the value placed thereon by appellees’ witnesses. All of the witnesses called were competent and qualified. The jury saw and heard each of them as they testified, and being the exclusive judge of their credibility and of the weight to be given their testimony, resolved the fact issue of the market value of the property. It is solely the function of the trier of facts to resolve conflicts and contradictions in the evidence such as those presented by this appeal and we have no authority to usurp that function. State v. Meyer, 391 S.W.2d 471 (Tex.Civ.App.—Corpus Christi 1965, aff’d by Tex.Sup.Ct. in 403 S.W.2d 366); Housing Authority of City of Dallas v. Shambry, 252 S.W.2d 963 (Téx.Civ.App.—Austin 1952, writ ref’d n. r. e.). We find no reason to disturb the jury’s finding. City of Corpus Christi v. Nemec, 404 S.W.2d 834, 839 (Tex.Civ.App.—Corpus Christi 1966, n. w. h.); Cannon v. State, 473 S.W.2d 325 (Tex.Civ.App.—Houston 1st 1971, n. w. h.). After a review of the entire record, we are convinced that there is ample evidence of probative force to support the jury’s finding with respect to market value of the 3.273 acre tract at the time it was taken. We hold that the verdict and the judgment rendered thereon are not against the overwhelming weight and preponderance of the evidence. Appellants’ sixth point is overruled. Prior to the beginning of the trial, the appellants filed certain admissions with the trial court wherein they waived the right to compensation for damages to the remainder of the land owned by them out of which the 3.273 acre tract was carved. Such admissions gave appellants the right to have the damages for the 3.273 acre tract determined by the jury without consideration or knowledge that the appellants owned other land contiguous with and adjacent to the tract that was condemned. State v. Meyer, 403 S.W.2d 366 (Tex.Sup.1966); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936, opinion adopted). The trial court then granted appellants’ motions in limine whereby counsel for appellees was instructed to make no reference at any time or stage of the trial to the fact that appellants owned land adjacent to the land that was being condemned, to refrain from asking any question referring to the remainder of appellants’ land, and not to attempt to introduce any evidence of any kind or character that would indicate or suggest to the jury that there was such a remainder. Appellants, by their fifth point, contend that the trial court erred in refusing to grant them a new trial because appellees’ attorney, through cross-examination, conveyed to the jury information that was barred by the granting of their motions in limine. They say the word picture drawn by the questions and answers that are shown on two pages of the statement of facts “without a doubt implanted in the minds of the jury, the fact that this small tract, which had been farmed for many years, was not farmed or owned independently of a larger tract”. We take issue with appellants on their position. One of their own witnesses (Kilgore) had already told the jury that the tract was very valuable as commercial property. Appellees’ counsel, through questions and answers, brought out by Mr. Kilgore that (a) the land had been owned and farmed by appellants for many years, and (b) no use other than farming had been made of the land during the time that he had been acquainted with it. Such inquiries were proper. “ . . . the particular purposes to which property is devoted, as well as others to which it is adapted, may be shown in evidence to enable the court and jury to determine its market value. . ” State v. Carpenter, 89 S.W.2d 194 at 198. Moreover, appellants did not object to such questions being asked of Mr. Kilgore, nor did they move to strike either the questions or the answers. Appellants’ fifth point is overruled. Jury misconduct during deliberations is asserted by appellants in their fourth point. Three jurors, including the foreman, testified concerning the alleged misconduct. Mrs. Garza stated that a juror, early in the deliberation, commented that the appellants would have more frontage on the highway after it was widened, but that the foreman promptly told the jury that they could not consider that matter as it was not brought out in the evidence; she also stated that there was no further discussion o'f the subject and that it did not enter into the jury’s deliberation about the amount of money awarded by their verdict. Mrs. Baker said that a juror inquired as to whether appellants owned “the rest of the land”, and said: “There would be more frontage afterwards than before”; she then stated the foreman said: “We cannot consider that. It is not in the testimony”; she further stated that the comment that was made did not influence her in her consideration of the amount of money that was awarded by the jury. Mr. Ard, the foreman, did not remember that any comment was made as to whether appellants would have more frontage on the highway after the taking than they had before; he testified “after examining the exhibits someone asked who owned the property behind the water line and someone else said they assumed it belonged to Mrs. Blossman, and I immediately told them not to discuss that because it was not brought out in the trial”. He further testified that there was no further discussion of the subject and no mention was made thereof in the jury’s deliberation as to the amount of money awarded by the verdict. The identity of the juror who made the comments was not disclosed. The trial court found that the testimony as to exactly what was said during the deliberation by the jury was conflicting, but from the overall testimony of the three jurors who testified at the hearing on the motion for a new trial, that a juror, whose name was unknown, stated that if Mrs. Blossman owned the land located to the rear of the land that was being taken, she would have more frontage after the taking than before. The court found that upon the statement being made, the foreman of the jury immediately rebuked the juror, and told the jury that this matter was not brought out in evidence and should not be discussed or considered. The court also found that the statement was not a positive statement of fact but was a statement expressing deductive reasoning or opinion based upon a contingency. The court further found that there was no overt act or jury misconduct. We approve the fact findings made by the trial court. Texas & P. Ry. Co. v. Aaron, 19 S.W.2d 930 (Tex.Civ.App.—Texarkana 1929, cert. denied, 281 U.S. 756, 50 Sup.Ct. 409, 74 L.Ed. 1166); Kittrell v. State, 382 S.W.2d 273 (Tex.Civ.App.—Dallas 1964, writ ref’d, n. r. e.); Nugent v. State, 287 S.W.2d 515 (Tex.Civ.App.—Austin 1956, n. w. h.). Whether a statement made by a juror in the course of jury deliberations amounts to misconduct is an issue of fact but whether such alleged misconduct resulted in injury to the complaining party is a question of law. City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989 (1941). Under Rules 327 and 434, T.R.C.P., the party complaining of jury misconduct must not only prove that an act of misconduct occurred and that it was material, but must also go further and show that probable harm resulted from such misconduct. Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 263 (1944); National Surety Corporation v. Moore, 386 S.W.2d 327 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.); St. Paul-Mercury Indemnity Co. v. Bearfield, 296 S.W.2d 956 (Tex.Civ.App.—Waco 1956, writ ref’d, n. r. e.). We have examined the entire record in this case, including the testimony of the three jurors who testified concerning alleged jury misconduct, and have reached the conclusion that appellants have not demonstrated to us that probable harm resulted to them from the alleged statements made in the jury room. They have not discharged the burden cast on them by Rules 327 and 434, T.R.C.P. In the absence of a showing that the juror’s comment or statement affected the verdict, reversible error is not established. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242 (1955); Kittrell v. State, supra; Garcia v. Home Indemnity Company, 474 S.W.2d 535 (Tex.Civ.App.—Amarillo 1971, n. w. h.). The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Bonita PARNASS, Appellant, v. L & L REALTY CORPORATION, Appellee. No. 17905. Court of Civil Appeals of Texas, Dallas. June 29, 1972. Rehearing Denied July 20, 1972. Wm. Andress, Jr., Andress & Woodgate, Dallas, for appellant. Robert H. Bliss, Richard L. Jackson, Johnson, Bromberg, Leeds & Riggs, Dallas, for appellee. GUITTARD, Justice. L & L Realty Corporation obtained judgment by default in a district court of Dallas County against Bonita Parnass, a resident of Colorado, who seeks reversal on writ of error. Citation was served on the Texas Secretary of State, as provided by Vernon’s Tex.Rev.Civ.Stat.Ann. art. 2031b (1964). Our questions are whether the petition alleges the jurisdictional facts necessary for substituted service under this statute, whether such jurisdictional allegations must be supported by proof, and whether the record must show that the Secretary of State mailed the process to defendant. We hold the petition sufficient, without proof, and that mailing need not be shown. We first consider the sufficiency of the petition. Plaintiff asserts that personal jurisdiction over defendant has been obtained under section 6 of article 2031b, which provides: “When any * * * person becomes a non-resident of Texas, * * * after a cause of action shall arise in this State, but prior to the time the cause of action is matured by suit in a court of competent jurisdiction in this State, when such * * * person is not required to appoint a service agent in this State, such * * * person may be served with citation by serving a copy of the process upon the Secretary of State of Texas, who shall be conclusively presumed to be the true and lawful attorney to receive service of process; provided that the Secretary of State shall forward a copy of such service * * * to such * * * person by certified or registered mail, return receipt requested.” The petition alleges: “At the time this cause of action arose, the Defendant was a resident of Dallas County, Texas, and the indebtedness alleged in this petition against Defendant arose out of business in which the Defendant engaged in this state. Defendant now is a resident of the State of Colorado and resides at 2927 Mesa Road. Apartment A, Camelback Village, Colorado Springs, Colorado 80904. The Defendant has not appointed an agent in this state upon whom service may be made upon causes of action arising out of such business and there is no person in this state in charge of any business in which the Defendant is engaged in this state upon whom service of process may be had.” The petition further alleges that service may be had on the Secretary of State in accordance with section 3 of article 2031b, but we regard the reference to section 3 as surpulsage and consider only whether the above allegations are sufficient under section 6, above quoted. Defendant contends that the petition is insufficient to authorize service on the Secretary of State because it does not include an allegation that defendant “does not maintain a place of regular business in this state.” We hold that such an allegation is not required under section 6. We recognize that such an allegation is necessary under section 3, which provides for substituted service on a nonresident who engages in business in this state and “does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State.” McKanna v. Edgar, 388 S.W.2d 927 (Tex.Sup.1965). Section 6 provides only that a person who becomes a nonresident after the cause of action arises and “is not required to appoint a service agent in this State” may be served by serving the Secretary of State. The petition need not allege that defendant is not required to appoint a service agent if it alleges, as does the present petition, that defendant “has not appointed an agent in this state upon whom service may be made.” If such a defendant is not required to appoint an agent, section 6 applies, and if he is required to appoint an agent but has not done so, process may be served on the Secretary of State under section 1, which expressly so provides, so that in either event service on the Secretary of State is authorized. Collins v. Mize, 447 S.W.2d 674 (Tex.Sup.1969). Defendant also argues that article 2031b permits resort to section 6 only when no agent in charge of any of defendant’s business in this state is available for service under section 2, which provides that a nonresident who engages in business in this state may be served “by serving a copy of the process with the person who, at the time of the service, is in charge of any business in which the defendant or defendants are engaged in this State.” In support of this argument she cites McKanna v. Edgar, supra, in which the Supreme Court held that article 2031b permits resort to section 3 only if section 2 is not available. Here the petition does show that section 2 is not available, since it alleges “there is no person in this state in charge of any business in which the Defendant is engaged in this state upon whom service of process may be had.” Moreover, the allegation that defendant was a resident of Texas when the cause of action arose is sufficient in itself to show that section 2 is inapplicable, since that section applies only to actions arising out of business done in Texas by nonresidents, whereas section 6 applies to a cause of action that arose before defendant became a nonresident. The next question is whether the judgment must be reversed because the record contains no proof of the statutory prerequisites to substituted service alleged in the petition. Plaintiff concedes that no evidence was offered before default judgment was rendered. It is arguable that allegations concerning jurisdiction should not be taken as admitted by the default, since defendant cannot be said to have defaulted unless the court has jurisdiction of his person. However, our search of the authorities has revealed no case in which proof of jurisdictional prerequisites has been required when such prerequisites were alleged in the petition. In McKanna v. Edgar, supra, the Supreme Court held that jurisdiction must “affirmatively appear on the face of the record,” and that plaintiff has the burden of making sufficient allegations to bring the defendant within the provisions of the statute. Since the “face of the record” does not include evidence at the trial, we gather that the Supreme Court was of the view that on direct review of a default judgment, the statutory prerequisites to substituted service are sufficiently shown by allegations in the petition. This view assumes that when defendant fails to appear, the allegations of jurisdiction are taken as admitted, as are allegations of liability. If the particular form of substituted service gives reasonable assurance that defendant will have actual notice, as due process requires (and no question of due process is raised here), a nonresident defendant who receives such process may determine from the jurisdictional allegations in the petition whether he should make a special appearance under Tex.R.Civ.P. 120a to contest jurisdiction, just as any defendant may determine in the light of the petition whether he should contest the merits. Consequently, if the return shows service in the statutory manner and defendant fails to appear, the court may treat the jurisdictional facts alleged in the petition as established. A requirement that plaintiff support his jurisdictional allegations with competent proof would be a heavy burden in default cases because defendant is not available for cross-examination, and plaintiff may have no means of knowledge other than hearsay of-some of the jurisdictional facts, such as whether defendant has a regular place of business in the state or a local agent in charge of such business. The difficulty of proving the negative in these respects would in many cases be insurmountable. No indication of legislative intent to require proof of jurisdictional allegations before default judgment is rendered can be found in article 2031b. Section 6, which governs this case, provides that when a defendant becomes a nonresident after the cause of action has arisen and is not required to appoint a service agent in this state the Secretary of State “shall be conclusively presumed to be the true and lawful attorney to receive service of process.” This language indicates an intent to treat the statutory prerequisites as equivalent to appointment of a service agent. In the case of other statutory service agents, our courts have held that the averments of the petition are sufficient without further proof to establish that the person served was in fact the type of service agent specified by law. Proof of agency is required if the fact of agency does not appear from the petition, the citation, or the officer’s return. We conclude that proof is no more necessary to support jurisdictional allegations under article 2031b than to support allegations of the authority of any other service agent before default judgment is rendered. Finally we must consider defendant’s contention that the judgment must be reversed because the record fails to show that the Secretary of State forwarded a copy of the citation to defendant by certified or registered mail, as required by sections S and 6 of article 2031b. Defendant cites no authority holding that such a showing is necessary other than general statements in McKanna v. Edgar, supra, and other authorities to the effect that on direct review of a default judgment the record must affirmatively show strict compliance with the statutory method of service. We hold that strict compliance is shown by the petition alleging the statutory prerequisites to substituted service and the return reciting service on the Secretary of State. Since, as pointed out above, this statute treats the Secretary of State as equivalent to an appointed service agent when those prerequisites are established, it evidently contemplates that service is complete when citation is served on him, as on any other service agent. He has a statutory duty to mail it to defendant, but his failure to do so would not deprive the court of jurisdiction, although it might afford ground for relief on motion or bill of review. Moreover, legislative intent not to make proof of mailing a prerequisite to validity of the service is shown by absence of any provision in article 2031b for a certificate of mailing or any other method of proof. Older statutes concerning substituted service deal specifically with this matter. AI-though the trial judge has discretion to require a certificate of mailing, his failure to do so does not affect the validity of the judgment. Affirmed. . Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947); Permian Oil Company v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564 (1937); Heard v. Nichols, 293 S.W. 805 (Tex.Com.App.1927). . International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). .Cf. Bonanza, Inc. v. Lee, 337 S.W.2d 437 (Tex.Civ.App., Dallas 1960, no writ). This difficulty may justify imposing on defendant the burden to show lack of jurisdiction at a special appearance hearing. See Collins v. Mize, 447 S.W.2d 674 (Tex.Sup.1969). . Houston & T.C. R.R. v. Burke, 55 Tex. 323, 40 Am.Rep. 808 (1881); Delaware Ins. Co. v. Hutto, 159 S.W. 73 (Tex.Civ.App., Austin 1913, no writ); 4 McDonald, Texas Civil Practice § 17.23.2 at 117. . Galveston, H. & S.A. Ry. Co. v. Gage, 63 Tex. 568 (1885); White Motor Company v. Loden, 373 S.W.2d 863 (Tex.Civ.App., Dallas 1964, no writ); Sharp & Dohme v. Waybourne, 74 S.W.2d 413 (Tex.Civ.App., Amarillo 1934, no writ). . See Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964); Kelly Moore Paint Co. v. Northeast Nat. Bank, 426 S.W.2d 591 (Tex.Civ.App., Fort Worth 1968). . Tex.Rev.Civ.Stat.Ann. art. 2031a, sec. 4 (1964), concerning service on foreign corporations, requires the Secretary of State to “keep a record of all process served upon him ⅜ ⅜ * and his action in respect thereto,” and provides that his certificate shall be competent proof, but further provides that failure to mail copies “shall not affect the validity of said service.” A similar provision requiring the Secretary of State to keep records, but without any specific authorization of a certificate, is found in Tex.Bus.Corp.Act art. 8.10 (1956), V.A.T.S., which also deals with service on foreign corporations. The nonresident motorist statute, Tex. Rev.Civ.Stat.Ann. art. 2039a, sections 4 and 5 (1964), provides for a certificate of mailing by the chairman of the State Highway Commission and a presumption that the process was transmitted and received by defendant after being deposited in the mail. Defendant suggests that mailing could have been proved by a certificate of the Secretary of State under Tex.Rev.Civ. Stat.Ann. art. 3722 (1926), which requires certain officers, including the Secretary of State, to furnish “certificates under seal certifying to any fact contained in the papers, documents or records of their offices” and further provides “same shall be received in evidence in all cases in which the originals would be evidence.” It is not clear that this statute authorizes a certificate of mailing, as distinguished from a certificate concerning the contents of records, and article 2031b requires no record, as do the articles 2031a and 2039a, supra.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

DEPARTMENT OF PUBLIC SAFETY, Appellant, v. James Robert PETTY, Appellee. No. 11933. Court of Civil Appeals of Texas, Austin. June 28, 1972. Rehearing Denied July 19, 1972. Crawford C. Martin, Atty. Gen., Nola White, 1st Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers and Guy C. Fisher, Asst. Attys. Gen., for appellant. Marschall, Hall & McLaughlin, Philip R. Lane, San Angelo, for appellee. O’QUINN, Justice. This lawsuit began with appeal by appel-lee to the county court of Tom Green County from a decision of the Department of Public Safety denying renewal of appel-lee’s license to operate a commercial vehicle. The county court heard appellee’s appeal in a trial de novo, refusing to apply the substantial evidence rule, and at the conclusion of the trial rendered judgment for appellee. The Department of Public Safety has appealed and brings seven points of error. The controlling issue is whether the county court correctly followed the mandate of the Legislature, as stated in Sections 22(c) and 31 of Article 6687b, Vernon’s Anno.Rev.Civ.Sts., in hearing appel-lee’s appeal as a trial de novo and in refusing to apply the substantial evidence rule. The position of the Department of Public Safety is that the statutory requirement that any appeal prosecuted under Article 6687b be conducted as a trial de novo violates Article II, Section 1, of the Constitution of Texas, Vernon’s Ann.St. We will affirm the trial court’s judgment. Section 22(c) of Article 6687b prescribes that: “In all appeals prosecuted in any of the courts of this state pursuant to Section 22(a) or Section 31, such trials shall be de novo as that term is used and understood in appeals from Justice of the Peace Courts to County Courts. When such an appeal is filed and the court thereby acquires jurisdiction, all administrative or executive action taken prior thereto shall be null and void and of no force and ef-feet, and the rights of the parties thereto shall be determined by the court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to- the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.” (Acts 1941, 47th Leg., p. 245, ch. 173, Sec. 22, as amended, enacting subsec. (c), Acts 1959, 56th Leg., 2nd C.S., p. 161, ch. 41, and as further amended Acts 1965, 59th Leg., p. 1663, ch. 717, sec. 3) Under Section 22(a), referred to in Section 22(c), administrative procedures for suspending or revoking licenses are provided and licensees are accorded the right of appeal “to the county court of the county wherein the [administrative] hearing was held, said appeal to be tried de novo.” (As amended by Acts 1971, 62nd Leg., p. 2496, ch. 819, sec. 1) Section 31, also referred to in Section 22(c), authorizes any person denied a license, or whose license has been cancelled or revoked, in an administrative procedure to file a petition within thirty days in county court “to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license Provided the trial on appeal shall be a trial de novo and the licensee shall have the right of trial by jury and his license shall not be suspended pending the appeal.” The Department urges under its first four points that the trial in county court should have been under the substantial evidence rule and contends that the mandate of Article 6687b requiring the appeal to be tried de novo violates the provision for separation of powers in Article II, section 1, of the Constitution of Texas. Whether a review statute, such as Section 22(c) of Article 6687b, is in violation of the Constitution depends upon the nature of the power to be exercised by the court. The separation of powers provision of the Constitution prohibits courts from exercising other than judicial functions in such appeals. If the function of the administrative agency is legislative, review in court is governed by the substantial evidence rule, and the court may not substitute its judgment for that of the agency. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Cook Drilling Company v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035 (1942). But if the agency has acted in a judicial or quasi-judicial capacity, the factual basis for its order or decision when reviewed by a court must be established by a preponderance of the evidence in a trial de novo. Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961). The appellee in this case was the holder of a commercial operator’s license that expired in August of 1971. Prior to the expiration date appellee made application for renewal and paid the required fee. The Department of Public Safety submitted ap-pellee’s case to the Medical Advisory Board for medical evaluation. The Board requested appellee to submit to medical examination by a physician of appellee’s choice. The examining physician reported appellee’s visual acuity for both eyes, with correction, to be 20/70. Based upon the Department’s consideration of appellee’s application and an evaluation report by the Medical Advisory Board, the Department issued an order denying appellee the further privilege of operating a motor vehicle. The order of denial was issued under the authority of subsections 8 and 9, Section 4, of Article 6687b. Under Section 4 “The Department shall not issue any license “8. To any person when in the opinion of the Department such person is afflicted with or suffering from such physical or mental disability or disease as will serve to prevent such person from exercising reasonable and ordinary control over a motor vehicle while operating the same upon the highways, nor shall a license be issued to any person who is unable to identify and understand highway warnings or direction signs in the English language; provided, however, no person shall be refused a license because of any physical defect unless it be shown by common experience that such defect incapacitates him from safely operating a motor vehicle . “9. To any person when the Department has good cause to believe that the operation of a motor vehicle on the highways by such person would be inimical to public safety or welfare . . . ” The record shows that appellee was restricted in 1968 and 1969 to driving speeds of 45 miles per hour in daylight hours only because of his impaired vision. Appellee’s eye defect is congenital in nature, being a want of adequate cones in the retina to afford distinct perception of details. In 1946 appellee’s vision was 20/70 and 20/50, and in 1969 his corrected vision in both eyes was 20/80 and on occasions was shown to fluctuate up to 20/200 and 20/400 without correction. It appears undisputed that appellee, because of his visual handicap, has difficulty reading road signs at distances and is able to read the signs only when he is close to them. Under the provisions of Section 4, subsection 8, the Department may not refuse a license because of physical defect “unless it be shown by common experience that such defect incapacitates” the person from safely operating a motor vehicle. In such case the decision of the Department as to whether a license will issue, considering the physical handicap, becomes a question of fact to be determined from common experience. The Supreme Court stated the rule we consider controlling under the facts of this case in Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686, 690-691 (Tex.Sup.1964). The Court stated: “The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers. An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected.” In Scott the Court found that the trial was an inquiry as to the action of one man only, and that the medical board had not decided questions of a broad general policy. In the case before us the Department, in finding . that appellee suffered from a physical handicap which in fact incapacitated him from safely operating a motor vehicle, determined a fact related to one individual and did not by its order make a general policy affecting the physically handicapped in all future cases. We hold that appellee’s appeal properly was tried de novo and that it was not error for the county court to refuse to hear the appeal under the substantial evidence rule. The legislative mandate contained in Section 22(c) of Article 6687b does not violate the separation of powers provision of the Constitution in license cases involving refusal of a license because of a physical handicap. Under the Department’s remaining points of error the contentions are made that (1) under provisions of the statute governing examination of applicants neither the Department nor the trial court had authority to issue or approve the issue of a license; that (2) it was error not to admit the report of the Medical Advisory Board; and that (3) the findings (a) that appellee was not afflicted with a physical disability that would prevent him from exercising reasonable and ordinary control over a commercial vehicle on the highway and (b) that appellee’s operation was not inimical to public safety were findings against the overwhelming weight and preponderance of the evidence. It is undisputed that the Department did not request or require appellee to take an examination in connection with application for renewal of his license. Under Section 18(d) the Department is authorized to “prescribe the procedure and standards for arranging and conducting examinations for renewal of licenses.” The sections relied on by the Department pertaining to examinations are applicable to original applications as opposed to renewals. The issue of examination was not before the trial court, except as to physical examinations to make determinations under subsection 8 of Section 4 pertaining to ap-pellee’s physical disability. The point of error is overruled. The Department’s contention that the trial court erred in not admitting the report of the Medical Advisory Board is without merit. The record shows that the entire file of the Board was admitted. The trial court did exclude the opinions only of the Department and of the Board contained in the Department’s “Driver Improvement” file. All of the opinions of the Medical Advisory Board excluded by the court found in the “Driver Improvement” file were contained in the Medical Board’s Report which was admitted into evidence in its entirety. Opinions of the Department and of the Board, as found in the “Driver Improvement” departmental file were simply opinions of an administrative agency and were not admissible as such in a trial de novo. Insofar as the opinions of the Board pertained to determination of the medical condition of the applicant, such reports were made admissible in the trial court under provisions of Section 21A(b). The point raised in this connection is overruled. Under its final point the Department urges that the trial court’s findings are against the great weight and preponderance of the evidence. We find that the great weight and preponderance of the evidence supports the court’s findings relative to the safety of appellee’s operation of a motor vehicle. The only medical expert who testified stated that appellee has adapted to his condition and adjusted for his vision deficiency, having driven with the same vision for twenty to thirty years. The witness testified that considering all things the appellee is a reasonable, safe driver, without blind spots, and with normal lateral acuity, and that his eye condition is not progressive; that appellee has some cone sensors in his eyes, although he has a smaller number than normal. Both appellee and his wife testified that appellee hunts doves, ducks, and turkeys, usually shooting birds on the wing, and that appellee generally gets his limit of such game. Appellee testified that in watching his honey bees fly he can tell whether the bees are coming in heavy by their manner of flight. Appellee watches football games and television and sees well enough to enjoy such activities, and is able to observe small animals along the highway as he is driving. Appellee has driven 30,000 miles per year for twenty-five years, during which time he has had only two minor accidents. Appellee’s wife testified that she always felt safe riding with her husband and did not notice any difference in his driving from that of anyone else. The record shows that appellee met the visual standards of the Department when he was given an eye examination by an op-thalmologist at the request of the Medical Advisory Board. The Department’s final point of error is overruled. The trial court entered judgment ordering the Department of Public Safety to issue renewal of appellee’s commercial operator’s license “with restriction for a maximum speed of 45 miles per hour and a restriction requiring corrective lenses.” The judgment of the trial court is in all things affirmed. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

James Lawrence WOOD et al., Appellants, v. COASTAL STATES CRUDE GATHERING COMPANY, Appellee. No. 721. Court of Civil Appeals of Texas, Corpus Christi. June 22, 1972. Rehearing Denied July 31, 1972. Head & Kendrick, Michael C. Kendrick, Jr., Corpus Christi, for appellants. W. T. Blackburn, Corpus Christi, for ap-pellee. OPINION BISSETT, Justice. This is a multiple pipeline grant case. Suit was brought by James Lawrence Wood, et al, against Coastal States Crude Gathering Company for money damages for an alleged continuing trespass on lands owned by them occasioned by the construction of a pipeline thereon by the defendant in 1970, for a judicial determination that a pipeline easement did not authorize the construction by defendant of the pipeline at the location where it was constructed, and for removal of the pipeline. In the alternative, plaintiffs prayed for judgment holding that the additional line grant was intended to be limited to no more than two additional lines, one on each side of the first pipeline, and that “since two additional lines have already been laid, no more pipelines can be laid on said land under the terms of said easement”. Coastal States Crude Gathering Company, defendant in the trial court, answered that it was not guilty of any trespass because the subject pipeline easement granted it the right to build the pipeline that was laid in 1970 across plaintiffs’ land in the location where it was actually constructed. The case was tried to the court without a jury. A take nothing judgment was entered. Plaintiffs have duly perfected an appeal from the judgment entered. We affirm. The parties will be designated herein as they appeared in the trial court. Plaintiffs’ predecessor in title, by instrument dated October 28, 1942, granted a pipeline easement to Sinclair Refining Company across certain lands owned by her. That instrument contained, among others, the following provisions: “ . . . Grantors, hereby grant unto SINCLAIR REFINING COMPANY, a Maine corporation, hereafter called Grantee, the right to lay, maintain, inspect, operate, repair, replace, and remove a pipe line for the transportation of crude petroleum, oil, gas . . . over and through the following described land And for an additional consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged, said grantors hereby grant unto said grantee the right at any time to lay, maintain, operate, repair, replace, or remove an additional pipe line or pipe lines alongside of said first pipe line for the transportation of crude petroleum, oil, gas, the products or byproducts of each thereof, and also water on, over and through said land and grantee agrees to pay grantors for each additional pipe line placed on said land by it the sum of $351.50 on or before the time grantee commences to construct such pipe line on, over and through said land; said additional line or lines to he laid subject to the same rights, privileges and conditions as the original line.” (Emphasis supplied). In 1943, Sinclair constructed an oil pipeline across the land. This pipeline will henceforth be referred to as the “first pipeline.” Subsequently, and prior to 1965, the defendant acquired such pipeline and the rights under the easement. Defendant, in 1965, laid a pipeline across plaintiffs’ land. This pipeline will hereafter be called the “second pipeline”. It was laid about sixteen feet southeast of and parallel to the first pipeline. During the year 1970, defendant built another pipeline across plaintiffs’ land, which we will identify as the “third pipeline”. It was laid approximately fifteen feet southeast of the second pipeline and parallel to both the first and second pipelines. All three pipelines are in an area slightly in excess of thirty-one feet in width, exclusive of any area northwest of the first line and southeast of the third line that may be required for the proper operation, use and maintenance of the three lines that are presently located in the easement. These three pipelines extend for a distance of 11,-542 feet, more or less, across plaintiffs’ land. Plaintiffs recognize that defendant under the Sinclair easement had the right upon payment of $351.50 to build the third pipeline, but as the second pipeline had already been built to the southeast of the first pipeline, they contend that the third line could be constructed only to the northwest of and parallel to the first pipeline. They say that the third line was not built “alongside of said first pipeline” but was built alongside of the second pipeline as that pipeline (the second) was physically between the first and third pipelines. Two points of error are presented. First, it is contended that the trial court erred in holding that defendant “was entitled under its easement to construct the third pipeline across plaintiffs’ land at the location constructed”. Second, it is asserted that the trial court erred in impliedly holding that defendant “is entitled under its easement to lay additional pipelines across plaintiffs’ land, even though it has already constructed the first, second and third pipelines”. Neither point can be sustained. The Sinclair easement did not contain a centerline description nor did it describe any route across plaintiffs’ land. The instrument itself does not limit the construction of pipelines to any specific width of land. Therefore, when Sinclair built the first pipeline in 1943 with the consent and acquiescence of plaintiffs’ predecessor in title, the route, location and extent of the grantee’s easement rights under the 1942 agreement became fixed and certain. Houston Pipe Line Company v. Dwyer, 374 S.W.2d 662 (Tex.Sup.1964). The Sinclair easement expressly provided for a multiple pipeline grant. Strauch v. Coastal States Crude Gathering Co., 424 S.W.2d 677 (Tex.Civ.App.—Corpus Christi 1968, writ dism’d); Coastal States Crude Gathering Company v. Cummings, 415 S.W.2d 240 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.); Phillips Petroleum Company v. Lovell, 392 S.W.2d 748 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.). Plaintiffs argue that the phrase “alongside of said first pipe line” limits defendant to one pipe line along each side of the first pipeline. We are not in accord. Such a construction would fix the number of pipelines that could be laid under the easement to no more than three, thereby restricting the multiple pipeline grant to no more than two additional lines. If the contracting parties had intended to so curtail the grant they could have done so by using direct and positive language to that effect in the easement. They did not do so. Therefore, the clear and compelling inference is that they did not intend to limit the multiple grant to two additional pipelines. The matter of the total number of pipelines that may be constructed pursuant to the Sinclair easement is not before us in this appeal. We express no opinion thereon. The primary rule of construction of an instrument is that the intention of the parties be ascertained and given effect and that such intention, especially that of the grantor, be gathered from the instrument as a whole and not from isolated parts thereof. Texas Pacific Coal & Oil Company v. Masterson, 160 Tex. 548, 334 S.W.2d 436 (1960); Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); 19 Tex.Jur.2d, Deeds, § 112, pp. 402-404. It is well settled that “the rules which control the courts in determining the rights under an easement are, in general, the same as those applied to deeds or other written instruments”. Armstrong v. Skelly Oil Co., 81 S.W.2d 735 (Tex.Civ.App.—Amarillo 1935, writ ref’d); Lone Star Gas Co. v. Childress, 187 S.W.2d 936 (Tex.Civ.App.—Waco 1945, n. w. h.). It is equally well established that easements must be construed most strongly against the grantor, and most favorably to the grantee, so as to confer the largest estate which a fair interpretation will permit. Stevens v. Galveston, H & S. A. Ry. Co., 212 S.W. 639 (Tex.Com.App.1919, opinion adopted); Gladewater County Line Independent School District v. Hughes, 59 S.W.2d 351 (Tex.Civ.App.—Texarkana 1933, affirmed in 124 Tex. 190, 76 S.W.2d 471); Peterson v. Barron, 401 S.W.2d 680 (Tex.Civ.App.—Dallas 1966, n. w. h.). Plaintiffs do not allege in their pleadings or contend by point of error that the Sinclair easement is ambiguous. The term “alongside of” as used by the parties in the Sinclair easement was undoubtedly used in its generally accepted meaning as found in the dictionaries. Webster’s Seventh New Collegiate Dictionary defines the preposition “alongside of” as “alongside”. The word “alongside”, when used as an adverb, is defined as “along the side; parallel, close at the side”. When “alongside” is used as a preposition, it is defined as “side by side with; parallel to”. The words “alongside of” do not necessarily imply contact or imply an absence of anything of the same kind in between. The use of such words fixes the general route of all additional pipelines by requiring that they be laid along the same route as the first pipeline and in reasonably close proximity thereto. The phrase “alongside of said first pipeline” does not restrict the third line to a location that makes it adjacent to the first line, but gives and grants to the grantee and to its assigns (the defendant) the right to locate and build a third pipeline anywhere in the width of the easement so long as it is horizontal and parallel to the first pipeline. In the instant case, the third pipeline was constructed in accordance with the requirements imposed by the easement. The instrument is not indefinite or uncertain but is plain, unambiguous and clearly reveals and expresses the intention of both grantor and grantee thereto. No issue of unreasonableness in the land area used by defendant in the construction and operation of the third pipeline is raised by the record. Plaintiffs do not, by their pleadings or evidence, assert that any fraud or mistake occurred which caused the grantor of the Sinclair easement to sign an instrument different from that which she thought she was signing. We believe that the trial court entered a correct judgment in this case. When the subject easement is examined from its four corners, it is clear that the intent of the parties was not to limit the third pipeline to an area adjacent to the first pipeline. We have carefully considered each of plaintiffs’ points of error, and the statements and arguments thereunder. They are each overruled. The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Billy Ray BROWN, Appellant, v. The GREAT-WEST LIFE ASSURANCE COMPANY, Appellee. No. 5158. Court of Civil Appeals of Texas, Waco. June 29, 1972. Rehearing Denied July 27, 1972. Wright & Barber, Grand Prairie, for appellant. Atwell, Malouf, Musslewhite & Bynum, Dallas, for appellee. OPINION McDONALD, Chief Justice. This is an appeal by plaintiff Brown from judgment non obstante veredicto that he take nothing in suit against defendant insurance company on a health insurance policy. Plaintiff sued defendant for $784.70, medical expenses alleged to be due on a policy in force for all times for which claims were made; plus 12% penalty and attorney’s fees. Defendant answered that the policy was a group policy for employees of Ducom-mun Incorporated; that plaintiff’s employment terminated on April 17, 1970; that plaintiff’s disability was from April 21, thru April 26, 1970, and plaintiff was not covered by the policy. Trial was to a jury which found: 1) During the period April 19-April 25, 1970, plaintiff was absent from work by reason of a temporary layoff. 2) Prior to April 17, 1970, plaintiff incurred medical expenses as the result of an illness. 3) Plaintiff was continuously and totally disabled from such illness from April 17, thru April 26, 1970. 4) Reasonable attorneys’ fees for the services of plaintiff’s attorneys are; a) $500. for the trial court; b) $500. for the Court of Civil Appeals (if any); and c) $500. for the Supreme Court (if any). The trial court rendered judgment non obstante veredicto that plaintiff take nothing. Plaintiff appeals on one point: “The trial court erred in disregarding the verdict of the jury and granting judgment non ob-stante veredicto for the appellee”. The policy provided: 1) That it terminated on “the date of termination of (employees) service”. 2) If “an employee is totally disabled on the date on which the insurance of the employee * * * terminates, and covered expenses have been incurred in respect of the disabling illness before the date of termination * * * the company shall continue to pay benefits * * * incurred. 1) in respect to the disabling illness, and 2) while such employee * * * is totally or continuously disabled * * Thus plaintiff is covered under the policy: 1) If plaintiff’s medical expenses were incurred during temporary layoff; or 2) If plaintiff was totally disabled at the date of termination of employment, and had incurred medical expenses prior to the date of termination from the disabling illness, for which past termination medical expenses are sought. The jury in issue 1 found that during the period April 19-25, plaintiff was absent from work by reason of temporary layoff, as asserted by plaintiff. Defendant contended plaintiff’s employment had been terminated on April 17. Ducommun’s bookkeeper testified plaintiff’s employment was terminated on April 17, for excessive absenteeism. Plaintiff testified Mr. Lerner, the division manager called him in his office and said “Bill, because of the reduction in business, business is bad, we’re going to have to lay you off because of the business”. Plaintiff further testified nothing was said to him about absenteeism, and he thought he would be called back when the work increased. We think there is no evidence to sustain jury finding 1. Plaintiff’s employment was thus terminated on April 17. The jury further found that prior to April 17, plaintiff incurred medical expenses as the result of an illness; and that plaintiff was totally disabled from such illness from April 17 thru April 26. The record reflects plaintiff ill in November 1969, and during the first part of 1970; that he had pain in his abdominal area; that he went to the doctor for this on March 31, 1970; and again the first week in April 1970; that he was disabled from his illness; that he made an appointment with Dr. Bailey three weeks before he saw him on April 21st; that from April 12, until he was hospitalized on April 21, plaintiff was in constant pain, that a barium x-ray taken on April 21, showed diverticulitis ; that plaintiff was hospitalized through April 25, during which period he was completely unable to work. We think the evidence ample to sustain the jury’s answers to issues 2 and 3; that such answers entitled plaintiff to recover under Section 2 supra, of the policy; and that judgment that plaintiff take nothing non obstante veredicto was not proper. Plaintiff’s point is sustained. Defendant by cross-point asserts that in the event of reversal, a remand is required because of improper argument of plaintiff’s counsel. The entire jury argument is not before us; only a short excerpt contained in defendant’s Bill of Exception. From the record before us error is not shown, and in any event the matter is harmless under Rule 434 Texas Rules of Civil Procedure. Defendant’s other cross-points have been considered and are overruled. The judgment is reversed and judgment rendered for plaintiff against defendant for $465.36 (which amount was stipulated by the parties) ; 12% penalty thereon; attorneys’ fees in the amount of $1000., plus $500. additional in the event this case is taken to the Supreme Court. Reversed and rendered.

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Bob McGOWEN and Barbara McGowen, Appellants, v. TRI-COUNTY GAS COMPANY, Inc., a Missouri Corporation, Clifford Peck, d/b/a Peck Oil Company, and O. R. Summers, Respondents. No. 56179. Supreme Court of Missouri, Division No. 1. July 17, 1972. Neale, Newman, Bradshaw & Freeman, Warren S. Stafford, Joseph A. Bohrer, Springfield, for appellants. Buell F. Weathers, Kenneth T. Walter, Mann, Walter, Burkhart & Weathers, Springfield, for defendant-respondent TriCounty Gas Co., Inc. Woolsey, Fisher, Clark & Whiteaker, Russell G. Clark, Springfield, for defendant-respondent Clifford Peck, d/b/a Peck Oil Co. LAURANCE M. HYDE, Special Commissioner. Action for damages for $100,000 for personal injuries to plaintiff Bob McGowen and for $25,000 for his wife for loss of consortium. The court dismissed plaintiffs’ third amended petition apparently for failure to state a cause of action. There was no ruling on defendants’ motions to require the petition to be made more definite and certain. Plaintiffs’ request to file an amended petition was denied. Plaintiffs have appealed and contend their petition was sufficient to show they were entitled to rely on the doctrine of res ipsa lo-quitur. We reverse and remand with directions. Plaintiffs’ petition stated their claim as follows: “4. On and prior to November 30, 1965, the defendant Tri-County Gas Company, Inc., was engaged in the sale and distribution of propane gas to citizens and residents of Wright County, Missouri. And, in said capacity, said defendant had installed and owned a propane gas distribution system for a filling or service station located at 403 West Third Street, Mtn. Grove, Missouri, * * *. “5. On or prior to November 30, 1965, defendant Clifford Peck, d/b/a Peck Oil Company, was a Phillips 66 Oil Company jobber and, as such, was the lessee of the service station hereinabove mentioned in paragraph numbered ‘4’.' As the lessee of said station, defendant Peck had the right, and did, in fact, exercise such right to control, supervise, and inspect the said service station premises. “6. The defendant O. R. Summers was the owner of said abovementioned service or filling station and, on or about June 27, 1963, he leased said premises to Phillips Petroleum Company under a written lease whereby defendant Summers, among other provisions, the exact nature of which is unknown, agreed, at his sole cost and expense and without cost or expense to lessee, to maintain the premises in good condition and keep all buildings, driveways and equipment thereon owned by lessor in good repair. “7. Thereafter, Phillips Petroleum Company sublet said premises to defendant Clifford Peck, a true copy of said lease is attached hereto, marked Exhibit A, and made a part hereof. Defendant Clifford Peck was in possession of said premises pursuant to said lease on and prior to November 30, 1965. “8. Thereafter, defendant Clifford Peck and Bob Sympson made an oral agreement whereby Bob Sympson was to operate said ‘filling station’ located on said premises under the following terms: Defendant Clifford Peck was to retain the right of control and Sympson was to buy all oil and gas from defendant Clifford Peck. Bob Sympson rented the Phillips Petroleum Company light fixtures and credit card stamper from defendant Clifford Peck. Defendant Clifford Peck retained the right to inspect the premises and see that everything was kept in order, and, if not, he retained the right to remove Bob Sympson at his pleasure. Bob Sympson could not sell anything except Phillips Petroleum Company products purchased from defendant Clifford Peck except other brands of oil if it was kept in the back room. Defendant Clifford Peck retained the right to control the premises and activities thereon as between he and Bob Sympson except defendant Clifford Peck had no right to control the price of the gasoline that Bob Sympson sold. Defendant Clifford Peck also retained all rights given to him under Exhibit A. “9. On November 30, 1965, the above-mentioned service or filling station was equipped with certain sewers and also a gas heater which was then located in the office of said service or filling station. Said gas heater was burning and emanating a flame at the time of the explosion, hereinafter mentioned. “10. Said service or filling, station, the sewer system, gas heater, and propane gas distribution system, as well as the service station premises, were under the joint and concurrent ownership, control, supervision, charge, management or right of control of the defendants Clifford Peck and O. R. Summers, and each of them. Further, defendant Tri-County Gas Company, Inc., had concurrent ownership, control, management or right of control of said propane gas distribution system and said gas heater, along with defendants Clifford Peck and O. R. Summers. “11. At approximately 7:00 p. m. on November 30, 1965, the plaintiff was present in the station as an employee of Bob Sympson and was standing in the ‘bay area’ of the abovementioned service station when a terrific explosion and fire occurred from which the plaintiff sustained serious, grievous and permanent bodily injuries, as hereinafter pleaded. “12. The defendants negligently permitted gas or gas vapors to accumulate in said filling station, which fumes had emanated from the said gas distribution system and a certain propane gas heater which was located in the office of the said station. The accumulation of said gas caused a dangerous and highly explosive condition to exist in said filling station, which was dangerous to those persons in and around the said station, including plaintiff Bob McGowen, and the defendants negligently allowed said gas or gas vapors to explode and catch fire. “13. Plaintiff had no knowledge of the mechanisms or operations of the said gas heater and the propane gas and sewer distribution system, connected therewith or the operation thereof, and had no control over or right to control same. Further, defendants have superior knowledge of the cause of said explosion and plaintiff Bob McGowen does not know nor does he have means of knowing the precise cause of said explosions.” Briefs have been filed only by Peck and Tri-County Gas Company. Peck says the facts pleaded fail to state circumstances from which negligence could be inferred from the mere occurrence of a fire and explosion and that the allegations concerning control or right of control are vague, contradictory and repugnant. Peck states it has been said: “ ‘The rule of res ipsa lo-quitur is infrequently applied to cases involving fires, and to a lesser extent to explosion cases. [Citing cases.] The reasons are not difficult to perceive. The cause of a fire is generally unknown, fires commonly occur where due care has been exercised as well as where due care was wanting. Where a fire originates on a defendants’ premises, that alone is not evidence that it was started by the defendant, nor that the fire was caused by any negligence on its part.’ ” Kansas City Stock Yards Co. v. A. Reich & Sons, Mo.Sup., 250 S.W.2d 692; see also Hendricks v. Weaver, Mo.Sup., 183 S.W.2d 74; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777; Rede v. St. Louis County Gas Co., Mo.App., 254 S.W. 415; Anderton v. Downs, Mo.App., 459 S.W.2d 101. However, res ipsa loquitur has been held applicable in such explosion cases as Baker v. Thompson-Hayward Chemical Co., Mo.App., 316 S.W.2d 652; Carter v. Skelly Oil Co., 363 Mo. 570, 252 S.W.2d 306; Hiell v. Golco Oil Co., 137 Ohio St. 180, 28 N.E.2d 561; Kleinman v. Banner Laundry Co., 150 Minn. 515, 186 N.W. 123, see also annotation 23 A.L.R. 484; Chiles v. Ft. Smith Commission Co., 139 Ark. 489, 216 S.W. 11, annotation 8 A.L.R. 500. Plaintiffs rely mainly on Carter v. Skelly Oil Co, 363 Mo. 570, 252 S.W.2d 306; Kelly v. Laclede Real Estate & Inv. Co., 348 Mo. 407, 155 S.W.2d 90; Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839; Barb v. Farmers Insurance Exchange, Mo.Sup, 281 S.W.2d 297, in support of their action against multiple defendants, pointing out that we have held: “ * * * the fundamental test of the applicability of res ipsa loquitur ‘that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.’ McCloskey v. Koplar, supra, [329 Mo. 527], 46 S.W.2d [557], at page 560; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674, 677.” Littlefield v. Laughlin, Mo.Sup., 327 S.W.2d 863, 865. Defendant Tri-County Gas says that plaintiffs’ petition fails to show the gas heater and premises and facilities mentioned were in the exclusive control of the defendants sued, because plaintiff Mc-Gowen’s employer, Bob Sympson, who it is alleged was operating the station, was not made a party defendant. It cites Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123, 130 in which we said: “ ‘[T]he doctrine cannot be invoked where there is a divided responsibility and the accident is due in part to the act of a third party over whom defendant has no control, or where the injuring agency is partly or entirely under the control or management of plaintiff.’ ” Also cited are Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 511; Poulsen v. Charlton, 224 Cal.App.2d 262, 36 Cal.Rptr. 347; Gershner v. Gulf Refining Co., La.App., 171 So. 399; Corcoran v. Banner Super Market, Inc., 20 A.D.2d 552, 245 N.Y.S.2d 175; see also 65A C.J.S. Negligence § 220.15, p. 571; Willis v. Terminal Railroad Association of St. Louis, Mo.Sup., 421 S.W.2d 220. Plaintiff excuses his failure to join his employer, Bob Sympson, saying concurrent tort feasors may be sued either jointly or severally, citing such cases as Berryman v. People’s Motorbus Co. of St. Louis, 228 Mo.App. 1032, 54 S.W.2d 747, 749; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558. These are not res ipsa cases where the control of the defendants sued is an important factor. However, it does not appear from the petition whether or not Bob Sympson was present or what he had to do with the operation of the gas heater. This could be important when the evidence is heard. Tri-County argues the petition does not sufficiently show the instrumentalities involved were under its management and control or that it possesses superior knowledge or means of information as to the cause of the occurrence. It says the allegations against it are only conclusions and do not state facts showing the gas distribution system and gas heater were under its ownership, control or right of control and do not say it had any control or right of control of the sewer system. (The part of the sewer system in the occurrence is not clear.) It cites Rede v. St. Louis County Gas Co., Mo.App., 254 S.W. 415, holding res ipsa loquitur inapplicable to an explosion by leaking gas 36 hours after repairs by defendant to stop a leak from a claimed defective pipe and meter. It also cites Niswander v. Kansas City Gas Co., Mo.App., 181 S.W.2d 165, where it was said the cause of a gas explosion in that case was left to speculation. Tri-County also seeks to distinguish Carter v. Skelly Oil Co., supra, mainly relied on by plaintiff, saying the allegations therein stated affirmative facts sufficient to invoke the doctrine. In Carter (252 S.W.2d 1. c. 307) it was alleged that Skelly owned and operated the service station and that the other defendants were its agents in the operation of the station. The petition stated the Skelly agents drove plaintiff’s car into a closed room to be raised on their grease rack, drained gasoline from the car onto the concrete floor of the room equipped with a kerosene heating stove and were pushing the gasoline along the floor with a squeegee when the explosion occurred. We held the petition sufficient to state a cause of action under res ipsa loquitur. In this case, it is alleged that Tri-County installed and owned the gas distribution system for the station and had the right of control with Peck and Summers. Carter is some authority for making a ruling on defendants’ motions herein to make more definite and certain by (252 S.W.2d 1. c. 309) noting no such motion was filed in that case and remanding for such action as the parties might desire to take. A. L. I. Restatement of Torts 2d, § 328 D Res Ipsa Loquitur in part states: “(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Comment f. states that the plaintiff has the burden of proof to make the negligence point to the defendant and “where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case.” Comment g. states that the plaintiff usually sustains his burden of proof “by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person.” The comment continues: “It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares the control with another, as in the case of the fall of a party wall which each of two landowners is under a duty to inspect and maintain. He may be responsible where he is under a duty to the plaintiff which he cannot delegate to another, as in the case of a landlord who leases premises dangerous to persons on the public highway, which his tenant undertakes to maintain. * * * Exclusive control is merely one fact which establishes the responsibility of the defendant; and if it can be established otherwise, exclusive control is not essential to a res ipsa loquitur case. The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.” As to multiple defendants see 58 Am.Jur. Negligence § 493 p. 72, § 503 p. 85, § 508 p. 94; annotation 38 A.L.R.2d 905; Prosser Law of Torts § 39, p. 225; 65A C.J.S. Negligence § 220.15, p. 577. Certainly, when it is sought to hold two or more defendants, joint control or right of control must be shown to be entitled to judgment against both. See Willis v. Terminal Railroad Association of St. Louis, Mo.Sup., 421 S.W.2d 220. We consider the allegations of the petition sufficient to show a probable cause for the explosion of the gas heater, burning in an enclosed room in which gas accumulated, to be one which defendants TriCounty Gas and Peck, either or both, were under a duty to anticipate and guard against, if they had sufficient control or right of control of the heater. It is stated Tri-County installed and owned the gas distribution system for the station and that it had concurrent ownership, control, management or right of control of the propane gas distribution system with the other defendants. The petition states Peck had the right to control, supervise and inspect the station; that he retained the rights of control given him under the Phillips lease; and that the sewer system, gas heater, propane gas distribution system and station premises were under joint and concurrent ownership, control, supervision, management and right of control of Peck and Summers. Of course, evidence would have to be produced to so show to entitle plaintiffs to a verdict against these defendants; and it would not be unreasonable to require plaintiff to make a more definite statement of the facts upon which its claims of their operation and control of the gas heater are based. The petition does not show who operated and took care of the heater or did so on the day of the explosion. The Carter case (252 S.W.2d 306) relied on did state the activities under way and who was involved in them. In Barb (281 S.W.2d 297) it was shown who stacked the boxes that fell and who permitted them to remain in such condition. The situation as to the owner Summers, who leased to Phillips which subleased to Peck who sublet to Sympson, must be clarified to show liability on his part. The judgment is reversed and remanded with directions to set aside the judgment dismissing the action and to reinstate the petition and for such further action as the parties may desire to take in accordance with the views expressed herein. PER CURIAM: The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court. HOLMAN, P. J., SEILER, J., and NORMILE, Special Judge, concur; BARDGETT, J., not sitting.

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Schon Landman MEYER, Appellant, v. UNION MUTUAL LIFE INSURANCE COMPANY, Appellee. No. 17929. Court of Civil Appeals of Texas, Dallas. July 6, 1972. Rehearing Denied July 27, 1972. Emma Leigh Washburn Bartholow, John L. Hauer, Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellant. Mark T. Davenport, Atwell, Malouf, Musselwhite & Bynum, Dallas, for appel-lee. CLAUDE WILLIAMS, Chief Justice. This appeal is from a take nothing judgment, based upon a jury verdict, in appellant’s suit against appellee to recover upon an insurance policy. Union Mutual Life Insurance Company had issued its group policy to Binswanger Glass Company. The contract of insurance provided accidental loss benefits for employees of the insured, including Eli H. Landman. Appellant Schon Landman Meyer was the named beneficiary of Eli H. Landman. On December 1, 1969 Eli H. Landman was involved in an automobile accident in Dallas and was admitted to Presbyterian Hospital where he died on December 10, 1969. The record reveals that Landman, for a number of years, had a history of pulmonary emphysema, congestive heart failure, and various heart and lung problems. At the time he was admitted to the Presbyterian Hospital following the automobile accident his family doctor diagnosed his condition as fractured ribs, pulmonary insufficiency, due to pulmonary emphysema, and cor pulmonale, which means heart failure with lung disease. The policy of insurance in question contained the following material provisions: “To insure eligible persons of the Holder (herein individually called Insured) and their eligible dependents, if any, * * * for loss resulting from injury, to the extent herein provided and subject to all of the exceptions, limitations and provisions of this policy.” “DEFINITIONS ‘Injury’ wherever used in this policy means bodily injury caused by an accident occurring while this policy is in force as to the Insured Person and resulting directly and independently of all other causes in loss covered by this policy.” “EXCEPTIONS This policy does not cover any loss to an Insured Person caused by or resulting from: * * * (2) disease of any kind; * * Appellee insurance company answered appellant’s suit on the policy with an affirmative defense to the effect that Eli Landman did not die as a result solely from accidental injuries he may have received in the automobile accident of December 1, 1969, and directly and independently of all other causes. It alleged that Landman was suffering from serious pre-existing lung and heart diseases and that such conditions proximately caused or proximately contributed to cause, or were the sole proximate causes of the death of Landman. A large volume of evidence was offered during the trial relating to the cause of death. Much of this evidence is conflicting. In the official certificate of death, signed by the doctor who performed an autopsy, the cause of death is listed as: “Hepatic lacerations with intraparenchymal hematoma formation; external trauma to chest and abdomen.” Other significant conditions are listed as: “Pulmonary emphysema. Cardiac hypertrophy.” The court submitted to the jury the following material instructions and issues, the answers of the jury being shown, as follows : “PROXIMATE CAUSE means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. There may be more than one proximate cause of an event.” “Special Issue No. 1. Do you find from a preponderance of the evidence that the death of Eli Landman on December 10, 1969 resulted directly and independently of all other causes from bodily injuries, if any, caused by the automobile accident of December 1, 1969? Answer: ‘Yes’ or ‘No.’ Answer: Yes.” “Special Issue No. 3. Do you find from a preponderance of the evidence that the lung disease of Eli Landman, if any, was not a proximate cause of his death on December 10, 1969? Answer: ‘It was not a proximate cause’ or ‘It was a proximate cause.’ Answer: It was a proximate cause.” “Special Issue No. 4. Do you find from a preponderance of the evidence that the heart disease of Eli Landman, if any, was not a proximate cause of his death on December 10, 1969? Answer: ‘It was not a proximate cause’ or ‘It was a proximate cause.’ Answer: It was a proximate cause.” Based upon this verdict the trial court rendered judgment that Mrs. Meyer recover nothing. The controlling question presented in appellant’s sole point of error is whether or not the answers of the jury to the special issues are in such irreconcilable conflict that the judgment entered on the verdict must be reversed for a new trial. A proper resolution of this question requires us to take note of several well recognized rules: (1) Where two findings regarding a material fact are so constituted that both cannot be true, there is a fatal conflict, and neither will be permitted to stand. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453 (1944); 57 Tex.Jur.2d, “Trial”, § 551, p. 291. (2) The court should reconcile apparent conflicts in the jury’s answers where it is reasonably possible to do so but this may not be done by giving a forced construction to any finding, contrary to the evident intention of the jury. 57 Tex.Jur.2d, “Trial”, § 549, p. 277; C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966); and (3) the test for determining the question of conflict is, whether taking a finding alone in the one instance a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant. 57 Tex.Jur.2d “Trial”, § 551, p. 293; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). Since we are necessarily required to limit our consideration of the question of conflict to the fact that we are here dealing with a suit based on an accidental bodily injury insurance policy, we must also note the rule in such cases that the plaintiff is faced with the burden of proving an accidental bodily injury “independently of all other causes.” Also, where the insurer affirmatively pleads that the injury or death was caused in part by disease then it is also the burden on the part of the plaintiff to prove that such alleged disease was not a proximate cause of the injury or death. Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110 (Tex.Sup.1965); Robinson v. Aetna Life Ins. Co., 276 S.W. 900 (Tex.Com.App.1925); Continental Casualty Co. v. Fountain, 257 S.W.2d 338 (Tex.Civ.App., Dallas 1953, writ ref’d). Our Supreme Court in both Mutual Benefit Health & Accident Ass’n v. Hudman, 398 S.W.2d 110 (1965) and Stroburg v. Insurance Co. of North America, 464 S.W.2d 827 (1971), in discussing the meaning of the phrase “independently of all other causes”, as used in the insurance policy and as used in Special Issue No. 1, said that the term means “solely”, “only”, or “standing alone”. When we make a pragmatic application of these rules of law to the special issues before us we conclude that the jury’s answers to the material issues are in fatal conflict and cannot legally be made the basis for judgment in favor of appellee. In answer to Special Issue No. 1 the jury found from a preponderance of the evidence that the death of Eli Landman on December 10, 1969 resulted directly and independently of all other causes from bodily injuries resulting from the automobile accident of December 1, 1969. This finding, when viewed in the light of the definition approved by the Supreme Court in Hudman and Stroburg, supra, leads to the obvious conclusion that the bodily injuries caused by the automobile accident were the sole, only, and independent causes of Landman’s death. Applying the test of conflict laid down by the Supreme Court in the cases cited above, if we were to take the answer to this issue alone and disregard for the moment the answers to Special Issues 3 and 4, such would entitle appellant to a judgment. On the other hand, the jury, by answering Special Issues 3 and 4 to the effect that the pre-existing diseased condition of Land-man amounted to proximate causes of Landman’s death, has gone directly contrary to its previous finding to the effect that Landman’s death resulted solely, only, and independently of all other causes to the injuries sustained in the automobile accident. Obviously, the findings of the jury in response to Special Issues 3 and 4, standing alone, and disregarding for the moment the answer to Special Issue No. 1, would entitle appellee insurance company to a judgment. To hold that the material issues do not result in a fatal conflict, as contended by appellee, would result in a forced or strained construction which has been condemned. 57 Tex.Jur.2d, “Trial”, § 549, p. 277; Hancock v. Sammons, 267 S.W.2d 252 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.) ; and Speer’s Special Issues, p. 561, § 432. There being a fatal and irreconcilable conflict in the jury’s answers, the verdict cannot stand, and the judgment based thereon must be set aside. The judgment of the trial court is reversed and remanded for further proceedings. Reversed and remanded.

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Doris Wilson BAKER, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. No. 650. Court of Civil Appeals of Texas, Houston (14th Dist.). June 28, 1972. John S. Brukner, Houston, for appellant. William E. Matthews, Baker & Botts, Houston, for appellee. SAM D. JOHNSON, Justice. This is a workmen’s compensation suit for death benefits in which summary judgment was rendered in favor of Travelers Insurance Company. It was filed by the wife and two daughters of Claude Miller Wilson who died on January 17, 1963, allegedly as a result of accidental injuries suffered on the job while he was employed by Todd Shipyards in Houston. The notice of fatal injury and the claim for compensation were not filed until March 30, 1970. On June 8, 1970, the Industrial Accident Board entered an award to Doris Wilson Baker and this decision was appealed by Travelers Insurance to the District Court of Harris County. Mrs Baker and her daughters responded with a general denial and a cross-action alleging a cause of action for death benefits. Travelers Insurance then filed a Motion for Summary Judgment alleging that no claim for compensation benefits was filed by appellant within six months after death on January 7, 1963, and that no good cause existed for the failure to file same. Doris Wilson Baker filed a reply to such Motion for Summary Judgment along with her affidavit, alleging that she had been mentally incapacitated from the date of her deceased husband’s death until early November, 1969. She further asserted that she filed her notice of fatal injury within six months thereafter, that is, within six months of early November, 1969, the date of the removal of her mental incapacity. At the summary judgment hearing the following was stipulated for the purposes of such hearing: (1) that appellant Doris Wilson Baker was mentally incapacitated from January 17, 1963, until early November of 1969; (2) that such incapacity constituted good cause for not filing her claim up until early November of 1969; (3) that Doris Wilson Baker filed her notice of fatal injury on March 30, 1970; (4) that no good cause existed for Mrs. Baker’s failure to lodge her claim between early November, 1969, the date of the removal of her mental incapacity, and March 30, 1970; (5) that no claim was being made to the effect that good cause existed for the daughters’ failure to make timely claim for benefits. The trial court granted the insurance company’s Motion for Summary Judgment, concluding that under Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 4a (1947) a claim arising from the death of an employee must be filed within six months of the date of death, and any good cause introduced to excuse a delay in filing must continue to the date of filing. The court held that “ . . .a correct interpretation of the workmen’s compensation statutes, and specifically Sec. 4a, requires that claims for compensation be made in case of death of the employee within six months after said death, unless ‘good cause’ for such delayed application exists and continues to exist to the time of filing of such application and that a beneficiary of the deceased workman is not granted an automatic six month extention of said time following a period of claimed incapacity, . . . ”. Mrs. Baker now challenges those holdings. Section 4a of Article 8307 provides as follows: “Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; or, in case of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board. The requirement of thirty days notice has been held not to apply to a suit for death benefits. Texas Employers’ Ins. Ass’n v. Lovett, 19 S.W.2d 397 (Tex.Civ.App.-Austin 1929, writ ref’d) ; Federal Underwriters Exchange v. Brigham, 184 S.W.2d 849 (Tex.Civ.App.-El Paso 1944, no writ). Thus the only requirement in question is that regarding filing of a claim. Appellant’s position is predicated on the language of Tex.Rev.Civ.Stat.Ann. art. 8309, sec. 1(4) (1955) which is: “Any reference to any employee herein who has been injured shall, when the employee is dead, also include the legal beneficiaries, as that term is herein used, of such employee to whom compensation may be payable.” Appellant contends that this language renders the terms “employee” and “beneficiary” interchangeable in some points in the workmen’s compensation statute. Based upon this contention appellant reasons that inasmuch as the running of the six month filing period is tolled by an employee’s physical or mental incapacity, this quoted language tolls the running of the six months filing period by a beneficiary’s physical or mental incapacity as well. This contention must be overruled. The language of section 4a, Article 8307, states, “In case of death of the employee or in the event of his physical or mental incapacity . . . ”. These are mutually exclusive situations. Appellant, however, would have us interpret the statute as allowing tolling of the six month filing provision where an employee is dead and his beneficiaries are incapacitated. That view of the statute alters the clear statutory language in two respects: (1) it requires the two mutually exclusive conditions to exist simultaneously, i. e. death and incapacity; (2) it then requires the death to be the employee’s but the incapacity to be the beneficiary’s. There is no statutory language regarding physical or mental incapacity of beneficiaries and the express wording of the statute cannot be strained to so read. As stressed in Swain v. Standard Acc. Ins. Co., 130 Tex. 277, 109 S.W.2d 750 (1937), the injured worker’s cause of action for benefits is separate and apart from the cause of action which accrues to that worker’s beneficiaries should he die. That portion of Article 8307, section 4a, following the semicolon, contemplates death and incapacity of the employee as independent circumstances and establishes different filing provisions for them. “In case of death of the employee . . . ” a claim must be filed “within six (6) months after death . . . ”. Incapacity of the employee is dealt with differently. “In the event of his physical or mental incapacity . . . ” a claim must be filed “within six (6) months after . . . removal of such physical or mental incapacity.” Section 4a does provide to incapacitated workers following the removal of incapacity an automatic six month extension of time in which to file, but conspicuously does not provide for any such extension in death cases. Counsel has cited no case covering the circumstances of the present case and none has been found. We note, however, the Court’s treatment of a somewhat similar hiatus in the filing provisions of the Workmen’s Compensation statute in Latcholia v. Texas Employers Ins. Ass’n, 140 Tex. 231, 167 S.W.2d 164 (1942). There the Supreme Court expressly declined to hold that, as a matter of law, a minor injured employee is entitled to six months after the removal of his disqualification within which to file a claim for compensation. The Court held that the six month filing period began to run from the date of the injury but that the fact of disqualification constituted good cause for not filing within that period. That case was discussed in the later case of Associated Indemnity Corporation v. Billberg, 172 S.W.2d 157, 163 (Tex.Civ.App.-Amarillo 1943, no writ) in which the Court stated that “the effect of the (Latcholia) holding is that when the guardian is appointed or the next friend appears, neither he nor the minor has six months thereafter in which to act, but he must act immediately.” (Emphasis and parenthesis added) The Court applied the principle announced in Latcholia to the minor child of a deceased worker, holding that a minor was not automatically barred from seeking compensation because of failure to file a claim within six months after the death of his father. We are not concerned with the almost seven years from January 17, 1963, until early November, 1969, and whether or not good cause existed during such period. It has been stipulated that good cause did exist during all of such time. The instant case is concerned with the period of time from early November, 1969, to March 30, 1970, a period of almost five months (in which it has been specifically stipulated that no good cause existed) and the obligation of a beneficiary to file therein. The statute, section 4a of Article 8307, includes beneficiaries in the relief provided in meritorious cases in which good cause for delay in filing may be found. Here, however, we are confronted with the parties’ express stipulation that no good cause existed for almost five months prior to filing. The claim for workmen’s compensation benefits by the beneficiary of a deceased workman is a separate cause of action from that of the workman himself, Swain v. Standard Accident Ins. Co., supra, and the effect of section 1(4), Article 8309 is to place beneficiaries in the shoes of a deceased workman; they must assume the burden to allege and prove injury and are subject to whatever defenses might have been raised against the deceased’s claim. Texas Indemnity Ins. Co. v. Dill, 42 S.W.2d 1059 (Tex.Civ.App.-Eastland 1931) aff’d 63 S.W.2d 1016 (Tex.Comm’n App. 1933, jdgmt adopted). It has been held by our Supreme Court that any reason or condition constituting good cause must extend to the date the claim is filed, Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.Sup.1965), and a delay of five months after good cause has ceased to exist has been held to bar an applicant’s claim. Texas Employers Insurance Ass’n v. Hancox, 162 Tex. 565, 349 S.W.2d 102 (1961). We must conclude, as did the trial court, that the delay of almost five months under the present circumstances was unreasonable. There was no material fact issue to be passed upon. The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

C. E. JACOBS COMPANY, Appellant, v. LAMAR H. MOORE DRILLING COMPANY, Inc., Appellee. No. 4545. Court of Civil Appeals of Texas, Eastland. June 16, 1972. Rehearing Denied July 14, 1972. McMahon, Smart, Sprain, Wilson, Camp & Lee, Stephen H. Suttle, Abilene, for appellant. Scarborough, Black, Tarpley & Scarborough, Beverly Tarpley, Abilene, for appel-lee. McCLOUD, Chief Justice. This is a venue case. Lamar H. Moore Drilling Company, Inc., a drilling contractor, sued C. E. Jacobs Company, an oil operator, in Throckmorton County, for breach of a drilling contract and alternatively in quantum meruit. Moore alleged that Jacobs breached the written contract when Jacobs refused to assume the risk of loss or damage to the hole and to Moore’s “in-hole” equipment following an explosion and fire at the well site in Throckmorton County. Moore contends that such breach by Jacobs relieved it of any further obligations under the contract and sought damages for labor performed and materials furnished before the alleged breach. Jacobs, a private corporation, filed a plea of privilege seeking to have the case transferred to Shackelford County, its place of residence. Moore alleged that venue was proper in Throckmorton County under Subdivision 23, of Article 1995, Vernon’s Ann.Tex.Civ.St. The trial court overruled Jacobs’ plea- of privilege and Jacobs has appealed. We reverse and render. Appellant, Jacobs, contends that under the terms and provisions of the contract it was not obligated to assume the risk of loss or damage to the well and in-hole equipment, and that, appellee, Moore, failed to prove a cause of action against appellant. Appellee had the burden to plead and prove by a preponderance of the evidence a cause of action against appellant. Article 1995, Subdivision 23, V.A.T.S.; Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc.,. 389 S.W.2d 694 (Tex.Civ.App.-Tyler 1965, no writ); Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 390 S.W.2d 346 (Tex.Civ.App.-Eastland 1965, writ dism.); Vick v. Pierson, 463 S.W.2d 484 (Tex.Civ.App.-Ft. Worth 1971, no writ). The contract provided that appellee would drill the well to a depth of 5,100 feet. The fire occurred at 2,965 feet. Following the fire the hole caved in at 1,200 feet and was then plugged by appel-lee. The risk of loss or damage to in-hole equipment was clearly expressed in Section 13 of the contract. If work was being performed on a footage basis the appellee, Moore, would be liable. If work was being performed on a day work basis appellant, Jacobs, agreed to reimburse appel-lee for such loss or damage. It is undisputed that drilling was being conducted on a footage basis up until the fire occurred. Appellee argues that the basis of compensation shifted from a footage basis to a day work basis because of the abnormal drilling clauses document. The contract consisted of four printed pages with a second printed document entitled “EXHIBIT A, Bid Sheet And Well Specifications” expressly incorporated into and made a part of the written contract. The printed contract and bid sheet were properly executed. The document relied upon by appellee is not signed by either party. It consists of one page and is entitled : “ABNORMAL DRILLING CLAUSES (For possible use in Section 14)” Appellee’s drilling superintendent testified that he prepared the contract and sent it to Jacobs for execution. The abnormal drilling clauses document was included in the material sent. When Jacobs returned a signed copy of the contract the abnormal drilling clauses document was among the material returned. The document contains three printed paragraphs which relate to various abnormal conditions that might be encountered while drilling. The paragraphs are unrelated and the provisions differ depending on the condition encountered. The first paragraph expresses certain duties and obligations in the event drilling is being conducted on a footage basis and “loss of circulation, abnormal pressures, salt water flow ... or other condition be encountered which makes drilling abnormally difficult”. Appellee contends that at a depth of 2,965 feet an abnormal pressure zone or other condition was encountered which caused the fire and that under the first paragraph of the abnormal drilling clauses document the basis of compensation shifted from a footage rate to a day work rate. The first paragraph does contain language which under certain circumstances would shift the basis of compensation. The second paragraph contains applicable language if “chert, schist, pyrite, quartzite, or granite be encountered” and the third paragraph discusses the duties and obligations “should partial loss of circulation occur and impede normal drilling progress”. It should be noted that the document states that the clauses contained therein are for “possible use” in Section 14. Neither Section 14 of the printed contract nor Section 14 of the bid sheet refer to the abnormal drilling clauses document. Section 14 of the printed contract states that appellee is an independent contractor and does not refer in any manner to abnormal drilling conditions. Section 14 of the bid sheet which was expressly incorporated into and made a part of the contract is entitled “Special Agreements”. Certain special agreements are expressed therein. One of the printed paragraphs in this section expressly sets out the duties and obligations of the parties “ . . . If loss of circulation occurs while normal drilling operations are in progress on a footage rate basis.” Part of the paragraph has been marked out and additional provisions typed in. The abnormal drilling clauses document which appellee argues constituted a part of the contract also refers to “loss of circulation” and contains duties and obligations different from those stated in Section 14. The record shows that the parties never discussed the abnormal drilling clauses document. While discussing an extraneous document the Court in Delaney Company v. Murchison, 393 S.W.2d 705 (Tex.Civ.App.-Tyler 1965, no writ) said: “ ‘ * * * For the terms of another document to be incorporated into the document executed by the parties, the reference must be clear and unequivocal, and must be called to the attention of the other party, he must consent thereto, * * 17A C.J.S. Contracts § 299, page 136.” There is no evidence of assent or agreement by the parties to the terms and provisions of the abnormal drilling clauses. Without such assent, the abnormal drilling clauses created no contractual obligations. The Court in Smulcer v. Rogers, 256 S.W.2d 120 (Tex.Civ.App.-Ft. Worth 1953, writ ref., n. r. e.) stated the rule as follows: “To constitute a contract the minds of the parties must meet with respect to all the subject matter of the agreement, and as to all of its essential terms; and all of them must assent to the same thing in the same sense at the same time. Their assent must comprehend the whole proposition, and the agreement must comprise all the terms which they intend to introduce into it. There is no contract where the terms are not agreed upon.” The contract between appellee and appellant required that appellee drill an oil well to a depth of 5,100 feet. The evidence shows that the well was being drilled on a footage basis and the risk of loss of equipment was upon appellee and not appellant. Appellee did not complete its contract. Under such circumstances its prior breach without justification precludes its recovery and discharges appellant from any further obligation under the contract. 13 Tex.Jur.2d 568, Contracts, Sec. 311; Jessen v. Le Van, 161 S.W.2d 585 (Tex.Civ.App.-El Paso 1942, no writ); Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 138 S.W.2d 1065 (Tex.Comm.App.1940). Appellee also alleged a cause of action in quantum meruit. The principle is discussed in 13 Tex.Jur.2d 553, Contracts, Sec. 304, where it is stated: “The right to recover in quantum meruit for partial performance of a contract is independent of the force of the agreement itself. The right rests instead on an implied contract by the other party to pay for the benefits he has received, on the theory that it would be inequitable for him to refuse to pay for such benefits. Consequently, it is not essential for the party seeking to recover on quantum meruit to show facts justifying his failure to have performed the contract in full. Nevertheless, he must still show that the part performed by him was of benefit to the other party, or that it was accepted by the other.” There was no proof that the incom-pleted, caved-in hole which was plugged and abandoned by appellee afforded any benefit to appellant. This is not a typical “dry hole” situation. Appellant does not have the benefit of the knowledge that there is or is not oil at the depth sought to be explored. We do not think appellee proved a cause of action under its alternative theory in quantum meruit. We do not think the case of Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814 (Tex.Sup.1970) relied upon by appellee is controlling. There the Court was concerned with whether there was any evidence of probative force to support the jury finding that difficult or hazardous conditions had been encountered. It was uncontroverted that the contract contained an abnormal drilling clause. In the instant case we are of the opinion that appellee has failed to establish that the abnormal drilling clause relied upon was a part of the contract. The judgment of the trial court is reversed and the cause is transferred to the District Court of Shackelford County.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Webster Walter FRANKLIN, Jr., Appellant, v. Mollie Lou WOLFE, Appellee (two cases). Nos. 655, 656. Court of Civil Appeals of Texas, Houston (14th Dist.). July 12, 1972. Rehearing Denied Aug. 2, 1972. Hellmut A. Erwing, Ody K. Jerden, George J. Delaney, Houston, for appellant. James H. Bowlin, Houston, for appellee. One opinion written in the above two eases. TUNKS, Chief Justice. These appeals present complicated problems that arise from complex procedural maneuvers in a child custody case. The various judicial proceedings from which those questions arise will be summarized. On December 14, 1967, Mollie Lou Franklin and her husband, Webster Walter Franklin, Jr., were divorced by judgment of the Court of Domestic Relations Number Four of Harris County, Texas. There was one child of that marriage, a daughter, Katherine Fay Franklin, born February 18, 1966. By that divorce decree the mother was given custody of the child and provision was made for visitation by the father for a two week period during each summer and for other visitation. Later the mother, appellee in these appeals, married a man named Wolfe. She and her new husband moved to California in the fall of 1970, taking her daughter with them. In April of 1971, the father filed suit in the Superior Court of Los Angeles County, California, where the mother and child were residing. At a hearing held in that court on April 28, 1971, the mother and father agreed upon a decree to be entered in the proceeding. The decree of the California court contained this language: “IT IS THEREFORE ADJUDGED as follows: 1. Except as hereinafter modified with regard to visitation rights, the judgment in the Texas proceedings, attached hereto and incorporated herein as Exhibit ‘A’ and bearing a date of entry of December 14, 1967, is confirmed and made a judgment of this court.” As to visitation the California court provided for the father to have a four week visitation period each year, and other privileges, the first four week period to begin on April 29, 1971. During the four week period it was provided that the father could bring the child to Texas. The father was required to arrange and pay for transportation. Pursuant to the California decree the father brought the child to Houston, Texas, on April 29, 1971. He did not, however, return the child to the mother at the end of his four week visitation period. Instead, on May 26, 1971, he filed suit in the Harris County Court of Domestic Relations Number Four asking that he be awarded custody of the child. He alleged as grounds for such award a change of conditions “since the entry of the Divorce Decree in Cause #739,199”, the 1967 decree of the Harris County, Texas court. His prayer was the Harris County court change its former decree and award him custody. On June 16, 1971, the mother, now named Mollie Lou Wolfe, filed a petition for writ of habeas corpus in the Harris County Domestic Relations Court Number Four. The prayer of that petition asked that the child “be discharged from such illegal confinement and restraint, and that the custody of the said minor be restored to this Petitioner.” The judge forthwith signed an order directing the father to produce the child before the court on June 21, 1971, “and show why relief requested in the Petition herein should not be granted.” A writ was issued by the clerk so directing the father to produce the child. He did so produce the child and a hearing was held. Though the record is not entirely clear on the matter, after such hearing the judge apparently orally announced a ruling by which the custody of the child was returned to the mother. The docket sheet in that hearing has an entry dated June 21, 1971, reciting “Habeas Corpus Granted”. The only other entry on the docket sheet is dated January 21, 1972, and recites “Judgment Entered”. On January 21, 1972, in said case the judge signed the written order. It recites the appearance of the parties on June 21, 1971; the hearing of evidence; the findings that the father was illegally holding the child and that the mother was entitled to custody and that the relief prayed for by the mother was granted. Apparently the mother took possession of the child on June 21, 1971, and returned to California and has been there since. The father has appealed from that judgment. On June 21, 1971, when the mother showed up in the courtroom for the hearing with reference to the habeas corpus proceeding that she had filed she was served with citation in the change of custody suit that the father had filed in the Texas court on May 26, 1971. In response to that suit the mother filed on June 28, 1971, a pleading that was designated “Special Appearance to Present Motion to the Jurisdiction”. It is apparent that her attorney considered this a special appearance pursuant to Tex. R.Civ.P. 120a. Actually, it was not the character of motion contemplated by that rule. Rule 120a provides for a special appearance by a defendant to challenge the jurisdiction of a Texas court “on the ground that such party or property is not amenable to process issued by the courts of this State.” In this case the mother was in Texas when she was served and was therefore amenable to process issued by the Texas court. The fact that she was not a Texas resident did not deprive the court of jurisdiction and such jurisdiction was effectively invoked when she was served with citation while in Texas. The fact that she came to Texas to participate in other litigation did not make her immune from service of citation in this case. Oates v. Blackburn, 430 S.W.2d 400 (Tex.Civ.App.-Houston (14th Dist.) 1968, writ ref’d n. r. e.). A persuasive argument could be made that the facts of this case would justify an exception to the general rule pronounced in the Oates case. See 47 Tex.L.Rev. 499 (1969). That question need not be decided here because such was not the true basis of the mother’s challenge to- the court’s jurisdiction. That challenge, although not clearly worded in the motion, was upon the basis that the mother was the lawful custodian under the terms of an unchallenged and lawful decree of the California court which fact had just been affirmed by the Texas court on June 21, 1971, one week before the filing of the motion. On November 11, 1971, the trial court held a hearing on the mother’s plea to the jurisdiction in the father’s custody case. On January 21, 1972, the court signed an order sustaining that plea and dismissed the father’s custody case for want of jurisdiction. The father has appealed from that order, too. Thus, there are two appeals before this Court — one from the judgment in the mother’s habeas corpus case and the other from the dismissal in the father’s custody case. In each of those cases the proceedings and the ruling in the other is significant and relevant. For that reason the two appeals are being treated in one opinion. When the mother filed her petition for habeas corpus in the Texas court she invoked the power of that court to adjudicate the custody of her child. Despite the form of her pleading it amounted to a civil suit for custody of the child. Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (1962); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953). In fact, as heretofore noted, in the prayer of her petition she asked that custody be awarded her. There is filed in this Court an agreed statement of facts in narrative form which shows that the question of custody was tried on June 21, 1971. An employee of the private school in which the child had been enrolled for the preceding 5 weeks, the father and the mother testified. The school employee testified the child did not adjust well, that she was afraid to go home with her father for fear that her mother would come to get her and that she said that she had no mother. The father testified that when he took the child in California she had sore feet because her shoes were too small. He admitted that he refused to return the child at the end of his four week visitation period. The mother testified that the child was in good health when her father took her and that she, the mother, had never neglected her. The fact of California judgment, a copy of which was attached to the mother’s petition, was proven and was admitted by the father. At the conclusion of that trial the judge awarded custody to the mother. He granted the relief for which she had prayed in her petition. That judgment was not reduced to writing and signed until January 21, 1972. It was that judgment from which one of these appeals was taken by the father. It is noted parenthetically that this trial was conducted upon the occasion of the father’s response to a notice to appear at an ancillary proceeding. He was not served with citation and given the regular time within which to answer. The case was not set for trial on its merits in accordance with the regularly adopted and recorded Rules of the Courts of Domestic Relations of Harris County, of which rules this Court may take judicial notice. Investors Diversified Services, Inc. v. Bruner, 366 S.W.2d 810 (Tex.Civ.App.-Houston 1963, writ ref’d n. r. e.); Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App.-Galveston 1956, no writ). At such hearing, or even ex parte, the trial court was authorized to issue an order for the temporary custody and protection of the child. Page v. Sherrill, 415 S.W.2d 642 (Tex.Sup.1967). But the judgment here rendered was a final judgment on the merits of the case. If it had been merely an ancillary order as to the temporary custody of the child it would not have been appealable. Frost v. Frost, 467 S.W.2d 683 (Tex.Civ.App.-Texarkana 1971, no writ). Had either party objected to the trial on the merits of the final custody issue at such hearing set for the determination of the ancillary issue, the court’s overruling of that objection would have been error. Livingston v. Nealy, 382 S.W.2d 511 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.); Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App.-San Antonio 1951, no writ). Apparently, however, no such objection was made in the trial court and none has been made by this appeal. The trial of the case on the merits without following the usual procedure of citation and setting seems to have been by agreement, as, certainly, such a trial may be held. While the mother’s filing of the petition for habeas corpus invoked the court’s power and authority to adjudicate the issue of the child’s custody, the court’s authority therein was not unlimited. To the extent that a valid decree of another court was res judicata of that issue, the trial court here had no authority to adjudicate it. The December 14, 1967 decree of the Texas court and the April 28, 1971 decree of the California court are res judi-cata of parents’ rights to the custody of the child as of the dates of those judgments. Any judicial determination of the issue of the right to the custody of child subsequent to its having once been judicially determined must depend upon a change of conditions affecting the child’s welfare after the prior adjudication. Knowles v. Grimes, 437 S.W.2d 816 (Tex.Sup.1969); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Blair v. Blair, 434 S.W.2d 943 (Tex.Civ.App.-Dallas 1968, no writ). Those authorities pronounced the Texas law in such respect. No proof was made that the California law on the subject is different. No request was made that the court take judicial notice of the California law, as permitted by Tex.R.Civ.P. 184a. It is thus presumed that the California law of res judicata gives the California custody judgment the same effect as the Texas law gives a Texas judgment. Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.1963). In the broad sense the Texas court had jurisdiction to adjudicate the custody of the child. Its authority in the exercise of that jurisdiction was limited by the California decree. It was authorized to decree custody in terms different from those of the California decree only if there was such a change of circumstances since the date of that decree that the welfare of the child warranted such new and different judgment. As will be readily seen from a consideration of the evidence before the court on the June 21, 1971 hearing, there was not the slightest suggestion of any relevant change of conditions after April 28, 1971, the date of the California judgment. For that reason the trial court’s judgment in awarding the mother custody as prayed for in her petition is affirmed. The trial court had jurisdiction, in the broad sense, of the child’s custody. The facts before it, however, failed to show changed conditions since the California decree. It, therefore had no authority to exercise its jurisdiction by making a provision for custody different from the provision of the California decree. For that reason the trial court’s order dismissing the father’s suit for custody is affirmed.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Lorena MOELING et al., Appellants, v. Claude W. RUSSELL, Appellee. No. 629. Court of Civil Appeals of Texas, Tyler. July 6, 1972. Rehearing Denied July 27, 1972. Carter, Jones, Magee, Rudberg, Moss & Mayes, Ben Warder, Jr., Dallas, for appellants. Lane, Savage, Counts & Winn, G. Ward Beaudry, Dallas, for appellee. MOORE, Justice. This is a suit contesting the will of Mayme Keith Cherry on the ground that the testatrix was of unsound mind. Contestants are Mrs. Barbara Moses Haviland, Mrs. Lorena Moses Moeling, and Roland Moses, the nieces and nephew of the testatrix. By her will, testatrix bequeathed each of the contestants the sum of $500.00. Contestee, Claude Russell, was named residuary legatee, and as a result she bequeathed him the bulk of her estate consisting of approximately $50,000.00. Trial was before the court without a jury. After a hearing the trial court rendered judgment finding that the testatrix was of sound mind on March 21, 1969, the date she executed the will, and ordered that the will be admitted to probate. Contestants appeal contending by their first point that the trial court’s finding that testatrix was of sound mind is so overwhelmingly against the weight and preponderance of the evidence as to be clearly wrong and unjust. Testatrix was a resident of Dallas County, Texas. She died on December 18, 1969, as a result of a stroke at the age of 85. She had no children, was a widow, and lived alone. The record shows that contes-tee, Claude Russell, was not related to the testatrix. He had been a friend of the testatrix for several years. He was unmarried, retired and visited in testatrix’s home frequently, assisting her with some odd jobs around the house. The record shows testatrix bought him an automobile and also gave him access to her lock box at her bank. He was described by some of the witnesses as being her boyfriend. At the time she executed the will on March 21, 1969, testatrix’s closest relatives were a sister, Ida Green, who lived in Lake Charles, Louisiana, and two nieces, Barbara Moses Haviland of Milwaukee, Wisconsin, and Lorena Moses Moeling of Lake Charles, Louisiana, and a nephew, Roland Moses, also of Lake Charles, Louisiana. While testatrix also bequeathed the sum of $500.00 to her sister, Ida Green, she is not a party contestant. Some 16 witnesses testified at the trial giving testimony as to the mental capacity of the testatrix. Dr. E. R. Cox, testatrix’s physician since 1944; her lawyer, Grady Lamar Holley; a subscribing witness; a bank employee; a librarian; a public stenographer; and a friend all testified that they were of the opinion that she was of sound mind. Contestants produced several witnesses consisting of distant relatives and neighbors of testatrix who testified in substance that she was eccentric, sick, senile, and was of unsound mind. Contestants also produced testimony of two doctors. One of the doctors had never seen testatrix prior to her death and the other saw her only after her stroke shortly before her death. In response to hypothetical questions, both doctors expressed their opinion that the testatrix was of unsound mind. According to the testimony of Grady Lamar Holley, the attorney who drafted the will, testatrix originally came to his office in the company of contestee, Claude Russell. He testified that he was not acquainted with either testatrix or Mr. Russell and that Mr. Russell waited in his reception room while he and testatrix were in his private office where she told him she desired to make a will. After questioning her about the extent of her estate, he testified that she told him that she desired to leave the sum of $500.00 to her sister and her nieces and nephew and to bequeath the remainder of her estate to Claude Russell. According to this testimony, testatrix told him that she had not seen her sister or contestants since 1965 while at a funeral and she feared that they had deserted her. Contestee offered other testimony to the effect that in the meantime she had written her sister and nieces requesting them to come to visit her but that none of them ever came. Mr. Holley testified that after he had obtained the information with reference to her will, he told testatrix that it would take about a week and that he would call her when he had the will ready. He testified that when he called her she came to his office alone and executed the will. Because of contestants’ point of error complaining of the factual insufficiency of the evidence, we have made a complete review of the entire record. After so doing, and upon comparing the types of testimony offered by both parties, and after having weighed all the evidence, both that against as well as that in favor of the judgment, in accordance with the rules laid down by In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Sup.Ct., 1951), we have concluded that the record does not present a situation where we would be justified in concluding that the judgment is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Price v. Johnston, 352 S.W.2d 864 (Tex.Civ.App., San Antonio, 1961, dism.); Douthitt v. Haynie, 398 S.W.2d 831 (Tex.Civ.App., Waco, 1966, ref., n. r. e.). Accordingly, contestants’ first point is overruled. By the second and third point contestants urge that the trial court erred in overruling their objection to the admission of testatrix’s will into evidence because at the time it was offered, contestee had not established by competent testimony that Mrs. Cherry was of sound mind in accordance to Secs. 84 and 88 of the Texas Probate Code, V.A.T.S. In this connection the record shows that prior to the time the will was offered, contestee, over the objection of contestants, offered the testimony of one of the subscribing witnesses, Lallie McGuire, to the effect that testatrix was of sound mind. Contestants argue that her testimony was not competent because the witness had seen testatrix only once for a period of five minutes and therefore her testimony was inadmissible since her non-expert conclusion of mental competency was not based upon established facts. Consequently they argue that it was error to admit the will in evidence at that particular time. The point is without merit and is overruled. The authorities hold that a non-expert witness testifying that a person is of unsound mind must detail the facts upon which he bases such conclusion. This recital of facts is not required where the conclusion of the witness is that a person is of sound mind. Thornton v. McReynolds, 156 S.W. 1144 (Tex.Civ.App., Texarkana, 1913, writ, ref.); Singleton v. Carmichael, 305 S.W.2d 379 (Tex.Civ.App., Houston, 1957, ref., n. r. e.), citing Meyers v. State, 113 Tex.Cr.R. 26, 19 S.W.2d 317 (1929). For this reason we hold that testimony of the subscribing witness was competent and therefore the will was properly admitted into evidence. Finally by the two remaining points contestants urge that the trial court erred in sustaining contestee’s objection to certain letters written by testatrix and a brief, handwritten note signed by testatrix stating she was leaving her house to her dog and her two cousins. Generally speaking, a writing, not in violation of the dead man’s statute, Article 3716, Vernon’s Ann.Civ.St, which is indicative of decedent’s mentality is admissible in determining testamentary capacity. Vance v. Upson, 66 Tex. 476, 1 S.W. 179 (1886); Jones v. Selman, 109 S.W.2d 1003 (Tex.Civ.App., Waco, 1937, writ. dism.). While we believe these writings, or at least some of them, were admissible, we are not prepared to hold that the trial court committed reversible error in refusing to admit them into evidence. Under the provision of Rule 434, Texas Rules of Civil Procedure, we are not permitted to reverse and remand unless the error is such that it compels the conclusion that such error was calculated to cause and probably did cause the rendition of an improper judgment. In view of the great abundance of other evidence supporting the trial court’s finding of testamentary capacity, we fail to see how it can be said that the refusal to consider these instruments could be calculated to cause and probably did cause the trial court to arrive at an improper judgment. Finding no reversible error, the judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BUELL REALTY NOTE COLLECTION TRUST, Appellant, v. CENTRAL OAK INVESTMENT CO. et al., Appellees. No. 17900. Court of Civil Appeals of Texas, Dallas. June 22, 1972. Rehearing Denied July 13, 1972. James P. Swift, Dallas, for appellant. Bill Jones, McKool, Jones, Shoemaker, Turley & Vassallo, Dallas, for appellees. BATEMAN, Justice, The question here is whether the owner or mortgagee is entitled to money paid as compensation for land condemned for public use. Appellees were the owners of a tract containing 114,019 square feet, which they had purchased for $735,000, of which $185,000 was paid in cash. Appellant holds a vendor’s lien note for the balance of $550,000, due in April, 1974. The City of Dallas condemned 10,793 square feet for which it paid $140,000 into the registry of the county court. The controversy was submitted to the district court, and at the conclusion of a nonjury trial the court awarded the entire amount to appellees. Findings of fact and conclusions of law were filed, as follows: “1. The market value of the 114,019 square feet of land and improvements, immediately before the taking on July 1, 1971, was $15.00 per square foot, or $1,710,285.00. 2. The market value of the 103,226 square feet of land and improvements, immediately after the taking on July 1, 1971, was $15.00 per square foot or $1,548,390.00. 3. The security interest of the Defendant, Buell Realty Note Collection Trust has not been impaired.” Appellant’s first point of error on appeal attacks the judgment as impairing the obligations of its lien contracts, in violation of Article 1, Section 16, of the Texas Constitution, which reads: “Sec. 16. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” Appellant cites Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 1025 (1934), and Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025 (1934), as holding that this prohibition extends also to judicial acts. The court in those cases struck down an act of the legislature known as the Moratorium Law as being in violation of the Constitution, and necessarily held that court judgments which attempted to enforce the unconstitutional statute were beyond the constitutional powers of the judiciary. We have no such situation here. The judgment appealed from was not rendered under any statute attacked as being unconstitutional. This section of the Constitution prohibits the law-making bodies of the state and its political subdivisions from enacting legislation impairing the obligation of contracts. It does not inhibit judicial action except when based on such an invalid statute, and therefore has no application here. Appellant’s first point is overruled. Appellant’s second point of error complains of the judgment because it deprives appellant of compensation for its property and property rights, in violation of Section 17 of Article 1 of the Texas Constitution, Vernon’s Ann.St., which prohibits the taking of a person’s property for public use without adequate compensation being made. The land condemned was taken by the City of Dallas for public use, and no question is raised as to the adequacy of the compensation paid by the city. The trial court’s action in deciding that appellant was not entitled to any of the money so paid, even if error, was not a violation of this constitutional provision, and appellant’s second point of error is overruled. Appellant's third point of error raises the key issue in the case which, as stated, is as to which of the parties under the law is entitled to recover the compensation paid. The prevailing view is that where the entire mortgaged property is taken, the full amount of the condemnation proceeds should be allocated to the mortgagee, to the extent of the mortgage debt. 27 Am. Jur.2d, Eminent Domain, § 257, p. 36. A more difficult question is presented, however, when only a part of the mortgaged property is taken. There is considerable disagreement among the decisions. Different and somewhat inconsistent approaches are made by the courts to announce a rule which will protect the interest of the mortgagee while treating the mortgagor fairly. 29A C.J.S. Eminent Domain §§ 200-202, pp. 890-913. According to one view, where there is a partial taking the mortgagee is entitled to receive all of the award to the extent of the mortgage debt, the amount received, of course, being credited on the mortgage debt. The leading case utilizing this approach is City of Chicago v. Salinger, 384 Ill. 515, 52 N.E.2d 184, 154 A.L.R. 1104 (1943). Another approach is that where only part of the land is taken the mortgagee is entitled to receive only so much of the award as will compensate him for the impairment of his security. Seaboard All-Fla. Ry. v. Leavitt, 105 Fla. 600, 141 So. 886 (1932) ; Swanson v. United States, 156 F.2d 442, 170 A.L.R. 258 (9th Cir. 1946; cert. den. Spokane Portland Cement Co. v. Swanson, 329 U.S. 800, 67 S.Ct. 492, 91 L.Ed. 684 (1947)); Mahoning Nat. Bank v. City of Youngstown, 143 Ohio St. 523, 56 N.E.2d 218, 224 (1944). The trial court followed this impairment-of-security theory and, concluding that appellant’s security interest had not been impaired, allocated the entire amount to appellees. We affirm. Neither of these methods of apportioning the award is entirely satisfactory. The one deprives the owner of the benefit of his bargain in that, contrary to his contract, the maturity of at least a part of his indebtedness is accelerated, even though he is not in default. The other deprives the mortgagee of the benefit of his bargain in that his contract is for a lien on the entire tract and if he is not given the compensation paid for the part condemned he has lost a valuable right affecting the marketability of the mortgage debt unless he discounts it substantially, and forces him to take an uncompensated risk of a catastrophic depression of land values by the time his note matures. “In any event, the greatly prevailing view is that where mortgaged land is taken or damaged for a public use, the mortgagee is entitled either to the entire award or to so much thereof as is necessary to compensate him for his interest or damage. Accordingly, where the whole of the mortgaged land is taken in eminent domain proceedings, the mortgagee is entitled to all of the award or so much of it as is necessary to satisfy the mortgage indebtedness. Where only a part of mortgaged property is taken, the mortgagee is entitled, generally speaking to only so much of the award as is necessary to compensate him for his interest in the part taken, although the view has been expressed that the mortgagee is also entitled to so much of the damages as might be necessary to satisfy his claim on the part of the mortgaged property not taken if it should prove insufficient for that purpose.” 27 Am.Jur.2d, Eminent Domain, § 257, p. 36. We know of no Texas case passing on the precise question. However, there are a number of cases which, almost without exception, embrace the impairment-of-security measure in assessing damage to the security interest caused by the tortious acts of third persons who are strangers to the contract. One of these is Aggs v. Shackelford County, 85 Tex. 145, 19 S.W. 1085 (1892). Aggs, the mortgagee, was not named as a party to the condemnation proceedings and, after the county had paid to the owner the full amount awarded for the taking of a strip wide enough for a road across his land, sued the county for damages to his security. It was held that his damages were measured by the impairment, if any, of the value of his security; that as he was not a party to the condemnation it was not binding on him and as to him was a nullity; that he still had his lien on the entire tract; that the land had not been damaged by the building of the roadway over it; and that since his security had not been impaired he was not entitled to damages. Other Texas cases recognizing this impairment-of-security doctrine are listed in the footnote. Appellant argues that these are all tort cases in which a different rule prevails as to measure of damages. However, we are persuaded that the principle involved is the same. In both the tort case and the eminent domain case the goal is to ascertain the amount of compensation, if any, due the mortgagee. If he fails in his tort action because he cannot show that his security has been impaired, on principle he has no right to complain of the payment of the condemnation award to the owner when the evidence shows to the satisfaction of the court that his security will not thereby be materially impaired. In Rayburn, Texas Law of Condemnation (1960), Sections 79 and 113, the measure of the mortgagee’s damages is stated to be the difference, if any, between the amount owing on the debt and the actual value of the security at the time of taking. With all due respect to the distinguished author of that treatise, we do not agree that in a case where the mortgagee has bargained for a lien on property valued greatly in excess of the debt, his security may be whittled down in value by partial takings in condemnation, or by tortious conduct of others, to the point where it barely equals the amount of the debt, and there still be no impairment of his security. Each case must be considered in the light of its own facts and surrounding circumstances. Whether the security has been or will be impaired or damaged is a fact issue to be resolved in each case by the triers of the facts, taking into consideration all the surrounding circumstances including, but not necessarily limited to, the fact question of whether after the taking or damage the value of the remaining property has (and probably will continue to have until the maturity of the secured debt) substantially the same ratio to the debt as the value of the mortgaged property bore to the debt at the time of its creation, or at least a value sufficiently in excess of the debt to give reasonable assurance that the debt will be paid at or before maturity. This places a rather heavy burden on the trial court, but it is in our opinion necessary to the balancing of the equities between parties who have, through no fault of their own, suffered an involuntary, substantial change in their property rights. We do not think the trial court in carrying that burden should be restricted or inhibited by an unyielding rule that in all cases of partial taking the compensation should go either to the mortgagee or the owner. In this case the trial court found that appellant’s security interest has not been impaired, and appellant does not question the sufficiency of the evidence to support that finding. Under these circumstances and the entire record before us, we cannot say that the judgment is erroneous. Appellant also argues that until the vendor’s lien note is paid its title as vendor is superior in the sense that appellees cannot assert their title against the vendor unless and until the purchase money has been paid, and that this in effect is what they are doing in contesting appellant’s claim to the award, citing Collins v. Republic Nat. Bank of Dallas, 152 Tex. 392, 258 S.W.2d 305 (1953), and State v. Forest Lawn Lot Owners Ass’n, 152 Tex. 41, 254 S.W.2d 87 (1953). We do not agree with appellant. It is not necessary to deny the superior title of the holder of the vendor’s lien also to recognize that, as held in Stephens v. Motl, 82 Tex. 81, 18 S.W. 99, quoted in Carey v. Starr, 93 Tex. 50, 56 S.W. 324, 325 (1900), he is "in the relation of mortgagee of the land out of possession, and not entitled to possession until default on part of the vendee, and a rescission by him of the contract, or a foreclosure.” In determining the relative rights of the parties to the fund in question we must treat the deed conveying the land to appellees as an executed contract, and not executory, despite appellant’s vendor’s lien and concomitant "superior title.” Appel-lees were given the exclusive right to use, enjoy and occupy the land and, in short, to have the benefit of all the elements of ownership, subject only to appellant’s rights to rescind or to foreclose upon default of payment of the purchase money note. See Carey v. Starr, supra, and also Humphreys-Mexia Co. v. Gammon, 113 Tex. 247, 254 S.W. 296, 300 (1923); Daugherty v. Manning, 221 S.W. 983, 987 (Tex.Civ.App., San Antonio 1920, writ dism’d); Rooney v. Porch, 239 S.W. 910 (Tex.Comm’n App.1922, holding app’d). Affirmed. American Nat. Ins. Co. v. City of Port Arthur, 62 S.W.2d 256 (Tex.Civ.App., Beaumont 1933, no writ); Carey v. Starr, 93 Tex. 508, 56 S.W. 324 (1900) ; Shell Pipeline Corp. v. Guthrie, 21 S.W.2d 710 (Tex.Civ.App., Eastland 1929, no writ); Carroll v. Edmondson, 41 S.W.2d 64 (Tex.Comm’n App. 1931, jdgmt adopted); Bond v. Kirby Lumber Co., 47 S.W.2d 891, 894 (Tex.Civ.App., Beaumont 1932, writ dism’d); Panhandle & S. F. Ry. Co. v. Wiggins, 161 S.W.2d 501, 504 (Tex.Civ.App., Amarillo 1942, writ ref’d w. o. m.) ; Chavez v. Schairer, 199 S.W. 892 (Tex.Civ.App., El Paso 1918, no writ). Cf. Acree v. State, 47 S.W.2d 907, 909 (Tex.Civ.App., Waco 1932, writ dism’d).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NATIONAL AUTOMOBILE & CASUALTY INSURANCE COMPANY, Appellant, v. Sibyl S. HOLLAND, Appellee. No. 17884. Court of Civil Appeals of Texas, Dallas. May 11, 1972. Rehearing Denied June 8, 1972. Don Hinds, Yarborough, Yarborough & Hinds, Dallas, for appellant. Jack B. Cowley, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appel-lee. BATEMAN, Justice. The appellee Sibyl S. Holland sued to set aside an unfavorable common law arbitration award. Her claim was against appellant National Automobile & Casualty Insurance Company under the “uninsured motorist coverage” contained in an automobile liability policy issued by it to her. While operating her insured automobile she collided with an uninsured automobile and sustained serious bodily injuries. Ap-pellee and appellant agreed to arbitrate her claim under the rules of the American Arbitration Association and to be bound by the award. The arbiter was Dallas attorney Robert S. Greenberg, who held a hearing and rendered a decision that appellee take nothing. This decision was assailed by this suit as being “arbitrary and capricious in that the order denying Plaintiff recovery was a willful and unreasoning action taken without consideration and in disregard of the facts and circumstances of the case.” The jury found, in answer to Special Issue No. 1, that in rendering such decision the arbitrator acted arbitrarily. Appellant had moved for instructed verdict and, after verdict, moved to disregard the jury’s answer to Special issue No. 1 and for judgment non obstante veredicto, all of which motions were overruled. These motions and appellant’s objections to Special Issue No. 1 all raise the questions of “no evidence” and “insufficient evidence” to support the submission of the issue and the finding of the jury in response thereto, and are presented in appellant’s first eight points of error on appeal. The arbiter Greenberg testified that the parties had made two stipulations at the hearing before him: (1) that Steve Taylor, the other party to the accident, was uninsured, and (2) that if appellee was entitled to recover she would be entitled to the maximum benefits provided by the policy. The trial court did not permit a showing as to what evidence was submitted to the arbiter. These rulings are not complained of on this appeal. Appellee introduced in evidence a pamphlet issued by American Arbitration Association entitled “A Manual for Accident Claims Arbitrators,” in which the following appears: “Accident Claims arbitrators should not use their authority to compel the parties to settle the claim under dispute. * * * He should render an award which in his judgment reflects the true value of the claim.” Appellee took the position in the trial court, as she does in this court, that Green-berg mistakenly conceived it to be his duty to “settle” the dispute in the sense of working out a compromise, but that the stipulation of the amount, if any, which ap-pellee would be entitled to recover prevented him from doing so and made the “take nothing” decision the only one available to him. In support of that contention appel-lee’s counsel elicited from him the following testimony: “Q Well, what are your duties as an arbitrator when we say you are an arbitrator, what are you supposed to do? A To settle a dispute between two parties. Q Specifically in relation to an insured [probably intended to be uninsured] motorist claim what would it be an arbitrator’s duty to perform ? A To settle the dispute between the party bringing the claim and the party resisting the claim.” “Q Mr. Greenberg, I believe you told us earlier that it was your understanding as an arbitrator that you were to settle the dispute between the parties? A Yes, sir, with certain rules to go by.” “Q So you had the sole responsibility of making the arbitration ? A That was my understanding, yes, sir. Q And it was your understanding you were to settle the claim between the parties ? A I was to determine the dispute, yes, sir.” “Q So with those two stipulations what was it your understanding you had to resolve? A The dispute between Sibyl Holland and the insurance company.” “Q All right, what did the dispute involve in fact? A Well, whatever other facts were necessary to consider the claim * * * of Sibyl Holland and whatever claim the insurance carrier presented. Q And in summary that would be simply whether Mr. Taylor was legally liable to Sibyl Holland for any damages whatsoever, correct? A Well, I think the legal question that was to be determined was whether or not the respondent company was liable but in order for the respondent company to be liable you would have to read the policy and interpret the policy.” Greenberg also testified that the terms of the insurance policy as well as the common law would be applicable in the determination of the controversy and that Mr. Taylor had to be at fault in causing the accident and that Mrs. Holland had to be free of fault; that in addition to consideration of the negligence of the two parties he also had to consider whether the accident was unavoidable, and also what had been paid under the medical-pay clause. He then further testified: “Q Will you tell us exactly what you mean when you say that it was your duty to settle the dispute between the parties ? A Well, as I understand it the parties came before an arbitrator and presented the claim and the defenses to the claim and it’s up to the arbitrator to determine the validity or invalidity of the claim presented in accordance with the subject matter of the claim and the applicable facts and the applicable law applied to it.” “Q Was it your thought you had to settle the case between the parties being unable to settle the case themselves? A Well, I conceived my duty to make a decision, yes. Q Do you ever recall telling anyone that your hands were tied, so to speak, in making an award because the parties had agreed that the judgment would be $10,000.00 or thereabouts in the event that Mrs. Holland won? A Absolutely not, Mr. Moss. Q You didn’t tell that to anybody? A Absolutely not.” Joe Hill Jones, one of the attorneys for appellee, testified that within a week or ten days after the arbitrator’s decision Green-berg told him that his hands were tied, that the parties had agreed that the damages sustained by the appellee were to be $10,-000, the amount of the uninsured-motorist coverage, and in view of that stipulation between the parties he, Greenberg, couldn’t rule on the case in any other way than to allow nothing. This was in substance all of the evidence offered by appellee to show arbitrariness of the award. Both parties agree that the correct rule applicable to this situation is found in Grand International Brotherhood of Locomotive Engineers v. Wilson, 341 S.W.2d 206, 211 (Tex.Civ.App., Fort Worth 1960, writ ref’d n. r. e.), as follows: “Mistake of an agreed arbiter in a conclusion, by way of quasi-judgment, is not arbitrary and capricious action. These terms, when used in connection with a situation such as is before us, must mean willful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case. 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 than an erroneous conclusion was reached.” It is well settled that an award made within the authority conferred on the arbiter is final and will not be set aside unless the party complaining of the award carries his burden of showing that the arbiter was “guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment.” Albert v. Albert, 391 S.W.2d 186, 188 (Tex.Civ.App., San Antonio 1965, writ ref’d n. r. e.); Smith v. Barnett, 373 S.W.2d 762, 765 (Tex.Civ.App., Dallas 1963, no writ); Johnson v. American Can Co., 361 S.W.2d 451, 453 (Tex.Civ.App., Houston 1962, no writ); Haddad v. Bagwell, 317 S.W.2d 781, 784 (Tex.Civ.App., El Paso 1958, writ ref’d n. r. e.). See also Johnson v. Korn, 117 S.W.2d 514, 521 (Tex.Civ.App., El Paso 1938, writ ref’d), wherein, after holding that arbitration awards are to be liberally and favorably regarded, that mere technical objections to them are not to be countenanced, that nothing will be presumed against them, and that they will be supported by every presumption in their favor not contradicted by proof, the court then said: “Nor are we concerned with the soundness of the arbitrators’ reasoning. We may not set aside the award merely because we think the arbitrators erred in judgment, provided only it were an honest judgment. * * * If, however, upon its face it shows that there was a mistake as to their authority, and that mistake controlled their findings to the manifest injury of the plaintiffs in error, the judgment must be set aside, and if the evidence raises a substantial question, the judgment must be reversed that a jury may determine the issue of fact.” Appellee argues under the last sentence in the above quotation that the arbiter Greenberg was mistaken as to his authority and that his mistake controlled his findings to appellee’s injury, requiring the award to be set aside and the matter submitted to a jury. We do not agree with appellee. Greenberg’s testimony is quite clear, we think, as to his understanding of the word “settle” as meaning a resolution or determination of the controversy after hearing by making a decision in accordance with the facts and the applicable law. He steadfastly resisted all efforts to make him admit that he thought his primary duty was to compromise the case, rather than determine it. We find no evidence of probative value in this record to indicate that Green-berg made any effort whatever to compromise the claim or that he considered it a part of his duty to do so. Appellant contends that the testimony of Joe Hill Jones, mentioned above, is evidence that Greenberg considered it to be his duty to try to compromise the case. Even if Jones’ testimony may be said to have that effect, there is still no evidence that Greenberg in fact attempted to compromise the case, or that in reaching his decision he was influenced by an unsuccessful attempt to effect a compromise. Certainly, his award cannot be taken as an attempt to compromise, since appellee was awarded nothing. We find no evidence that his decision was based on anything other than the evidence adduced at the hearing. Even if he told Jones that “his hands were tied” by the parties’ stipulation concerning damages, the jury could not reasonably infer from such remarks that he erroneously considered that his decision as to liability was also precluded by the stipulation. Consequently, we hold that Jones’ said testimony was no evidence that his decision was arbitrary. Common law arbitration is a proceeding favored in Texas law. Ferguson v. Ferguson, 110 S.W.2d 1016, 1021 (Tex.Civ.App., Eastland 1937, no writ) ; Art. 16, § 13, Texas Constitution, Vernon’s Ann.St. In Ferguson the court speaks of arbitration as “an appropriate remedy by which disputants may settle their controversies.” (Italics ours.) The word “settle” was used by the court there, not in the sense of a compromise, but in the sense which Green-berg obviously used it in his testimony; i. e., as the determination of a controversy, a decision which would resolve that controversy with the expenditure of a minimum of time and money. We hold that there was no evidence and insufficient evidence that the arbitration award was arbitrary or capricious, and accordingly sustain appellant’s first eight points of error on appeal. In view of our conclusions above stated it becomes unnecessary that we consider appellants’ Points 9 through 17, inclusive. In our opinion appellant’s motions for instructed verdict, to disregard the jury’s answer to Special Issue No. 1, and for judgment non obstante veredicto should have been granted. The judgment appealed from is therefore reversed and here rendered that appellee take nothing. Reversed and rendered. We find it unnecessary to pass upon the admissibility of Jones’ testimony over the objection that it was hearsay. We have serious doubt that an arbitrator’s decision may be thus impeached, for it is said that delving into arbitration proceedings for the purpose of impeaching the award seems to be governed by the rules applicable to impeaching jury verdicts. McCormick & Ray, Texas Law of Evidence, 2d Ed. (1956), | 401, p. 343 ; and in Wigmore on Evidence (McNaughton 1961 Revision) Vol. VIII, § 2354, p. 716-7, it is said that facts tending to impeach a verdict, if admissible at all, “should be evidenced by the juror’s own account under oath * * and not by hearsay statements of others as to his account.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Rueben GARZA, Appellant, v. CITY OF ROBSTOWN, Texas, et al., Appellees. No. 729. Court of Civil Appeals of Texas, Corpus Christi. June 29, 1972. Roger Butler, Corpus Christi, for appellant. James W. Williams, III, Robstown, Wade & Cromwell, Charles W. Cromwell, Corpus Christi, for appellees. OPINION NYE, Chief Justice. This is a suit by a taxpaying citizen of the city of Robstown complaining of the Mayor, the City Council and members of the Board of Trustees who operate the Robstown Utility System. The defendants filed their motion to dismiss the suit, contending that the suit was in the nature of an election contest and that the same issues had been determined in a separate suit that was finally determined on appeal. The trial court dismissed plaintiff’s suit for want of jurisdiction. Whereupon appellant appeals to this Court. The appellant as plaintiff alleged that he is a resident taxpaying citizen of the City of Robstown. He complains of the same named defendants in a previous appeal. Garza v. Dare, 475 S.W.2d 340 (Tex.Civ. App. — Corpus Christi 1971, n. w. h.). He alleges that the utility system is controlled by a board that he refers to as the “Robs-town Utility System”. He alleges that on June 7, 1971, the City of Robstown held an election in which a majority of the persons voted for the issuance by the City of revenue bonds totalling $1,200,000.00 which authorized the City to impose upon the Robs-town Utility System and its revenues, a lien to secure the indebtedness that will be created by such bonds when they are issued. In paragraph 7 of his petition he states that the City of Robstown and its officials (the defendants herein) “unless restrained by this Court (the trial court) as hereafter requested, intends to issue, and will issue, the aforementioned revenue bonds authorized by said election. The issuance by said City of said bonds, or any of them, would be an illegal act outside the statutory authority of said City.” He contends that the power to call the election rests solely in the “Robstown Utility System board” and “. . . for that reason the said City lacked power to call said election and as a result said City lacks authority under the law to issue any of the aforementioned bonds . . . .” He further states that the plaintiff in his capacity as a “taxpaying citizen of Robstown”, seeks to restrain the officials of the City from doing an illegal and unauthorized act, i. e. the issuing of the bonds which were authorized by the election. Appellant in his brief states that his basic contentions are outlined in the preceding paragraph 7 of his original petition. He insists that the only governmental agency with the power to call the bond election was the “utility board”; that the City in calling the election acted ultra vires and wholly without authorization of any law within this state; and that he as appellant and in his capacity as a citizen and taxpayer can show that he has a justiciable interest sufficient to authorize him to prosecute this suit and to stop the City from engaging in its illegal and unauthorized conduct. Citing Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037 (1916). This case concerns the question of whether the State Democratic Executive Committee may be restrained from placing a nominee that it has indorsed, on the ballot. It is not a case that challenges the validity of an election or the authority of a utility board to call an election. This authority is not in point. It is clear to us that the appellant is attempting, by a collateral attack, to contest the election held by the City of Robs-town for the issuance of revenue bonds. Where one attacks the validity of an election as a subject matter of his law suit, such suit is denominated an election contest. Clary v. Hurst, 104 Tex. 423, 138 S.W. 566 (1911). This being the case, the results of an election that authorizes issuance of revenue bonds cannot be questioned or set aside, absent an election contest suit instituted for that purpose. Art. 9.03 Vernon’s Ann.Civ.St. of the Election Code requires that notice in writing of the intent to contest an election and notice in writing of the grounds that the contestant relies upon, must be given within thirty days after the return day of the election. This was our holding in Garza v. Dare, supra. The appellant admitted that he has not complied with these provisions of Art. 9.03. The district court was therefore correct in determining that it did not have jurisdiction to hear any fact issue concerning any irregularity of the subject election. See Garza v. Dare, and cases cited therein. Statutes governing the election and issuance of municipal bonds are found in Title 22, Art. 701-842b, V.A.C.S. Art. 702 states that the “governing body” of the city or town shall order the election for the issuance of bonds. Art. 23, Sec. 9, V.A.C.S. defines governing body. It does not make reference to a board of trustees as satisfying the definition of a governing body. The appellant refers us to Art. 1115, V.A.C.S. as the authority for a board of trustees to have the exclusive power to call the election. We fail to see any mandatory requirement in this Article as suggested by the appellant. The board of trustees is merely an agent of the governing body of the city, town or home rule city and it was never intended that such board be vested with the exclusive authority to call a bond election or to issue bonds resulting therefrom. See Crownhill Homes, Inc. v. City of San Antonio, 433 S.W.2d 448 (Tex.Civ.App. — Corpus Christi 1968, n. r. e.); San Antonio Independent School District v. Water Works Board of Trustees, 120 S.W.2d 861 (Tex.Civ.App.— Beaumont 1938, err. ref’d). We believe that Art. 1112 is most applicable. It states: “No such light, water, sewer or natural gas systems, parks and/or swimming pools, shall ever be sold until such sale is authorized by a majority vote of the qualified voters of such city or town; nor shall same be encumbered for more than Ten Thousand Dollars ($10,000), except for purchase money, or for extensions to such systems, or to refund any existing indebtedness lawfully created, until authorized in like manner. Such vote in either case shall be ascertained at an election, which election shall be held and notice thereof given as is provided in the case of the issuance of municipal bonds by such cities and towns.” The bond election was held under the authority of Art. 1111, V.A.C.S. and the succeeding sections. Particularly Art. 1112 above quoted. We find nothing from appellant’s allegations in this suit that would in any way affect the validity of this election. The City of Robstown filed its motion to dismiss this appeal contending that this Court had already heard and entered a judgment in the prior case (Garza v. Dare, supra), disposing of all of the issues relative to a contest of the said bond election. Appellees argue that the filing of the present suit destroys the meaning and the effect of this Court’s prior judgment, in that the Attorney General will not now approve the revenue bonds of this type so long as their validity are under attack by the pending litigation. 40 Tex.Jur.2d § 572, p. 258; Sec. 3, Art. 1269j-5, V.A.C.S. Although appellant in the present pending appeal was plaintiff in the lower court, he was not one of the actual parties in the prior case, therefore the motion to dismiss the appeal is overruled. However, the attorney who represents the appellant and all of the defendants named in the prior case are all one and the same in this case. Even the present appellant was a witness in the prior case. If an actual interference with the enforcement of the judgment of the prior case of this Court is destroyed by the filing and prosecution of a second suit, it is the duty as well as the right of an appellate court to exercise its original jurisdiction and enforce its judgment. City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.1963). The prosecution of the first and second suit attacks the integrity of the bond election and therefore affects the validity of the bonds and the right to expend their proceeds. We believe the second suit is an interference with our prior judgment. It is true that we held in the first suit, that the summary judgment evidence conclusively established that the appellants did not bring their suit in the nature of a class action since they did not comply with the provisions of Rule 42, Texas Rules of Civil Procedure (Class Actions). However, the plaintiffs in both suits are all described as “Taxpayers of the City of Robstown”, and represent in effect a high-bred type of a class action. The purpose of which was and presently is to test the validity of the election and to hold up the approval of the revenue bonds by the Attorney General. The description of appellant here and the appellants in the prior suit convinces us that they are one and the same, and they in their capacity are attempting to reliti-gate the same issues as were foreclosed by our decision in Garza v. Dare. Appellant’s attorney has stipulated in the lower court and reaffirmed his agreement here in oral argument that if he is unsuccessful in this suit that neither he nor any of the persons represented by him would make any further attempt to bring subsequent suits to contest the bond election held on June 5, 1971. We are therefore satisfied that an extraordinary writ will not be necessary for the enforcement of our prior judgment. See City of Dallas v. Dixon, supra. The trial court was correct in dismissing appellant’s suit. Adamson v. Connally, 112 S.W.2d 287 (Tex.Civ.App. Eastland 1938). The judgment of the trial court is affirmed. SHARPE, Justice (concurring). This appeal is from a judgment of the trial court providing that the suit of plaintiff-appellant be dismissed with prejudice. I concur in the affirmance of that judgment for the reasons stated in this separate opinion. We have heretofore, on December 30, 1971 decided the case of Jose V. Garza, et al. v. H. E. Dare, et al., 475 S.W.2d 340, in which motion for rehearing was not filed; sometimes hereafter referred to as the prior suit. The defendants-appellees in that case were and are the same as in the instant case. However, Rueben Garza, the plaintiff-appellant in the present case was not a party to the prior suit. The petition of plaintiff-appellant in this case does not contain all of the allegations made by the plaintiffs in the prior suit. The principal allegation of plaintiff-appellant in the instant suit — and which was not made in the prior suit — is that the election of June 7, 1971, (our prior opinion reflects that the election was actually held on June 5, 1971 and the results canvassed on June 7, 1971) at which revenue bonds in the amount of $1,200,000.00 were approved, could have been called only by boards which appellant refers to collectively as the Robstown Utility System. Otherwise stated, appellant contends that the city council of Robstown did not have the authority to call the said election at which the revenue bonds were approved and that “The issuance by said city of said bonds, or any of them, would be an illegal act outside the authority of said city.” The City of Robstown, Texas, is a home rule city operating under the provisions of Article XI, Section 5, Texas Constitution, Vernon’s Ann.St. We can take judicial notice of its charter. Article 1174, V.A.C. S.; Hallman v. City of Pampa, 147 S.W.2d 543 (Tex.Civ.App. Amarillo, 1941, wr.ref.). Section 30 of the Robstown charter relates to public utilities owned by the City. The management of any public utility and all properties incident thereto is placed in a board of trustees consisting of five members. Section 30(k)a. of the Robstown Charter reads as follows: “No such system or systems shall ever be sold until such sale is authorized by a two-thirds vote of the qualified electors living and owning real property within the corporate limits of the City of Robs-town ; nor shall same be encumbered for more than five thousand ($5,000.00) dollars except for purchase money or to refund any existing indebtedness or for repairs on reconstruction, unless authorized in like manner. Such vote where required shall be ascertained at an election of which notice shall be given in like manner as in cases of the issuance of municipal bonds of such city. b. In all matters where this Ordinance (Charter) is silent, the laws and rules governing the city council of the City of Robstown, Texas, shall govern said board of trustees, so far as applicable.” Section 2 of the Robstown Charter reads as follows: “Sec. 2. Additional home rule powers. In addition to all of the powers herein expressly enumerated and the chapters, titles and statutes herein adopted by reference, it is expressly here provided that the city shall have all of the powers granted to cities, under Title 28, of R.C. S.1925, and amendments, of over 5,000 inhabitants operating under a Home Rule Charter, and all of the powers granted to cities of over 5,000 inhabitants operating under the general law insofar as they do not conflict with the specially enumerated powers and procedures contained in this Charter, it being intended to preserve all the powers previously granted to the city as a city operating under the general law and to additionally grant the express powers herein enumerated together with all powers of local self-government not inhibited by the Constitution of the State of Texas.” In my view the basic contention of appellant that the election involved was required to be called by the board of trustees of the utility system and could not be called by the city council of Robstown is without merit. This conclusion is supported by consideration of Art. XI, Sec. 5, Texas Constitution; Art. 1175 (the enabling act) sections (10), (11), (33), V.A. C.S.; Art. 23, paragraph 9, V.A.C.S. (defining “Governing body”); Art. 1112, V. A.C.S.; Title 22, V.A.C.S., particularly articles 701, 702 and 703a. It appears from an analysis of such provisions taken in connection with the city charter of Robs-town, Texas that an election for issuance of the revenue bonds involved in this case must be called by the “Governing body” of the city, which in this case is the city council of Robstown, and not the board of trustees of the utilities system. It thus appears that appellant’s only material contention in this case is without merit and that the judgment should be affirmed in any event. However, there is an additional ground upon which affirmance can be rested. That ground is that appellant’s suit in essence is an attempt to contest an election, and it was stipulated that notice of intention to contest the election authorizing the issuance of revenue bonds was not given. Such notice is required by Art. 9.03 Election Code (considered along with Art. 9.30 Election Code). We discussed this question in Garza v. Dare, supra, and our holding there that failure to give such notice was fatal to an attempt to contest the election is equally applicable here. We are dealing with a situation where in the prior suit this Court affirmed a judgment against the plaintiffs there who attempted to contest the election of June 5, 1971; and in the second or instant suit we have involved a different plaintiff who attempts to contest the election on a different ground, and we have also affirmed the judgment of the trial court dismissing the second suit with prejudice. In my view the case of City of Dallas v. Dixon, 365 S.W.2d 919 (Tex.Sup.1963) has no application to the instant case and our decision should not in any manner be based upon its holdings. For the reasons stated, I concur in af-firmance of the judgment of the trial court dismissing appellant’s suit with prejudice.