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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Travis HALEY et al., Appellants, v. Charles OWENS et al., Appellees. No. 8108. Court of Civil Appeals of Texas, Texarkana. July 11, 1972. Jim N. Thompson, Fisher, McLaughlin & Harrison, Paris, for appellants. Hardy Moore, Moore & Lipscomb, Paris, Austin Guest, Clarksville, for appellees. DAVIS, Justice. This is a contest of a special election that was called by the Board of Trustees of the Detroit Independent School District of Red River County, Texas, on the 3rd day of August, 1971, to be held on the 21st day of August, 1971, for the levy of a “Maintenance Tax” to help maintain and operate the Detroit Independent School District and for “The Issuance of Bonds in the Amount of $400,000.00 and the Levying of a Tax for the Payment Thereof.” Contestants Travis Haley, A. C. Ford and E. B. Stribling contested the election. The “Maintenance Tax” carried by 218 votes “for” the “Maintenance Tax” with 91 votes “against.” “The issuance of Bonds and the Levying of the Tax in Payment Thereof” carried by 226 votes “for” to 76 “against.” After the amended motion for a new trial was overruled, the Contestants filed an appeal bond in which they listed Travis Haley as “principal” and E. B. Stribling and A. C. Ford as “sureties.” Contestees, The Board of Trustees of the Detroit Independent School District filed a motion to dismiss the appeal because the appeal bond was signed by Travis Haley, as principal, and A. C. Ford and E. B. Stribling as sureties. Contestees take the position that the appeal bond as filed is a nullity. However, it can be amended. Rule 430 Texas Rules of Civil Procedure. Owen, et al. v. Brown, Tex.Sup.Ct., 447 S.W.2d 883. Instead of calling this fact to the attention of the Contestants, the court just marked it to be carried with the case. Of course, as the record now stands, this court is without jurisdiction. Therefore, the case will be dismissed for want of jurisdiction unless the Contestants file an amended appeal bond within ten days hereafter with Travis Haley, A. C. Ford, and E. B. Stribling, as principals, and the necessary person, or persons, signing the same as surety, or sureties, as provided by the Texas Rules of Civil Procedure. Since the Supreme Court allowed an appeal bond to be amended in the Supreme Court, Owen v. Brown, supra, we will have to give the Contestants the right to amend their appeal bond in this case. The Contestants will have to sign the appeal bond as principals and then secure the right number of sureties as required by the Texas Rules of Civil Procedure. 3 Tex. Jur.2d 586, Sec. 328. Since the bond is defective, and a new bond is required, the Clerk of the trial court has no authority to approve the amended bond, but it must be approved by the Clerk of the Court of Civil Appeals. 3 Tex.Jur.2d 587, Sec. 329. We will have to discuss the points of error that have been raised by the Contestants. They bring forward six points of error. They say the trial court erred in rendering judgment for Contestees because the officials who conducted the election did not call on any voter to swear to an affidavit as to whether or not they owned property in the Detroit Independent School District in violation of Art. 5.04 of the Texas Election Code, V.A.T.S.; in rendering- judgment for the Contestees because absentee voting was conducted for a period of only nine days in violation of Art. 5.-05(3) of the Texas Election Code; in rendering judgment for Contestees because the evidence is undisputed that there was no legal or lawful appointment of the presiding judge who conducted the election in violation of Art. 3.01 of the Texas Election Code; in rendering judgment for the Contestees because Art. 8.01 of the Texas Election Code was not complied with in that no oaths were administered the purported officials conducting the purported election; in rendering judgment for the Contestees because the evidence is undisputed that there was no list available showing the qualified voters of the Detroit Independent School District and certified to for the use of election officials to ascertain whether or not a voter was a bonafide voter of said school district; that Art. 5.04 of the Texas Election Code was violate; and, in rendering judgment for the Contes-tees because the evidence shows and it was stipulated that no notices were posted by the Contestees pertaining to the election as required by Art. 23.07 of the Texas Education Code, V.T.C.A. Contestees take the position that the Contestants failed to prove that notice of the contest was given and served as required by Art. 9.03 and 9.05 of the Texas Election Code. Therefore, the trial court did not acquire jurisdiction and the cause should be dismissed. Although the transcript contains what purports to be a notice of contest and a certificate of service, they were not introduced into evidence or otherwise proved up. The fact of service was not admitted by the Contestees in their answer or otherwise. There must be proof of service of the notice and statement required by the statutes. 21 Tex.Jur.2d 448, Sec. 180, and the authority cited therein. By their second counterpoint, Contestees say that Art. 5.04 of the Texas Election Code, as amended, stipulates that no vote cast in such an election shall be invalidated because of any defect, inefficiency or misstatement in the affidavit ... if the voter in fact is the owner of any property which has been rendered for taxation. There was some evidence that some sheet of paper was signed which began with these words: “I do solemnly swear * * ⅜» There was no pleading of fraud or any material irregularities that kept anyone from voting who presented himself to vote. The presiding judge was sworn in, according to the testimony. Another case of striking similarity to this case was the election of the trustees in a common school district that was contested on the ground the persons who held the election were not appointed by the Commissioners Court, nor selected by the voters present at the election. They were not sworn in; nor was their return to the Commissioners Court. It was made to the County Judge of Taylor County. The Commissioners Court had appointed T. B. Cross, J. H. Deaver and J. A. Buchee to hold the election. On the morning of election day, at Buffalo Gap, the proper place for holding said election, some of the electors of said district had assembled, and among them T. B. Cross, who declined to hold the election, and suggested that the voters present be called together and elect officers from among themselves to hold the election. A man by the name of I. S. Thurmond stated that he had been appointed by the County Judge to hold the election, and he intended to do so. He selected D. A. Shaw and J. F. Robinson to assist him as Clerks. They held the election. Neither of them were sworn as election officers. Although the appointment of Thurmond by the County Judge was void, the election was fairly and honestly held and resulted in the election of J. H. Deaver, the respondent, as one of the trustees. The case was affirmed. Deaver v. State, ex rel. Tripp, 1901, 27 Tex.Civ.App. 453, 66 S.W. 256, error refused. Contestants take the position throughout their brief that the bond election is void. Judge Ocie Spear disposed of the contention that a school election is void when there was no allegation of fraud, the election was fairly and honestly held at all times and everybody who came to vote was permitted to do so. Buchanan v. Graham, 1904, 36 Tex.Civ.App. 468, 81 S.W. 1237, N.W.H. The action of the board of trustees in calling the election was offered in evidence. A phamphlet that was printed by the school district and distributed among the voters of the Detroit Independent School District was offered in evidence. The resolution canvassing returns of the election and declaring the result thereof was offered in evidence. The minutes pertaining to resolutions canvassing returns and declaring the results of the election was offered in evidence. There was offered in evidence a pamphlet showing the indebtedness that was owed by the Detroit Independent School District. A notice of the calling of the special election to vote the Maintenance Tax and the bonds in the Detroit Independent School District was published in the Clarksville Times, a newspaper published in Clarksville, Red River County, Texas, on August 5, 1971, was offered in evidence. The Contestant did not offer anything in evidence that would have the least tendency to void the election. There were many irregularities, but when you consider them all together they are not enough to void the election. Art. 23.07 of the Texas Education Code pertaining to the election of school trustees in a common district is not applicable to the case at bar. The judgment of the trial court is affirmed. No motion for rehearing will be allowed to be filed in this case. CHADICK, C. J., concurs in the order affirming the judgment of the trial court. ORDER OF DISMISSAL DAVIS, Justice. On June 27, 1972, the appeal bond, as filed by Appellants, was found to be defective. A motion to dismiss the appeal because of the defective appeal bond was filed by Appellees. This fact was called to the attention of Appellants, who each attempted to prosecute the appeal. Appellants were given ten (10) days after June 27, 1972 to file a corrected and amended appeal bond so that if they wanted to file an application to the Texas Supreme Court for a writ of error, they could do so, because we went ahead and affirmed the judgment of the trial court to rush the case to a quick completion in the event an appeal bond was filed. Appellants did not avail themselves of the privilege of filing an amended appeal bond within the time as directed by this Court. Appellants were further advised that if they did not file an amended appeal bond within the ten (10) day period, the case would be dismissed for the want of jurisdiction. This we will have to do. The appeal is dismissed for the lack of jurisdiction.

sw2d_483/html/0041-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Robert H. MITCHELL et ux., Appellants, v. Cecil E. GAULDING, Jr., et al., Appellees. No. 5153. Court of Civil Appeals of Texas, Waco. July 13, 1972. liehearing Denied July 27, 1972. Saner, Jack, Sallinger & Nichols, Dallas, for appellants. Strasburger, Price, Kelton, Martin & Unis, John H. Hall, Robert L. Hoffman, Dallas, for appellees. HALL, Justice. The defendant-appellant, Robert H. Mitchell, whose wife was formally joined as a defendant, constructed a radio tower 125 feet in height on the lot where their home is located. Whether or not the tower is a prohibited “structure” within the meaning of deed restrictions which, without dispute, apply to the lot is the single question we must decide. The trial court concluded that the tower violated the deed restrictions. It granted the plaintiffs-appellees’ motion for summary judgment for mandatory injunction requiring the removal of the tower, and overruled the defendants’ motion for summary judgment. We affirm. In February, 1950, the then owners of all ten lots in the Walnut Park Addition to the City of Dallas, Texas, adopted and filed in the deed records of Dallas County a covenant of use restrictions for those lots, agreeing therein that the restrictions should “run with the land.” The plaintiffs, at least five of whom resided in the subdivision at the time of Mitchell’s purchase and at the time of suit, originally brought this action to have the tower removed on the grounds that it is a nuisance, and that it is a prohibited structure within the meaning of section two of the restrictions. In an amended pleading, the plaintiffs abandoned their theory of nuisance. Section two of the restrictions provides in part as follows: “No structure shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling and a private garage for not more than three cars, and outbuildings necessary for typical single-family use.” The parties agree that the disposition of their dispute turns upon the meaning to be given to the word “structure” as that term is used in the second section of the- restrictions. Mitchell contends that the word was intended only to refer to and include buildings. The plaintiffs insist that it was used in a broader sense and- includes the radio tower. It is the general rule that in construing covenants which restrict the use of land, all doubt should be resolved in favor of the free use of property and against restrictions. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 518 (1959). It is the equally settled rule that the construction of such covenants requires that the instrument as a whole and the circumstances and conditions surrounding the property should be considered, so that the manifest object of the restriction should be fairly and justly determined. Fischer v. Reissig (Tex.Civ.App., 1940, writ ref.) 143 S.W.2d 130, 131. The restrictions are not ambiguous, and there is no dispute in the facts. Section one of the restrictions requires that all lots in the subdivision “shall be residential lots.” Other provisions in the covenant regulate, among other things, the number of stories and floor area of the residences and their masonry content, front and interior yard space, the construction and location of buildings and fences and walls on some lots to require “conformity and harmony of external design with existing structures * * * and with respect to topography and finished ground elevation,” the keeping of animals or fowls, and the disposal of rubbish; and prohibit the use of any temporary structure for residential purposes. The ten lots are each 170 feet wide, and range in depth from 195 feet to 260 feet. The lots, and the area surrounding them, are devoted exclusively to substantial single-family residences. Mitchell and his wife purchased their residence in the subdivision in August 1970, paying $49,500 therefor. He completed erection of the tower in October, 1970, at a cost of $460. The tower has a present value of $390. It has an antenna consisting of several rods that extend horizontally from its top. It is supported by three groupings of support wires which attach to it at varying heights. According to a picture in evidence, the distance between the points of anchor of the support wires on the ground spans the length of Mitchell’s house. In Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944), the court was concerned with whether a picket fence constructed on and along a utility easement violated a subdivision restriction which prohibited a “structure of any kind” on the easement premises. Concluding, under the circumstances, that the fence was a prohibited structure, the court said: “The word ‘structure’ is often used in a broad sense, often in a restricted sense. The broad definition is that quoted in Favro v. State, 39 Tex.Cr.R. 452, 46 S.W. 932, 73 Am.St.Rep. 950: ‘Any production or piece of work artificially built up, or composed of parts joined together in some definite manner; any construction.’ In a restricted sense ‘structure’ means: ‘A building of any kind, chiefly a building of some size or of magnificence ; an edifice.’ 60 CJ. 666.” In La Vielle v. Seay (Ky.App., 1967) 412 S.W.2d 587, 592 a radio and TV tower for home use was held to be a “structure” within the meaning of the word as used in subdivision restrictions that required prior approval by a committee of owners before any building, fence, wall “or other structure” could be erected or altered. “That a radio tower comes within the accepted definition of the term ‘structure’ would seem to be beyond question”, according to the court in Watson Industries v. Shaw, 235 N.C. 203, 69 S.E.2d 505, 509, citing Favro v. State, supra. In Abel v. Bryant (Tex.Civ.App., 1962, no writ hist.) 353 S.W.2d 322, 324, the court held that two steel air-conditioning compressor and condensing units which were three feet square and 30 inches high and which rested on cement foundations were “structures” within the meaning of a restrictive covenant which provided that “No structure shall be located or erected on any lot * * * nearer than five (5) feet to any side plot line * * The restrictive covenants requiring interpretation in Alexander Schroeder Lumber Co. v. Corona (Tex.Civ.App., 1956, writ ref., n. r. e.) 288 S.W.2d 829, were strikingly similar in their material features to those in the case at bar. They provided in Provision A thereof that all lots in the subdivision “shall be known and described as residential lots. No structure shall be altered, placed or permitted to remain on any residential building plot other than one detached one-family dwelling, not to exceed two and one-half stories in height, and a private garage with servant’s quarters and other outbuildings incidental to the residential use only of the plot * * It was held that a wooden fence seven feet high which was built across the front of Block 3 of the subdivision was a “structure” in violation of the restriction. The court said: “The defendants designate as the most essential issue in the case the question of whether the fence erected by the defendants is, as a matter of law, a structure within the interdiction of the covenant against all structures save in connection with residential use. We think it is. It is certainly a structure in the broad sense. See Stewart v. Welsh, 1944, 142 Tex. 314, 178 S.W.2d 506, 508. And the prohibition of the covenant is broadly sweeping in its terms. Under the covenant, the right to erect any structure at all is strictly dependent on the terms of the proviso. The language of the proviso is searched in vain for any clear right to erect a fence even for residential use. The only structures permitted by the proviso are: (a) detached family dwellings, (b) private garages with servants’ quarters, and (c) other outbuildings incidental to residential use. Certainly the fence in question is not one of these.” It is our conclusion that the word “structure” in the second section of the restrictions was used in the broader sense and includes Mitchell’s radio tower. The restrictions as a whole show an intention to develop and maintain a subdivision of first-class, single-family residences. Section two thereof expressly prohibits the erection or placement of any structure on any lot other than one detached single-family dwelling, a garage for not more than three cars, and “outbuildings necessary for typical single-family use.” The radio tower does not fall within the structures permitted by the restriction. In the judgment, the trial court correctly ordered the removal of the tower. However, the court went further and made findings “that a radio tower 125 feet in height on Defendant’s property is unreasonable but that a radio tower at a height of 50 feet would be reasonable.” The only question before the court was one of law, and the expression of fact-findings was neither necessary nor proper in a summary judgment proceeding. It was immaterial to the judgment and should be ignored on appeal. Cox v. Rhodes (Tex.Civ.App., 1950, no writ hist.) 233 S.W.2d 924, 926; cited with approval on this point in Ditto v. Ditto Investment Company, 158 Tex. 104, 309 S.W.2d 219, 220. The purported findings of fact in the judgment are disregarded. Otherwise, the judgment is affirmed.

sw2d_483/html/0044-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

William L. WORSHAM, Plaintiff-in-Error, v. FIDELITY UNION LIFE INSURANCE COMPANY, Defendant-in-Error. No. 630. Court of Civil Appeals of Texas, Tyler. June 22, 1972. Rehearing Denied July 27, 1972. Carter, Jones, Magee, Rudberg, Moss & Mayes, Ben Warder, Jr., Dallas, for plaintiff-in-error. Andress & Woodgate, Wm. Andress, Jr., Dallas, for defendant-in-error. McKAY, Justice. This is an appeal by writ of error. Defendant-in-Error, Fidelity Union Life Insurance Company, ’ filed suit against Plaintiff-in-Error, Worsham, on February 17, 1971, for damages for the violation of a restrictive covenant not to compete in selling life insurance to college students, and for a temporary injunction enjoining Plaintiff-in-Error from competing with Defendant-in-Error in the States of Florida and Georgia for a period of two years. On March 19, 1971, a hearing was held in the District Court, and at the conclusion thereof the Court announced from the bench that the Court granted a temporary injunction against Plaintiff-in-Error as prayed for, and announced the granting of a judgment by default against him for $5,503.94, representing a debt of $503.94, and damages of $5,000.00. On Monday, March 22, 1971, Plaintiff-in-Error filed at 9:39 a. m. in the District Clerk’s office a notice of the filing of a petition and bond for removal of the case to the Federal Court. At 4:30 p. m. the same day, March 22, .1971, the District Judge signed a written judgment which had been announced from the bench on March 19, 1971, and such judgment was filed by the clerk .on the same day. On April 21, 1971, the Federal Judge signed an order remanding the cause to the State court, and such order was filéd in the District Clerk’s office on April 23, 1971. On April 29, 1971, the Federal Judge signed an order setting aside the order to remand, and this order was filed in the State clerk’s office on May 4, 1971. However, on May 3, 1971, another default judgment for Defendant-in-Error was signed and filed in the 193rd District Court reciting that “there might be some question as to the validity of the signing and entry of the judgment in this cause on 22 March 1971, and that therefore this judgment should be entered as a final judgment to obviate any possible question thereon.” On September 10, 1971, the Federal Judge entered an order that his order of April 29, 1971, vacating the order of remand of April 22, 1971, be set aside, and affirmed his order of April 22, 1971, remanding the case to-the State court. This last order was filed in the State clerk’s office on September 16, 1971. By his first point Plaintiff-in-Error contends that the trial court erred in entering the default judgment of March 22, 1971, because at the time such judgment was 'entered the case had been removed to the Federal Court, and that, therefore, such default judgment is. void for lack of jurisdiction which had been transferred to the Federal Court. Plaintiff-in-Error relies upon 28 U.S.C.A. § 1446(e) which provides that after the filing of a petition for removal and bond the defendant shall give notice to all parties and file a copy of the petition for removal with the State court clerk, “which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” Defendant-in-Error contends that the judgment was rendered by the State court before removal at a time when its jurisdiction was unchallenged and that jurisdiction attached immediately upon remand for performance of the ministerial act of signing and entering formal judgment on May 3, 1971. Both the judgment dated March 22, 1971, and the judgment dated May 3, 1971, recite that the court heard the case and pronounced judgment on March 19, 1971. The record shows that the District Judge announced from the bench at the close of a hearing on March 22, 1971, that the in-junctive relief was granted, “(a)nd judgment is provided in the amount of $503.94 against the Defendant, the amount of the unpaid balance on the loan, together with $5,000.00 damages. All as per decree to be furnished the- Court.” Chief Justice Calvert wrote in Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Supreme, 1970): “In Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, at 1041 (1912), we stated that a judgment’s ‘rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue.’ And in Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, at 292 (1953), we quoted Freeman on Judgments as stating that a judgment is ‘ “rendered” when the decision is officially announced either orally in open court or by memorandum filed with the clerk.’ We then quoted with approval from Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113, as follows: ‘A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance —whether orally or by written memorandum — the sentence of the law pronounced by him in any cause.’ ” Judge Phillips, in Coleman v. Zapp, Supra, wrote: “The judgment of a court is what the court pronounces. Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue. Its entry is the ministerial act by which an enduring evidence of the judicial act is afforded.” The above quoted portion of Coleman v. Zapp has been followed by many cases, among which are: Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App., Houston 14th, 1972, n. r. e.); Esco v. Argonaut Insurance Company, 405 S.W.2d 860 (Tex.Civ.App., Beaumont, 1966, writ ref. n. r. e.); Texas Life Insurance Company v. Texas Building Company, 307 S.W.2d 149 (Tex.Civ.App., Fort Worth, 1957, n. w. h.) ; Commissioners’ Court of Tarrant County v. Emerson, 441 S.W.2d 889 (Tex.Civ.App., Fort Worth, 1969, writ ref., n. r. e.); Conley v. Conley, 229 S.W.2d 926 (Tex.Civ.App., Amarillo, 1950, writ dis.) ; Universal Life Ins. Co. v. Cook, 188 S.W.2d 791 (Tex.Civ.App., Waco, 1945, n. w. h.) ; Corbett v. Rankin Independent School Dist., 100 S.W.2d 113 (Tex.Civ.App., El Paso, 1936, n. w. h.). The Court said in Leatherwood v. Holland, 375 S.W.2d 517 (Tex.Civ.App., Fort Worth, 1964, writ ref., n. r. e.) : “A judgment, on its rendition, even without any entry, is final, valid and enforceable between the parties. The oral official pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication may be said to be the rendition of its judgment. The writing out of the judgment in the form of a judgment on file, to be recorded, is a matter of subsequent clerical action.” It is noted that the record does not contain any answer to the Defendant-in-Error’s petition nor any motion for new trial nor any allegation of a meritorious defense. We hold that the judgment here was rendered on March 19, 1971, and was effective from that date, and that whether the signing and entry was on March 22, 1971, or on May 3, 1971, was of no consequence. The judgment had been rendered before any petition for removal to the Federal Court was filed, and the signing and entry of a written record of what the court had already pronounced were ministerial and clerical acts. Plaintiff-in-Error’s second point complains that the May 3, 1971 judgment is void because it was entered prior to the expiration of time within which he was required to answer under Rule 237-a, Texas Rules of Civil Procedure. In view of what we have already written, this point is overruled. Judgment of the trial court is affirmed. . Emphasis ours unless otherwise specified. . Emphasis the Supreme Court. .Emphasis the Court’s in Knox v. Long.

sw2d_483/html/0046-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Lowell BISHOP, Appellant, v. ALLIED FINANCE COMPANY et al., Appellees. No. 17828. Court of Civil Appeals of Texas, Dallas. May 11, 1972. Rehearing Denied June 16, 1972. Paul Brauchle, Vinson & Massingill, Dallas, for appellant. John D. Crawford, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees. GUITTARD, Justice. Plaintiff Lowell Bishop sued Allied Finance Company, Industrial Life Insurance Company and Allied Finance Company of Fairmount for double the amount of alleged usurious interest paid on a promissory note. Plaintiff claims that the note was usurious because he was required by defendant’s alleged agent, L. B. Sikes, as a condition of the loan, to pay a credit life insurance premium of $322.14 to Industrial Life Insurance Company, and that this amount must be considered interest because he was not given an option to purchase this insurance from a company of his own choice, and that when this premium is considered as interest the rate of interest charged and paid was more than 10 per cent per annum. The cause against Industrial Life Insurance Company and Allied Finance Company of Fairmount was voluntarily dismissed and the trial proceeded with Allied Finance Company as the sole defendant. The court submitted to the jury eight special issues, all of which were answered in favor of plaintiff except issue 3. After verdict defendant filed a motion to disregard all of the jury’s findings except the answer to issue 3 and for judgment in its favor based on that finding, and in the alternative moved for judgment non obstante veredicto on various grounds. The trial court rendered judgment that plaintiff take nothing and recited only that defendant’s motion for judgment was sustained. Plaintiff perfected his appeal to this court but did not present a statement of facts for filing within the time required by Texas Rules of Civil Procedure, rule 386 or show good cause why he could not have filed the statement of facts within that time. Consequently, the appeal is before us on the transcript alone. Plaintiff asserts in his first point that the trial court erred in rendering judgment for defendant non obstante veredicto because a directed verdict would not have been proper. He relies on the following provision of Tex.R.Civ.P. 301: “ * * * upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper.” Since we have no statement of facts, we must look to defendant’s motion to determine whether it states grounds which, if supported by the record, would justify the trial court in directing a verdict. We find that it does. Among other grounds, the motion states that there was no evidence that plaintiff was not given an option to obtain credit life insurance from a company of his own choice, that there was no evidence that L. B. Sikes was an agent of defendant Allied Finance Company in originating the loan in question, and that there was no evidence connecting defendant Allied Finance Company with the loan, since plaintiff’s exhibit shows that Sikes made the loan and transferred the note to Allied Finance Company of Fairmount, which held it and received the payments rather than defendant Allied Finance Company. If any of these grounds, or any other ground stated in the motion, was supported by the record, then defendant was entitled to a directed verdict, and under the quoted provision of Rule 301, was entitled after verdict to judgment non obstante veredicto. On this appeal plaintiff as appellant has the burden to show error in the judgment, and consequently must show that the grounds of defendant’s motion which the trial court sustained were not well taken. Plaintiff has not met this burden because he has not presented a record which enables us to determine from a review of the evidence whether or not the grounds alleged in defendant’s motion were well taken. In the absence of a statement of facts we must presume in support of the judgment non obstante veredicto that a directed verdict would have been proper on one or more of the grounds stated. Chavers v. Lucenay, 329 S.W.2d 503 (Tex.Civ. App., Waco 1959, no writ); Cosey v. Supreme Camp of American Woodmen, 103 S.W.2d 1076 (Tex.Civ.App., Fort Worth 1937, writ dism’d). Plaintiff asserts that all of the jury findings were supported by evidence and attempts to support this assertion by references to an affidavit in support of defendant’s motion for summary judgment and plaintiff’s affidavit in opposition to this motion. The court’s ruling on this motion is not before us for review. We cannot consider the affidavits on this appeal, since we cannot determine without a statement of facts whether any of them were admitted in evidence at the trial. Unless so admitted they could not be considered as evidence supporting the jury’s findings. Plaintiff argues that we must presume that a directed verdict would not have been proper because the record shows that defendant made such a motion and the trial court overruled it and submitted issues to the jury. We do not agree. It is a common and salutary practice for a trial judge to overrule a motion for directed verdict and submit issues to the jury, but to reserve ruling on the questions of law involved until after verdict when the same questions as well as others may be presented on a motion for judgment non obstante veredicto Apparently the learned trial judge followed that course here. In support of his judgment we presume in the absence of a statement of facts that his final ruling on the matter rather than his initial ruling was correct. Plaintiff argues further that defendant was not entitled to judgment non obstante veredicto unless it successfully attacked the verdict in its entirety by showing that each and every finding was without support in the evidence, and the motion attacks only part of the findings on that ground. We hold that defendant did not have such a burden because it was entitled to a directed verdict and, after verdict, to a judgment non obstante veredicto if plaintiff failed in his proof in any essential particular. Plaintiff also contends that the court erred in rendering judgment non obs-tante veredicto because the record fails to show that he had notice of the hearing of the motion as required by Tex.R.Civ.P. 301. This contention is overruled because the record affirmatively shows that any lack of notice was waived by plaintiff’s participation at the hearing. The judgment recites, “Defendant having filed alternative motions for judgment, and oral and written arguments by all parties having been submitted on several occasions * * Since the only purpose of notice is to give plaintiff the opportunity to appear and present argument and the record affirmatively shows that he did so, no error is shown. In this connection plaintiff insists that a letter from the trial judge stating that he had considered written arguments of both parties indicates that no hearing was held and no oral argument was made. On the contrary, the letter indicates only that the judge gave the parties the opportunity to present written arguments as well as to be heard orally. For all the reasons above stated, plaintiff’s first point is overruled. In his second point plaintiff complains that defendant’s motion to disregard certain issues is insufficient because the motion does not state specifically that each of such issues was without support in the evidence. We need not determine the sufficiency of the motion to disregard, since we find that the alternative motion for judgment non obstante veredicto states adequate grounds for the trial court’s ruling. Affirmed. . Wyser v. Calhoun, 11 Tex. 323 (1854) (affidavit for attachment not admitted in evidence could not be considered on appeal) ; Barnwell v. Fox & Jacobs Construction Co., 469 S.W.2d 199 (Tex.Civ.App., Dallas 1971, no writ) (answer to interrogatories under Tex.R.Civ.P. 168 not admitted in evidence could not be considered in support of judgment). Even if admitted, plaintiff’s own affidavit could not be considered evidence supporting the verdict. Roberts v. Mullen, 446 S.W.2d 86 (Tex.Civ.App., Dallas 1969, writ ref’d n. r. e.). . See Gulf, Colorado & Santa Fe Ry. v. Deen, 158 Tex. 466, 812 S.W.2d 983 (1958, mandamus granted on other grounds, Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28). . See Schweizer v. Adcock, 145 Tex. 64, 194 S. W.2d 549 (1946), holding that the reason for a presumption in favor of jury findings does not obtain when the trial court renders judgment notwithstanding the findings. . See McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup.1964), holding that on appeal from a judgment on a directed verdict, appellant has the burden to show that the peremptory instruction cannot be supported on any of the grounds stated in the motion. . Hill v. W. E. Brittain, Inc., 405 S.W.2d 803 (Tex.Civ.App., Fort Worth 1966, no writ) ; City of Port Lavaca v. Fisher, 355 S.W.2d 785 (Tex.Civ.App., San Antonio 1962, no writ).

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MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. LIBERTY COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. SIX, Appellee. No. 7344. Court of Civil Appeals of Texas, Beaumont. May 25, 1972. Rehearing Denied June 29,1972. Sewell, Junell & Riggs, Houston, Thomas A. Wheat, Liberty, for appellant. Daniel Morrison & Strahan, Liberty, for appellee. STEPHENSON, Justice. This is an appeal from an order of the trial court dismissing an eminent domain suit for want of prosecution. The Liberty County Water Control and Improvement District No. Six (hereinafter called The District) is the condemning authority. The Missouri Pacific Railroad Company (hereinafter called The Railroad) is the land owner. The purpose of the condemnation proceedings was to secure easements for the construction of a levee in the Trinity River bottom. The sequence of events pertinent to this appeal is as follows: August 11, 1964, the award by the commissioners was filed for record and money deposited. August 19, 1964, The Railroad filed its objections to the award. July 11, 1968, The Railroad wrote a letter to the county clerk asking that citation be issued which was done the following day. Immediately thereafter, The Railroad sought an injunction to prevent the construction of the levee. This proceeding was conducted in the county court under the cause number assigned to the condemnation proceeding. The District appeared in this ancillary proceeding and at its conclusion the injunction was denied. The next record of activity in the case was on July 11, 1968, when The District filed a motion to dismiss this suit. March 22, 1971, The Railroad’s letter requesting a jury and jury fee was received by the county clerk. April 15, 1971, The District filed its amended motion to dismiss. Such motion was heard on November 5, 1971, and granted. The principles of law governing our consideration of this case on appeal are clearly and concisely stated by Chief Justice Calvert in his dissenting opinion in Denton County v. Brammer, 361 S.W.2d 198, 202-203 (Tex.Sup.1962), as follows: “One who files a judicial proceeding owes a duty to prosecute it with due diligence. When a motion to dismiss a proceeding on the ground of abandonment is filed, the trial court must first determine whether the proceeding has been on file, without action, for an unreasonable length of time. If it has not, the motion should be overruled summarily. If it has, a rebuttable presumption of abandonment arises, and an opportunity should be afforded the party who filed the proceeding to prove, if he can, that he had good reason for his delay in prosecuting the proceeding. If he fails or refuses to offer proof, or if the proof offered fails to show good reason for the delay, the presumption is not rebutted and becomes conclusive, and the motion to dismiss should be granted. If proof is offered and does show good reason for the delay, the presumption is rebutted and the motion should be overruled. Whatever may be the action of the trial court, and at whatever stage it is taken, it is to be taken in the exercise of sound judicial discretion and is erroneous only if it is so arbitrary as to constitute an abuse of discretion.” Paraphrasing Chief Justice Calvert from that case, the true question before us is whether the trial court clearly abused his discretion in granting The District’s motion to dismiss. That matter rested in the sound discretion of the trial judge — not unbridled but judicial. Following the guidelines set out for us above, we do not find a clear abuse of the trial court’s discretion in granting the motion to dismiss. The trial court in the case before us heard evidence from The Railroad as to its reasons for its delay in prosecuting this proceeding, which takes us past the only point of disagreement between the majority and dissenting opinions in the Brammer Case, supra. A summary of the evidence heard by the trial court is related by The Railroad in its brief as follows: “During the first year (1964-1965), the Railroad had retained a private consulting engineering firm, which did certain surveying work, and made observations during the spring 1965 flood. In the summer of 1965 the firm rendered their ‘First Stage Report.’ Mr. Sewell, as counsel for the Railroad Co. then recommended to the latter that the case not proceed to trial until any necessary construction expense had been incurred. “From 1965 through 1968, the Railroad did further protective work — especially in regard to a major flood which occurred in May 1966 — at a total expense of over $130,000.00. In late 1968, the Railroad sent Mr. Sewell a recapitulation of all the expenses, and stated that most of the work had been completed. “In 1968 and 1969, both Mr. Sewell and Honorable Price Daniel, leading counsel for and principal land owner in the Levee District, were temporarily, engaged in other matters. Mr. Sewell had an unusual succession of heavy trial litigation involving large amounts of money, and Mr. Daniel was in Washington, D. C. on important government assignments. “In 1969, Mr. Sewell wrote Mr. Daniel formally submitting a demand of $150,-000.00, and Mr. Daniel wrote back, rejecting such demand. Further trial preparatory work was done, and in September 1970, Mr. Sewell wrote Mr. Daniel asking for an agreement on a trial date. Mr. Daniel could not do so because he was otherwise engaged in land title boundary litigation.” The attorneys representing both sides of this matter have filed excellent briefs and have discussed most of the Texas cases that we have been able to find on this point. Apparently there is only one such case in which thq trial court heard evidence as to the reason for the delay and granted the motion to dismiss and the appellate court found an abuse of discretion. This is the case of Craig v. State, 433 S.W.2d 713 (Tex.Civ.App., Tyler, 1968, error ref. n. r. e.). In this case, the condemnees filed their objections to the award January 23, 1959. Citation was issued and served and an answer filed. There were several settings and'continuances until the case was reset March 29, 1960 for June 7, 1960. Nothing was shown on the docket until the motion to dismiss was filed on May 8, 1967. The order of the trial court dismissing the case was reversed and remanded by the court of civil appeals with an opinion which included this statement: “Before a court is authorized to dismiss the cause for want of prosecution, the trial judge must reach the conclusion that plaintiff has intentionally abandoned the prosecution thereof, or that the facts are such that the law will imply an intent to abandon the prosecution. Loftus v. Beckmann et al. (Tex.Com.App.), 1 S.W.2d 268, 270; Johnson v. Campbell et al. (Tex.Civ.App.), 154 S.W.2d 878.” (433 S.W.2d at p. 716. We find no mention in Loftus v. Beckmann, 1 S.W.2d 268 (Tex.Com.App.1928), that the trial court must reach the conclusion that the plaintiff has intentionally abandoned the prosecution of his case before such court is authorized to dismiss the cause for want of prosecution. However, the above statement is almost an exact quotation from Johnson v. Campbell, 154 S.W.2d 878 (Tex.Civ.App., Galveston, 1941, no writ), which cites no authority for its holding. We have come to the conclusion, from a careful study of all of the cases we have been cited and the cases we have found, that it is the unfortunate use of the word “abandonment” which is responsible for much of the difficulty experienced by our trial courts in resolving this particular problem. When the word “abandonment” is used in its generally accepted sense, it has been held to include the “intent to abandon.” See Leonard v. Prater, 36 S.W.2d 216 (Tex.Com.App.1931, holdings approved), and Hines v. Hanover Co., 23 S.W.2d 289 (Tex.Com.App.1930). The real question to be determined is whether the case has been prosecuted with due diligence as noted in the quotation from the Brammer Case, supra. Due diligence is the exercise of ordinary care as defined in tort law and should not be confused with an intent' to abandon. In order to bring this question directly before the Supreme Court, we now hold specifically that' an intent to abandon is not a part of the test for a trial court to apply in passing upon a motion to dismiss for lack of prosecution and that the sole test is whether the case was prosecuted with due diligence. So that this question will have substance, we hold that the evidence in this case supports the conclusion that The Railroad did not intend to abandon this case and that a contrary finding would be against the great weight and preponderance of the evidence. In spite of the loose use of the word “abandonment” by many of our appellate courts, we are persuaded that “due diligence” is the test because of the statement made by our Supreme Court in Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957). In that opinion, the court not only stated the rule that a court has the right to dismiss a case for failure to prosecute it with due diligence, but specifically eliminated the “intent to abandon” theory with this statement at page 88: “The fact that respondents had no intention to abandon it, or that their attorney had hopes of settling the case, cannot be made a ground for charging an abuse of discretion by the trial court.” The position we have taken in this case is fortified by the opinion in Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942), in which the question before us is discussed at length as being one of due diligence with no mention being made of “intent to abandon.” These two cases, Bevil and Callahan, are cited with approval in almost every “dismissal” case that we have read, including the following: Lowe v. City of Arlington, 470 S.W.2d 206 (Tex.Civ.App., Fort Worth, 1971, writ ref. n. r. e.); Hargrove v. Koepke, 320 S.W.2d 53 (Tex.Civ.App., San Antonio, 1959, no writ); Chapa v. Wirth, 343 S.W.2d 936, 938 (Tex.Civ.App., Eastland, 1961, no writ); Payne v. City of Tyler, 379 S.W.2d 373 (Tex.Civ.App., Tyler, 1964, error ref. 383 S.W.2d 804); Pollok v. McMullen Oil & Royalty Co., 383 S.W.2d 837 (Tex.Civ.App., San Antonio, 1964, error ref.); Farr v. Jefferson Amusement Company, 396 S.W.2d 434 (Tex.Civ.App., Texarkana, 1965, error dism.); and Petroleum Refining Company v. McGlothlin, 429 S.W.2d 676 (Tex.Civ.App., Eastland, 1968, error ref. n. r. e.). Under the due diligence test, the trial court did not abuse its discretion in entering the order of dismissal. The judgment is affirmed.

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CITIZENS STANDARD LIFE INSURANCE COMPANY, Appellant, v. Martin Melton WHITE, Jr., Appellee. No. 8272. Court of Civil Appeals of Texas, Amarillo. June 26, 1972. Dyer, Redford, Burnett, Wray, Woolsey & Dunham, Walter Dunham, Jr., and H. T. Hermansen, Jr. (H. T. Hermansen, Jr.), Corpus Christi, for appellant. Young & Green (Jack D. Young), Mule-shoe, for appellee. REYNOLDS, Justice. From an order overruling its plea of privilege to defend in Nueces County this suit filed in Lynn County for recission, because of alleged fraudulent representations, of an annuity contract issued by it, Citizens Standard Life Insurance Company has appealed. Affirmed. Martin Melton White, Jr., appellee here, instituted this suit in Lynn County, the county of his residence, to rescind an annuity contract issued to him by appellant Citizens Standard Life Insurance Company on the ground of fraudulent representations made in Lynn County by the soliciting agent of the insurance company. The insurer filed its plea of privilege to be sued in Nueces County, the county of its domicile, and White controverted the plea, alleging entitlement to maintain this suit in Lynn County under Vernon’s Ann.Civ.St. art. 1995, subdivisions 7 and 23. The adjudication of the venue issue was submitted to the trial court without the interposition of a jury and, after hearing all the evidence, the court entered its order overruling appellant’s plea of privilege. The appeal therefrom reaches this court, absent a request for and filings of findings of fact and conclusions of law, on the one point of error that there was no evidence to support the trial court’s implied finding that appellant’s agent misrepresented a material fact. The statement and argument submitted in connection with the one point of error presents the proposition that there is no evidence to sustain White’s cause of action for fraud and, there being no objection to appellant’s presentation, the point of error will be considered from this relational alliance to determine the question of reversible error. Vernon’s Ann.Civ.St. art. 1995 dictates that a defendant shall not be sued out of the county in which he has his domicile, except in certain cases, among which, under subdivision 7, is that suit may be brought in the county where fraud was committed, and, under subdivision 23, is, inter alia, that a suit against a private corporation may be brought in the county in which the cause of action or part thereof arose. The private corporation status of appellant being conceded, appellee’s burden to deprive appellant of the valuable right to be sued out of Nueces County under either subdivision 7 or subdivision 23 is the same; i. e., to plead and prove venue facts constituting the commission of fraud by appellant in Lynn County in order to confer jurisdiction on the district court of Lynn County to the derogation of appellant’s right to defend this suit in Nueces County. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). Since the review of the trial court’s order in a venue determination is the same as in any other appealed case, Compton v. Elliott, supra, the review of appellant’s no evidence point requires that credit be given to, and every reasonable conclusion deduced from, all evidence favorable to appellee to ascertain, without acknowledgment of any evidence adverse to appellee, whether the trier of the facts might have found in favor of the successful appellee. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). From this perspective, the evidence before the trial court was that appellant’s agent appeared uninvited at appellee’s place of business in Lynn County, and proposed that the information contained in appellee’s twelve insurance policies be computerized to determine if appellee was eligible for an annuity contract without out-of-pocket expense to him. The theory of the presentation, as appellee understood it, was that the dividends and interest accumulated under his policies would buy the annuity, “ . . . but actually coming from my pocket to keep this up, I was told that I wouldn’t be out a penny.” A perusal of the statement of facts reveals that this is the only representation, among others appellee believed and which he alleges are false, that appellee testified he relied upon and would not have entered into the contract if he had known it was false. The insurance policies were made available, the information therefrom extracted, and at that visit or a subsequent one, appellee was induced to sign in blank several application forms for loans on insurance policies, and to execute an application for an annuity contract on the representation that such was necessary to secure additional information about the existing policies from the issuing insurance companies. Thereafter, the agent produced two checks totalling $3,178.00, issued by an insurance company as the proceeds of loans made on two of appellee’s policies, and ap-pellee endorsed them in blank and delivered them to the agent. Subsequently, appellee was delivered the annuity contract that he seeks to rescind by this suit. Basically, the annuity contract reflects appellee’s age at issue as 49; requires an annual premium of $3,178.00 for twenty-one years; provides that in the event of appellee’s death before maturity and while the contract is in force, the beneficiary will receive the premiums paid, less interest, or the cash surrender value, whichever is greater; and provides for optional settlements at maturity and, depending on which option is selected, the guaranteed return will aggregate more or less than the premiums paid. Questioning the age at issue and the premium paying period as being different from what was represented to him, appellee was not satisfied with the agent’s explanation, and then contacted one Froy Salinas, an insurance agent from whom appellee had purchased other insurance coverage. In the interim, appel-lee had received two statements for interest due on the two loans made on his policies and paid the interest amounts. Salinas reviewed the annuity contract and appel-lee’s existing insurance policies, and this was the first time that appellee understood he had negotiated a loan on two of his insurance policies or that the proposal of appellant’s agent was to pay for the annuity from loans on appellee’s insurance policies to be made at intervals. Salinas testified that there was no way the loan values on the insurance policies could be utilized to fund the annuity contract past the first two years. If the second premium were not paid and the annuity contract were allowed to lapse, the premium paid from the loans, and the interest thereon, were lost to appel-lee; if the contract were surrendered for cash, the return therefrom would be minuscule compared to the initial cost; and if the annuity contract were continued in force, a considerable amount of its cost would have to come from appellee’s “pocket.” At this point in time, appellee offered to surrender the contract and demanded the return of the premium paid. Appellant refused, standing on the validity of the contract, and this suit resulted. Considering this evidence and the reasonable conclusions deducible therefrom, and disregarding the adverse record evidence, the evidence is of probative force sufficient to support the trial court’s implied finding of actionable fraud — i. e., a representation by appellant’s agent as to a material fact that was false when made with the intent that appellee act upon it, which he did to his damage — committed in Lynn County. North America Life Insurance Company v. Wilburn, 392 S.W.2d 364 (Tex.Civ.App. — Dallas 1965, no writ), and the trial court’s order may not be disturbed on appeal. Banks v. Collins, supra. Projected against the complete evidential background which includes evidence adverse to appellee and defensive matters not set out in the recitation above, appellant’s able brief poses the question of whether appellee’s assertions of fraudulent representations are so extraordinary that it must be held, as a matter of law, that he has failed to prove actionable fraud. It may be that in a trial on the merits the ultimate facts found may defeat appellee’s pleaded cause of action, but these are merit matters not at issue in this venue matter and which, under appellant’s no evidence point, we do not reach and express no opinion thereon. Appellant’s no evidence point of error is overruled. The judgment of the trial court is affirmed. ELLIS, C. J., not sitting.

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MOBILE HOUSING, INC. dba Easy Living Mobile Homes, Appellant, v. Neil MOSS, Appellee. No. 640. Court of Civil Appeals of Texas, Tyler. May 25, 1972. J. C. B. Aler, Weinberg, Sandoloski & Hines, Dallas, for appellant. Joe D. Clayton, Sammons, Clayton & Parker, Tyler, for appellee. McKAY, Justice. Appellee brought suit against Mobile Housing, Inc., dba Easy Living Mobile Homes, for damages for the sale of a defective mobile home and alleged that the reasonable cost of necessary repairs of the defects was $1200.00. Appellee also pled that there was an overcharge and overpayment of $58.92 for licensing and registration fees. Trial was before the court without a jury, and judgment was rendered for appellee in the sum of $690.00 as reasonable and necessary costs of repairing defects in the mobile home, and for $58.92 for over-payment of licensing and registration fees. Appellant’s first three points complain that there is no evidence, or insufficient evidence, to support the judgment, and that such judgment awarding damages of $690.-00 is against the great weight and preponderance of the competent evidence. The trial court made findings of fact and conclusions of law, but appellant has brought forward only a partial Statement of Facts. Only the testimony of the witness Loren B. Swan, together with exhibits, is found in the Statement of Facts. Swan testified that about sixty days after the sale and delivery of the mobile home he inspected it at the location where it had been delivered and found two outside panels needed replacing, two inside panels were mismatched, the floor covering had been cut, upholstery on chairs had been damaged, a leak had caused damage to the floor and because of leaks the ceiling panels should be replaced. He estimated these repairs should cost $660.00. Swan testified that the value of the mobile home was between $8500.00 and $9,000.00 when sold new, but there is no evidence as to its value in the damaged or defective condition as claimed by appellee. It is appellant’s burden to bring up the whole record, and if he brings up only a part of the record every reasonable presumption will be indulged in favor of the ruling below, and a reversal will not be ordered unless it appears that upon no possible state of the case could the ruling be upheld. Redman v. Bennett, 401 S.W.2d 891 (Tex.Civ.App., Tyler, 1966, n. w. h.); Boyd v. Robinson, 304 S.W.2d 430 (Tex.Civ.App., Waco, 1957, n. w. h.). Points of error attacking a conclusion of the court on the ground that it is not supported by the evidence, or questioning the sufficiency of the evidence, will not be considered where the Statement of Facts does not contain all of the evidence. Boyd v. Robinson, supra. We are not advised whether there was other evidence on the question of damages. Appellant claims that the Purchase Agreement Contract, Plaintiff’s Exhibit 2 in the partial statement of facts, provides that appellant had no duty to correct any defects or damaged areas in the mobile home. The Purchase Agreement provided in part: “7. DISCLAIMER OF IMPLIED WARRANTY. It is mutually agreed the buyer takes the new mobile-home, trailer or other described unit, ‘as is’ and that there are no warranties, either expressed or implied, made by the dealer. The seller specifically makes no warranty as to its merchantability or of its fitness for any purpose.” The agreement further provides that on new units the warranty of the manufacturer will apply as well as warranties of the makers of accessories and equipment, and the purchaser represents he has examined the mobile home and found it suitable and of acceptable quality. By Points 4 and 5 appellant contends that the trial court erred in holding that appellee was entitled to damages for defects in a fixture attached to realty, and therefore applied the wrong measure of damages. The complaint is made that the damages were measured by the cost of repairing defects as if the mobile home was real property, when, in fact, it was personal property, and the measure of damages should have been the difference between the market value as contracted for and the market value as delivered. The trial court found that the mobile home was attached to the realty and was the homestead of ap-pellee. The mobile home obviously was an item of personal property at the time of its sale. If chattels have become so attached to the land as to make them fixtures and to change their character from personalty to realty, they are a portion of the homestead, but the mere fact that it is intended that a chattel will be attached to realty does not have the effect of changing the chattel into realty at the time of sale. 28 Tex.Jur.2d, Sec. 10, pp. 380, 381. The measure of damages for damage to or loss of personal property, if the market value is capable of being established, is the difference between the market value immediately before the injury and its market value immediately after the injury. 17 Tex.Jur.2d, Sec. 81, pp. 154, 155. We are also of the opinion that the same measure of damages applies to personal property such as a mobile home which is claimed to have defects and damage. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App., Waco, 1967, writ refused, n. r. e.). The fact that the defects or damages were not discovered until the mobile home was attached to the realty, in our view, does not change the character of the property nor the necessity of applying the correct measure of damages. The findings of the court that the mobile home was a fixture attached to the realty, claimed by appellee as his homestead and fitted for that use, and that appellee intended that it would be a permanent annexation to the freehold constituted findings of fact which occurred after the critical point in time involved— the time of sale. In the absence of a complete Statement of Facts we are not able to say the purchase contract was not changed or altered as to the provision that the buyer accept it “as is” without any warranty by the seller. The findings and conclusions by the trial court are silent regarding the purchase agreement, and there is no request in the record for additional findings. Rule 298, Texas Rules of Civil Procedure. Therefore, Points 1, 2 and 3 should be overruled. However, there seems to be no dispute, and the trial court so found, that appellee bought the mobile home from appellant and afterward appellant delivered it to appellee. We hold that under such circumstances it becomes a question of law, and the trial court abused its discretion and erred in failing to properly apply the law to the facts by using the improper measure of damages. Burns v. City of Carrollton, 421 S.W.2d 758 (Tex.Civ.App., Dallas, 1967, n. w. h.); Carl Coiffure, Inc. v. Mourlot, 410 S.W.2d 209 (Tex.Civ.App., Houston, 1966, writ refused, n. r. e.). The judgment is reversed and the cause is remanded to the trial court. . “FINDINGS OF FACT “I. That the Plaintiff, NEIL MOSS, purchased from the Defendant, Mobile Housing, Inc. D/B/A Easy Living Mobile Homes, a Twinport Mobile Home Identification No. 8588R and 8588L. “II. That the Defendant, Mobile Housing, Inc, D/B/A Easy Living Mobile Homes, delivered said mobile home to Plaintiff’s property and removed the wheels therefrom and attached the same to the realty owned by the Plaintiff. “III. That after the home was attached to the realty owned by Plaintiff certain defects were discovered by the Plaintiff. “IV. That the reasonable cost for remedying the defects was $690.00, which sum remains unpaid by the Defendant, Mobile Housing, Inc. D/B/A East Living Mobile Homes. “V. That the Plaintiff, Neil Moss, occupied the home claiming the same as his residence and homestead. “VI. That there was a real or constructive annexation of the home in question to the realty. “VII. That there was a fitness of the home to the use of the realty with which it was connected. “VIII. It was the intention of the Plaintiff that the house should become a permanent annexation to the freehold. “CONCLUSIONS OF LAW “I. That the Plaintiff, NEIL MOSS, is entitled to judgment against the Defendant, Mobile Housing, Inc. D/B/A Easy Living Mobile Homes in the amount of $690.00 with interest at the rate of six per cent (6%) per annum from date of judgment. “II. That the home in question was the homestead of the Plaintiff, Neil Moss. “III. That the home in question was a fixture. “IV. That the proper measure of damages is the reasonable cost of remedying the defects.”

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TEXAS BITULITHIC, INC., Relator, v. Alma SMITH et al., Respondents. Motion No. 72-33. Court of Civil Appeals of Texas, Texarkana. June 20, 1972. Rehearing Denied July 18, 1972. Schuyler B. . Marshall, Thompson, Knight, Simmons & Bullion, Dallas, for relator. Randy Taylor, Dallas, for respondents. CHADICK, Chief Justice. Relator Texas Bitulithic Inc., describing itself as a defendant, filed its motion to affirm on certificate the judgment of the District Court of Lamar County in Cause No. 30255-B, styled “Marvin K. Baughn et al., Plaintiffs, v. Hilda Sinesh, et al, Defendants,” in which final judgment was rendered October 29, 1971. Counsel for the parties in this court are in agreement on the procedural posture of the case at this time. The trial court entered a take nothing judgment denying recovery to J. D. Keys, individually and on behalf of his minor son, Charles Dale Keys; Lilly Cockrum, individually and on behalf of her minor son, Marvin K. Baughn; Alma Smith and Mrs. R. H. Sullivan, individually and on behalf of their minor granddaughter and daughter, Gena Smith; J. W. Larkin individually and on behalf of his minor son, Chris Larkin; and Virginia E. Andrews, individually and on behalf of her minor daughter, Geri Andrews. The amended motion for new trial filed by these parties was overruled by operation of law on January 8, 1972. Over seventy-five days have elapsed since the motion for new trial was overruled, and no party has filed an application in this court for an extension of time in which to file in this court either a transcript or statement of fact. In oral argument opposing Texas Bitu-lithic Inc’s, motion, counsel for the respondent parties denominated only as Smith and Andrews, directed attention to the circumstance that an affidavit of inability to pay cost of appeal or post security therefor was timely filed in the trial court, but that no order or judgment decisive thereof had been entered prior to April 6, 1972. Argument was made that the trial judge’s failure to act upon the affidavit within seventy-five days after motion for new trial was overruled inhibited and paralyzed further action on behalf of the respondents. Argument in this respect is summed up in an affidavit filed by respondents’ counsel, wherein it is stated: “Affiant would further show that although the trial court ruled that Plaintiffs Smith and Andrews were entitled to the transcript and record in the above styled and numbered cause without paying for same or posting security therefor, as they were paupers, that this ruling was not made until well after, as hereinabove stated, the date that the application for extension of time to file the transcript herein was due and that therefore Plaintiffs could not have filed a motion for extension of time to file that (the transcript herein) which they did not have, and did not have the money to pay for, and at that time did not even know that they were entitled to because the Court had yet to make a ruling on the question.” Failure to apply for extension of time in which to file a transcript and statement of fact under the provisions of Tex.R.Civ.P., 386 was justified, it was insisted in oral argument, because counsel could not with certainty state in an application for extension when, if ever, the transcript or statement of fact would or might be tendered for filing in the Court of Civil Appeals; that the trial judge’s failure to rule at an earlier date on the inability to pay cost affidavit cast the respondents’ appeal into a legal limbo which suspended effectual action by the respondents. Filing time and extensions thereof are governed by Rule 386. The rule permits flexibility in the time for filing a transcript or statement of fact in the Court of Civil Appeals. It requires nothing more than reasonable diligence in applying for an extension and good cause to excuse filing of such documents within sixty days from the rendition of the final judgment or order overruling a motion for new trial. Though the respondents may have felt inhibited, deprived and powerless to act in their own interest by delay in judgment on their inability to pay cost affidavit, the existing circumstance in nowise prevented an application for an extension in accordance with the requirements of Rule 386. As to good cause, the rule does not require, in a case such as this, a showing or promise that the transcript or statement of fact will be forthcoming or tendered on a date certain. All that would have been required of the respondents would have been a showing that such document or documents could not be procured pending decision on the inability to pay cost affidavit, that failure to secure decision was not due to a dereliction on their part and that diligent effort was being expended to obtain the documents. Perhaps other factors might be injected into the question of good cause under other circumstances but discussion is here confined to the record before the court. The motion of Texas Bitulithic, Inc., is granted and the judgment awarded such party in the trial court is affirmed. DAVIS, J., not participating.

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Roger Lee THOMAS et ux., Appellants, v. Waun Jeun REED, Appellee. No. 17892. Court of Civil Appeals of Texas, Dallas. May 25, 1972. Donald Yarborough, Yarborough, Yar-borough & Hinds, Dallas, for appellants. C. Edward Fowler, Jr., Bailey, Williams, Westfall & Henderson, Dallas, for appel-lee. BATEMAN, Justice. The appellants Roger Lee Thomas and wife sued for damages for personal injuries sustained when their automobile was struck from the rear by a pickup truck owned by appellee Waun Jeun Reed but operated by one Sutton. Appellants alleged that their injuries were proximately caused by the negligence of appellee in entrusting his truck to an unlicensed driver who was incompetent because of his drinking habits and whose various acts of negligence actually caused the collision. The doctrine of respondeat superior is not invoked. The trial court rendered summary judgment for appellee. In Reed’s own deposition and in his affidavit in support of his motion for summary judgment he says that three days before the accident he saw Sutton for the first time in more than twenty-five years; that he had- known Sutton in high school. They met in a beer tavern and drank one or two beers each, and in the course of the conversation Sutton told Reed that he was engaged in doing automobile repair work at his home. Reed engaged Sutton to paint his 1949 Chevrolet pickup truck and make some minor repairs on it. Sutton drove Reed to his home in the truck and took the truck, promising to deliver it to Reed’s place of business on the following Saturday afternoon. The accident occurred on that Saturday. The truck had not been painted, and Reed learned that Sutton was jailed for driving while intoxicated. Appellee swore in both his deposition and affidavit that prior to turning the truck over to Sutton he knew nothing of Sutton’s drinking habits or reputation in that respect, and did not know whether he had a driver’s license, and made no inquiry as to either matter. Sutton was not a party to the suit, and his testimony was not taken by deposition or affidavit. He died some time after the accident. There was no evidence as to whether he had a driver’s license at the time of entrustment. Appellants presented no summary judgment evidence. The rule announced by our Supreme Court in Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 591 (1947), is that in a suit wherein the plaintiff seeks to show that the defendant is guilty of negligence per se in entrusting his motor vehicle to an unlicensed operator in violation of Vernon’s Tex.Rev.Civ.Stat. Ann. art. 6687b, sec. 36, he must prove that the owner knew that the driver did not have a license, and that mere proof, in the absence of actual knowledge, that the defendant or his agents in the exercise of reasonable care should have known that the driver did not have a license, would not show a violation of the statute. However, it was also held that the facts that the driver was unlicensed and that the defendant or his agents by the exercise of due care could have ascertained that he did not have a license may be alleged and proved for the purpose of showing that the defendant was in fact negligent in permitting the unlicensed driver to take and drive the vehicle. In either case the plaintiff, to establish liability must also prove that such negligence was a proximate cause of the collision. Upon a trial of the case appellants would have the burden of proving one of the grounds of recovery alleged by them; i. e., that Sutton was unlicensed and that Reed either knew that he was unlicensed or was negligent in failing to ascertain that he was unlicensed, or that Sutton was an incompetent driver and that Reed either knew, or was negligent in failing to ascertain, that he was incompetent. McIntire v. Sellers, 311 S.W.2d 886, 892 (Tex.Civ.App., Austin 1958, writ ref’d n. r. e.). However, on his motion for summary judgment Reed had the burden to negative both of those grounds as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). Thus, to be entitled to summary judgment Reed had the burden of establishing as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of appellants’ cause of action. We hold that he has not carried this burden. Reed’s deposition and affidavit assert his lack of knowledge but do not touch upon the question of whether by exercising due care he could have ascertained whether Sutton had a driver’s license, or whether he was an incompetent driver. We need not decide whether his uncorroborated statements established his lack of knowledge as a matter of law. The absence of evidence as to whether or not Sutton had a driver’s license does not support the summary judgment because Reed as movant had the burden of showing as a matter of law either that Sutton had a license or that Reed was not negligent in failing to ascertain whether he had a license. Not having carried this burden, his summary judgment must be reversed. Appellee Reed argues that his testimony established as a matter of law that at the time of the collision Sutton was not driving the truck within the scope of the permission Reed had given him. Even if we considered this to be a material issue (and we do not hold that it is) we would not be able to sustain Reed’s position because, in our opinion his summary judgment evidence fails to establish as a matter of law the non-existence of an issue of fact as to whether Sutton was driving the truck outside the scope of the permission Reed had given him. In our opinion, reasonable minds could differ as to the inferences to be drawn from the evidence in this respect. The doubt thus raised must be resolved against the movant. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup.1965). Appellants’ sole point of error is sustained and the judgment appealed from is reversed and the cause remanded for trial. Reversed and remanded.

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Robert B. PAYNE et al., Appellants, v. TEXAS WATER QUALITY BOARD and the Town of Flower Mound, Appellees. No. 17897. Court of Civil Appeals of Texas, Dallas. June 8, 1972. Rehearing Denied June 29, 1972. Henry Seeligson, Seeligson & Payne, Dallas, for appellants. Crawford C. Martin, Atty. Gen., Roland Allen, Asst. Atty. Gen., Austin, H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellees. BATEMAN, Justice. The sole question presented here is whether the appellants were entitled to appeal from an order of Texas Water Quality Board granting “preliminary approval” of an application for a waste control order filed by the Town of Flower Mound, Texas. Alleging that they owned lands adjacent to the site of a proposed processing plant, the appellants endeavored by the filing of this suit to perfect an appeal from the action of the Texas Water Quality Board giving “preliminary approval” to Flower Mound’s application for a waste control ordinance. The Board’s letter to the Mayor of Flower Mound, advising him of said “preliminary approval” also stated that before the Board could take final action on the application, plans and specifications for the proposed plant would have to be approved by the appropriate state agency. Holding that the suit was prematurely filed, the trial court sustained the Board’s plea in abatement and dismissed the suit. We affirm. § 21.451, of the Texas Water Code, V.T. C.A., provides: “(a) A person affected by any ruling, order, decision, or other act of the board may appeal by filing a petition in a district court of Travis County or in a district court of the county of his residence. “(b) The petition must be filed within 30 days after the date of the board’s action, or, in case of a ruling, order, or decision, within 30 days after its effective date. “(e) In an appeal of a board action other than cancellation or suspension of a permit, the issue is whether the action is invalid, arbitrary, or unreasonable. The general rule is that courts will review only final actions of an administrative agency having exclusive jurisdiction of the matter concerned, and a final decision is defined as one that leaves nothing open to dispute. 1 Tex.Jur.2d, Administrative Law, Etc., § 38, p 678; Allen v. Crane, 257 S.W.2d 357 (Tex.Civ.App., San Antonio 1953, writ ref’d n.r.e.); City of Houston v. Turner, 355 S.W.2d 263 (Tex.Civ.App., Houston 1962, no writ). It is true that the above quoted language in § 21.451(a) is very broad, and if we were to give it a literal interpretation an appeal from anything whatever that the Water Quality Board might do or not do would be permitted. In our opinion, however, the legislature did not intend for the language used to have that meaning. As said in Sun Oil Company v. Railroad Commission of Texas, 158 Tex. 292, 311 S.W.2d 235, 236 (1958), the language is “undoubtedly not intended to be free of all limitation.” See also Sproles Motor Freight Line v. Smith, 130 S.W.2d 1087 (Tex.Civ.App., Austin 1939, writ ref’d); and Texas State Board of Examiners in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 246 (1961). It is our holding that appellants had no right to appeal from the said interlocutory action of the Board and that, as held by the trial court, the filing of the suit was premature. The order of dismissal is therefore affirmed.

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STATE of Missouri, Respondent, v. Larry JOHNSON, Appellant. No. 56869. Supreme Court of Missouri, Division No. 1. July 17, 1972. John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent. John J. Cosgrove, Kansas City Legal Aid and Defender Society of Greater Kansas City, for appellant; Paul T. Miller, Kansas City, Executive Director, Willard B. Bunch, Kansas City, Chief Defender, of counsel. WELBORN, Commissioner. Appeal from sentence and judgment of two years’ imprisonment upon jury verdict of guilt on charge of stealing property of a value of at least $50. No question of the sufficiency of evidence is presented. Appellant and a companion, Gloria Jean Carr, were seen removing a number of men’s suits and placing them in a trash container which the woman was pushing in a shopping cart through the G.E.M. Store in Kansas City. The two were apprehended on the store parking lot. Evidence at the trial was that the thirteen suits in the container had a retail value of $840 and a wholesale value of $540. The information charged the stealing of miscellaneous items of clothing of the wholesale value of approximately $500. The principal instruction to the jury was as follows: “INSTRUCTION NO. 3 “All persons are equally guilty who act knowingly together with a common intent in the commission of an offense, and an offense so committed jointly by two or more persons is the act of each and all, and whatever any does in furtherance of the unlawful act is in law the deed of each of such persons. “If you find and believe from the evidence beyond a reasonable doubt: “First, that on the 13th day of April, 1970, in the County of Jackson, State of Missouri, the defendant acted knowingly with Gloria Jean Carr with common intent to commit the offense of Stealing Over Fifty Dollars, and, “Second, that while they were so acting, the defendant stole miscellaneous items of men’s clothing owned by the Parkview G.E.M. Store, and “Third, that the property stolen was of the combined value of at least fifty dollars, and “Fourth, that the property was stolen by the defendant with the intent to permanently deprive the Parkview G.E.M. Store of its use of such property and to convert it or any of it to the use of defendant, and “Fifth, that the property was stolen by the defendant without the consent of the owner, then you will find the defendant guilty of stealing property of the value of at least fifty dollars. "However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense. “If you find the defendant guilty of stealing property of the value of at least fifty dollars, then you will fix the punishment: “1. By imprisonment by the Department of Corrections for a term fixed by you, but not less than two years nor more than ten years, or “2. By confinement in the county jail for a term fixed by you, but not to exceed one year, or “3. By a fine fixed by you, but not more than $1,000, or “4. By both such fine and confinement in the county jail.” The verdict of the jury was: “We, the jury, find the defendant, Larry Johnson Johnson (sic), guilty of Stealing over Fifty Dollars, as submitted in Instruction No. 3, and fix his punishment at imprisonment by the Department of Corrections for a period of two years.” Appellant contends here that the verdict is not responsive to the information. He contends that the verdict is a finding of guilt on a charge of stealing over $50 in currency whereas the information charged a stealing of property of the value of approximately $500. By § 560.161, RSMo 1969, V.A.M.S., subject to exceptions not here pertinent, punishment for the offense of stealing is determined according to whether the property stolen is valued at less than $50 or at least $50. By subparagraph (1) of paragraph 1 of that section, if the value of the property is less than $50, the offense is punishable as a misdemeanor, as there specified. If the property is of a value of at least $50, the offense is punishable as a graded felony as provided in subparagraph (2) of paragraph 1 of § 560.161, supra. In the first paragraph of the principal instruction as well as in the verdict the offense here involved was denominated “stealing over $50.00.” To have been technically precise, the language should have been “stealing property of the value of at least fifty dollars.” However, this court has on numerous occasions held that the language of this verdict is sufficiently responsive to a charge of stealing property of the value of at least $50. Such a verdict as this was held not a basis for reversible error in State v. Brewer, Mo.Sup., 338 S.W.2d 863, 867 [3, 4]. That case also arose in the Jackson County Circuit Court and this court stated explicitly what the verdict in a case such as this correctly should find. However, the direction was not taken seriously because the Jackson County Circuit Court continues, as in this case, to be the source of cases in which the objection continues to be raised. See State v. Mitts, Mo.Sup., 347 S.W.2d 677, 680 [3]; State v. Pinkerman, Mo.Sup., 349 S.W.2d 951, 953-954 [7]; State v. Webb, Mo.Sup., 423 S.W.2d 795, 799 [8]; State v. Miles, Mo.Sup., 412 S.W.2d 473, 477 [12]. This is a complaint which would require little effort to avoid, but inasmuch as there was no real dispute as to the subject of the theft and the value of the property, the error is harmless and is not grounds for reversal. The same may be said for the shortened description of the offense in the instruction.. The preliminary reference to a joint intention to steal more than fifty dollars clearly has reference to^he offense subsequently adequately described in paragraph second and subsequent paragraphs. It is doubtful that appellant preserved for review the instruction objection, but in any event the error is harmless. Appellant contends that the trial court erred by admitting evidence of other offenses by the defendant. A security officer testified on direct examination for the state that G.E.M. employees pursued defendant and his companion on the store parking lot. According to the witness, employer Morris called defendant to come back. “They said that — it was no use running, they had the license number of the car. “Q All right. A And he said he didn’t care, it was stolen, too.” Objection was made that the last statement was not responsive and prejudicial. The objection was overruled. On appeal, appellant contends that the trial court’s ruling was erroneous because it permitted to stand testimony concerning a crime other than the one charged. There are several answers to this assignment. In the first place, the objection was made after the witness had spoken. At that point, the proper method of attacking the statement as unresponsive was by a motion to strike or a request that the jury be instructed to disregard the statement. State v. Beatty, Mo.App., 94 S.W.2d 907 [1 — 4]. Secondly, the objection now voiced was not stated to the trial court. The objection was that the statement was prejudicial but no objection was made that it related to a crime other than that for which defendant was tried. The ground of objection in this court is limited to that stated at the trial. Finally, the statement is not inadmissible because it relates to another offense. It falls within the exception to the rule relied upon by appellant which allows evidence of other offenses showing “a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other.” State v. Reed, Mo.Sup., 447 S.W.2d 533, 534 [1]. Evidence that defendant was traveling in a stolen automobile would fall within that category. State v. Harrison, Mo.Sup., 285 S.W. 83, 86 [7], [8-10]; State v. Boyer, Mo.Sup., 476 S.W.2d 613. By his motion for new trial, appellant asserted that one juror failed to disclose on voir dire that he was acquainted with the defendant. The juror testified on a post-trial hearing that he did not know defendant. There was no testimony which supported the allegation of the motion. There has been no demonstration of error in this regard. Judgment affirmed. HIGGINS, C., concurs. PER CURIAM: The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court. BARDGETT, Acting P. J., HENLEY, J., and FINCH, C. J., concur. HOLMAN, P. J., and SEILER, J., not sitting.

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STATE of Missouri, Respondent, v. Stephen CHAVEZ, Appellant. No. 56971. Supreme Court of Missouri, Division No. 2. July 17, 1972. John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent. John J. Cosgrove, Kansas City Legal Aid and Defender Society of Greater Kansas City, for appellant; Paul T. Miller, Kansas City, Executive Director, Willard B. Bunch, Kansas City, Chief Defender, of counsel. HOUSER, Commissioner. Stephen Chavez, convicted of robbery in the first degree and sentenced to 6 years’ imprisonment, appeals on the sole ground that the court erred in overruling his motion to suppress his in-court identification, based upon the contention that it was tainted by a lineup confrontation without the presence of his counsel in violation of the Sixth Amendment to the federal constitution. The lineup having been conducted prior to the filing of the information the requirements of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, have no application. This has been the consistent ruling of this Court. State v. Walters, Mo.Sup., 457 S.W.2d 817; Gaitan v. State, Mo.Sup., 464 S.W.2d 33, 35; State v. Richards, Mo.Sup., 467 S.W.2d 33, 37; State v. Stevens, Mo.Sup., 467 S.W.2d 906, 907; State v. Gates, Mo.Sup., 471 S.W.2d 272; State v. Brookins, Mo.Sup., 468 S.W.2d 42, 47. Any lingering question as to the propriety of our rulings in this respect is removed by the decision of the Supreme Court of the United States on June 7, 1972 in Kirby v. Illinois, No. 70-5061, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, holding that the per se exclusionary rule of Wade and Gilbert does not apply to preindictment confrontations. Appellant’s contention that the lineup was unnecessarily suggestive because of substantial differences in physical appearance between appellant and the other men in the lineup stands for disapproval for the reason that there is ample evidence that the in-court identification was of independent origin. This robbery occurred in the Brown Jug Tavern. Norma Nay, daughter of the owners and manager of the tavern, testified that three men entered the tavern, including this appellant whom she described as dark-skinned, with black hair, wearing a black three-quarter-length leather coat and black pants, either a Mexican or Italian. They opened the door, said this was a stickup, told Norma and the barmaid to stay on the stools and held a gun on her. One of the men went behind the bar, took four quarts and a half pint of whiskey off the bar, asked where the change was, asked for and took the women’s purses, took the money out of the register and put it in a brown paper sack. The men were in the tavern about 35 minutes. Before they left they put the women in the restroom and told them to stay there. Norma had an opportunity to observe them during the time they were in the tavern. She identified appellant later that night at the police lineup. She testified that she could have identified him whether or not she had gone to a lineup; that her instant recognition of appellant at the lineup was based upon her observation of him at the tavern. There was no error in overruling the motion to suppress the in-court identification. State v. Bevineau, Mo.Sup., 460 S.W.2d 683 [1]. Judgment affirmed. STOCKARD, C., concurs. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court; MORGAN, P. J., HENLEY and DON-NELLY, JJ., and FINCH, C. J., concur.

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STATE of Missouri ex rel. Donald J. GRALIKE, Relator, v. Eugene WALSH et al., Respondents, Brick Storts, III, Intervenor-Respondent. No. 57995. Supreme Court of Missouri, En Banc. July 14, 1972. Opinion Concurring in Part and Dissenting in Part July 17, 1972. Rehearing Denied July 21, 1972. John D. Connaghan, St. Louis, for relator. Arthur S. Margulis, St. Louis, for the Board. Robert C. McNicholas, City Counselor, David S. Hemenway, Associate City Counselor, St. Louis, for defendants John T. Wiley, Francis M. O’Brien, James A. Kearns, and Mrs. Clarence Hunter. Norman A. Seiner, Clayton, for interve-nor. FINCH, Chief Justice. This is an original proceeding in prohibition which seeks to prohibit respondent election boards from placing the name of intervenor Storts on the Primary ballot as a candidate for the Democratic nomination for State Senator from the First Senatorial District. The basis of such request is the contention that Storts, when he filed his declaration of candidacy on March 8, 1972, was not a resident of said district and that he did not comply with the requirement contained in Article III, § 6, of the Constitution of the State of Missouri, V.A.M.S. (also § 21.070, V.A.M.S., which is identical in language with Article III, § 6), that “Each senator * * * shall have been * * * a resident of the district which he is chosen to represent for one year, if such district shall have been so long established, and if not, then of the district or districts from which the same shall have been taken.” We make our rule in prohibition absolute. We issued our provisional rule on June 27, 1972, and directed that issues of fact raised by respondents’ returns should be heard by Judge Ninian M. Edwards, Presiding Judge of the Twenty-first Judicial Circuit, pursuant to Supreme Court Rule 97.04, V.A.M.R. He was directed to make findings of fact and then make return of said proceedings to this Court. This has been done and Judge Edwards’ findings and conclusions certified to us are as follows : FINDINGS OF FACT “1. That the Plaintiff, Donald J. Gra-like, resides at 648 Buckley Road, St. Louis County, Missouri, which is within the First State Senatorial District, and which said district is described in Plaintiff’s Exhibit 1, received herein in evidence. “2. That the Plaintiff, Donald J. Gra-like, is a Democratic Party candidate for the office of State Senator from said First State Senatorial District, having duly filed therefor. “3. That the Intervenor-Respondent, Brick Storts, III, has filed with the Secretary of State of the State of Missouri, on March 8, 1972, a declaration for Democratic Party candidate for nomination for the office of State Senator for the First State Senatorial District. “4. That Intervenor-Respondent, Brick Storts, III, purchased a certain parcel of property known as 93G of Building 93 in Chateau de Ville condominium section No. S, on October 1, 1971, and which said property is located at 4290 Chateau de Ville, St; Louis County, Missouri, and said property is within the First State Senatorial District. “5. That the Intervenor-Respondent, Brick Storts, III, occupied property at 200 South Brentwood Road, Clayton, St. Louis County, Missouri, from and after April, 1971, continuously, 'until April 28, 1972, which said property was not within the said First State Senatorial District. “6. That on or about the 28th day of April, 1972, the Intervenor-Respondent, Brick Storts, III, physically occupied his property at 4290 Chateau de Ville, St. Louis County, and that on or about that date he sub-let his premises at 200 South Brentwood Road, Clayton, Missouri, for the balance of the term of his lease, to-wit until March 3rd, 1972 (sic). “7. That on the 4th day of April, 1972, the said Intervenor-Respondent, Brick Storts, III, registered to vote with the St. Louis County Board of Election Commissioners showing for the first time his address as being at 4290 Chateau de Ville, St. Louis County, Missouri.” CONCLUSIONS OF LAW “That, based upon the above Findings of Fact, the Court does find and conclude as a matter of law, that the Intervenor-Re-spondent, Brick Storts, III, did not reside within the First State Senatorial District for the period of time required by law, and that by reason thereof, is not qualified for the office of State Senator of the First State Senatorial District.” The factual determinations by Judge Edwards are not disputed in the briefs filed in this Court. The only contentions asserted are these: (1) That this Court is without jurisdiction to determine the qualifications of a candidate for the State Legislature for the reason that the exclusive right of determining such qualifications is reserved by Article III, § 18, of the Missouri Constitution to the legislative body of which he seeks to become a member. In this connection, it is contended further that for the Court to decide such question would violate Article II, § 1, of the Constitution of Missouri relative to separation of powers; (2) Assuming, arguendo, that the Courts do have jurisdiction to determine qualifications for candidacy, prohibition is not the appropriate remedy because respondent boards are performing merely ministerial duties, as to which they are not subject to prohibition; and (3) The durational residency requirement of one year’s residence in the district as a condition to eligibility to serve as a State Senator violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. We consider these questions in the order stated. Article III, § 18, of the Missouri Constitution has been construed and applied by this Court in the recent cases of State ex inf. Danforth v. Banks, Mo., 454 S.W.2d 498, and State ex inf. Danforth v. Hickey, Mo., 475 S.W.2d 617. In Banks the ouster of a member of the House of Representatives was sought by quo warranto on the basis that he was not qualified for the office because he had not been a resident of the district one year before his election and hence was improperly seated. Hickey involved a proceeding to oust a Representative on the basis he had moved his residence from his district during his term of office, in violation of Article III, § 13, of the Missouri Constitution. In both cases this Court held that Article III, § 18, makes the appropriate legislative body the exclusive forum for determining the qualifications, election and returns of its own members, and that this Court did not have jurisdiction in either case. In the case now presented, we deal with a different situation. Various persons have filed declarations of candidacy seeking to be nominated in the Primary Election as the candidate of the Democratic Party for State Senator for the district in question. One of these persons is interve-nor Storts. He is not presenting himself at this time as the duly elected Senator from that district. He seeks only the opportunity to be a candidate for the nomination. Respondents contend that the restrictive language of Article III, § 18, applied in Banks and Hickey, governs in this instance as well. We do not agree. The constitutional language in question provides that “Each house * * * shall be the sole judge of the qualifications, election and returns of its own members; * * * ” Such language, in our view, is not broad enough to prevent the determination by the courts of whether one who seeks to be a candidate at a Primary Election possesses the requisite qualifications. Two cases cited to us are consistent with this conclusion. In State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, the issue was whether one Nangle should appear on the Primary ballot as a Republican candidate for State Senator. The contention was made that he filed his declaration of candidacy with the Secretary of State when it should have been filed with the Board of Election Commissioners. When the Secretary of State certified Nangle as a candidate to the Board of Election Commissioners and over protest they proposed to print his name on the ballot, prohibition was sought. No mention was made of Article III, § 18, of the Constitution, but the Court issued a permanent writ of prohibition, keeping Nangle’s name off of the Primary ballot. In State ex rel. O’Reilly v. Kirkwood, Mo.App., 407 S.W.2d 613, an election contest had been filed contesting the nomination of O’Reilly as the Democratic nominee for State Representative. Mr. O’Reilly objected to a trial of the case because no summons had been served on him. When the case was set, over his objection, he sought prohibition in the St. Louis Court of Appeals. Again, no reference to Article III, § .18, of the • Constitution was made. The Court held that the Primary Election Code (§§ 124.010 to 124.050, V.A.M.S.) required service of a summons and that without such service a hearing could not proceed, but went on to say, 407 S.W.2d 1. c. 614: “It appears, however, that there may yet remain sufficient time for service of such summons and therefore our final judgment in prohibition is that the respondent is prohibited from proceeding to hear the election contest until such time as a summons informing the contestee of the time of the hearing shall be served upon him in accordance with the law.” In so stating, the Court of Appeals necessarily considered the Primary Election statutes as being applicable to elections to select nominees for the General Assembly. To repeat, the position of respondents is that the entire election process of members of the General Assembly, including examination of whether prospective candidates for the nomination possess constitutionally mandated qualifications, is to be examined and passed upon only by the appropriate legislative body, and that the courts have no jurisdiction whatsoever in this area. This, say respondents, is the scope and meaning of Article III, § 18, of the Constitution. This interpretation of the constitutional provision would mean that a 15-year-old resident of Illinois could file a declaration of candidacy for State Senator in Missouri, and even though the facts were undisputed, the courts could do nothing to prevent his name from appearing on the ballot. Respondents say that the solution rests only in the hands of the electorate and the body in which the particular person seeks membership. Likewise, if a Primary Election was held and there were widespread charges of counting and voting fraud, the courts, according to the position of respondents, would be unable to accept and hear a Primary Election contest under the Primary Election contest statutes adopted by the General Assembly. We do not accept respondents’ interpretation of the scope of Article III, § 18. In our view, it applies when a General Election has been held and one then presents himself for membership, and, of course, it also applies in instances after the person has been seated and question as to his qualifications and right, to remain a member arises. This interpretation appears to be in harmony with procedure which the General Assembly has established. In §§ 124.110 through 124.150, V.A.M.S., the General Assembly has made provision for a procedure to be followed when there is a contest of the propriety of the election of a member of the General Assembly at a General Election. Those statutes provide the notice to be given, the manner of taking depositions, and certifying testimony, with the ultimate decision as to the contest to be made by the appropriate house of the General Assembly. No such procedure has been established by the General Assembly with- respect to Primary Election contests, indicating, we think, that the General Assembly had in mind that Primary Election controversies would be decided by the courts. Intervenor urges that the interpretation we adopt would result in interference with the prerogative of the legislative body under Article III, § 18, to pass upon and decide the question of qualification and election of its members. He suggests that if a court passes upon the qualifications of one to be a candidate in the Primary Election and holds that such person is a proper candidate, that issue will already have been decided and be binding upon the legislative body if that person is successful and ultimately presents himself for seating; or, in the alternative, the judicial decision is nullified and rendered meaningless. We do not agree with this conclusion. The legislative body will retain its right under Article III, § 18, to judge the qualifications of its members. The fact that a court has concluded that one had sufficient qualifications to be a candidate will not be res adjudicata so far as the legislative body is concerned when it ultimately passes upon qualifications of that person to be a member of the legislative body. The action of the court will settle only the proposition that the person shall not be denied the right to be a candidate. No violation of the separation of powers doctrine occurs. The next contention presented by respondents is that prohibition is not the proper remedy even if it be determined that the courts have jurisdiction to determine qualifications of a person seeking a place on the ballot as a candidate for legislative office. This argument is based on the proposition that the acts to be performed by respondent election boards are purely ministerial, rather than judicial in nature, and as such not subject to prohibition. We conclude that this question has been settled in this state by the cases of State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609; Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287; and State ex rel. Danforth v. Alford, Mo., 467 S.W.2d 55, in all of which prohibition was utilized to prohibit clerks or election boards from placing on the ballot the name of the candidate found to be without requisite qualifications for the office. In Alford, the most recent of those cases, this Court said, 467 S.W.2d 1. c. 57: “Finally, we think it should be noted that prohibition is an appropriate remedy to prevent an election official from having the name of an ineligible candidate printed on the ballot. This court so held in State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, and Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287. It is certainly in the public interest that ineligible candidates be excluded from the ballot. This for the reason that if such a candidate should receive the highest number of votes the election, in effect, would have been a nullity and the county and other candidates would be put to the expense and trouble of another election. And, even if the ineligible candidate did not receive the highest number of votes there would be the undesirable result that those who voted for him were, in effect, disfranchised.” Respondents cite and rely particularly on the case of State ex rel. Wulfing v. Mooney, 362 Mo. 1128, 247 S.W.2d 722, as authority that prohibition is an inappropriate remedy. However, Mooney does not sustain respondents’ position. In that case the Court distinguished various cases in which election boards had been prohibited from doing certain acts. One of those cases- was State ex rel. Bates v. Remmers, supra. In discussing that and other cases, this Court said, 247 S.W.2d 1. c. 726: “In the above cases the election boards in each particular instance were not applying the applicable law to the question they had before them and we issued our writs of prohibition for that reason. On the other hand, in the case at bar the board of election commissioners were complying with the applicable statutes and were therefore acting in a ministerial capacity.” In the instant case the boards of election commissioners are not following the language of Article III, § 6, of the Missouri Constitution or § 21.070, V.A.M.S., when they propose to print Storts’ name on the ballot. Therefore, the earlier election board cases such as Remmers are applicable here. Judge Edwards has found that intervenor Storts moved to this Senatorial District in April, 1972, that he has not lived in the district one whole year next before the upcoming General Election, and that he is not qualified under the provisions of Article III, § 6, of the Constitution or § 21.070, V.A.M.S. Hence, under our prior decisions, prohibition will lie. In oral argument counsel did not argue that the courts would be powerless to act if jurisdiction is assumed, but suggested that perhaps mandamus, rather than prohibition, would be the appropriate remedy. In that connection, we repeat what this Court said in Mansur v. Morris, 196 S.W.2d 1. c. 294: “And unless we assume the failure of Sec. 11558 to provide a procedure for the correction of errors in primary ballots means such corrections cannot be enforced (which assumption we cannot make), then it follows that the remedy under that section also should be nontechnical. Hence we cannot permit ourselves to be impaled on narrow distinctions, between prohibition, mandamus, certiorari and injunction. Ordinarily mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers. State ex rel. Richardson v. Baldry, 331 Mo. 1006, 1011(2), 56 S.W.2d 67, 69, 70(2). The decisions reviewed in this opinion compel the conclusion that the duties of the county clerk under Sec. 11558 are not purely ministerial; and that he has a measure of discretion. “But in either event he cannot usurp judicial functions. Yet in this case he has, in effect, assumed to decide that relator Mansur is eligible for the office of magistrate, and that his name as a candidate therefor should go on the primary ballot— notwithstanding the decision of State ex inf. McKittrick v. Wilson, supra, 350 Mo. 486, 166 S.W.2d 499, 143 A.L.R. 1465, decided in 1942, and the opinion of the Attorney General rendered on the specific facts involved here. This is not meant as a criticism. He probably took that position in order that an adjudication of the question might be obtained. But we are convinced that under the foregoing facts prohibition was the proper remedy below.” We overrule respondents’ second contention. Finally, intervenor Starts urges that the durational residency requirement for qualification for the office of State Senator (Article III, § 6, of the Constitution and § 21.070, V.A.M.S.) fails to provide equal protection of the laws to all classes of citizens and hence violates the Fourteenth Amendment to the Constitution of the United States. He relies on the cases of Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; and Bolanowski v. Raich, D.C., 330 F.Supp. 724. Dunn was a case involving whether residency requirements of one year in the state and three months in the county as a condition to voting violated the equal protection clause of the Fourteenth Amendment. The Supreme Court of the United States held that a compelling state interest for these durational voting requirements was not shown and hence they were excessive and violated the equal protection clause. The opinion did not consider or deal with a requirement that one be a resident of the state or county a prescribed period of time in order to be a candidate and, if elected, serve as a state or county officer. The latter, in our view, is a different question than that of what durational residency may be required under the equal protection clause as a prerequisite to voting. We do not consider that Dunn mandates a determination that the requirement of residency of one year in the senatorial district to be a state senator is in violation of the Fourteenth Amendment. Turner v. Fouche, supra, was a case involving the constitutionality of the method used in many Georgia counties to select juries and school boards. Without getting into all the facts, it suffices to say the case involves whether the constitutional and statutory plan was violative of the equal protection clause of the Fourteenth Amendment, and whether the procedure, even if constitutional, was unconstitutionally administered so as to result in the selection of a disproportionate percentage of whites over blacks. It also involved the validity of limitation of school board membership to freeholders. The Court held that the requirements amounted to invidious discrimination and were invalid. It is clear that Turner does not rule the question presented in this case. Finally, intervenor cites a United States District Court case from Michigan, Bolanowski v. Raich, 330 F.Supp. 724. That case involved the constitutionality under the equal protection clause of the Fourteenth Amendment of a requirement in the City Charter of Warren, Michigan, that one must have been a resident of the city three years to be a candidate for mayor. The Court held the requirement to be vio-lative of the equal protection clause. However, the Court, 1. c. 729, in discussing whether the rulings with respect to voting rights should apply to provisions establishing residency requirements for office holding, stated: “The question seems to be an open one at the Supreme Court level.” We agree with the statement in Bolan-owski that the Supreme Court has not held that durational residency requirements which are conditions for becoming a candidate and, if elected, for holding state or county office, are violative of the equal protection clause. We recognize that Bo-lanowski concluded that the three-year residency requirement in the case of Warren, Michigan, did violate the Fourteenth Amendment, but in our view the one-year residency in the district required by the Constitution of Missouri to be eligible for the office of State Senator does not violate the equal protection clause of the Fourteenth Amendment. Durational residency, citizenship, and age requirements as conditions to holding office, both federal and state, have been provided throughout the history of the country. Examples are found in the Constitution of the United States which makes provisions of this character with respect to the President (Article II, § 1), the Senate of the United States (Article I, § 3), and the House of Representatives (Article I, § 2). The State of Missouri has such requirements with respect to the Governor of the State (Article IV, § 3), State Senators (Article III, § 6), State Representatives (Article III, § 4), and Judges of the various courts of the state (Article V, § 25). Absent a controlling decision by the Supreme Court of the United States holding to the contrary, we hold that the equal protection clause of the Fourteenth Amendment does not eliminate the right of the State of Missouri to establish and enforce the one-year residency in the district requirement as a condition to serve as State Senator, and we overrule this contention by intervenor Storts. Although not necessary to the decision of this case, we add this caveat with reference to future applications for extraordinary writs with respect to election questions in comparable situations.- There were compelling reasons for this Court to hear this particular case and to settle the question of whether our decisions in Banks and Hickey are applicable where qualification questions for membership in the General Assembly arise in connection with a Primary Election. Having resolved that question, subsequent applications for extraordinary relief of this nature should be made to the Circuit Court, pursuant to Supreme Court Rule 84.22, V.A.M.R. Sufficiently prompt handling and final disposition of such cases, needed in view of the necessarily short timetable involved, can and should be given. This will necessitate that such applications for extraordinary writs be made at the earliest opportunity after the question arises, and that thereafter the case be handled with dispatch by all involved in order not to interfere with the orderly functioning of the election process. Provisional rule in prohibition made absolute. DONNELLY, MORGAN, HOLMAN and HENLEY, JJ., concur. SEILER, J., concurs in part and dissents in part in separate opinion. BARDGETT, J., not participating. SEILER, Judge (concurring in part and dissenting in part). I concur with those parts of the majority opinion which establish our jurisdiction and which find that prohibition is the proper remedy. However, I respectfully dissent on the equal protection aspect of the case. In my opinion, the one year durational residence requirement for qualification for state senator provided in Art. Ill, Sec. 6 of the Missouri Constitution, V.A.M.S., violates the Equal Protection Clause of the United States Constitution because, without reason or purpose, it discriminates against the in-tervenor and those who are in the same class as him and it discriminates against qualified voters who might want to cast their votes for intervenor or someone in his same position. Art. VI of the-United States Constitution states: “This constitution . . . shall be the supreme Law of the Land . . . ”, and Art. I, Sec. 4 of the Missouri Constitution accepts, as it must, that principle when it states: “That Missouri is a free and independent state, subject only to the Constitution of the United States . . . ” The only justification mentioned by the majority for the one year residence requirement is that historically it has always been that way. This, in my opinion, is not particularly relevant or persuasive. Historically, it used to be that 21 was the age for voting. Now it is 18. Historically, only men had the right to vote. Now, both men and women can vote. Historically, only men could serve on juries. Now women can also. Times are changing. In ancient days when regions were remote from each other, it served an important state interest to require a candidate to be a resident for a year before being eligible for election to office. This is no longer true and we should not cling to a restriction which has outlived its usefulness. There is no compelling interest of Missouri which is served by denying to the voters of the first senatorial district the right to vote for a candidate who has not lived in the district during the year prior to the election, if they choose to vote for him. In a 1970 case involving the statutory system used in Georgia counties to select juries and school boards, the United States Supreme Court held that there exists “ . . .a federal constitutional right to be considered for public service without the burden of invidious discriminatory disqualifications . . . ” and that a state “ . . . may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees”. Turner v. Fouche, 396 U.S. 346, 362-363, 90 S.Ct. 532, 541, 24 L.Ed.2d 567. The issue of heavily unequal burdens to qualify for a position on the ballot was discussed in the case of Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24, where the court said: “. . . In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights— the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States . . ” The threefold test of Williams v. Rhodes for determining whether a state law violates the Equal Protection Clause was most recently used in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274, 284, where a Tennessee election law requiring potential voters to reside in the state for one year and in the county for three months as a qualification for voting was struck down. There the court said: “In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the state can demonstrate that such laws are ‘necessary to promote a compelling governmental interest’ . . . ” In the case before us there is no rational or reasonable purpose to uphold the dura-tional residence requirement in Art. Ill, Sec. 6. Relator argues it should be upheld because representatives of the people must have knowledge about their district and its needs. Living in a district does not necessarily bear any significant relationship to knowledge of the district or its needs. Consider the person who has lived just across the street from the district boundary line or the businessman who works in the district but who actually lives outside the district. These people, as a matter of fact, could be just as well acquainted with the district’s problems as anyone in the district —lifelong resident or not. In Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583, the court held that New York state could not limit the vote in school district elections to property owners and parents of school children. New York claimed it had a legitimate state interest in limiting the vote to the property owners whose taxes paid for the school system and to those who had a direct interest in school affairs because their children were in school. The court said: “Whether classifications allegedly limiting the franchise to those resident citizens ‘primarily interested’ deny those excluded equal protection of the laws depends, inter alia, on whether all those excluded are in fact substantially less interested or affected than those the statute includes. In other words, the classifications must be so tailored so that the exclusion of appellant and the members, of his class is necessary to achieve the articulated state goal . . . ” The purported goal of insuring knowledgeable and competent representation is not achieved by the durational residence requirement. Since it does not fulfill the need for which it was designed, the requirement should not be allowed to stand and deprive intervenor and his class and the electors of the district of their constitutional rights. The right of a state to place reasonable restrictions on the availability of the ballot, or by analogy to candidacy for office, is not involved here. Dunn v. Blumstein, supra 92 S.Ct. at 1000, 31 L.Ed.2d at 281; Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 13 L.Ed.2d 675; Pope v. Williams, 193 U.S. 621, 632, 24 S.Ct. 573, 48 L.Ed. 817. The challenge is to the unreasonableness of durational residence requirements. Our state’s dura-tional residence requirement violates the rights of political association of the district electors in that it prevents them from banding together and supporting, or bringing in, an outsider of their choice and thus effectively disparages their vote by denying them the opportunity to vote for the candidate of their choice on election day. Residents who do not support an outsider do not have their rights infringed upon by having an outsider on the ballot because they have a fully effective vote and can cast it for whomever they choose. If they feel the outsider is not competent or knowledgeable enough to adequately represent them, they can defeat him at the polls, as they do many of their fellow residents under the present system. It is the residents who support an outsider or latecomer who have their rights infringed upon and are denied an effective vote without reason or compelling state interest. It must be noted that an individual who expresses a bona fide intention to become a resident and who actually does, as the intervenor did here, completely eliminates any fear of “carpetbagging” or political control from the outside which is not responsive to the electorate. This overly broad, arbitrary exclusion is exactly what the United States Court was trying to correct in Carrington v. Rash, supra, where it found the Texas voting residency requirements too broad for the purpose for which they were intended. There, many bona fide resident servicemen were being denied the vote in order to make sure that non-resident servicemen were excluded. Bolanowski v. Raich, E.D.Mich.S.D., 330 F.Supp. 724, decided before Dunn v. Blum-stein, supra, articulates the rationale later used in Dunn in a factual situation very similar to this case. The facts dealt with a municipal election which required an extra year of residency in order to run for the office of mayor. After examining the facts and the law, the trial court found there was no need for this extra year requirement in today’s society, if there had ever been one, and it must be struck down, absent a showing of a compelling state interest, as violative of the Equal Protection Clause of the United States Constitution. As the court said: 330 F.Supp. 1. c. 731: “ . . . It requires little imagination to conceive of an adult citizen of the City of Warren who has lived his entire life there without taking any interest whatsoever in municipal problems, and who would thus not fit the articulated qualifications sought to be insured by the requirement . . .” Likewise it is easy to imagine an individual, such as intervenor herein, who has lived within the district for less than a year and who has demonstrated his interest in the district and the people of the district. There is no valid reason or compelling state interest for an individual who expresses an interest and willingness to serve to be kept off the ballot just because he has not lived in the district he seeks to serve for one year. The very purpose of the requirement, to insure competent, interested representation, is defeated by keeping such an individual off the ballot. The state may very well be able to require state officeholders to live in their districts once elected, or it may even require candidates to be bona fide residents, in order to insure that the officeholder or candidate has some reasonable contacts with and availability to his constituency. But to require a candidate to be a resident of a district before he seeks office not only violates the rights mentioned earlier, it also unreasonably infringes on his right to travel and move about freely. Because an individual exercises his constitutional right of travel, the state cannot strip him of his exercise of political rights in order to protect the status quo and to limit potential challengers to present officeholders or longtime residents. United States representatives are merely required to be residents of the states from which they are elected and not the particular congressional district and representation does not seem to have suffered. The American people constitute a highly mobile society. Between March of 1969 and March of 1970, 18.4 percent of the persons over one year of age who live in the United States moved to a different residence. Thirty six and five tenths million persons moved in one year. Only 7.1 million of those moved between states, while 23.2 million moved intracounty and 6.3 million moved somewhere else in the same state. In May of 1958, only 25 percent of the population over 18 years of age in the North Central states had lived in one residence. Residence was defined as a political unit such as an incorporated city or county. Moves within a city or within a rural area in the same county were excluded from the tables. Thirty percent of the population had lived at two residences, while 21 percent had lived at three. Seven and seven tenths percent of the population had lived at six or more residences. These are exactly the kinds of incidents and studies that prompted the court to strike down durational residency requirements for recipients of welfare benefits in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 and to strike down voting durational requirements in Dunn v. Blumstein, supra. The direction in which the law is progressing is clear and this court should not allow the constitutional rights of the inter-venor and his class and the electors of Missouri to continue to be deprived by an unconstitutional provision of the Missouri Constitution. The steps this court should take are clear, Art. Ill, Sec. 6 of the Missouri Constitution imposes a heavily unequal burden on the ability of candidates to obtain a position on the ballot, depending merely on whether or not they have lived for one year within the state senatorial district, and it deprives the electors of the district of the full force of their ballot and there has not been any compelling state interest shown here to justify this sort of unequal treatment. All the one year residence requirement does is to serve provincialism and prejudice the newcomer and those who would support him politically. In my opinion, under Carrington v. Rash, supra; Turner v. Fouche, supra; Kramer v. Union Free School District, supra; Dunn v. Blumstein, supra, and Bolanowski v. Raich, supra, we cannot sustain the validity of the constitutional durational residence provision in question and we should discharge the preliminary rule. . U.S. Bureau of the Census, Current Population Reports, Series P-20, No. 210, “Mobility of the Population of the United States: March 1969 to 1970,” U.S. Printing Office, Washington, D.C., 1971, page 1. . U.S. Bureau of the Census, Current' Population Reports, Series P-23, No. 25, “Lifetime Migration Histories of the American People”, U.S. Government Printing Office, Washington, D.O., 1968, p. 5 and Table 7.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Fred ASHBAUGH, Respondent, v. Robert M. SIMS, Appellant. Nos. 25595 and 25661. Missouri Court of Appeals, Kansas City District. July 6, 1972. Len L. Balke, Kansas City, for appellant. Robert H. Martin, Independence, for respondent. PER CURIAM. These appeals, consolidated here, come to us from judgments entered in the Circuit Court of Jackson County, Missouri, Division No. 16, arising from litigation between two former partners. This litigation was instituted by the respondent, hereinafter called “plaintiff”, against the appellant, hereinafter called “defendant”, by the filing of a petition for dissolution and liquidation of the partnership known as “Sims and Ashbaugh, Distributor of Amway Products”, wherein the plaintiff in Count I of said petition asked for the dissolution of the partnership; the appointment of a receiver pendente lite to take over the assets of that business; and that the partnership affairs be liquidated and a full accounting made. In Count II of plaintiff’s petition, he asked for the partition of certain real estate owned by the parties as tenants in common. In answer to Count I of said petition, the defendant admitted the existence of said partnership; stated that the partners had agreed to dissolve the same as of September 1, 1966, and that it was in fact dissolved on October 1, 1966; that the parties had agreed to settle their respective interests and obligations involved in the dissolution of said partnership, and asked the court to refuse to appoint a receiver, but to determine and declare the parties’ respective rights upon dissolution. In answer to Count II of the petition, defendant admitted the ownership of the real estate as tenants in common, and that the parties had agreed to sell the same and divide the proceeds according to their interests. The defendant also filed a counterclaim in which he asserted that upon dissolution of the partnership, he and the plaintiff had entered into an oral contract with reference to the business theretofore carried on by the parties as partners, and that as a consideration therefor, he, the defendant, was to retain all distributors theretofore obtained or sponsored by the defendant, with credit for all past bonuses earned on such distributors’ business, and that the plaintiff was to act as defendant’s sponsor in the further handling of Amway business. Plaintiff’s answer to defendant’s counterclaim was in the nature of a general denial. The trial of this cause was commenced on October 10, 1968 before The Honorable David T. Cavanaugh, Judge of Division No. 12 of the Circuit Court of Jackson County, Missouri. A jury was waived. At the outset of the trial, the court was advised that the parties had reached an agreement whereby the defendant would purchase the plaintiff’s interest in the real estate, and Count II of plaintiff’s petition was thereupon dismissed, and it was agreed that the matter would be submitted to the court as a partnership accounting on Count I of plaintiff’s petition and on defendant’s counterclaim. Thereafter, Judge Cavanaugh heard evidence on October 10 and 11, and November 1, 1968. The only witnesses who testified were the plaintiff and the defendant. At the close of all the evidence, Judge Cava-naugh, upon oral motion by the plaintiff, dismissed the claim for punitive damages asserted by the defendant in his counterclaim, took the matter under advisement, and requested counsel for both parties to submit to him a complete itemization of what each party contended was owing from the other party. The defendant complied with this direction of the court by filing such a summary on November 26, 1968, and the plaintiff complied with this request of the court by filing such statement on December 9, 1968. Thereafter, Judge Cavanaugh became ill and subsequently departed this life before rendering any judgment in this cause. Thereafter, by agreement of the judges and on November 5, 1969, this cause was transferred to Division No. 16, and it was apparently agreed that the cause would be submitted to The Honorable William J. Peters, Judge of that division, upon the transcript of the trial before Judge Cava-naugh, without retrial. It should be noted that during this period, the case was renumbered and the transcript bears two circuit court numbers, but, in fact, there was only one case involved below. In accordance with that agreement and on July 1, 1970, the court below entered a judgment in favor of the plaintiff upon Count I of his petition in the amount of $1722.73 and disallowed defendant’s claims under his counterclaim. Thereafter and on July 13, 1970, defendant filed his motion for new trial, and on July 21, 1970 the court amended its judgment of July 1, 1970 by giving the defendant an additional credit of $21.00 and entered a new judgment in the amount of $1701.73 and overruled defendant’s motion for new trial in all other respects. Thereafter and on July 28, 1970, defendant filed a motion for new trial on the new judgment, and on the same day filed a notice of appeal to this court from the judgment entered July 1, 1970, and thereafter and on November 2, 1970, the defendant filed a notice of appeal to this court from the judgment of July 21, 1970. Both of these appeals have been consolidated here for decision. The evidence in this case may be briefly summarized as follows: The parties hereto entered into an oral partnership agreement in the year 1965, under the terms of which they undertook to distribute and sell, under the firm name of “Sims and Ashbaugh”, various household cleaning products and other household items, manufactured and distributed by Amway Products. The method employed by the Amway Products and the parties hereto was to appoint various sales personnel or distributors for the marketing of these products. Each such salesman or distributor worked under a “sponsor”. During the period of the existence of the partnership, the defendant’s (and possibly the plaintiff’s) sponsor was one Cíete Markum, and the parties in turn appointed distributors and salesmen for whom they acted as sponsors. The function of these sponsors in relation to the work of the distributors was to counsel and advise, set up sales meetings and other promotional efforts. The margin of profit on sales of Amway Products by the partners was approximately 35%, and in addition, the partnership was paid a bonus by Amway, depending upon the volume of their sales. The defendant testified that he and his former partner, plaintiff Ashbaugh, entered into an oral agreement terminating the partnership, although the parties intended to continue their individual connection with Amway Products. As a part of this oral agreement, the defendant testified that in consideration of the defendant’s dropping the sponsorship of Cíete Markum and coming under the sponsorship of the plaintiff in further individual efforts for the Amway Products, that he, the defendant, was to retain his sales organization and be credited with all bonuses which were due or might thereafter become due for personal business produced during the partnership and on that produced by all distributors or salesmen developed by the defendant. In accordance with this agreement, the defendant testified that he severed his connection with Cíete Markum, but that he had not received effective sponsorship from the plaintiff and had not been paid any of the earned bonuses due from Amway on business produced by him or his distributors and salesmen during the partnership. He testified that of the bonuses received from this source, certain distributors and salesmen would be paid a bonus of 35% attributable to their production, and that the defendant would retain 65'% thereof. The defendant testified that the total bonus earned and unpaid from his production during the partnership was $3078.26, from which he would be entitled to retain 65% or $2000.87. He stated that the corresponding figure of bonus earned and unpaid on the production of the plaintiff during the partnership was $427.91, 65% of which would be $278.14. He testified that under his agreement with the plaintiff, he was to receive the difference between the two net bonus figures or $1722.73 and that the plaintiff had not paid him any part thereof. He testified that these figures were not estimates but from actual computations. No contrary evidence was offered at the trial of this cause with reference to this agreement or the figures on the bonus accounts. The plaintiff did not take the stand to either affirm or deny the oral contract or to dispute the computation of the bonus figure, nor has he favored us with a brief. We are not here concerned with the rule of deference which may be accorded a trial judge in a jury-waived case under Rule 73.01(d), Civil Rules of Procedure, V.A. M.R., as to the credibility of witnesses, since the court below did not hear the evidence but ruled the case strictly upon the transcript, which is now before us. We believe that upon this transcript there was substantial evidence upon which the trial court could make his judgment of accounting on Count I of plaintiff’s petition, as contained in the judgment of July 1, 1970, as modified by the new judgment of July 21, 1970, and that his findings in that regard should not be disturbed. In his judgment of July 1, 1970, in ruling upon defendant’s counterclaim, the court stated: “The claim for bonus differential by the defendant is disallowed.” We do not agree with this finding upon this record. The undisputed testimony in this case was that an oral contract was entered into between the plaintiff and the defendant, the terms of which were as testified to by the defendant and undisputed by the plaintiff. In this posture of the record, we believe that the terms and conditions of this oral agreement must be recognized. Parties may contract without a writing. Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82, 89; Smith v. Githens, App., 271 S.W.2d 374, 378. Parol evidence is properly admissible to prove the terms of a verbal contract. Iowa-Missouri Walnut Co. v. Grahl, 237 Mo.App. 1093, 170 S.W.2d 437, 440. The defendant established all of the elements of a valid oral contract, and under the undisputed terms of this agreement, the defendant was entitled to recover $1722.73, representing the unpaid bonus differential on his individual production during the existence of the partnership. The judgment of the court below on Count I of plaintiff’s petition is affirmed, but the cause is remanded with directions to the trial court to enter a judgment in favor of the defendant and against the plaintiff on his counterclaim in the amount of $1722.73.

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D_ M_ T_, Respondent, v. D_ V_ T_, Appellant. No. 25787. Missouri Court of Appeals, Kansas City District. July 6, 1972. Carl F. Sapp, Columbia, for appellant; Sapp, Woods, Dannov & Orr, Columbia, of counsel. Raymond C. Lewis, Jr., and David B. Rogers, Columbia, for respondent. PRITCHARD, Judge. This is an appeal from 'a judgment awarding custody of two minor sons of the parties, who were not divorced, to respondent wife. The issue is whether under all the facts, and considering what would be in the best interest of the children, the wife is a fit and suitable person to have the custody of the sons, who were ages six and eight. While appellant husband’s brief does not comply with Rule 83.05 in its fact statement and in points made, yet from a consideration of the entire brief the issue above becomes clear. In view of the soon to be increased jurisdictional case load of this court, counsel are cautioned that the drastic action of dismissal of appeals may in the future be more rigidly applied. This for the reason that there will be less time to explore briefs and ascertain just what parties on appeal contend for reversal or affirmance. Counsel should further appreciate the aid rendered to the court by good briefing, in compliance with the rules, thus expediting the disposition of cases. With these cautions, respondent’s suggestion that the appeal be dismissed is declined. The parties separated in 1968, respondent taking the two sons and moving to Columbia, Missouri, from Hallsville, Missouri, the marriage home. She thereafter filed suit for divorce, but the decree was denied her quite apparently for the reason of her adulterous relation to one D- B-. On this hearing respondent admitted that her testimony in the divorce trial that she had not had sexual relations with DB- and did not live with him was false. D- B- was a married man with whom respondent was in love and with whom she continued to have sexual relations. Upon respondent’s moving to Columbia, D- B- helped her to find an apartment, in purchasing furniture, and bought her a television set. He occasionally took the sons to school, and spent much time at respondent’s apartment where she had two bedrooms, one for the sons. Respondent admitted that D- B- was served with a subpoena for the divorce trial at 4:00 in the morning at her home and while he was in his skivvies. While the divorce was pending, D-B-was married, and the sexual relations occurred then and while the sons were living with respondent, which they had done for about ten months. During that time respondent had not encountered any serious problems with either of the sons. After the divorce trial, in which no custody order was made, appellant came to respondent’s home and took the sons with him, according to respondent, forcibly. He denied using force, but conceded that he considered the taking non-forceful because of the element of speed. Appellant took the sons to Hallsville and changed them to the school there. Respondent was unable to see the sons for four or five months, except for Christmas Day in 1968. Her attempts to see them were refused, and appellant threatened her with chained German police dogs if she came near the house. Through the intervention of a minister, respondent saw the children at the house of appellant’s father in April, 1969, who along with a brother had instructions for appellant not to let respondent have the sons. In the presence of the sons, appellant cursed respondent and used obscene language against her, as well as giving her direct physical abuse. There was a large amount of evidence concerning the care and treatment of the sons while they were with appellant. They were left with a variety of babysitters while appellant worked as a part-time deputy sheriff. The condition of the Hallsville home during that time is significant. It was described by Rev. Burgin as deplorable, with clothes strewn about, animal feces and trash, weapons, chemicals left about, dirty dishes, and the children’s underpants lying around with dried feces on them. Photographs of the inside of the home, taken on four occasions, graphically portray the disarray and filth in the home. Two teachers of the sons testified that they came to school in ragged clothes, torn zippers, worn-out shoes, without coats in cold weather, “grimy” — “not surface dirt on them,” and one had bowel movements in his pants. One of the boys had a small speech impediment, and lost his report cards. The other was not careful of his possessions and did not respond too well to authority, lacking normal childhood emotions for his age. He was the dirtiest boy in his class. There was an abrupt change for the better in the appearance of the boys prior to trial. Appellant admitted that one of the boys had dental cavities and was in need of dental treatment, but appellant let the cavities go for about six months without making arrangements to have them treated. During the time appellant had the children after the divorce trial, he dated frequently, with some dates taking place in the home with the children. One date actually babysat for him. Although appellant testified that he took the boys to church some, he could not remember the name of the minister or the Sunday School teacher. There was testimony from respondent that appellant kept his guns and ammunition in reach of the boys, this being denied by him, and respondent also testified that on one occasion whén she was visiting the boys, and scolded one for picking up a gun, she was threatened by appellant with being hit in the mouth. A monkey kept by appellant in the house bit one of the boys twice, and the animal discharged elimination in the house and car. In contrast to the care and treatment the children were accorded by appellant with that which respondent rendered them during the ten months she had them after the divorce trial, the evidence is: The children were kept clean, well-fed, appropriately dressed, well-disciplined, and were apparently happy. Respondent took them to a doctor when they were ill. She took them to Sunday School and to church, where she taught a class. The boys were completely toilet trained during that time. They were taken by her on walks, roller skating, shopping, and to parades and picnics. For the ten month period respondent supported the children without any help from appellant. She earned a net of $390.00 per month as a histology technician at the University of Missouri Medical Center, a responsible position. She then used a baby sitter who regularly sat for members of the medical staff, and she testified that if she had the children she thought she could arrange her work hours to match the school hours, but if not, the baby sitter would be available after school to 5:00 p. m. She might have been able to manage financially without help, but to make ends meet she would need about $101.00 more per month. Appellant’s salary, at the time of separation, was about $500.00 per month. The thrust of appellant’s argument is that respondent “who admittedly lives in an adulterous relationship with a married man in the same house with her minor children and who admittedly committed perjury should not be awarded custody of minor male children and such custody is not in the best interests and welfare of such children.” While it is true, as appellant says, that the morals of the respective parents are an appropriate subject of consideration in child custody cases, M_ L_ v. M_ R_ , Mo.App., 407 S.W.2d 600, 602[1], that consideration is by no means exclusive. The guiding star is of course the best interests and the welfare of the children. Hugeback v. Hugeback, Mo.App., 444 S.W.2d 23, 27[5-7]; Zimmerman v. Zimmerman, Mo.App., 422 S.W.2d 386, 388[2-5], Certainly, respondent’s conduct in living in admitted adultery is a reflection upon her personal morals and is not in accordance with established and prevailing mores of society. But, see Paxton v. Paxton, Mo.App., 319 S.W.2d 280, where the evidence strongly showed adulterous acts of the wife, yet this court found it to be to the best interests of the four children that their custody be awarded to the mother. See also Stone v. Stone, Mo.App., 378 S.W.2d 824, 840; and Pippas v. Pippas, Mo.App., 330 S.W.2d 132, 139. Her admitted perjury in the divorce trial was not indicative of the best of morals. Cf. S_ v. G_, Mo.App., 298 S.W.2d 67, 77[14]; and P_ D_ v. C_ S_, Mo.App., 394 S.W.2d 437, 444[5, 6], which says that perjury may demonstrate moral unfitness. In this 'case, there is no evidence that any acts of adultery were committed in the presence of or with the knowledge of the two sons. On the whole of the evidence it is apparent that respondent’s admitted immoral conduct had no deleterious effect upon her ability to care for the two children or their welfare. The evidence is clear that respondent did in fact care for the children in an exemplary manner. On the contrary, the evidence shows that the conditions of neglect permitted by appellant were not conducive to the best welfare of the two boys while he had them in his custody. Of further important consideration is appellant’s abuse of respondent committed in the presence of the two sons. The entire testimony was heard and considered by a very able and experienced trial judge to whom this court will defer on the matters of conflicts in the evidence. The record is not convincing that the best interests of these children require a different disposition of custody than that awarded. J. v. R., Mo.App., 446 S.W.2d 425, 429[8]. Hopefully, the parties will amicably conform to the trial court’s judgment and proceed, although apparently irreconcilably separated, to rear the children in a manner which will enhance their chances of having emotional stability and concomitant social success when they reach adulthood. The judgment is affirmed. All concur.

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E_ D_, Respondent, v. T_ D_, Appellant. Nos. 25898, 26025. Missouri Court of Appeals, Kansas City District. July 6, 1972. Robert B. Randolph, St. Joseph, for appellant. Arthur J. Meers, St. Joseph, for respondent. PRITCHARD, Judge. This is a consolidated appeal of two cases, the first of which (No. 25898) is from a judgment denying requested modification of a divorce decree as to custody of three minor children born of the marriage of the parties and awarding respondent ex-wife $250.00 attorney fees. The second appeal is from a judgment later entered awarding respondent an additional attorney fee and suit money of $500.00 for this appeal. Appellant’s position as to his claimed right of custody is that respondent lived with a man in the presence of the children: “Her open and brazen conduct with A-in the continuous presence of the children renders Respondent an immoral person and her conduct directly affects and seriously j eopardizes the spiritual, moral and physical well-being of the children.” The parties were divorced on August 30, 1963, and custody of the three children, two girls and a boy, aged respectively at the time of this hearing, 12 years, 9 years and 11 years, was awarded the wife with visitation rights to the husband. Appellant was in arrears in child support payments up to 1967, but since that year his payments have been currently made. Apparently the precipitating cause of the filing of appellant’s present motion was the fact that the youngest girl and the boy ran away from respondent’s home, where they were staying with A- and were picked up by a passing motorist on a highway leading to appellant’s home and were taken there. Appellant then telephoned for respondent, and she not being home, he talked to A- and learned that he was living with respondent. Respondent was living in a three bedroom, one bathroom, second floor apartment in St. Joseph, Missouri. The rent was $140.00 per month. Respondent was working six days a week, with Sundays off, at the rate of $2.00 per hour. She first met A- on January 1, 1971, and during that month she and the children stayed in his house in Platte City, Missouri, for several nights, her explanation for staying there being that they were snowed in. In March, 1971, A-moved into respondent’s apartment and lived and slept there every night. Respondent married A-on May 27, 1971, after appellant filed his motion to modify the order of the children’s custody. At the time of trial, July 15, 1971, A-was employed, but had been unemployed since January, 1971. Respondent denied any improper relations with A-, either while he lived in her apartment or during the time she and the children stayed with him in Platte City. As to her conduct during these times, she testified: “Q. You never, prior to your marriage, embraced John in the presence of the children? A. I suppose I have. Q. Kissed him? A. Yes. The children have kissed him also. Q. Do you think the conduct of living regularly with a man in the presence of your children, Mrs. D-, do you think this is moral or immoral ? A. I did nothing immoral in front of the children. Q. I didn’t ask that. I asked you— A. (Interrupting) Under the circumstances I don’t think so. Q. You don’t think it was immoral? A. No. Q. You don’t think it was against the interest of your children? A. No. Q. You have a young daughter who is coming of age and you don’t think that is immoral in her presence ? A. What I did I do not think was immoral.” Regardless of suppositions and suspicions which might arise from the presence of a man in respondent’s home, there is not one iota of evidence that she did any act of an immoral nature in or out of the presence of the children which would jeopardize their spiritual, moral and physical well being as claimed. Respondent definitely and unequivocally denied any improper relations with A-in the presence of the children. There was no direct evidence produced by appellant to the contrary. He had the burden of proof on the issue of respondent’s moral fitness to have continued custody of the children, this being the basic allegation of a changed condition, since the divorce. Smith v. Smith, Mo.App., 435 S.W.2d 684. Under all of the evidence it is apparent that respondent has taken very good care of the children, and no facts with respect to that have been shown by appellant to prove that she left them alone for long periods of time, that she did not provide proper living facilities for them, properly clothe and groom them, or permit them to wander unattended over town as alleged. The trial court did not err in refusing to modify the decree as to custody. Although there was evidence of the respective incomes of the parties, appellant’s take-home pay being $75.00 to $80.00 per week, and respondent’s about $96.00 per week, and that appellant had paid respondent $1,820.00 child support during the past year, there was no evidence that respondent actually needed and that she could not pay the $250.00 attorney fee allowed by the court at the conclusion of the trial. Such evidence is essential to an award of attorney fees. Lester v. Lester, Mo.App., 452 S.W.2d 269, 270 [4-6], and cases cited. However, in accordance with the order of remand in the Lester case, respondent may be able to develop her need for and inability to pay for her own attorney fees and she should have that opportunity, counsel having rendered services to her during the trial. The allowance of $500.00 attorney fees for this appeal, which was requested and granted after the original notice of appeal, stands upon a different footing. Although there was likewise no evidence of respondent’s need for this latter allowance, the granting of the same contemplates the additional consideration that prospective services will be rendered and time will be spent by counsel in preparing a brief and thereafter appearing in this court for oral argument. No brief was filed by respondent’s counsel and he was therefore not permitted to argue because there was nothing presented to the court in respondent’s behalf. For all that appears, nothing was done by counsel after the motion was sustained and the award of attorney fees made. Under the circumstances, it cannot be sustained. That part of the judgment overruling the motion to modify the decree as to child custody is affirmed. That part of the judgment awarding $250.00 attorney fees is reversed and is remanded for further proceedings. That part of the judgment awarding $500.00 attorney fees for this appeal is reversed. All concur.

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STATE of Tennessee, Petitioner, v. Michael L. DOUGHERTY et al., Respondents. Supreme Court of Tennessee. July 17, 1972. David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Phil M. Canale, Jr., Dist. Atty. Gen., Leland M. McNabb, Asst. Dist. Atty. Gen., Memphis, for petitioner. Montedonico, Heiskell, Davis & Glanker, Memphis, for respondents Bonham, Wilks and Roberts. Jim C. Galloway and Ike R. Clinton, Memphis, for respondents Dougherty, Dyer and Ray. Patrick Johnson, Jr., James B. Johnson, Memphis, for respondent Graves. Richard G. Busby, Memphis, for respondent Skelton. Sam J. Catanzaro, Jr., Memphis, for respondent Davis. OPINION PER CURIAM. This is a petition for the writs of certio-rari and supersedeas to the Court of Criminal Appeals. The substance of the allegations of the petition are as follows : The respondents, Michael J. Dougherty, Edward Michael Bonham, Johnnie L. Roberts and Theodore R. Wilks, Jr., were jointly indicted by the Shelby County grand jury on December 9, 1971, for the offense of murder in the first degree. The respondents, James B. Dyer, William L. Graves, Danny L. Davis and Larry R. Skelton, were jointly indicted on the same day for the offense with intent to commit murder in the first degree. Respondent, Harold R. Ray, was indicted at the same time for the offense of dereliction of duty. The offenses charged derived from a single incident. Thereafter, certain respondents filed a motion in the Criminal Court of Shelby County seeking discovery of certain evidence under the control of the District Attorney General, specifically the statements of all witnesses and the results of certain tests, examinations and analyses performed by the Federal Bureau of Investigation by virtue of the authority granted by T.C.A. Sections 40-2044 and 40-2441. After argument by Counsel for the respective parties the trial judge granted the motion and ordered the District Attorney General “to disclose to the defense Attorneys the following materials and information within his possession or control, or within the possession and control of any others who have participated in the investigation or evaluation of the case: “Any written or recorded statements and the substance of any oral statements made by the accused parties, or made by a code-fendant. “Any reports of experts made in connection with the case, including the results of physical or mental examinations and the scientific tests, experiments or comparisons; this includes medical reports, autopsy reports, reports of medical examinations of the victim, fingerprint comparisons, blood tests, paint scrapings, hair charts, diagrams, articles of clothing, and all materials found at the scene of the offense.” Petitioner then filed a petition for the common law writs of certiorari and super-sedeas in the Court of Criminal Appeals seeking to have that Court supersede and reverse the judgment of the trial court to the extent of correcting the errors complained of which are as follows: “The Honorable trial court erred in ordering your petitioner, the State of Tennessee, to submit to the copying and inspection by the defendants of certain reports, tests, examinations, and analyses performed by the Federal Bureau of Investigation at the request of the State in that the trial court was without authority or jurisdiction to order or permit discovery of the work product of any law enforcement officer, Attorney for the State or his agent. “The Honorable trial court erred in ordering your petitioner, The State of Tennessee, to disclose to defense Attorneys any written or recorded statements and the substance of any oral statement made by a codefendant in that such order is contrary to the law of Tennessee.” That Court heard the matter on oral argument and by a divided decision denied the petition in the following words: “. . . that there has been no factual averment made that would, if accepted as true, support the State’s position that the trial court acted in an improper manner outside his apparent and inherent powers to facilitate and promote justice by the exercise of judicial discretion.” The State then filed the present petition in this Court. Respondents filed a motion to dismiss the petition on the ground this Court has no jurisdiction to review an interlocutory order of the Court of Criminal Appeals. However, we are of the opinion the Court of Criminal Appeals acted arbitrarily and illegally in dismissing the petition. Therefore, the writ of certiorari issuing herein is referable to T.C.A. Section 27-801 which authorizes that writ in cases where an inferior tribunal “has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.” Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802 (1935); Moore v. Chadwick, 170 Tenn. 223, 94 S.W.2d 49 (1936). Prior to the enactment of T.C.A. Sections 40-2044 and 40-2441 discovery of evidence in possession of the State in the criminal case was unknown in this State. Witham v. State, 191 Tenn. 115, 232 S.W.2d 3 (1950); Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). We do not have broad discovery in criminal cases in Tennessee. Discovery in criminal cases is limited by T.C.A. Sections 40-2044 and 40-2441. West v. State, Tenn.Cr.App., 466 S.W.2d 524 (1971). Under the allegations of the petition, the trial judge arbitrarily ignored the statutory and case law of this State in accepting the definition of the term “work product” as used in T.C.A. Section 40-2044 as promulgated by the American Bar Association. Accordingly, we are of the opinion the Criminal Court of Appeals acted illegally in holding there was no factual averment made in the petition before it that the trial court acted illegally by the exercise of judicial discretion. Under the allegations of the petition, the trial judge exceeded the jurisdiction conferred by T.C.A. Sections 40-2044 and 40-2441 and acted arbitrarily in ignoring the restrictions of those statutes by adopting the definition of the term “work product” of the American Bar Association. “Discretion must not be arbitrary; discretion depends upon the rules of law, and should be so exercised that the administration of law should be uniform and alike to all.” Bob v. State, 10 Tenn. 174 (1826). Furthermore, it is apparent the State has no other plain, speedy or adequate remedy. In the event any or all of the defendants should be convicted the question would be moot and in the event any or all of the defendants were acquitted the State has no right of appeal. It results certiorari is granted. The judgment of the Court of Criminal Appeals is reversed and the cause remanded to that Court for further consideration of the matter from the standpoint of the statutory and case law of this State pertaining to the question involved.

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Eddie W. JACKSON, Appellant, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, et al., Appellees. Supreme Court of Tennessee. July 10, 1972. Ed R. Davies, Nashville, for appellant. Larry H. Snedeker, Nashville, for appel-lees. OPINION CRESON, Justice. Appellant, Eddie W. Jackson, instituted suit in the Chancery Court of Davidson County, Part I, against the Metropolitan Government of Nashville and Davidson County, Tennessee, and others, to recover for breach of an alleged bailment contract. The Chancellor determined that the contract of bailment alleged did not exist and dismissed appellant’s suit. From the adverse decree of the trial court Jackson has perfected an appeal to this Court since the cause was tried on stipulation of facts below. In the course of this opinion the parties will be referred to as follows: Eddie W. Jackson, as complainant; The Metropolitan Government of Nashville and Davidson County, Tennessee, as defendant Metro; Riley W. Elliott, as defendant Elliott; James Ervin, as defendant Ervin; and Earl Forte, as defendant Forte. Defendant Elliott is an employee of defendant Metro and principal of Central High School in Nashville, Tennessee. Defendants Ervin and Forte are also employees of defendant Metro and are faculty members of Central High School. In his original bill complainant avers that defendant Metro is the owner of certain real estate in Davidson County comprising the campus of Central High School; that the faculty members of Central High School “conducted an automobile parking operation for profit on the grounds of Central High School” with the knowledge, acquiescence and participation of defendant Metro; that defendants Elliott, Ervin, and Forte “were in direct charge of the parking concession”; that on September 18, 1970, complainant paid a fee and parked his automobile on the campus of Central High School; that when complainant returned to the parking area at 10:30 P.M. on the evening of September 18, 1970, his automobile was missing; that a contract of bailment existed between complainant and defendants; and that defendants failed to deliver the bailed property to complainant and “permitted a mis-delivery of the bailed property to occur.” Defendants in their answer deny that a contract of bailment existed between themselves and complainant. It is alleged that motorists entering the campus of Central High School “paid a charge for the license or privilege to leave their automobiles there.” The salient facts may be summarized as follows: On September 18, 1970, complainant and his wife drove to Nashville from their home in Murfreesboro, Tennessee, in order to attend the Tennessee State Fair. Complainant is described as an “automobile enthusiast” and the safety of his car was of great importance to him. Complainant knew from prior experience that the faculty and students of Central High School operated a parking lot for the convenience of visitors to the Tennessee State Fair. At approximately 8:00 P.M., complainant entered the campus of Central High School by way of a “paved circular driveway”. One end of the driveway was barricaded in order to prevent motorists from entering the school grounds and parking without paying the one dollar parking fee. Complainant paid an attendant the one dollar parking fee and was directed into a parking spot by a student. Thereafter, complainant locked his ignition, closed all windows, locked all doors of the automobile, and took his ignition key with him. The area in which complainant’s vehicle was parked was well lighted. At approximately 10:30 P.M. on September 18, 1970, complainant and his wife returned to the campus. When they arrived at the school, they discovered that the parking area was unattended. After proceeding to the spot where he had parked his vehicle, complainant discovered that his automobile was missing. Thereafter, complainant and his wife returned to the fair entrance and reported the theft to the police. The police discovered the automobile several days later on Elm Hill Pike in Davidson County. The radio, heater, instruments, seats, transmission, upholstery, front bumper, grill work, fenders, hood, engine, and all wiring had been removed from the vehicle. Complainant’s vehicle could not be started without an ignition key “unless the hood is raised and a jumper cable is inserted in the electrical system, by-passing the ignition lock system.” There were no signs on the parking lot relating to the terms and conditions of parking, liability or limitations of liability, closing hours or hours during which the lot would be open but unsupervised. As was stated above the trial court determined that a bailment relationship did not exist between the parties and that defendants merely granted complainant a license to park his vehicle on the school grounds. Complainant’s suit was dismissed. From the adverse decree of the trial court complainant has seasonably perfected an appeal to this Court. The sole issue presented in the case at bar is whether the relationship between complainant and defendants constituted a bailment. This Court had defined a bailment as a delivery of personalty for a particular purpose or on mere deposit, on a contract express or implied; that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, or otherwise dealt with according to his direction or kept until he reclaims it. Breeden v. Elliott Bros. (1938) 173 Tenn. 382, 118 S.W.2d 219; Dispeker v. New Southern Hotel Company (1963) 213 Tenn. 378, 373 S.W.2d 904; Scruggs v. Dennis (1969) 222 Tenn. 714, 440 S.W.2d 20. In the instant case we are of the opinion that the bailment for hire contract was impliedly created when complainant left his automobile in the custody and control of defendants and this relinquishment of possession was accepted by defendants. By their conduct defendants impliedly promised to use ordinary and reasonable care to preserve the property during the term of the bailment and to return the bailed property to complainant on demand or to his order. As we view the instant case, to embrace the theory of defendants would be tantamount to nothing more or less than condonation of the reduction of a storage operation for hire to a subterfuge. Scruggs v. Dennis, supra. In this state the rule is well established that “in an action ex contractu, where the bailor relies on ordinary contract of bailment without predicating his right of recovery upon the bailee’s negligence, the bailor makes out prima facie case of breach of contract when he shows delivery of the article to the bailee and the bailee’s failure to return it in good condition on demand or as agreed on; and the bailee may escape liability only by affirmatively showing that his failure to redeliver was without his fault.” In the case at bar there is no stipulation of fact showing that defendants exercised any degree of care in preserving and protecting complainant’s automobile during the term of the bailment. Furthermore, we do not believe that any such showing is possible in view of the stipulation that it was necessary to raise the hood of the vehicle and insert a jumper cable into the electrical system in order to start the automobile and remove it from the lot. From what has been said above, it results that the decree of the trial court is reversed and the cause remanded to Chancery Court of Davidson County for assessment of damages. Costs of this appeal are taxed to defendants. DYER, C. J., CHATTIN, and Mc-CANLESS, JJ., and JENKINS, Special Judge, concur.

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William T. ARTHUR v. STATE of Tennessee. Supreme Court of Tennessee. July 3, 1972. .Joe Timberlake, Chattanooga, for plaintiff in error. David M. Pack, Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Edward E. Davis, Dist. Atty. Gen., Chattanooga, for defendant in error. OPINION McCANLESS, Justice. On August 19, 1970, William T. Arthur filed his handwritten petition for postcon-viction relief by which he sought to have set aside his conviction in February, 1967, on a charge of armed robbery. The court dismissed the petition without appointing counsel and without an evidentiary hearing, expressing the opinion that the petitioner was making “an attempt to substitute a postconviction petition for an appeal or writ of error. The allegations, if proven, are not such as would void the judgment in the case complained of.” From the judgment dismissing the petition the petitioner prayed an appeal and that, he being an indigent, the court appoint counsel for him. He suggested the appointment of the same attorney who, by appointment, had represented him at his trial. The court then appointed the attorney who now represents the petitioner. The Court of Criminal Appeals by a divided panel affirmed the judgment by which the Criminal Court had dismissed the petition. The question for our decision is whether the petitioner was entitled to an eviden-tiary hearing or whether the trial court erred in dismissing his petition without such a hearing. Section 40-3805, Tennessee Code Annotated, provides that relief under the Post-Conviction Procedure Act “shall be granted when the conviction or sentence is void or voidable because of the abridgement in any way of any right guaranteed by the Constitution of this state or the Constitution of the United States, including a right that was not recognized as existing at the time of the trial if either Constitution requires retrospective application of that right.” This Section of the Act is exclusive : unless the petitioner alleges facts which show that his conviction resulted from an abridgement of some right guaranteed him by either the State or the Federal Constitution, his petition is subject to dismissal. Such a petition, being insufficient in law, the court should dismiss it without hearing proof. The purpose of a postconviction proceeding is to determine whether the judgment is void. It is not to determine whether there was error in the trial in which the conviction was had. The law in postconviction proceedings does not differ from that in habeas corpus. In State ex rel. Newsom v. Henderson, Warden, 221 Tenn. 24, 424 S.W.2d 186 [1968], the Court, through Mr. Chief Justice Burnett, said: “A writ of habeas corpus is to correct the denial of fundamental constitutional rights. It is not to correct mere irregularities of law, and, as we have said before, not a substitute for writs of error and things of that kind. Wooten v. Bomar, 267 F.2d 900, cert. den. 361 U.S. 888, 80 S.Ct. 161, 4 L.Ed.2d 122.” Section 40-3811, Tennessee Code Annotated, excludes from the scope of hearings under the Act “grounds which the court finds should be excluded because they have been waived or previously determined, as herein defined.” The Act by Section 40-3812 then provided that “A ground for relief is ‘previously determined’ is (if) a court of competent jurisdiction has ruled on the merits after a full and fair hearing.” By an amendment enacted as Section 4 of Chapter 96 of the Public Acts of 1971, the following paragraph was added to Section 40-3811, effective July 1, 1971 : “A ground for relief is ‘waived’ if the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented. There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived.” We consider the 1971 amendment to Section 40-3812 to be but a legislative declaration of the construction that the courts would give to the Post-Conviction Procedure Act, even had this amendment not been enacted. We hold, therefore, that since the record does not show that the petitioner presented, or had sufficient grounds for not presenting, to the court that convicted him, the facts of which he now complains, he waived them and is precluded from relying on them. We granted certiorari so we might consider and pass upon the question whether the petitioner’s failure to object to the court’s actions on which he relies as grounds for setting aside his conviction has precluded him from relying on them. The petitioner complains of the admission by the court of evidence of his identification by certain of the State’s witnesses and on allegedly improper remarks made by the trial judge to the jury. The petitioner does not aver that during the trial he objected either to the evidence of identification or to the judge’s remarks of which he now complains. There must be a finality to all litigation, criminal as well as civil. The courts, the executive branch of government, the legal profession, and the public have been seriously inconvenienced by the prosecutions of baseless habeas corpus and post-conviction proceedings. Defendants to criminal prosecutions, like parties to civil suits, should be bound by the judgments therein entered. When they fail to make timely objection to errors of the courts they must not be allowed at later times of their own choosing—often, perhaps, after witnesses against them have become unavailable—to assert those grounds in post-conviction actions. The question presented by this petition is not the same as that dealt with by the Court in State ex rel. Reed v. Heer, Warden, 218 Tenn. 338, 403 S.W.2d 310 [1966]. Waiver was not an issue in the Heer case. Here the petition contains no allegation that the petitioner in his trial in 1967 excepted to the acts on which he now relies to set his conviction aside. We have considered the assignments of error and overrule them. The court properly dismissed the petition without an evi-dentiary hearing, acting under the authority of Section 40-3809 of the Code. We affirm the Court of Criminal Appeals and the Criminal Court. DYER, C. J., CHATTIN, J., and JENKINS, Special Judge, concur.

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George M. TIDWELL, Commissioner of Revenue of the State of Tennessee, Appellant, v. SERVOMATION-WILLOUGHBY COMPANY, Inc., et al., Appellees. Supreme Court of Tennessee. July 24, 1972. David M. Pack, Atty. Gen. of Tenn., Milton P. Rice, Deputy Atty. Gen., Nashville, for appellant. P. V. Jackson, III, Nashville, for appel-lees. OPINION CHATTIN, Justice. Appellees instituted this suit seeking to recover certain penalties on gross receipts taxes which penalties were paid under protest. The facts are undisputed. Appellees are a chain of corporations engaged in the vending machine business. They have elected to pay taxes on the gross receipts of their business in lieu of privilege and sales taxes. On August 4, 1970, appellees paid appellant a sum equal to one-fourth of their gross receipts privilege tax for the fiscal year beginning July 1, 1970, and ending July 1, 1971. They paid interest of six per cent per annum for the four day delinquency and also a penalty of ten per cent on the amount of one quarter of the annual tax. Thereafter, appellant advised appellees because of their failure to remit the first quarterly installment of their 1970 gross receipts privilege tax on August 1, 1970, they had forfeited their option to pay the tax on a quarterly basis and were required to pay the entire amount of the 1970-71 tax, plus a penalty of ten per cent and interest of six per cent per annum for the four days of delinquency. Appellees excepted and refused to comply. However, on December 15, 1970, ap-pellees paid franchise and excise taxes for the fiscal year ending September 1, 1970. The appellees requested a credit for such franchise and excise tax payments against the annual gross receipts privilege tax demanded by appellant, prior to the computation of any penalties thereon. Appellant declined to grant such a credit. On June 24, 1971, appellees paid appellant under protest the sum of $6,320.65. Thereafter, this suit was filed. Appellant rested his defense on General Revenue Law Rule and Regulation No. 9, which was promulgated by the Commissioner on May 20, 1968, under authority of T.C.A. Section 67-4302, which specifically authorizes the Commissioner of Revenue to formalize rules and regulations for the enforcement of T.C.A. Chapters 40-43, inclusive, of Title 67. It is therein provided: “Rules and regulations not inconsistent with said chapters when promulgated by the commissioner, and approved by the attorney-general, shall have the force and effect of law.” General Revenue Law Regulation No. 9 reads as follows: “Any person desiring to exercise the option of paying his tax on a quarterly installment basis under provisions of Section 67-4318, Tennessee Code Annotated, shall make timely payment of the first installment on or before the first day of August and failing to make such timely payment, together with any unpaid gross receipts privilege tax due for a prior period, shall not have the option of paying his tax on a quarterly installment basis, but shall be required to pay the entire amount of the annual tax, plus a penalty of ten per cent (10%) of the annual tax, together with interest at the rate of six per cent (6%) per annum on the tax and penalty.” The Chancellor found the aforesaid rule and regulation was inconsistent with T. C.A. Section 67-4318. He, therefore, found appellees had not forfeited their right to pay the tax on a quarterly basis and gave judgment against appellant for the sum paid under protest. He did not reach the question of credit for the franchise and excise tax payments. Appellant perfected an appeal to this Court and insists the Chancellor erred in holding a taxpayer may avail himself of the privilege of paying the gross receipts privilege tax in quarterly installments, as provided by T.C.A. § 67-4318, after being in default on August 1 of the taxable year. A determination of the question presented depends on a proper construction of T. C.A. § 67-4318, which reads as follows: “Any person failing to file report and pay the tax found to be due in accordance with the provisions of §§ 67-4315— 67-4323 on or before August 1 of any year shall, as a penalty for such failure, pay an additional amount of ten per cent (10%), together with interest at the rate of six per cent (6%) per annum on the total amount of the tax and penalty incurred. Provided, that any person subject to the gross receipts tax imposed by chapters 40 to 43, inclusive, of this title shall have the option of paying his tax on a quarterly instalment basis by paying one-fourth (%) of the tax due on the first day of August, and an additional one-fourth (¼) of the tax that may be due on each of the first days of November, February and May; provided further, that any person so exercising this option shall be required to pay interest at the rate of six per cent (6%) per an-num on any payment made after the first day of August under the foregoing provisions. Any person failing to pay the appropriate instalment of this tax when it shall become due, shall be required to pay as a penalty for such failure, a penalty of ten per cent (10%) of the instalment in addition to interest at the rate of six per cent (6%) per annum on the tax and penalty.” In reaching a proper construction of the statute, it should be pointed out that the tax here involved is an annual tax and not a quarterly tax. Automatic Merch. Co. v. Atkins, 205 Tenn. 547, 327 S.W.2d 328 (1959); T.C.A. § 67-4317. The gross receipts privilege tax is for the fiscal year beginning on July 1 of the taxable year and ending on July 1 of the following year “measured by gross receipts for the preceding fiscal or calendar year” and payable on August 1 of the taxable year. T.C.A. Section 67-4317. The legislative intent controls the construction of statutes. A statute should be construed as a whole and “we should and will assume the legislature used each word in a statute purposely and the use of these words conveyed some intent and had a meaning and a purpose.” Anderson, Fish and Oyster Co. v. Olds, 197 Tenn. 604, 277 S.W.2d 344 (1955). It is apparent the legislative intent of T.C.A. Section 67-4318 was to permit a taxpayer of the gross receipts privilege tax to either pay the entire tax on or before August 1 of the taxable year; or, at his option, to pay the tax in quarterly installments by paying one-fourth of the tax due on the first day of August, etc., “under the foregoing provisions.” It is clear from the language of both T.C.A. Sections 67-4317 and 67-4318 that the entire amount of the tax is due and payable on August 1 of the taxable year unless the taxpayer exercises the option to pay quarterly by paying one-fourth of the annual tax on or before August 1 of the taxable year. The Chancellor evidently lifted the words “any person so exercising this option shall be required to pay interest at the rate of six per cent (6%) per annum on any payment made after the first day of August” out of context to arrive at his construction the option was not forfeited. The Chancellor specifically held: “Under the statute the complainants’ right to exercise their option of paying taxes on a quarterly basis for the tax year 1970-1971 was not forfeited when complainants paid the first quarter of their gross receipts taxes on August 4, 1970. Under the statute complainant taxpayers were required to pay interest at the rate of six per cent (6%) per annum for four days plus a penalty of ten per cent (10%) of the total tax due on the first quarter, this complainants have done.” The meaning of a statute is to be determined, not from special words in the single sentence or sections, but from the statute taken as a whole and viewing the legislation in light of its general purposes. Cummings v. Sharp, 173 Tenn. 637, 122 S.W.2d 423 (1938). It is clear from reading the entire statute the only payment to be made after the first day of August of the taxable year by a taxpayer who has failed to make any payment on the first day of August is the entire tax, plus a penalty of ten per cent and interest of six per cent on the total amount of the tax and penalty. It is, also, clear a taxpayer who has exercised the option to pay on a quarterly basis by paying the first installment on the first day of August is required to pay interest on the three remaining installments when due and on default of any remaining installment when due a penalty of ten per cent in addition to interest of six per cent on the tax and penalty. This is readily seen when the words “under the foregoing provisions” are added to the words quoted above as having been lifted from context. Moreover, to construe the statute as the Chancellor has would render the first sentence of the statute meaningless. Such construction also runs afoul of T. C.A. Section 67-4317 and the opinion of this Court in Automatic Merch. Co. v. Atkins, supra, which declares the tax to be an annual tax. Under the construction placed on the statute by the Chancellor, the taxpayer could exercise the option any time after the first day of August of the taxable year and thereby destroy the legislative intent. The decree of the Chancellor is reversed and the cause remanded for determination of the issue of whether appellees are entitled to a credit against their gross receipts tax liability for having paid their franchise and excise taxes for the fiscal year ending October 1, 1970. Appellees will pay the costs of this appeal. DYER, C. J., McCANLESS, J., and JENKINS, Special Justice, concur. CRESON, J., not participating.

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SOUTHERN RAILWAY COMPANY v. Hon. Winfield DUNN, Governor, et al. Lewis R. DONELSON, III, et al. v. Janies HARPSTER. SOUTH CENTRAL BELL TELEPHONE COMPANY v. Lyle LANDERS et al. Supreme Court of Tennessee. July 3, 1972. Clyde W. Key, Knoxville, F. Clay Bailey, Jr., Nashville, Dawson Hall, Chattanooga, Harry W. Laughlin, James M. Maniré, Memphis, Bass, Berry & Sims, Raymond Whiteaker, Jr., Nashville, for plaintiffs-appellants. Milton P. Rice, Deputy Atty. Gen., Nashville, for defendants-appellees. Larry D. Woods, Nashville, for interve-nor Clifford Allen. OPINION McCANLESS, Justice. The plaintiffs, (1) Southern Railway Company, (2) Lewis R. Donelson and others (including the City of Memphis), and (3) South Central Bell Telephone Company, filed in the Chancery Court at Nashville three separate but similar complaints against certain officials of the State of Tennessee: the Governor, the Attorney General, the Commissioner of Revenue, the Treasurer, the Secretary of State, the Comptroller, and the members of the Election Commission. The plaintiffs averred that there exists a genuine controversy between the plaintiffs and the defendants’ jurisdiction to determine which is vested in the court by Section 23-1101 et seq., Tennessee Code Annotated, the Declaratory Judgment Act. The relief sought by the plaintiffs, in essence, is to have the amendment to the Constitution of Tennessee proposed by the 1971 Constitutional Convention, known as Resolution 74, adjudged void and that the defendants be enjoined from submitting it to the electorate for ratification. Clifford Allen, as a property owner and taxpayer and as Assessor of Property of the Metropolitan Government of Nashville and Davidson County, and as a delegate .to the Constitutional Convention was allowed to intervene as a defendant. The defendants moved to dismiss the complaints. Because they presented the same issues, the Chancellor heard the three suits together and after he had heard arguments, he reserved judgment. Later, he filed his memorandum opinion on which was based a decree dismissing the three complaints. The plaintiffs appealed, and we have heard oral arguments and have considered the briefs filed on behalf of the parties. The appellees contend that unless and until the voters ratify the constitutional amendment proposed by the Convention, which has not yet adjourned sine die, the question posed by the appellants is based on a contingency which may never arise, and that the plaintiffs lack standing to maintain their suits and the question is not justiciable. If the appellees are correct in this contention then the Chancellor properly dismissed the suits and the appellants may not prevail in their appeals. The plaintiffs insist (1) that the acts of the 1971 Constitutional Convention are invalid because it was convened less than six years after the adjournment of the Convention of 1965, and (2) that provisions of the amendment proposed for ratification by the electorate on August 3, 1972, conflict with the statute that authorized the convention. With regard to the first of these two insistences the applicable provision of Article 11, Section 3 of the Tennessee Constitution is: “No such convention shall be held oftener than once in six years.” The Convention of 1965 was convened on July 26, 1965, and adjourned sine die on July 1, 1966. The Convention of 1971 was convened on August 2, 1971, and has not yet adjourned sine die. The 1971 Convention, therefore, was convened more than six years after the convening of the 1965 Convention but less than six years after it had adjourned. Our attention has been called to the circumstance that the 1965 Convention was convened less than six years after the 1959 Convention had adjourned. It would appear, then, that our General Assemblies have construed this limitation to apply to the time that must elapse between the convening dates of two conventions and that the full period of six years need not separate the date of adjournment of one convention from the convening date of the next. Although we are without precedent directly controlling this question, we find that in Derryberry v. State Board of Election Commissioners, 150 Tenn. 525, 266 S.W. 102 [1925], the Court with reference to the construction of Article 11, Section 3, as then written, and after citing a number of Acts of the General Assembly, said : “The practical construction of the Legislature, extending over a period of so many years, is entitled to great weight in construing this provision of our Constitution.” Since the Legislature twice by its enactments has construed Article 11, Section 3, to allow a convention to be convened less than six years after the adjournment of the previous one but more than six years after it was convened, we accept that construction. A holding otherwise might work great mischief. With regard to the objection that the proposal conflicts with the statute that authorizes the convention it is sufficient to say that the convention has not yet adjourned and it may convene again and alter its proposal. We suggest this as a possibility but we express no opinion as to the validity of the objection. We consider, however, that the appellants have advanced it prematurely. Without expressing an opinion about the validity of the amendment that will be submitted to the electorate on August 3, 1972, we hold that there exists the possibility that it will be valid. In West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 [1963], the Court, through Judge Felts, said: “So, clearly, there is no ground for complainant’s attack upon this Act. Of course, if the convention should propose, and the people of the State should ratify, an amendment which should be in conflict with the Federal Constitution and should adversely affect complainant, he would then have his remedy. Upon such showing by him, it would be the duty of the courts, state and federal, under the ‘supremacy clause,’ to declare such amendment void to the extent of the conflict. “But such duty can arise only after such a case has been presented. Manifestly, it is now impossible to predict what the convention may do — what proposal or proposals it may make; and it is equally impossible to foretell whether, if any proposal or proposals are submitted, the people, by their vote, will ratify or rej ect them. “In these circumstances, it is plain that complainant’s bill fails to state a cause under our Declaratory Judgments Act. That Act deals only with present rights that have accrued under presently existing facts. It gives the Court no power to determine future rights or possible controversies in anticipation of events that may not occur. Ball v. Cooter et al., 185 Tenn. 631, 634, 207 S.W.2d 340, 342; Coleman v. Henry, 184 Tenn. 550, 554, 201 S.W.2d 686; Jared et al. v. Fitzgerald et al., 183 Tenn. 682, 688, 689, 195 S.W.2d 1, 4; Newsum v. Interstate Realty Co., 152 Tenn. 302, 278 S.W. 56; Annotations, 12 A.L.R. 52, 69, 87 A.L.R. 1205, 1215-1219. “It does not enable courts to give advisory opinions upon what the law would be upon a theoretical or hypothetical state of facts. Hodges v. Hamblen County, 152 Tenn. 395, 399, 277 S.W. 901; Ball v. Cooter et al., supra; Jared et al. v. Fitzgerald et al., supra. “ ‘We will not pass on the constitutionality of a statute, or any part of one, unless it is absolutely necessary for the determination of the case and of the present rights of the parties to the litigation. Phillips v. West, 187 Tenn. 57, 213 S.W.2d 3, 5’ (State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 444, 225 S.W.2d 263, 268) State ex rel. West v. Kivett, 203 Tenn. 49, 56, 308 S.W.2d 833.” In his excellent opinion, the Chancellor wrote : “The concept of justiciability has been explained in many ways, and naturally so, because justiciability has application to every facet of a lawsuit: to the essential nature of the question presented; to the status of the parties; to the nature of the relief sought; and one could go on. Having examined some of these aspects of these lawsuits, it is clear that this dispute is presently not justiciable. “First, the wrongs, or potential wrongs, complained of are contingent upon the happening of future events, which happening is uncertain. The adoption by the Constitutional Convention of Resolution 74 affects no person’s present rights. It is a mere proposal. “ ‘A constitutional convention, however, has no power to take any final action, but can only propose constitutional changes for ratification or rejection by the people.’ West v. Carr, 212 Tenn. 367, 374, 370 S.W.2d 469 “In due course it may be submitted to the people for ratification or rejection. Yet that is by no means certain. The Convention has not yet adjourned sine die. Prior to August 3, 1972, it can reconvene and undo all of its previous work, redraft Resolution 74, or even decide to submit no proposal to the people. If the Convention does submit Resolution 74 in its present form to the people, they may ratify or reject it. Assuming ratification, it remains for the General Assembly to pass executing legislation. “Thus, at the present time defendants have no legal capacity to affect the plaintiff’s rights. Moreover, the defendants may never have that capacity. The law regarding the giving of declaratory judgments in such a situation is not in dispute: “ ‘It should be realized that declaratory judgment deals with present rights and courts will not declare contingent rights until they have become fixed under an existing state of facts nor will they determine future rights in anticipation of the contingent event that may never happen.’ 1 Anderson, § 9, at 13, 1959 Supplement.” And again: “Resolution 74 is not an accomplished legal act. It is a mere proposal. It has altered no one’s legal rights. None of the defendants here has been empowered by Resolution 74 with legal capacity to place plaintiffs’ rights in jeopardy. The suit is premature and non-justiciable.” We conclude that the appellants by their complaints did not present justiciable causes of action and that their suits must be dismissed. We affirm the decree of the Chancery Court. CHATTIN, J., and JENKINS and TODD, Special Judges, concur.

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Bill RICHARDSON, a/k/a William Baxter and William Richey, Appellants, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 31, 1972. As Modified on Denial of Rehearing June 23, 1972. Jerry L. Moore, Jerry F. Safford, Bell, Orr, Ayers & Moore, Bowling Green, for appellants. John B. Breckinridge, Atty. Gen., John C. Ryan, Special Asst. Atty. Gen., Frankfort, for appellee. STEINFELD, Chief Justice. Bill Richardson was convicted on six counts of forgery. He was sentenced to serve consecutively six three-year terms in the state reformatory. He appeals. We affirm. Richardson argues here that the court erred by admitting in evidence a letter which tended to show that he was guilty of crimes other than those charged. It was written by Richardson while he was in jail awaiting trial; was addressed to the party upon whose account the checks were forged ; and stated that he had previously served three years in the penitentiary, manifested his guilt and offered restitution. Richardson’s trial counsel objected to the introduction of the letter “ * * * on the grounds that the defendant was not at that time advised of his rights to remain silent * ⅜ *» The grounds stated on this appeal as the basis for excluding the letter are different from those asserted at the trial and were never brought before the trial court; wherefore, we are precluded from considering them. Shockley v. Commonwealth, Ky., 415 S.W.2d 866 (1967). Also see 24 C.J.S. Criminal Law § 1677, p. 1167, stating: “An objection made in the trial court will not be treated in the appellate court as raising any question for review which is not within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection, so that the question may be fairly held to have been brought to the attention of the trial court.” The jury was permitted to have the indictment in its possession during deliberation. Richardson claims. this caused evidence of other charges to come to its attention. The indictment originally contained a recitation of ten charges, including four counts for which Richardson was not tried. Three of these had been torn off. In the margin of the page and adjacent to the remaining count on which Richardson was not being tried appeared the handwritten word “out”. There was no indication as to why this charge was not being tried; it could have been because the Commonwealth had found no merit in it. We find no prejudice was suffered by Richardson because of this occurrence. Furthermore, his counsel, as well as the Commonwealth’s attorney, stated in their closing arguments what counts were being tried. The court gave instructions on only the six counts tried, and the jury convicted on these counts only. It was said in Harrold v. Commonwealth, 10 Ky.Law Rep. 70, 8 S.W. 194 (1888), and Cargill v. Commonwealth, 14 Ky.Law Rep. 517, 93 Ky. 578, 20 S.W. 782 (1892), that it is customary and not improper for the jurors to take the indictment with them for deliberation; however, later cases consistently discouraged this practice. See Williams v. Commonwealth, 182 Ky. 711, 207 S.W. 447 (1919). Except in unusual situations which we cannot foresee, the indictment has no place in the hands of the jury and should not be permitted in the jury room. RCr 9.72. Concerning Richardson’s claim that he was prejudiced by the Commonwealth’s closing argument, we cannot consider the matter because he failed to voice an objection during the trial. Barnett v. Commonwealth, Ky., 403 S.W.2d 40 (1966). Richardson charges that the court erred in overruling his motion to exclude any evidence to be given by the Commonwealth’s witnesses as to the identification of the person who passed the forged checks. This motion immediately followed an in-chambers evidentiary hearing held pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), for determining under the guidelines of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), whether the pretrial “ * * * photographic identification procedure was so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification” at the trial. Here, the dangers guarded against by the rationale of Simmons did not exist. In most instances, the identifying witnesses had seen Richardson several times before the forged checks were cashed. There was a sufficient basis to afford an independent identification. Richardson was represented by appointed counsel at the trial and by different counsel upon the appeal. However, we find no merit in his contention that this representation was in any respect inadequate. The judgment is affirmed. All concur.

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GALT HOUSE, INC., Appellant, v. HOME SUPPLY COMPANY and Al J. Schneider, Appellees. Court of Appeals of Kentucky. May 12, 1972. Howard B. Hunt, Sr., Maurice L. Miller, Jr., Hunt & Miller, Louisville, for appellant. Robert L. Ackerson, Richard D. Rem-mers, Ackerson, Ackerson & Remmers, Louisville, for appellees. REED, Judge. The plaintiff, Galt House, Inc., instituted this action to enjoin the defendants, Home Supply Company, and its principal officer and stockholder, Al J. Schneider, from operating a new hotel in Louisville, Kentucky, under the assumed trade name “Galt House.” The trial judge refused to enjoin the use of the name at the plaintiff’s behest. We affirm that decision for the reasons later discussed. No other issue involved in the pending litigation in the trial court is decided. We confine our consideration to the sole issue presented by this appeal. In February 1964, the plaintiff, Galt House, Inc., incorporated under the laws of this state. In its articles of incorporation it adopted as its corporate name the term “Galt House.” The articles required and specified that the minimum capital with which plaintiff would commence business would be the sum of $1,000. This amount has never been paid in. The plaintiff has no assets and no liabilities; neither does it have corporate books or records. Plaintiff’s president and sole shareholder is Arch Stallard, Sr., a real estate broker in Louisville, Kentucky, who specializes in hotel and motel real estate. Mr. Stallard has on occasions since the date of the filing of plaintiff’s articles of incorporation made a few sporadic inquiries concerning possible locations for a hotel and considered engaging in an enterprise by which a franchise operation would be effected. These few efforts came to naught and Mr. Stallard testified that because of illness and death in his family he had been “laying dormant.” The defendant, Home Supply Company, is a Kentucky corporation organized sometime prior to 1950. The defendant, Al J. Schneider, is its president and controlling shareholder. Home Supply Company is active in the business of constructing and operating hotels in this state. It presently operates a hotel on the Kentucky State Fair Board property under the assumed name “Executive Inn.” It is presently engaged in the construction and completion of a high-rise hotel on riverfront-development property belonging to an agency of the City of Louisville. In April 1969, Home Supply Company, through its president Schneider, submitted to the city agency plans of a hotel bearing the name Galt House. This name had been recommended to Schneider by the then mayor of the City of Louisville, Kenneth Schmied, and the chairman of the Riverfront Development Commission, Archibald Cochran. The trial judge found from the evidence that throughout discussions leading up to the bidding, the new hotel was referred to as the Galt House and has been so referred to since. Home Supply Company was the successful bidder, was awarded the contract, and construction commenced in May 1970. A new hotel, 26 stories in height with 714 rooms, is now nearly completed and has affixed a sign bearing the name “The Galt House.” The hotel already has scheduled future conventions and room reservations, although it will not open until after May 1972. In April 1971, Home Supply Company applied for and received from the Secretary of State of Kentucky a registration and service mark of the name “The Galt House.” Plaintiff filed suit in August 1971, seeking to enjoin the defendants from any use of the name Galt House. Evidence was taken in the form of depositions and written interrogatories. In February 1972, the trial judge entered a judgment that was made final for purposes of appeal (CR 54.-02); the judgment was based on findings of fact and conclusions of law set forth in two written opinions. The trial judge concluded in substance that the plaintiff did not by mere incorporation acquire property rights in the name “Galt House” and that the plaintiff had not performed sufficient acts since incorporation to acquire property rights in and to that name. Accordingly, the trial judge reasoned that the plaintiff was not entitled to injunctive relief against the defendants’ use of the contested name. Plaintiff then appealed to this court and asserts several grounds on which it bases its contention that the trial court was in error in not granting it an injunction against the defendant. We shall deal with these contentions subsequently herein, but first a bit of history of the particular name that is the subject of controversy will be briefly related. During the Nineteenth Century the Galt House Hotel was a famous hostelry in Louisville with an excellent and widely recognized reputation. In 1838 the barroom at the Galt House was the scene of a killing as a result of which an attorney and judge and his two companions were indicted for murder. They were tried and acquitted. The trial was held at Harrods-burg, Kentucky, to #hich venue had been transferred because of the intense public sentiment in Louisville against the defendants who were prominent citizens of Mississippi. The victims of the affray were Louisville residents. The trial itself is famous in the annals of Kentucky history. In 1842 Charles Dickens toured America. In his account in “American Notes,” he was characteristically uncomplimentary in his description of Louisville; he was impressed, however, with the Galt House. He wrote: “We slept at the Galt House; a splendid hotel; and were as handsomely lodged as though we had been in Paris, rather than hundreds of miles beyond the Alleghanies (sic).” In 1858 Charles Mack-ay, an English writer, passed through Louisville. In his account in “Life and Liberty in America” he remarked: “. we crossed in the steamer to Louisville, and once more found ourselves in a land of plenty and comfort, in a flourishing city, in an excellent hotel — the Galt House, one of the best conducted establishments in America; . . . .” The Galt House, located on Main Street at Second Street, occupied separate buildings during its existence as a hotel. The second Galt House was destroyed by fire in January 1865 at a reported loss of $1,000,000. The third Galt House, a magnificent structure in its day, was abandoned as a hotel and ceased operations in 1920. Belknap Hardware Company thereafter occupied the site of the last Galt House. Thus, it would appear that since 1920 there has been no use of the name Galt House in connection with or to describe a hotel. The name doubtless strikes interest when used in the presence of history buffs and among those familiar with the folklore of Louisville. Among such cognoscenti the name encourages remembrance of things past. As found by the circuit judge, the corporation which operated the last Galt House was formed in 1911 and its formal corporate existence expired in 1961. From 1920 to 1961, however, it did not engage in the hotel business. Therefore, the name Galt House had not been used in connection with a going business for 49 years when defendants undertook to use it as the name of their new hotel in 1969. The primary argument asserted by the plaintiff actually rests upon a premise that by mere incorporation under a corporate name it retains the right to exclude others from the use of that name so long as the corporation legally exists. In Covington Inn Corp. v. White Horse Tavern, Inc., Ky., 445 S.W.2d 135 (1969), we considered the effect of KRS 271.045, a part of the corporation law of this state, and held that its provision that a corporate name shall not be the same as “nor deceptively similar to” the name of other corporations, constituted an expression by the legislature that stated a policy conforming to the common law of “unfair competition” as applied in Kentucky. Thus, when under subsection (4) of the same statute an equity action is authorized to enjoin the doing of business under a name adopted in violation of this statute, the common law of unfair competition prescribes the standards which the court applies in determining whether to enjoin. In that same opinion we remarked that perhaps this statute could be reasonably construed to extend to an assumed name of a corporation. That is the situation in this case. The defendant Home Supply Company has undertaken to do business under the assumed trade name Galt House, which is the same as plaintiff’s adopted corporate name. In Meredith v. Universal Plumbing & Construction Co., 272 Ky. 283, 114 S.W.2d 94 (1938), we held that under our corporate statutes and other statutory laws applicable to transacting business under an assumed name there was no legal impediment to a corporation using an additional trade name that was different from its adopted corporate name. The pertinent statutes read the same now as they did then. Hence, there is no legal impediment to the defendant Home Supply Company’s adoption of the trade name “Galt House”, unless the plaintiff by the mere act of incorporation of the same name has precluded this defendant’s right to adopt and use the name. Surely the plaintiff acquires no standing to enjoin under the accepted principles of the law of unfair competition. Under the modern extended scope of the doctrine of unfair competition, its present outer limits afford protection and relief against the unjust appropriation of, or injury to, the good will or business reputation of another, even though he is not a competitor. Plaintiff is concededly a nonuser of the contested name. Plaintiff has no customers, conducts no real or substantial business and has never held its name out to the public in connection with any going business. Therefore, by its inaction, it could not have established either a good will or reputation which the defendants could be legitimately accused of pirating as a competitor or otherwise. Therefore, if plaintiff has standing to enjoin, its status must rest upon the acquisition of a protect-able right by its act of incorporation under the contested name. In Lawyers Title Ins. Co. v. Lawyers Title Ins. Corporation, 71 App.D.C. 120, 109 F.2d 35 (1939), Mr. Justice Rutledge, writing for the Circuit Court of Appeals for the District of Columbia, considered the problem. This opinion is characterized by Fletcher as a leading case. See Volume 6, Fletcher Cyc. Corp. (1968 Perm.Ed.), Sec. 2425, page 55. That case and the prior case of Waterman Co. v. Modern Pen Co., 235 U.S. 88, 35 S.Ct. 91, 59 L.Ed. 142 (1914), established clearly that mere incorporation under a particular name does not create the right to have such name protected against use by another. Mr. Justice Holmes said in Waterman: “While it very well may be true that the transfer of a name without a business is not enough to entitle the transferee to prevent others from using it, it still is a license that may be sufficient to put the licensee on the footing of the li-censor as against the plaintiff.” The plaintiff, however, relies upon the case of Drugs Consolidated v. Drug Incorporated, 16 Del.Ch. 240, 144 A. 656 (1929). In our view the opinion in that case undertakes to prove too much. There is dictum that the corporation statutes of Delaware, which are substantially similar to the corporation statutes of Kentucky so far as the present point is concerned, assure a right to have the corporate name distinguished from other corporations of like kind subsequently created and that this right does not depend on showing of actual use, in business, of the name, but the right exists as soon as corporate existence is brought into being and as long as it continues; the specific factual findings in the opinion, however, demonstrate that the plaintiff corporation, although it was not yet actually engaged in the business of manufacturing and marketing drugs, had, nevertheless, been engaged in promoting the objects and purposes of its incorporation. Therefore, if this opinion represents a holding that a nonuser of a corporate name retains the right to pre-empt that name during the period of its formal corporate existence without ever having engaged in carrying on any of the objects and purposes of the corporation, it is contrary to the weight of authority concerning that proposition and does not, in our opinion, represent the generally accepted view. The Drugs Consolidated opinion was cited with approval by the Mississippi Supreme Court in Meridian Yellow Cab Co. v. City Yellow Cabs, 206 Miss. 812, 41 So.2d 14 (1949). In this case, however, the plaintiff who first incorporated had actually commenced operations at the time it sought to enjoin the defendant who had later incorporated under a similar name. Although the plaintiff did not commence business until after the defendant, it, nevertheless, did actually start active operations in the taxicab business within three years of the date of its incorporation and within two months after the defendant actually operated taxicabs; whether the plaintiff was theretofore engaged in activities to promote the objects and purposes of the corporation is not mentioned. However misplaced that court’s reliance on the Drugs Consolidated case may have been, its decision, which granted the plaintiff in-junctive relief, does not militate against our conclusion in this case that the plaintiff’s act of incorporation in a particular name pre-empts the use of that name by a subsequent user only for a reasonable period in which to allow plaintiff’s business to begin. To this extent, incorporation and registration take the place of user in the case of a trade name. Pre-emption for a reasonable period of time in which to allow the business to begin is not the equivalent of a perpetual monopoly of the trade name without use in trade. See Lawyers Title Ins. Co. v. Lawyers Title Ins. Corporation, supra. Upon this rationale, the case of Pacific Northwest Bell Telephone Co. v. Rivers, 88 Idaho 240, 398 P.2d 63 (1964), also cited by plaintiff, is readily distinguishable from the instant case. In Duff v. Kansas City Star Company, 299 F.2d 320, (C.A. 8 1962), the court held that there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade with which the mark is employed. This principle was applied to the trade name of a newspaper which had not been published for eight years. The court decided that since there was no established business (good will) to which the contested name attached, the plaintiff had no right to prevent another from using the name in an active, going business. The court pointed out that the contested name was not in and of itself a valid, copyrightable name. It was no more than the common name of a once-published newspaper. In American Photographic Pub. Co. v. Ziff-Davis Pub. Co., 127 F.2d 308, 29 C.C.P.A. 1014 (1942), it was held that where the plaintiff for over twenty years had failed to make use of the trade name “Popular Photography” for a separate magazine but had merely used the term on the masthead of another magazine called “American Photography,” no good will could have attached and the plaintiff had no standing to prevent a subsequent user from calling its magazine “Popular Photography.” We are also unable to find that plaintiff has any standing to enjoin under the theory that it was placed on the same footing with the former Galt House Corporation whose existence expired by operation of law in 1961. There was no transfer of the name from the expiring Galt House Corporation to plaintiff. The former Galt House Corporation at the end of its corporate term of existence as fixed by its articles terminated its right to do business in 1961. It had not engaged in the hotel business under its corporate name since 1920. The former Corporation was incapable of possessing a business with a good will or a corporate trade name. The name did not survive, for there was nothing to which it could be attached. See Grand Rapids Trust Co. v. Haney School Furniture Co., 221 Mich. 487, 191 N.W. 196 (1922), which is discussed in 27 A.L.R. at page 1031. In the instant case, the plaintiff possessed neither good will nor a reasonable prospect to acquire it. Its right to preempt the name by the mere act of incorporation had expired because a reasonable period in which to allow business to begin had passed and the plaintiff neither alleged nor could show reasonable prospect to acquire good will through actively engaging in business. See Lawyers Title Ins. Co. v. Lawyers Title Ins. Corporation, 109 F.2d 35 (C.A.D.C.1939). Fletcher Cyc. Corp. (1968 Perm.Ed.), Sec. 2425, page 54 states: “Mere incorporation under a particular name does not create the right to have such name protected against use by another, . . The elements of unfair competition are absent because there can be no public confusion between existing businesses nor is there any infringement upon the good will and reputation of a going business. The plaintiff’s secondary argument is that the defendant secured an invalid registration of the trade-name under KRS 365.560 and 365.565. We do not consider this objection relevant in the circumstances of this case. The question here is not whether defendants rely upon statutory registration of the name to prevent its use by another; the issue is whether the plaintiff has standing to prevent the defendants from using the name by means of the in-junctive process. It seems that valid statutory registration might well aid in protecting defendants from subsequent users, if defendants would become involved in such a controversy. Invalid registration, as such, could probably not aid in protecting defendants in a controversy between them and a subsequent actual user, particularly where defendants were in the position of a nonuser when the controversy arose. Those matters, at this point, are purely speculative and we, of course, express no definitive opinion concerning them. Our discussion is merely to illustrate that we are not testing the right of the defendants against an actual user of the name. KRS 365.625 provides that the registration statutes do not affect the rights or the enforcement of rights in marks acquired in good faith at any time at common law. We must only determine whether the plaintiff has the right to prohibit the defendants from using the name. We agree with the trial judge that the plaintiff has no standing to enjoin the use of the name by the defendants under the facts of this case. The judgment from which the appeal was prosecuted is affirmed. All concur.

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Charles E. BAILEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 9, 1972. Robert E. Wohlwender, Covington, E. André Busald, Florence, for appellant. Ed W. Hancock, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for ap-pellee. STEINFELD, Chief Justice. Appellant Charles E. Bailey was tried by a jury and convicted on a charge of armed assault with intent to rob. KRS 433.150. He was sentenced to serve fifteen years in the state reformatory. From that judgment he appeals. We affirm. Bailey’s sole ground for urging reversal is a claim that the court erred in denying his motion for a peremptory instruction of acquittal because the evidence was insufficient to support a conviction. Bailey argues that he took nothing from the complaining witness Robert F. Ward and there is no proof that he intended to commit a robbery. The crime denounced by KRS 433.150 is capable of commission in two distinct ways: (1) by an assault with an offensive weapon or instrument with intent to rob, or (2) by a demand for money or property in a forcible and violent manner with intent to rob. Robards v. Commonwealth, Ky., 419 S.W.2d 570 (1967). The gravamen of the crime described in the first instance is the assault; the offense may be consummated without a robbery or taking of property so long as there is the intent to rob. In order to convict, there must be proof of an assault and evidence from which an intent to rob may be inferred. Wheeler v. Commonwealth, Ky. 395 S.W.2d 565 (1965); Lanter v. Commonwealth, 268 Ky. 53, 103 S.W.2d 693 (1937). According to Ward’s testimony, during the evening of December 12, 1970, and early morning of December 13, 1970, he was drinking at the Silver Dollar Bar in Cincinnati, Ohio. There he met and joined in drinking with Stella Ponder, who was accompanied by Nancy Perkins and Nancy’s boy friend, appellant Bailey. At Mrs. Ponder’s request, Ward agreed to drive them to her mobile home in Covington, Kentucky. Upon reaching the home of Mrs. Ponder, they all sat around drinking beer that had been purchased along the way. Ward testified that after he had been there about fifteen or twenty minutes “ * * * I went out * * * and I checked the trunk lid of my car, I was afraid somebody, you know, could have tampered with it. And then I went back in, sat down and finished my beer, and the next thing I knew I got a sharp blow on the back of the head.” Ward further related that Bailey beat him with a flat piece of steel or an old-fashioned type of tire tool, and continued to do so until Mrs. Ponder begged him to quit. Bailey then instructed Mrs. Ponder’s eighteen-year-old son to search Ward’s pockets, which he did and removed therefrom a set of car keys and wallet. Mrs. Ponder and her son went outside, were not seen for awhile, and later they returned. Afterward Ward was given his car keys and allowed to leave. Ward said he then drove to a nearby farm house and called the police. When he checked his trunk he discovered that a pistol, a power saw and an envelope containing $190 were missing. A police officer testified that when they arrived at Mrs. Ponder’s home Bailey ran out the back door and when he was apprehended Ward’s missing pistol was in his possession. Bailey and his witnesses told a story at variance with Ward’s version. In considering a motion for dismissal for lack of evidence, “It is the (trial court’s) duty to give the evidence the construction most favorable to the commonwealth of which it is reasonably susceptible, and, when that is done, if it tends to prove the guilt of the defendant, the case should be submitted to the jury.” Combs v. Commonwealth, 224 Ky. 653, 6 S.W.2d 1082 (1928). This rule was cited with approval in Wood v. Commonwealth, 229 Ky. 459, 17 S.W.2d 443 (1929), and Bass v. Commonwealth, 232 Ky. 445, 23 S.W.2d 926 (1930). The total circumstances disclosed by the evidence furnished ample proof from which a jury could find there was an intent to rob. Lanter v. Commonwealth, 268 Ky. 53, 103 S.W.2d 693 (1937). The judgment is affirmed. All concur.

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Gail HUECKER, Commissioner of Economic Security, Appellant, v. Martha RAINS, Appellee. Court of Appeals of Kentucky. June 30, 1972. Paul E. Tierney, Forest Smith, Dept, of Economic Security, Frankfort, for appellant. Mark Anderson, Middlesboro, for appel-lee. REED, Judge. Martha Rains applied for public assistance because of claimed permanent and total disability. KRS 205.200(1). The Department of Economic Security initially rejected the claim. The claimant, who was represented by counsel, pursued the administrative appeal provided by KRS 205.230. Upon conflicting medical evidence, the referee found that claimant had failed to establish permanent and total disability. Claimant thereupon appealed that determination to the appeal board, an administrative body legislatively created by KRS 205.231(3) to hear and determine the type of complaint involved herein. The appeal board reviewed the evidence and found that claimant was not “permanently and totally disabled” as that term is defined by administrative regulation of the Department of Economic Security. The claimant thereupon sought judicial review of these adverse administrative determinations in accordance with the provisions of KRS 205.-234. The circuit court considered the record, reversed the administrative determinations and directed that the claimant be granted public assistance payments. The Department of Economic Security thereupon appealed that judgment to this court. We reverse the circuit court. The claimant produced medical testimony to the effect that in the opinion of Dr. Ralph R. Robinson she was totally disabled from seeking gainful employment because of coronary insufficiency with atrial fibrillation. This diagnosis was given on November 14, 1968. On March 7, 1969, Dr. Kenneth W. Smith, specialist in internal medicine at the Appalachian Regional Hospital, Middlesboro, Kentucky, made a diagnosis that no objective evidence of significant respiratory or cardiac disease existed. Dr. Smith’s diagnosis was that claimant had a neurotic personality, that a chronic duodenal ulcer possibly existed and that the patient had a small goiter clinically euthyroid. (“Euthyroid pertains to a condition ‘having a normal functioning thyroid gland.’ ”) The scope of judicial review, insofar as is applicable to this case, is specified in KRS 205.234(3). The court is limited to deciding whether there was sufficient probative evidence to support the appeal board’s order or whether the appeal board acted “arbitrarily, unlawfully, or in such manner as to constitute an abuse of discretion.” In Department of Econ. Sec., Div. of Pub. Assist. v. Mills, Ky., 391 S.W.2d 355 (1965); Dawson v. Driver, Ky., 420 S.W.2d 553 (1967), and Dawson v. Hensley, Ky., 423 S.W.2d 911 (1968), we delineated the limited scope of judicial review in these cases; the general rules by which administrative findings of the nature here involved should be judicially tested were also stated. It suffices to say in this case that the findings of the referee and the appeal hoard were sufficiently supported by substantial evidence. More simply, the administrative decision was to accept the opinion of Dr. Kenneth Smith and reject the opinion of Dr. Ralph Robinson. The record reveals that Dr. Smith was a highly qualified diagnostician who made a complete and extensive physical examination of the claimant; this procedure also included laboratory and clinical tests. The circuit court, therefore, was unauthorized to substitute its evaluation of the weight and credibility of the evidence for that of the appeal board. The judgment is reversed with directions to enter a new judgment affirming the decision of the appeal board. All concur.

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Don ATCHER, Appellant, v. KENTUCKY STATE POLICE and Workmen’s Compensation Board, Appellees. Court of Appeals of Kentucky. June 23, 1972. John W. Bland, Jr., Hatcher, Lewis & Bland, Elizabethtown, for appellant. James M. Graves, William P. Swain, and Larry L. Johnson, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees. STEINFELD, Chief Justice. Appellant Don Atcher claimed compensation for permanent partial disability under the Workmen’s Compensation law. KRS 342.110. The Board denied benefits and its decision was upheld on an appeal to the circuit court, from which judgment this appeal was taken. We affirm. While appellant Atcher was engaged in the performance of his duties as a Kentucky State Police Officer, he was struck by shotgun pellets. The surgeon was unable to remove all of the pellets and a few are permanently lodged in his tissues. Atcher returned to his employment where his compensation at the time of the hearing before the Workmen’s Compensation Board was greater than that which he was receiving when he was injured. He, his superior officer and the physicians testified that Atcher’s activities as a police officer are not impaired by the imbedded pellets. One physician stated that the officer had sustained a 10-15 percent functional disability to the body as a whole, while the other estimated Atcher’s functional disability to the body as a whole at 5 percent. Atcher argues that under Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), as construed by Hawkins Brothers Coal Company v. Thacker, Ky., 468 S.W.2d 256 (1971), and Island Creek Coal Company v. Taylor, Ky., 468 S.W.2d 318 (1971), the uncontradicted evidence showing the existence of a permanent disability required the Board to make an allowance to the workman. The question is whether the evidence required the Board to find that Atcher had sustained a permanent bodily injury of appreciable proportions. Osborne v. Johnson, supra; Codell Construction Co. v. Dixon, Ky., 478 S.W.2d 703 (1972.) Codell teaches that the Board was authorized to accept the testimony of the physician who rated the functional disability at 5 percent and to disregard the appraisal of the other physician. The total circumstances revealed by the evidence convince us that the Board was not required to find that Atcher had sustained a permanent bodily injury of substantial or significant proportions. Harry Gordon Scrap Materials, Inc. v. Davis, Ky., 478 S.W.2d 731 (1972.) The judgment is affirmed. All concur.

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Lawson SMITH, Appellant, v. PITTSBURG-MIDWAY COAL COMPANY et al., Appellees. Court of Appeals of Kentucky. June 30, 1972. Albert W. Spenard, Madisonville, for appellant. Ronald M. Sullivan, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees. REED, Judge. Lawson Smith filed a claim for workmen’s compensation benefits against his employer, Pittsburg-Midway Coal Company. The board found that he had been injured in a work-connected accident, but that he had sustained no occupational disability. He was awarded only his medical expenses. Smith appealed to the circuit court. The circuit court sustained the board’s decision. Smith then appealed to this court. We affirm the judgment of the circuit court. The claimant, a 59-year-old coal miner, testified that while he was working as a mechanic in an underground mine he struck his head on a board affixed to the ceiling of the mine. He said that he was not able to work thereafter. The medical evidence established that claimant suffered from arthritis prior to his accident and that he suffered from arthritis after he bumped his head. Dr. John Love, an orthopedic surgeon, stated that in his opinion the head bumping incident caused no permanent disability. Dr. Wallas Bell, a general practitioner, testified that claimant was physically and emotionally unable to go into the coal mines after his accident. Dr. Bell said that his “impression” at the time he discharged claimant from treatment was that traumatic neurosis was responsible for the disability which the physician believed existed. Dr. George Ainsworth stated that he found Smith suffered a 15 per cent disability from an orthopedic standpoint caused by arthritis. Dr. C. W. Van Hooser, an internist, stated that he was unable to find anything that would permit him to express an opinion that the accident precipitated any permanent injury. The claimant’s brief states that the evidence is so convincingly clear that no conclusion could have been reached other than that claimant suffered a degree of permanent occupational disability caused by traumatic neurosis. Dr. Alan Johnson, a psychiatrist, testified that claimant had no psychiatric disease of such a degree as to cause substantial impairment in work. The board found against the claimant. The sole issue is whether claimant’s evidence is so clear and convincing that it was unreasonable for the board not to be convinced by it. The medical evidence was conflicting, but actually preponderated to the conclusion that no occupational disability was caused by the accident. The courts are not authorized to disturb the board’s decision. The judgment is affirmed. All concur.

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JOHNSON BONDING COMPANY, Inc. Petitioner, v. Earl F. ASHCRAFT, Judge Lee Circuit Court, Respondent. Court of Appeals of Kentucky. June 30, 1972. Charles W. Curry, Lexington, for petitioner. STEINFELD, Chief Justice. Petitioner, Johnson Bonding Company, Inc., executed a bail bond in the amount of $2,500 to guarantee the appearance of Ernest McNabb who had been charged with crime. When McNabb did not appear for trial the Commonwealth moved for bond forfeiture, which motion was sustained. The matter was set for hearing to determine whether judgment should be entered for the whole amount of the bond or if remittance in whole or in part should be granted. After hearing evidence, the court adjudged that the entire bond in the amount of $2,500 should be forfeited. The Johnson Bonding Company, Inc., timely gave notice of appeal and took the necessary steps to perfect that appeal. Twenty-seven days after the judgment appealed from had been entered and before decision by the appellate court, petitioner again moved to remit wholly or in part the sum specified in the judgment. Petitioner claims that this procedure is authorized by RCr 4.28(2), which refers to a judgment against the surety and provides in part: “After entry of judgment the court for sufficient cause may remit wholly or in part the sum specified in the bail bond.” Respondent has failed to rule on the current motion to remit and petitioner has sought mandamus here to require the trial court to rule on the motion. Among other things, respondent answers that “Respondent does not have jurisdiction of petitioner’s motion which was filed * * * after petitioner had filed notice of appeal.” The general rule, with certain specific exceptions, is that the trial court loses jurisdiction over matters that have been appealed until mandate has issued. It is our opinion that RCr 4.28(2) is inapplicable to matters in which an appeal is pending on the judgment forfeiting the bond in whole or in part. For that reason the response is sufficient and the writ of mandamus denied. All concur.

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Willie Lee HAGAN, Appellant, v. MAYFLOWER TRANSIT COMPANY, etc., et al., Appellees. Court of Appeals of Kentucky. June 23, 1972. John Frith Stewart, Segal, Isenberg, Sales & Stewart, Louisville, for appellant. Larry L. Johnson, James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees. REED, Judge. This is a workmen’s compensation case in which the claimant-employee, Willie Lee Hagan, sought compensation for temporary total disability because of an alleged hernia which he suffered. The Workmen’s Compensation Board determined that the employee’s evidence did not establish to the board’s satisfaction either that there was an injury resulting in hernia or that the hernia appeared suddenly and immediately following the injury, or that the hernia did not exist in any degree, including the primary or incomplete stage, prior to the injury for which compensation was sought. Hagan appealed the board’s dismissal to the circuit court. The circuit court decided that it could not disturb the board’s disposition. Hagan thereupon appealed to this court. We affirm the judgment of the circuit court. Although the particular employer against which the claim was filed insists that it was not Hagan’s employer at the time he alleged he incurred a hernia, we need not consider that contention because we have concluded that Hagan’s evidence presented to the board was not so compelling or persuasive that it was clearly unreasonable for the board not to be convinced by it. We find that this is an instance where the board’s finding, so far as judicial review is concerned, was conclusive whether it was for or against the claimant on the issue of the existence of the compensable injury. According to Hagan, on either August 7 or August 8, 1969, he was moving a heavy marble top off the back of a moving truck when the loading plank on which he was walking slipped and caused him to fall to the ground. He stated that as he fell the marble top fell on him and struck him in the groin area. He admitted that he did not report the injury to his alleged employer, but stated he was prevented from doing so by a foreman. He also testified that after the alleged injury he continued to work the rest of that day and worked continuously thereafter until about the second week in September when he was laid off because business was slow. About a week after his layoff, he applied for another job. He testified that when he was examined for the job by a physician, he was informed that he had a hernia. He did not introduce the testimony of the physician who he testified examined him and diagnosed the alleged hernia. Although he testified that on the alleged occasion of injury he felt a sharp pain accompanied by a sting and burning sensation in his groin area and that later a knot appeared, which he showed to his wife, his wife did not testify. According to Hagan, the knot went away within two days, and he felt there was no need to seek medical treatment. The only medical evidence in the record relating to the existence of a hernia is found in the deposition of a medical records librarian employed by Louisville General Hospital. These hospital records reveal that in May 1970, some 10 months after the time when Hagan claimed the hernia first appeared, he underwent surgery for repair of a left inguinal hernia. KRS 342.025(1) requires that in all claims for hernia resulting from injury received in the course of and resulting from the employee’s employment “it must be definitely proved to the satisfaction of the board that: There was an injury resulting in hernia, and that the hernia appeared suddenly and immediately following injury, and that the hernia did not exist in any degree, including the primary or incomplete stage, prior to the injury for which compensation is claimed.” Appellant argues that his evidence satisfied the requirements of the statute. He relies, however, upon cases in which the board found in favor of the claimant. In those instances, the court held that the findings of the board in the claimant’s favor were supported by substantial evidence. See American Rolling Mill Co. v. Leslie, 302 Ky. 601, 194 S.W.2d 643 (1946), and Harlan-Wallins Coal Corp. v. Lawson, Ky., 242 S.W.2d 999 (1951). So far as judicial review is concerned, the issue is not whether Hagan’s evidence would justify a favorable finding, rather it is whether his evidence requires a favorable finding as a matter of law. The language of the statute itself suggests that the character and quantum of evidence necessary in hernia claims is perhaps somewhat stricter than is required in other claims for disability under our Workmen’s Compensation Law. The statute uses the phrase, “It must be definitely proved to the satisfaction of the board.” When Hagan’s evidence is considered, even in light of the standard of evidence generally required in compensation claims, we note the equivocal circumstances present, all of which require explanation. The credibility of Hagan’s explanations is for the board to determine and not the courts. In such circumstances we feel that the situation is governed by the basic rule spelled out in Lee v. International Harvester Co., Ky., 373 S.W.2d 418 (1963). The basic test for judicial review stated therein has been consistently followed. Under that test, the only issue before the circuit court was whether Hagan’s proof was so strong as to compel a finding in his favor — so persuasive that it was clearly unreasonable for the board not to be convinced by it. It seems to us that Hagan’s evidence falls into the category whereby a favorable board finding would have been justified but such finding was not required as a matter of law. Thus, the board’s finding was conclusive and the circuit court was powerless to disturb it. The judgment is affirmed. All concur.

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Hance MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. James J. Varellas, Lexington, for appellant. Ed W. Hancock, Atty. Gen., M. Curran Clem, Asst. Atty. Gen., Frankfort, for ap-pellee. STEINFELD, Chief Justice. On the 29th day of December, 1970, appellant Hance Marcum was arrested and charged with operating a motor vehicle while under the influence of intoxicating beverages. KRS 189.520(2). Upon trial by jury, he was found guilty and fined $100. On this appeal he contends that the court erred in admitting in evidence the results of a breathalyzer test, that KRS 189.-520(4) (c) is unconstitutional, and that the court erred in instructing the jury. We reverse. Before the trial began Marcum moved for a dismissal “ * * * on the basis that the breathalyzer is totally inadmissible in that there is no showing it is any more reliable than a lie detector test or a truth serum which has been held to be inadmissible.” The motion was overruled and the case proceeded to trial. The arresting officer testified that he was attracted to Marcum’s truck when the tires squealed as it started from a traffic light. He followed Marcum for several blocks during which time he observed erratic driving, and when Marcum failed to stop as directed by a stop-sign the officer then turned on the blue light, a spotlight and an electronic siren, which Marcum disregarded. The accused drove on until he reached his residence, some eight or ten blocks from the place where the officer had attempted to stop him. The officer testified that he immediately confronted Marcum who showed symptoms of being intoxicated; specifically, his eyes were watery, he was slobbering, he was unable to stand without leaning on the truck, he dropped his wallet twice while attempting to display his driver’s license and was unable to produce the license. The officer stated that he advised Marcum he was under arrest for driving while intoxicated. At the police station Marcum was requested to take a breathalyzer test; he agreed and did so. The police officer who gave Mar-cum the test testified as to his qualifications, which showed he was skilled in administering such tests. In great detail he explained how the machine was prepared, how the test was given and the results obtained. Marcum’s test indicated that he had, by weight, a 0.15% blood-alcohol concentration. The officer testified that this is over the presumptive level of intoxication (0.10%) in this state. Marcum argues that the testimony with respect to his test did not show that it complied with basic requirements. He cites State v. Baker, 56 Wash.2d 846, 355 P.2d 806 (1960), which held that the proof must show: “That the machine was properly checked and in proper working order at the time of conducting the test; (2) that the chemicals employed were of the correct kind and compounded in the proper proportions; (3) that the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test; (4) that the test be given by a qualified operator and in the proper manner.” An examination of the testimony of the officer who administered the test to Mar-cum convinces us that these requirements were fully met in all respects. Cf. Soard v. Rogers’ Adm’r, Ky., 332 S.W.2d 525 (1960). There is no merit in the argument that the results of the test should not have been admitted in evidence. Cf. People v. Jansen, 130 Ill.App.2d 365, 264 N.E.2d 862 (1970). KRS 189.520 states in pertinent part: “(2) No person shall operate a motor vehicle anywhere in this state while under the influence of intoxicating beverages or any drug which may impair one’s driving ability. “(4) In any criminal prosecution for a violation of subsections (1) and (2) of this section, wherein the defendant is charged with having operated a vehicle while under the influence of intoxicating beverages, the amount of alcohol in the defendant’s blood as determined at the time of making a chemical analysis of his blood, urine, breath or other bodily substance, shall give rise to the following presumptions: “(a) If there was 0.05 per cent (5/100%) or less by weight of alcohol in such blood, it shall be presumed that the defendant was not under the influence of intoxicating beverages; “(b) If there was more than 0.05 per cent (5/100%), but less than 0.10 per cent by weight of alcohol in such blood, such fact shall constitute a presumption that the defendant either was or was not under the influence of intoxicating beverages, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant; “(c) If there was 0.10 per cent (1/10%) or more by weight of alcohol in such blood, it shall be presumed that the defendant was under the influence of intoxicating beverages. “(5) The provisions of subsection (4) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the defendant was under the influence of intoxicating beverages.” Marcum contends that KRS 189.520(4) (c) is unconstitutional in that it creates a presumption of guilt which is squarely in conflict with the presumption of innocence granted to all accused of crime. This argument was rejected in Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 243 (1967). In Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006 (1938), we stated: “It is now well settled that it is competent for legislative bodies to prescribe by their enactments that a certain state of facts shall constitute a presumption of the principal fact, and to thereby cast the burden of overcoming that presumption on the adverse party, even a defendant in a criminal prosecution. See volume 1 of Wharton’s Criminal Evidence, 11th Ed. pages 79, 80, sections 69 and 70; 10 R.C.L. 864, section 7; annotations in 51 A.L.R. on page 1179; Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407; McArthur v. Payne, 201 Ky. 793, 258 S.W. 684; Hughes v. Commonwealth, 242 Ky. 412, 46 S.W.2d 783, and numerous cases cited in those opinions and texts, and other cases decided since those we have listed. But it is equally well settled that such enacted presumptions may be given only a prima facie effect and not a conclusive one so as to bar the opposing litigant, or the defendant in a criminal or penal action, from the right to rebut it. It is, therefore, incompetent for legislative bodies to prescribe for a conclusive presumption.” See also United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965) and annotation in 16 A.L.R.3d 754. In 1 Wharton’s Criminal Evidence, 12th Ed., §§ 90, 91, it is written: “Section 90. Statutory presumptions. “The legislature has control over the rules of evidence and may enact laws declaring that upon proof of one fact another fact may be inferred, thus creating a statutory presumption. “As in the case of nonstatutory presumptions and inferences, the presumed fact cannot be accepted as established until it is proved that the initial fact from which it is presumed or inferred does exist.” “Section 91. Constitutionality. “A statute making one fact presumptive or prima facie evidence of another is constitutional if the facts warrant the application of the rule of (1) rational relationship or (2) comparative convenience. Under the first, the statutory presumption is held constitutional if in the experience of mankind there is a natural and rational relationship between the proved fact and the presumed fact so that in the ordinary experience of man the presumed fact would exist if the proved fact existed. Under the second, the statutory presumption is constitutional if (a) the defendant has more convenient access to proof which would overcome the presumed fact than the prosecution would have to prove the presumed fact, and (b) the placing upon the defendant of the burden of overcoming the presumption does not subject him to an unfair burden or hardship.” Another recognized authority has discussed this subject saying, “If the presumption does no more than create a permissible inference it can hardly be thought that the judge’s direction that the jury may convict is an invasion of the jury’s function.” McCormick, Law of Evidence, 1st Ed., § 313, p. 662. Our statute in speaking of a presumption does not authorize the trial judge to express his personal opinion as to the truth or falsity of the evidence. This does not contravene constitutional prohibitions. State v. Childress, 78 Ariz. 1, 274 P.2d 333 (1954); Kay v. United States (4th Cir. 1958), 255 F.2d 476, cert. denied 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958). Our act requiring submission to blood tests has been discussed in a number of cases such as Banks v. Dept. of Education, Bureau of Rehabilitation, Ky., 462 S.W.2d 428 (1971); and Washburn v. Commonwealth, Ky., 433 S.W.2d 859 (1968). It has had our approval. Craig v. Commonwealth, Ky., 471 S.W.2d 11 (1971). Blood-alcohol tests have withstood attacks in other jurisdictions. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963); Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812 (1952); and People v. Jansen (Ill.App.), 264 N.E.2d 862 (1970). Under our statute there is a “ * * * rational connection between the facts proved and the ultimate facts presumed * * * ,” therefore, this law appears to be within the limits announced in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). Also see Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). The final argument is that the court erred in instructing the jury as to the statutory presumption of intoxication. The attacked instruction was as follows : “The jury is instructed that if there was a 0.10% or more by weight of alcohol in the blood of the body of the said Hance Marcum at the time and place mentioned above, then it shall be presumed that the said Hance Marcum was under the influence of intoxicating beverages at that time; provided, however, that such presumption can be overcome by evidence.” Marcum relies on Stanley’s Kentucky Instructions to Juries, Vol. 3, § 779, which indicates that instructions are not the place for presumptions or to indicate the import of any particular fact or set of facts. Stanley, at § 781, states: “An instruction which tells the jury of a presumption which arises from stated facts invades the province of the jury and is erroneous.” This statement is based on our opinion in Smith v. Commonwealth, 122 Ky. 444, 29 Ky.Law Rep. 17, 91 S.W. 1130 (1906), which held that it was improper for the court to instruct the jury on the weight to be given to the evidence of an alibi. Mar-cum also calls our attention to Botnick v. Commonwealth, 266 Ky. 419, 99 S.W.2d 188 (1936), a prosecution for knowingly receiving stolen property in which the instruction attacked read as follows: “I may say that you are further instructed that the possession of any stolen goods by a Defendant should be of itself prima facie evidence of guilt.” The statute then provided: “§ 1199. Receiving stolen goods; possession prima facie evidence. — Whoever shall receive stolen goods, chattels or other thing, the stealing whereof is punished as a felony or misdemeanor, knowing the same to be stolen, shall be liable to the same punishment to which the person stealing the same is, by law, subjected. Such offenders may be convicted, though the principal offender has not been convicted. The possession of any stolen goods shall be prima facie evidence of the guilt, under this section, of any person or persons having such possession. (April 10, 1893, c. 182, p. 756, § 72; amended March 24, 1922, c. 113, p. 345, § 1.)» We held that the instruction was improper, saying: “By instruction No. 3 the jury were told that the possession of any stolen goods should be of itself prima facie evidence of the guilt. It is true that section 1199, Kentucky Statutes, so provides, but, with certain exceptions not here material, it has never been deemed proper in this state to instruct on the weight of evidence, Smith v. Commonwealth, 122 Ky. 444, 91 S.W. 1130; Martin v. Commonwealth, 223 Ky. 762, 4 S.W. (2d) 419; or to call attention to any particular fact and indicate its importance, Commonwealth v. Delaney, 29 S.W. 616, 16 Ky.Law Rep. 509; or to single out specific facts or groups of facts and give them undue importance, Tines v. Commonwealth, 77 S.W. 363, 25 Ky. Law Rep. 1233; Murphy v. Commonwealth, 205 Ky. 493, 266 S.W. 33; Urban v. Commonwealth, 196 Ky. 775, 245 S.W. 852. Other courts take the position that, inasmuch as the inference to be drawn from the evidence is strictly a matter for the jury, the trial court should not instruct on the question. R.C.L. p. 72; Gravitt v. State, 114 Ga. 841, 40 S.E. 1003, 88 Am.St.Rep. 63; Lehman v. State, 18 Tex.App. 174, 51 Arn.Rep. 298. It follows that instruction No. 3 should not have been given.” Botnick was discussed at length in Mabe v. Commonwealth, 279 Ky. 432, 130 S.W.2d 805 (1939), in which a husband and wife were tried for the offense of selling spirituous liquors without a license. The jury was told in substance that the holding of a federal license to sell alcoholic beverages without being licensed by the state “ * * * shall in all cases raise a prima facie presumption that the holder of such Federal permit is trafficking in alcoholic beverages in violation of * * * ” the law. The judgment of conviction was reversed for the same reasons as expressed in Botnick. In a knowingly-receiving-stolen-property case, Jones v. Commonwealth, 291 Ky. 719, 165 S.W.2d 566 (1942), Bot-nick and Mabe were again approved. To refute Marcum’s argument of error in the instructions, the Commonwealth cites State v. Myers, 26 Ohio St.2d 190, 271 N.E.2d 245 (1971), in which a conviction in a drunken driving case was upheld. In discussing the implied consent law, that opinion stated: “In so providing, the General Assembly has expressed its conviction that the relationship between the objective determination by chemical test of the percentage of alcohol by weight in the blood (15% or more), and its effect on people, is so well scientifically established that it need not be demonstrated by evidence, and may take the place of evidence at trial. The purpose of the presumption is to eliminate the need for expert testimony which would otherwise be necessary to relate the numerical figure representing a percentage of alcohol by weight in the blood as shown by the result of a chemical test, with the common understanding of being under the influence of alcohol. See Lister v. England (D.C. App.1963), 195 A.2d 260; State v. Protokowicz (1959), 55 N.J.Super. 598, 151 A.2d 396; Vore v. State (1954), 158 Neb. 222, 63 N.W.2d 141. When the test results are in evidence, the evidence that the presumption supplies is the correlation between a scientific fact, the results of the test, and human behavior; that is, that all persons who test .15% or more are under the influence of alcohol.” “We believe that the General Assembly, in enacting R.C. 4511.19(B), fully intended that the trier of the facts be instructed regarding the presumption contained therein when properly administered test results are available. R.C. 4511.191, the implied consent statute, evidences a bold legislative effort to procure a chemical test of body fluid or breath from those suspected of operating a motor vehicle while under the influence of alcohol. * * * Furthermore, the General Assembly has provided a means of producing scientifically reliable evidence bearing on the innocence or guilt, without which the trial of those alleged to have been driving under the influence of alcohol often tends to be turned on emotional rather than factual considerations.” The Commonwealth also relies on Kay v. United States, (4th Cir. 1958), 255 F.2d 476, cert. denied 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958), in which it was written: “Nor does consideration by the jury of the statutory presumptions deprive the defendant of any protected right. The presumptions embody the standards determined, after extensive investigation, by the Committee on Tests for Intoxication of the National Safety Council (1940 Report). They have been adopted by many states, and, recently, the Congress enacted similar presumptions for use in prosecutions in the District of Columbia. The adoption of the standards as evidentiary presumptions serves to dispense with the necessity of expert witnesses to interpret the laboratory findings, but there is nothing objectionable in the legislature’s adoption of that course when the standards are reasonable and have attained wide acceptance. * * * “The presumption here is rebuttable. It neither restricts the defendant in the presentation of his defense nor deprives him of the presumption of innocence. Since wide experience has demonstrated the close connection between the presumed fact and the alcoholic content of the blood, there is no constitutional objection to the jury’s consideration, with all of the other evidence, of the statutory presumption. * * * ” We reject the reasoning announced in State v. Myers, supra, and Kay v. United States, supra. It is true that the instruction made it clear that the results of the test created a rebuttable presumption which the jury was to consider with all of the evidence, and it left the determination of intoxication for the jury to resolve, as it must be. Vanhoose v. Commonwealth, 266 Ky. 37, 98 S.W.2d 49 (1936). Nevertheless, it is our opinion that the instruction was improper, and we continue to adhere to the principles announced in Botnick v. Commonwealth, supra; Mabe v. Commonwealth, supra; and Jones v. Commonwealth, supra. But see 48 C.J.S. Intoxicating Liquors § 377, p. 582. KRS 189.520(4) establishes and validates a scientific standard which otherwise would require expert testimony. A principal object of the statute is to obviate the necessity of such testimony. Since it is in that sense a substitute for expert evidence on a scientific fact, we are of the opinion that it should be read in connection with the testimony concerning the blood-alcohol content. After that testimony has been admitted, upon appropriate motion the trial judge may read or have read to the jury, as evidence, KRS 189.520(4) and (5) in their entirety without further comment by the court with regard to the weight or effect of the evidence. The judgment is reversed, with directions to grant appellant a new trial consistent with this opinion. MILLIKEN, NEIKIRK and PAL-MORE, JJ., concur. REED, J., concurs in result only. . Wilson v. Coston, 239 Ark. 515, 390 S.W.2d 445 (1965), held it was error to give an instruction that' defendant in a civil case was presumed intoxicated by reason of the results of a blood test because “ * * * it is a statute relating to admission of evidence in cases of criminal prosecution.” . For discussion of Instructions on Presumptions, see 33 Texas Law Review 598. . In answer to a county attorney’s inquiry, the Attorney General stated in pertinent part “ * * * the trial judge should instruct the jury as to the contents of KRS 189.520 in the trial of a charge of drunken driving where a blood test requested by, and taken by, the defendant has been introduced as evidence. § 225 of the Criminal Code provides, in essence, that the trial court shall instruct the jury on all law applicable to the case. Since the blood test is on evidence, it is our opinion that before a jury could effectively consider such evidence they would have to have knowledge of what certain percentages of alcoholic content in the blood would mean. It follows, therefore, that instructions setting out the presumptions contained in KRS 189.520 would be necessary for the jury to be able to consider the evidence in a reasonable manner.” OAG 42,547 (December 11, 1958.) (§ 225 of the Criminal Code was transferred to RCr 9.54.)

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Mack HUNT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 30, 1972. E. R. Gregory, Bowling Green, for appellant. Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee. STEINFELD, Chief Justice. Appellant Mack Hunt was indicted for two crimes of storehouse breaking (KRS 433.190) and was convicted of being an aider and abettor to one of them. He was sentenced to serve two years in the state reformatory. He appeals from the judgment, which we affirm. Hunt argues that the evidence was not sufficient to uphold the conviction; the court erred in allowing the jury to consider the uncorroborated testimony of alleged accomplices; there was error in admitting conjectural and speculative testimony; and there was a procedural error in the joinder of the indictments for trial. On December 29, 1970, a grocery store owned by Mr. and Mrs. Willard Weaver, located on Cemetery Road in Claypool, Kentucky, about halfway between Bowling Green and Barren River Reservoir, was broken into and merchandise taken. On January 24, 1971, Mr. and Mrs. Weaver were alerted to another attempt to rob the store. Mrs. Weaver testified that on the second occasion she saw a man with a bald spot whom she thought she recognized as Bobby Joe Belk appear from the basement door of the store and jump over the backyard fence. Mr. Weaver testified that he and others who had gathered because of the commotion saw a white Cadillac drive very slowly past the store in the direction of Bowling Green. Earlier Mr. Weaver had seen the same car pass going in the opposite direction, therefore he followed the Cadillac, obtained its license number, and reported these occurrences to the Warren County sheriff. Just before the Cadillac reached Bowling Green it was stopped by the sheriff. The driver was appellant Hunt and he was accompanied by two passengers, Marie Martin and Margaret Rumple. Later that same day Belk was arrested while walking toward Bowling Green, approximately four miles from Weaver’s store. After some investigation a search warrant for Belk’s apartment was obtained, and some of the merchandise taken from Weaver’s Grocery on December 29, 1970, was found there. The record shows that Belk and Hunt were jointly indicted for the storehouse breaking of January 24, 1971. Even though Hunt designated the entire record, no indictment for the storehouse breaking of December 29, 1970, was included. However the transcript of evidence and the trial orders show that Hunt was indicted for that offense. The Commonwealth obtained a severance and Belk was tried first and convicted of the charges on each of the breakings. Over Hunt’s objection the two charges against him were consolidated for trial, however, at the close of the Commonwealth’s case the court sustained Hunt’s motion to direct a verdict of acquittal as to the charge based on the December 29, 1970, incident. Margaret Rumple, a friend of Belk who was staying in his apartment while seeking employment, testified that Hunt was also living with Belk. She told that on the night of January 23, 1971, they had a party which was attended by Marie Martin and others, that they had been drinking for quite a while, and that some time after midnight it was suggested that she, Marie, Belk and Hunt go for a ride. She said she was too tired to go but they insisted. Hunt drove them out Cemetery Road for what seemed to be several miles when the car stopped and Belk got out in front of what she later learned was Weaver’s store. She testified, “I asked him (Belk) where he was going and he said shut up and I said you don’t have to get huffy about it or something like that.” She further testified that after Belk left the car she “ * * * asked Hunt what was going on and he said I told you to be quiet and I said I want to know what is going on. I am going to get out of this car. I am going back to Bowling Green; and he said you are not going anywhere.” * * * “He said we will sit here until daylight and then we will start toward Bowling Green and I am sure Bob got away and we will pick him up on the way back in.” Afterward they went down the road and stopped at a point and had some drinks, then turned around and went back to the place where Belk had gotten out. They turned around again and drove to a place near Barren River Reservoir, where they again stopped and drank some more. Margaret Rumple was asked whether she knew why they had spent the night parked on the side of the road rather than going back to Bowling Green. She testified, “All I know is that he (Hunt) said we were going to wait there for Bobby until daylight. * * * and then we were going to start back in and look for Bobby on the way in and pick him up.” Afterward they started toward Bowling Green driving at a slow rate of speed. When they passed Weaver’s store two men were seen walking down the road with guns. They continued to drive slowly toward Bowling Green. A car came up behind them but did not pass, instead it turned around and drove in the opposite direction, and they continued on their way. Before reaching Bowling Green they stopped again and had some more drinks. They did not see Belk again that night. At about daylight they were stopped by the sheriff. Marie Martin testified that on the night of January 23, 1971, she attended the party at Belk’s apartment and they all drank “pretty heavy.” She said that sometime after midnight Belk suggested they all go for a ride. She had no idea where they were going but they were heading toward Barren River when Belk got out in the vicinity of a store near his father’s farm. She said she did not know what store it was, but thought it was Weaver’s, and she did not know why Belk got out of the car at that time and was not aware of any plan to break into the store. At one point in her testimony this witness said they had gone past the store to pick up Belk. Hunt argues that the mere fact there was evidence he was in the company of the convicted principal prior to the commission of the crime and was found present in the vicinity of the place of the crime is not enough to hold him culpable. He further asserts that no evidence was presented to show that he “collaborated, schemed or knew of the intended crime,” and by the testimony of the Commonwealth’s own witnesses (Margaret Rumple and Marie Martin) he never left his car during the time of the break-in. In support of his contentions Hunt cites Moore v. Commonwealth, Ky., 282 S.W.2d 613 (1955), wherein we said: “The rule is that a conviction is not justified by suspicion and evidence of relationship among the accused or by their mere association at a time when a crime was committed by one of them. * * * The mere presence at the scene of a crime is not sufficient to attach guilt to the accused, but other facts and circumstances must be shown connecting him with the affray to justify submission of the case to the jury.” We find, in addition to Hunt’s association with Belk, there were constructive presence and other facts and circumstances sufficient to connect Hunt with the commission of the crime. In Hartman v. Commonwealth, Ky., 282 S.W.2d 48 (1955), it was noted: “We have many times held that in order to constitute one an aider and abettor it is not necessary to go so far as to show that he was actually present at the same time the crime was committed and took a part therein, but that one may be convicted if it is shown that he was constructively present at thg time of its commission and participated in some way in the crime committed.” In Commonwealth v. Allen, Ky., 441 S.W.2d 424 (1969), we said the elements of “constructive presence” are satisfied if the aider and abettor can: “(1) arrive on the scene if necessary to render aid and assistance in the perpetration of the crime, or (2) watch out for trouble and. give the perpetrator of the crime information of the approaching danger, or (3) take part in aiding the escape of the perpetrator after the commission of the crime.” We consider the jury could infer that Hunt was taking part in aiding Belk’s escape, from Hunt’s movements in the area coupled with the statements of his intention to pick Belk up. Hunt’s demeanor toward Margaret Rumple’s inquisitiveness when Belk departed, Hunt’s denial of her request to immediately return to Bowling Green, his explanation that they would wait for Belk until daylight, his statement that he was sure Belk got away and that they would pick him up on the way back to Bowling Green — all illustrated that Hunt was there to be of aid to Belk. Hunt claims that the court erred in allowing the jury to consider the uncorroborated testimony of accomplices. In so arguing Hunt avers that Marie Martin and Margaret Rumple were accomplices to the breaking because “Both of these women did the very same thing that the Appellant, Mack Hunt, did on the night of the break-in of January 24, 1971.” In order for one to be adjudged an accomplice he must share the criminal intent or purpose of the principal. Helton v. Commonwealth, Ky., 244 S.W.2d 762 (1951). There was no evidence that either of these women had any knowledge of an intended crime, therefore, we hold the trial court correctly found that they were not accomplices. There was no error in convicting on their testimony. Hunt next contends that the court erred in admitting conjectural and speculative evidence. On redirect examination by the Commonwealth, Marie Martin testified as follows: “Q85. Mrs. Martin, you testified that you let Bobby Belk out and you went on past the grocery store ? A. Yes, sir. Q86. Then you came back past the store ? A. Yes, sir. Q87. Now, why did you come back past the store, if you know ? A. To pick up Bobby, I guess. Mr. Gregory: We object to speculation as to why they came back as it would not be competent and it is a conclusion of the witness. The Court: Overruled. Mr. Gregory: Exception. The Court: Go ahead.” In support of his argument that the court erred in not ruling Marie Martin’s response to the Commonwealth’s question as incompetent testimony, Hunt cites Collier v. Commonwealth, 303 Ky. 670, 198 S.W.2d 974 (1947). There we said, “ * * * such expressions as T thought’, T suppose’ and T believe’ do not always indicate a conjecture or guess at the facts, but that such expressions are often an idiomatic or colloquial way of stating a fact according to the best judgment of the witness.” We believe that the trial court is in the best position to evaluate a witness’ testimony in order to determine whether he is speaking from the knowledge of facts that he has sensed and through an idiomatic habit has allowed certain conjectural colloquialisms to creep into his manner of speaking. Hunt argues that the court erred in joining for trial the indictment against him for the storehouse breaking of Weaver’s Grocery on December 29, 1970, on which he was acquitted, and the one for the breaking on January 24, 1971, on which he was convicted. RCr 9.12 provides that “The court may order two or more indictments or informations or both to be tried together if the offenses * * * could have been joined in a single indictment or information.” In Marcum v. Commonwealth, Ky., 390 S.W.2d 884 (1965), we said: “It is important, however, that the offenses be of the same or similar character in order that they be properly joined for trial. It is difficult to lay down a rule by which such similarity may be recognized, and the trial court in the exercise of sound discretion should be given broad power in deciding which offenses have similar characteristics.” Hunt’s charges were contained in different indictments which arose out of two incidents of storehouse breaking that occurred at Weaver’s Grocery less than a month apart and could have been joined in a single indictment. Furthermore, there was sufficient “similarity” to permit them to be properly joined under the rule as interpreted by Marcum. We see no error in their joinder. RCr 9.16 prohibits a joinder if it appears that prejudice will result. Hunt argues that he suffered prejudice because the stolen merchandise found at Belk’s apartment was presented in evidence as proof of the December 1970 breaking. He claims that this evidence proved to be irrelevant with respect to the January 24, 1971, incident. We dealt with the subject of join-der in Russell v. Commonwealth, Ky., 482 S.W.2d 584 (decided June 23, 1972), and mentioned the caution which a trial judge must exercise in determining whether a joint trial should be conducted. Prejudice to the accused must be avoided. At the outset counsel for Hunt attempted unsuccessfully to convince the trial court that there should be no joint trial for the reasons that “ * u* * they do not grow out of the same act; that they are separated some thirty days in time and charged entirely different break-ins; that the defense for one will be entirely different from the defense of the other and that there is no allegation of conspiracy or continuous act stated in either indictment that will justify their consolidation.” At that time the court properly overruled the motion. After it had dismissed the charges pertaining to the December 1970 breaking no motion was made or renewed and no request was then made with respect to joinder to set aside the swearing of the jury. The reasons expressed before the trial were premised on a situation entirely different than that which existed after dismissal of the one charge. In the motion for a new trial the complaint is “Error of the court in consolidating Indictment Nos. 13433, 13434 and 13435 for purposes of trial.” At no time was the trial court presented with the argument appellant now makes. “Under our system of appellate review, we may not put the trial judge in error for failure to grant relief which he was never requested to grant.” Kentucky & Indiana Terminal Railroad Company v. Martin, Ky., 437 S.W.2d 944 (1969). Furthermore, a trial court must use the utmost caution in declaring a mistrial on its own motion for fear of creating a situation in which double jeopardy will ensue as occurred in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The judgment is affirmed. All concur.

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Dallas HALE, Appellant, v. Homer BAKER et al., Appellees. Court of Appeals of Kentucky. June 23, 1972. Alva A. Hollon, Hollon & Hollon, Hazard, for appellant. Charles R. Coy, Coy & Coy, Richmond, for appellees. NEIKIRK, Judge. Dallas Hale’s complaint for damages based on malicious prosecution arose out of an incident that occurred in Berea. Several persons had met in that city ostensibly to attend a meeting of the National States Rights Party. A serious confrontation developed, and during a “skoot-out” two persons died as a result of gunshot wounds. An immediate investigation of the happening was conducted by the Commonwealth’s attorney, the county attorney, and other peace officers. Upon the advice of these officers that there was probable cause for a warrant of arrest against Hale and seven other persons, Sgt. Lewis Babb, Jr., a member of the Kentucky State Police, signed and presented a sworn complaint to the judge of the Madison Quarterly Court, charging Hale and seven other named persons with the murder of one Leno Boggs. The judge issued a warrant for the arrest of the eight men. Hale was arrested, lodged in jail, and later released on bond. No further proceedings were brought against Hale, nor was an indictment rendered by a Madison County grand jury. Thereafter, Hale instituted this action for malicious prosecution against Sgt. Babb and eight other peace officers. The Madison Circuit Court granted the officers summary judgment and dismissed Hale’s complaint. Hale appeals. We affirm. Hale contends that the circuit court erred in granting the summary judgment against him, but he refers us to no malicious prosecution cases as authority for his contention. Hale does cite several cases involving false arrest. We need not discuss these cases as the instant case was brought against the appellees as an action for malicious prosecution, not false arrest. We have examined the affidavits and exhibits filed by the appellees in support of their motion for summary judgment. We find that these present a full and fair disclosure of all material facts. The complaint for the warrant of arrest of Hale was made on the advice of the attorneys who had conducted the entire investigation. This constituted probable cause to have the warrant of arrest issued. The advice of the attorneys, based on a full and fair disclosure of all material facts, is a complete defense to an action for malicious prosecution. These facts not being in dispute, the trial court properly granted summary judgment for the appellees. Stanhope v. Cincinnati, N. O. & T. P. Ry. Co., 210 Ky. 674, 276 S.W. 567 (1925); Reid v. True, Ky., 302 S.W.2d 846 (1957); Puckett v. Clark, Ky., 410 S.W.2d 154 (1966); Taylor v. Shepherd, 6 Cir., 391 F.2d 263 (1968). The judgment is affirmed. All concur.

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Carl BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. Stanton Baker, Carrollton, for appellant. John B. Breckinridge, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee. NEIKIRK, Judge. James Gould, an attendant at a gasoline service station in Warsaw, testified that on March 11, 1971, at approximately 3:20 a. m., Jerry Wilson entered the station and said that he needed an air filter for a 1966 Chevrolet automobile. Gould went to another room in the station and obtained the filter. When he returned, Carl Baker, armed with a shotgun, had entered the station. Holding the gun on Gould, the pair proceeded to rob Gould of approximately $80 in cash. They also took a pistol and the air filter. Baker and Wilson were apprehended about forty-five minutes after the robbery, and the stolen items were found in their possession. Baker and Wilson were indicted, tried, and convicted of armed robbery. KRS 433.140. The jury fixed Baker’s punishment at twenty-five years’ confinement in the state penitentiary. Wilson received a sentence of ten years. Baker appeals. After the jury had been sworn and seated, the trial judge, in the presence of the jury, said: “This being a capital case it is my understanding that the Jury cannot separate unless by agreement of counsel.” The attorneys for Baker and Wilson stated that they had no objections. Immediately after this colloquy, the attorney for Baker made in chambers the following motion: “I am moving that the swearing of the jury be set aside and this case continued and a mistrial be declared on the grounds that as the defense attorney for Carl Baker, I was asked as to whether I would agree to the jury separating and I had no alternative but to agree to separating.” The trial judge overruled this motion. The jury was permitted to separate at noon and also during the time the trial judge prepared the instructions to the jury. RCr 9.66 provides as follows: “If the offense charged is punishable either by life imprisonment or by death, the jurors shall be kept together in charge of the proper officer. They may be permitted to separate only by agreement of the parties and with approval of the court. The consent or approval may be withdrawn before any recess or adjournment of court. If the offense charged is a felony which is not punishable either by life imprisonment or by death, or is a misdemeanor, the jurors may be permitted to separate in the discretion of the court. * * * ” KRS 433.140 states: “Any person who commits robbery or burglary or any act penalized by KRS 433.130, and in committing the act uses or displays any pistol, gun or other firearm or deadly weapon shall be punished by confinement in the penitentiary for not less than ten years or for life, or by death.” The crime charged was one punishable by life imprisonment or by death, and it is not material that Baker was given a lesser punishment. The crime charged, not the punishment, controls the discretion or lack of discretion on the part of a trial judge to permit a jury to separate. The motion of counsel for Baker was tantamount to withdrawal of consent to separation of the jury. The magic words “I withdraw my consent to the separation of the jury” were not used, but certainly the trial judge was made aware that defense counsel was not satisfied with the court’s statement and ruling and was objecting to the trial proceeding. The trial judge may not on his own volition permit the separation of a jury where punishment may be life or death. Metts v. Commonwealth, Ky., 361 S.W.2d 653 (1962). The trial judge erred in permitting the jury to separate during the progress of the trial after defense counsel had withdrawn his consent in the manner present in the instant case. As we are reversing Baker’s conviction, we need not discuss arguments and contentions made by the Commonwealth and by Baker. The judgment is reversed. STEINFELD, C. J., and HILL, MILLI-KEN, PALMORE and REED, JJ., concur.

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William Russell PRESTON, Appellant, v. ELM HILL MEATS, INC., et al., Appellees. Court of Appeals of Kentucky. March 31, 1972. As Modified on Denial of Rehearing .Tune 23, 1972. Harbison, Kessinger, Lisle & Bush, Gilliam & Bush, Lexington, for appellant. John W. Morgan, Lexington, for Elm Hill Meats, Inc., and Liberty Mutual Insurance Co. Martin Glazer, Department of Labor, Frankfort, for Special Fund and Workmen’s Compensation Board. NEIKIRK, Judge. This is an appeal from a judgment of the Fayette Circuit Court affirming an opinion and order of the Workmen’s Compensation Board dismissing William Russell Preston’s motion to reopen and review a prior award of the Board. As a result of an industrial accident while employed by Elm Hill Meats, Inc., Preston’s right arm was amputated. He was sixteen years old at the time. Preston and his mother, as his legal guardian, entered into a settlement for the loss of the arm under the schedule-of-benefits statute, KRS 342.105. This agreement was approved by the Board and thus became an award. Subsequent to the settlement and award, Preston filed a common law action in the Fayette Circuit Court. Summary judgment was granted dismissing Preston’s complaint. On appeal, the judgment of the Fayette Circuit Court was affirmed. Preston v. Elm Hill Meats, Inc., Ky., 420 S.W.2d 396 (1967). Subsequent to the holding in Preston v. Elm Hill Meats, Inc., supra, Preston filed a motion with the Workmen’s Compensation Board seeking to reopen and review the Board’s initial award, alleging fraud in obtaining the original settlement, mutual mistake of fact and law, and change of physical condition. The motion was dismissed by the Board after a full hearing on the merits, and this ruling was affirmed on appeal to the Fayette Circuit Court. Preston appeals. We affirm. Appellant contends that by mistake he was limited in recovery to the schedule of benefits under KRS 342.105, whereas he is entitled to compensation under KRS 342.110 or KRS 342.095. There was no showing that appellant’s injury affected any part of his body other than the arm. Dr. David Hall testified that the appellant was totally disabled, but this determination was based solely on the loss of the arm. The Board properly found the schedule-of-benefits statute to be exclusive. Owens v. Kroehler Manufacturing Co., Ky., 461 S.W.2d 103 (1970). As grounds for a reopening and review of the Board’s original award, the appellant asserts: (1) A misunderstanding existed as to the appellant’s future condition and employability with the employer; (2) because he could not perform the occupation of his choice he was totally disabled under the test existing prior to Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968); and (3) the employer broke a promise to the appellant that had been made at the time of the award. The alleged misunderstanding concerning the appellant’s future condition and employability does not constitute a ground to reopen the award. Young v. Charles F. Trivette Coal Co., Ky., 459 S.W.2d 776 (1970). The determination that the appellant’s injury did not extend to his whole body and that the schedule-of-benefits statute is exclusive precludes the claim for total disability. Owens v. Kroehler Manufacturing Co., supra. The evidence establishes that the employer promised to hire the appellant after he left the hospital. Although he was hired, the appellant was fired shortly thereafter from his position as dispatcher. He was dismissed, according to his testimony, on a charge by his employer that he made too many mistakes. We find no broken promises made by the employer that would require the reopening of the award. Appellant contends that his employer violated the Child Labor Act by permitting him to work with power-driven machinery without proper tools and that he was entitled to receive a 15% increase in compensation under KRS 342.165. Assuming, arguendo, that the employer violated some of its statutory duties, we fail to perceive how that circumstance could permit the reopening of a claim that had been settled or prosecuted to an award. Appellant’s final contention is that he should not be precluded from asserting his right to reopen the original award merely because he brought a prior action for damages at common law, which was subsequently dismissed. The appellant was not so precluded because the Board held a hearing and dismissed the claim on its merits. The judgment is affirmed. All concur.

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Robert HINTON et al., Appellants, v. John W. BYERLY et al., Appellees. Court of Appeals of Kentucky. March 17, 1972. As Modified on Denial of Rehearing June 23, 1972. Richard C. Porter, Jr., Louisville, for appellants. Paul M. Lewis, Hatcher, Lewis & Bland, Elizabethtown, for appellees. PALMORE, Judge. This appeal presents a procedural jumble of unbelievable proportions involving the custody of Kaneta Ann Hinton, a small child who will be four years old on April 24, 1972. The appellants, Robert and Barbara Hinton, are her natural parents. The appellees, John W. and Barbara Byerly, who have physical custody of the child, are not related to her by blood or marriage. To avoid confusion, since they have the same first name, we shall refer to Barbara Hinton as Barbara and to Barbara Byerly as Mrs. Byerly. The tug-of-war began with a habeas corpus proceeding (#9807C) initiated in the Hardin Circuit Court by Barbara Hinton against the Byerlys. With respect to this appeal, it culminated in a judgment dismissing Mrs. Hinton’s habeas corpus action but retaining on the docket for future disposition an adoption proceeding (#9648A) filed by the Byerlys, which had been consolidated with #9807C and another habeas corpus proceeding (#9908C) brought by the Byerlys against Brooklawn Children’s Home and its director, Donald A. Buch-hold. The Hintons and Brooklawn Children’s Home appealed, but the Brooklawn appeal was not pursued and has not been perfected. No one questions whether this judgment disposing of only one among several consolidated actions is final and appealable under CR 52.01, but in view of its habeas corpus nature we shall treat it as such despite the trial court’s omission to make it so in the manner provided by CR 54.02. Except for two depositions the evidence considered by the trial court was not recorded and transcribed, and there is a dispute as to whether the two depositions were properly considered. The parties were unable to agree on a narrative statement as authorized by CR 75.13, so the trial judge prepared one from his own notes and recollections. This narrative obviously includes information which either was not supplied through testimony under oath or, if so, was incompetent, together with other observations and contributions of a nontestimonial character. As might be expected, a bystanders’ bill was filed (CR 75.14), and despite technical objections to it the trial court made various corrections. In considering the narrative statement we have disregarded those portions which apparently do not reflect competent evidence and proceedings in the presence of the trial court. Barbara and,,Robert Hinton have five children, of whom the youngest, Kaneta Ann, was born in 1968. Another child died on December 3, 1969, at the age of about two months. Barbara, the mother, was then 24 or 25 years old. Her husband, Robert, was in the penitentiary serving a term for storehouse breaking. (He was released during the pendency of the instant welter of litigation.) Barbara was living in Louisville, and in the early part of 1970 she made a change in residence and farmed her children out as follows: two boys to Brooklawn Children’s Home in Louisville; another boy (Mark) to a family named Basham in Hardin County; a girl (Angela) to a family named Trumbo in Hardin County; and Kaneta Ann to Barbara’s sister Peggy Van Pelt, in Versailles. Mark had previously lived with the Trumbos as a foster child under the auspices of the Baptist Children’s Home at Glendale. During the course of the proceedings here in dispute the Bashams and Trumbos filed actions to adopt Mark and Angela, but without Barbara’s consent. Whether Barbara ever actually intended for any of the children to be legally adopted by anyone else is doubtful. She vigorously says not. Nevertheless, in February of 1970, when Peggy Van Pelt took charge of Kaneta Ann, Barbara signed an entry of appearance and consent to adoption in anticipation of Peggy’s filing an adoption proceeding in the Woodford Circuit Court. At about the same time an order was entered by the Woodford County Court finding that Kaneta Ann was a dependent child and placing her in Peggy’s custody. Peggy and her husband later decided against adopting Kaneta Ann and the contemplated adoption suit was never filed. When the Van Pelts decided not to adopt Kaneta Ann, Peggy discussed the matter with her aunt, who knew the Trum-bos. The aunt called Mrs. Trumbo to see if she could take Kaneta Ann in addition to Mark. Mrs. Trumbo was not able to do so, but through her and Mrs. Basham Peggy got in touch with the Byerlys. Mrs. Byerly had two children by a previous marriage, but she and Mr. Byerly had not been able to have a child together and were interested in adopting one. Peggy made a trip or two to Hardin County to get acquainted with the Byerlys, following which, on April 6, 1970, she delivered Ka-neta Ann to them. The evidence indicates that Barbara accompanied Peggy and Ka-neta Ann to the Byerlys’ home, though she denies it. In any event, she was aware of and acquiesced in the transfer of custody to the Byerlys. Mrs. Byerly had received the impression from Peggy that the child was available for adoption, and it is possible that in the beginning Barbara did not make any effort to disabuse her of that notion, but as far as Barbara was concerned the arrangement was not permanent, and according to the narrative statement of evidence Mrs. Byerly concedes that Barbara “never did consent to this adoption or tell her to proceed with it.” Somewhere along the line after April 6, 1970, Barbara became apprehensive that if the Byerlys kept Kaneta Ann for more than 90 days they could adopt her, willy nilly, and these fears led her to seek counsel and fire the opening gun of the legal battle, which proceeded as follows: (1) June 18, 1970 — Petition for habeas corpus (#9807C), Hardin Circuit Court, Barbara Hinton against John W. and Barbara Byerly, demanding production of Ka-neta Ann. (Meanwhile on June 16, 1970, the Department of Child Welfare had received from the Byerlys an application for permission to receive Kaneta Ann, per KRS 199.473.) (2) June 19, 1970 — Writ issued, returnable June 22, 1970. (Not served.) (3) June 23, 1970 — Second writ issued, returnable June 26, 1970. (Not served. The Byerlys were away on a vacation.) (4) June 26, 1970 — Barbara Hinton applied to Brooklawn Children’s Home, in Louisville, for admission of Kaneta Ann. (5) July 6, 1970 — Barbara Hinton went to the Byerly home with two brothers and an uncle and retook possession of Kaneta Ann following some sort of an altercation with the Byerlys. (6) July 7, 1970 — Third writ issued, returnable July 16, 1970. (7) July 7, 1970 — Complaint for adoption (#9846A), Hardin Circuit Court, John W. and Barbara Byerly v. Kaneta Ann Hinton et al. (8) July 9, 1970 — Petition filed in Jefferson County Court, Juvenile Division, by Commonwealth ex rel. Barbara Hinton against Kaneta Ann Hinton to have her declared to be within the purview of KRS 208.020. (9) July 16, 1970 — Response filed by Byerlys in #9807C alleging [incorrectly, as it develops] that Barbara Hinton’s parental rights had been judicially terminated and that Kaneta Ann’s “guardian” had given her custody to the Byerlys for the purpose of adoption. (10) July 23, 1970 — Order of Hardin Circuit Court in #9807C reciting that evidence had been heard, adjudging that the Byerlys were entitled to the immediate custody and control of Kaneta Ann, and ordering Barbara Hinton “or any other person or agency having custody of said child” to deliver the child forthwith to the Byerlys. (11) July 29, 1970 — Answer filed by Barbara Hinton in the adoption proceeding of the Byerlys (#9846A), contesting the attempted adoption on the merits. (12) July 29, 1970 — Petition for habeas corpus, Hardin Circuit Court (#9908C), John W. and Barbara Byerly v. Brooklawn and its director, Donald Buchhold, demanding production of Kaneta Ann. Writ issued, directed to respondents in Jefferson County but requiring them to produce the child in the Hardin Circuit Court on August 6, 1970. [Note that KRS 419.030 requires the person detained to be brought before the circuit court of the county in which he is detained.] (13) August 5, 1970 — Order entered by Jefferson County Court, Juvenile Division, finding that Kaneta Ann comes within the purview of KRS 208.020 and granting temporary custody to Brooklawn. [See (8), above.] (14) August 5, 1970 — Order entered by Jefferson County Court, Juvenile Division, directing Brooklawn and Buchhold not to remove Kaneta Ann from Jefferson County “without further orders of this Court.” (15) August 6, 1970 — Motion by Brook-lawn and Buchhold in Hardin Circuit Court (#9908C) filing first Jefferson County Court order [see (13), above], contesting jurisdiction and venue of the Hardin Circuit Court, and moving for dismissal of #9908C. (16) August 6, 1970 — Motion by Byerlys in #9807C for rule adjudging Brooklawn, Buchhold, and one Ann Zollsberg in contempt for violating the order of July 23, 1970 [see (10), above]. (17) August 12, 1970 — "On motion,” order of Hardin Circuit Court consolidating #9807C and #9908C, the two habeas corpus actions. This order also holds that Buchhold’s defense “that another court has attempted to take jurisdiction in this matter was of no avail,” sets all motions for hearing on the next day, and directs Buch-hold to have Kaneta Ann in court at that time. (18) August 13,1970 — Copy of August 5, 1970, order of Jefferson County Court, Juvenile Division, prohibiting Kaneta Ann’s removal from Jefferson County [see (14), above] filed in course of Hardin Circuit Court hearing. Barbara Hinton and Buch-hold appeared with counsel but without Kaneta Ann. Judge of Hardin Circuit Court ordered Barbara Hinton and Buch-hold to be physically detained until Kaneta Ann was delivered. Telephone calls were made to Louisville, and other personnel of Brooklawn produced Kaneta Ann some four hours later, whereupon the court forthwith gave her into the custody of the waiting Mrs. Byerly. [These proceedings are taken from the narrative statement of the trial court. They do not show up in the Clerk’s record until December 18, 1970. See (27), below.] (19) August 17, 1970 — Appointment of guardian ad litem for Kaneta Ann in the adoption proceeding (#9846). (20) August 19, 1970 — Letter from Department of Child Welfare to Mr. and Mrs. Byerly in response to their letter of June 16, 1970 [see (1), above], stating, “The evaluation of your home had not been completed within the sixty days prescribed by Statute and thus, on a technical basis, the application could be [emphasis added] considered as having been approved by default,” but that “We are asking our staff to proceed with the evaluation of your home, as a confidential report to the court will be filed in answer to your petition for adoption.” The letter goes on to caution the Byerlys that Barbara Hinton “does not wish to have her child placed in your home and will not consent to an adoption,” and that “you should understand that though the child is presently in your home, it is possible that she may not remain permanently with you or be adopted by you.” [It should be noted that KRS 199.473 makes no provision for an approval “by default.”] (21) August 20, 1970 — Motion by Barbara Hinton that she be awarded immediate custody of Kaneta Ann, to be brought on for hearing September 3, 1970. (22) September 15,1970 — Discovery depositions of Peggy Van Pelt and Mrs. Trum-bo taken by counsel for the Byerlys in #9807C, counsel for Mrs. Hinton present and participating. [These depositions were filed with the Hardin Circuit Court Clerk on September 28, 1970.] (23) October 6, 1970 — Confidential reports to Hardin Circuit Court by Department of Child Welfare approving adoption petitions of Trumbos and Bashams with reference to Mark and Angela, brother and sister of Kaneta Ann. (24) October 21, 1970 — Confidential report to Hardin Circuit Court by Department of Child Welfare recommending against placing Kaneta Ann with the Byer-lys or with her mother. (25) December 11, 1970 — Writ of habeas corpus (#145162) issued by Jefferson Circuit Court in favor of Robert and Barbara Hinton against the Byerlys to produce Ka-neta Ann before the Hardin Circuit Court on December 16, 1970. Cf. KRS 419.030. (26) December 18, 1970 — Response of Byerlys to (25), filed in Hardin Circuit Court, pleading among other things the pendency of # 9807C, the original habeas corpus action instituted by Barbara Hinton. (27) December 18, 1970 — Order of Hardin Circuit Court in consolidated actions #9807C and #9908C overruling the “motion concerning venue and jurisdiction” [see (15), above], holding Buchhold and Barbara Hinton in contempt, and directing them to remain in the jurisdiction of the court “until such time as the infant Kaneta Ann Hinton be delivered into the immediate custody of John W. Byerly and Barbara E. Byerly.” [Evidently this order was nothing more than a formalization of what the narrative statement says had taken place on August 13, 1970. See (18), above.] (28) January 7, 1971 — Intervening complaint of Robert Hinton, filed by permission of court, demanding immediate custody of Kaneta Ann and requesting consolidation of all the pending actions. (29) January 8, 1971 — Motion by Byer-lys to consolidate # 9846A, the adoption proceeding, with #9807C and #9908C, the two habeas corpus proceedings instituted in the Hardin Circuit Court. [No mention is made of # 145162, the habeas corpus action originating in the Jefferson Circuit Court and made returnable in the Hardin Circuit Court. See (25), above.] (30) January 20, 1971 — Response of Barbara Hinton objecting to consolidation of adoption proceeding with the habeas corpus cases. (31) January 21, 1971 — Order of Hardin Circuit Court consolidating # 9846A, # 9807C and # 9908C. (32) January 21, 1971 — Supplementary confidential report to Hardin Circuit Court by Department of Child Welfare recommending that temporary custody of Kaneta Ann be granted to the Department so that she might be placed with Edith Hinton Hutchens (a cousin of Robert Hinton) and her husband, Roger Hutchens (who live on a farm near Boston in Nelson County, Kentucky), under the supervision of Brooklawn Children’s Home, an agency licensed by the Department. The report indicates that this arrangement meets the approval of the Hintons and the Hutchens family, will preserve the family relationships, and will be for the child’s best interest. It notes that although the Hintons may be personally estranged (according to other information in the record Barbara Hinton intends to divorce Robert, marry another man, move to Campbellsville, and bring her children back together again), they strongly support each other on this problem; Robert Hinton is employed in Louisville; Barbara is living with her mother in Louisville and wants to secure employment as a waitress; and that both parents have strong feeling and concern for the child. Attached is a favorable report on the Hutchens family. (33) February 22,1971 — Answer of Robert Hinton in #9846A, the adoption case, contesting the proposed adoption on the merits and on the technical ground that the complaint does not comply with the requirements of KRS Chapter 199. [Note for example, KRS 199.470(4), providing (subject to certain exceptions not applicable in this instance) that no petition for adoption shall be filed unless prior thereto the child has been placed for adoption by a licensed agency or the Department of Child Welfare, or has been placed with written approval of the Commissioner of Child Welfare. See also Commonwealth, Dept, of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287, 290-292 (1971).] (34) March 30, 1971 — Findings of fact, conclusions of law and judgment of Hardin Circuit Court “that the Writ of Habeas Corpus of Robert Hinton, and Barbara Hinton, his wife, be and they are hereby dismissed .... This action is retained on the docket . . . for ruling on the adoption petition heretofore filed.” The caption of this document lists #9807C, #9908C, and #145162 [see (25), above], though we find nothing in the record consolidating #145162 with the other actions. The trial court found as a fact that Barbara Hinton had voluntarily abandoned and given Kaneta Ann away (to Peggy Van Pelt) and had agreed to her subsequently being placed with the Byerlys. It found that the reason for Barbara’s giving the child away was that she was living with a bartender in Louisville and he did not want to be bothered with a child, but there is nothing in the narrative statement of evidence or in the depositions to support such a finding. Another finding to the effect that the Department of Child Welfare had found the Byerlys “suitable for adoption” is flatly contradicted by the record [see (24) and (32), above]. It is further found that the welfare of Kaneta Ann would be best served by leaving her with the Byerlys pending action on their adoption proceeding. (35) April 19, 1971 — Amended answer of Barbara Hinton in #9846A alleging that the adoption complaint does not comply with the requirements of KRS Ch. 199. Among the rulings of law as listed in support of the judgment are (1) that the Hintons [sic], having submitted to the jurisdiction of the Hardin Circuit Court by there instituting a habeas corpus proceeding, could not defeat that jurisdiction by spiriting the child away into another county, (2) that the Byerlys “had proper and legal custody of the child,” and (3) a repetition of the factual findings with respect to the manner in which Kaneta Ann had come into possession of the Byerlys and with respect to her best interest and welfare pending culmination of the adoption proceeding. Here ends the trial phase of the proceedings as now brought under review by this court. A good deal more controversy took place with respect to the record on appeal, but in the interest of getting on with the substantive business at hand we shall not discuss it. Our recent opinion in Galloway v. Pruitt, Ky., 469 S.W.2d 556 (1971), expressed the view “that it is inappropriate and unrealistic that proceedings to determine the right of immediate possession of a child, however denominated, be consigned to the narrow confines of traditional ha-beas corpus.” (Emphasis added.) Hence it was directed that proceedings for immediate custody of children should be more broadly considered, and the trial court may determine whether the proceeding should extend into “a full-blown hearing and adjudication on the ultimate entitlement to custody, based upon the best interests of the child and other considerations -which may be applicable.” 469 S.W.2d at 558. The Hintons contend that this case should be decided on the narrower and more technical principles enunciated in Scott v. Scott, Ky., 445 S.W.2d 871 (1969). Actually, however, what Galloway v. Pruitt stands for is that regardless of how it begins, no child custody case should be tried in a straitjacket. Within the context of this case that principle means that in determining the rights of the contesting parties the welfare of the child is never an irrelevant issue. Cf. Manion v. Cofer, Ky., 459 S.W.2d 76, 79 (1970). Whenever temporary custody is at issue, entitlement to permanent custody either is not in issue or remains to be determined in the future (usually, of course, the latter). At the stage of determining temporary custody alone, such considerations as parental rights are bound to have greater weight than they will when the over-all welfare of the child is finally determined. That is the situation before us in this appeal, which involves temporary custody alone. When the litigation began Kaneta Ann had lived with the Byerlys for only three months. By this time at least they must have realized her mother opposed an adoption. They had not received her custody in accordance with the requirements of KRS 199.473. Whatever may have been Barbara Hinton’s position, as between her and the Byerlys it was legally superior. We do not condone the manner and method by which Barbara took the law into her own hands in repossessing Kaneta Ann from the Byerlys, but it does not follow that she had no right to “defeat the jurisdiction” of the Hardin Circuit Court. The writ which she had sought had been issued and returned without service. [See (3), above.] The Hardin Circuit Court had not obtained jurisdiction in personam over the child or over the Byerlys. Its jurisdiction over the proceeding could have been terminated by a unilateral dismissal of the petition. CR 41.01(1). In taking possession of the child Barbara acted neither pursuant to nor in violation of any order of the Hardin Circuit Court, and it seems to us that her habeas corpus proceeding became moot when its objective had been accomplished by other means, whatever they were and regardless of what consequences they might have had in other proceedings. There is no legal premise upon which it could be held that Kaneta Ann was in the unauthorized or wrongful possession of her mother when the Commonwealth proceeding was begun in the Jefferson County Juvenile Court on July 9, 1970. [See (8), above.] Unquestionably that court had jurisdiction of both Kaneta Ann and of the subject-matter, and there is nothing in the record to suggest that its judgment rendered on August 5, 1970, was not valid and binding. [See (14), above.] Assuming (without deciding) that the writ of habeas corpus issued by the Hardin Circuit Court at the instance of the Byerlys on July 29, 1970 [see (12), above], was valid and effective and that their adoption proceeding [see (7), above] overrode the effect of the proceeding in the Jefferson Juvenile Court, there is still no legal basis upon which to say that the right of the natural parents should not have prevailed, except for their unsuitability or inability. That brings us to the crux of the legal problem. A finding of unfitness or inability on the part of the natural parents necessarily amounts to a finding that the child’s welfare requires that he be placed elsewhere. When such a placement is temporary, some consideration must be given to the prospect of what happens if in the end the other contesting parties are denied permanent custody. If they are, both they and the child would be better off if the child has not been in their custody during the interim. We do not suggest this proposition as an eternal truth; it depends on where the child is, and how long he has been there, when the moment for decision arrives on the question of temporary custody. In this case, when that question was first decided by the circuit court in July of 1970 [see (10), above], the association between Kaneta Ann and the Byerlys had been relatively brief, and a separation could not then have caused the emotional trauma it must now precipitate. To a lesser extent the same is true with respect to the time the judgment was entered, March 30, 1971 [see (34), above]. It is the passage of time since then that gives us extreme trouble. Obviously the emotional ties between Kaneta Ann and the Byerlys áre bound to have grown. But if the judgment when made was erroneous, we cannot permit it to be made right by dead force of the law’s delay. Insofar as the judgment denies interim custody to the Hintons personally it cannot be faulted, because neither of them is in a position to take care of the child and there is ample support for the trial court’s finding that it would not be in the child’s best interest. On the other hand, in the absence of some substantial reason to the contrary there is no reason why they should not have had the right to place her under the care of the Department of Child Welfare, as they sought to do. The Byer-lys, despite their utmost sincerity, had no claim whatever except through the circumstance that the child had lived with them for a short time and they were seeking to adopt her. We do not suggest that this circumstance was without significance. Had the child been placed in their home with the permission of that Department, and in accordance with KRS 199.473, the case for leaving her there pending a permanent or indefinite disposition would have had more weight. More particularly would that have been so if the child had been placed with them in such a manner as to satisfy the requirements of KRS 199.470(4) with respect to a petition for adoption, for then at least the prospects of an adoption would have appeared more likely. As it is, however, these requirements had not been satisfied, and according to the record before this court it appears that the adoption proceeding is being carried on in the face of adverse recommendations by the Department of Child Welfare. Under the circumstances it is our opinion that the Hintons were entitled to have the immediate custody of Kaneta Ann placed under the direction of the Department of Child Welfare as recommended in the Department’s supplementary report of January 21, 1971. The judgment is reversed with directions that the custody of Kaneta Ann Hinton be placed with the Department of Child Welfare pending final determination of the adoption proceeding. STEINFELD, C. J., and EDWARD P. HILL, Jr., MILLIKEN, OSBORNE and REED, JJ., concurring. NEIKIRK, J., dissents. NEIKIRK, Judge (dissenting). Cutting through the legal technicalities asserted in the majority opinion and considered controlling, I would place the welfare of the child paramount to all other issues. In my opinion, the trial court exercised the better part of judicial wisdom in determining that immediate custody of the child should remain with John W. Byerly and his wife Barbara. This is especially true when one considers the determination in the light of the overt acts and deeds of all the parties and the adroit and successful maneuvering to cloud the real issues by the attorneys for all parties. Until the Legislature determines that all original proceedings involving the welfare or custody of a child should be vested in a body other than in our present courts, the determination of such issues by a trial court should be controlling unless clearly erroneous. In the instant case, the trial court had opportunity to observe and hear all persons involved; to judge the fitness of persons claiming immediate custody; and from all the maze judicially determined how the best interests, welfare, and immediate custody of the child could best be served. The child should not be permitted to become a pawn to be moved on a human chess board set up by adult contestants without regard to consideration of the child’s right to be moved or to remain in place. The Hardin Circuit Court had original jurisdiction of the parties, as well as of the child. All other proceedings were subsequent thereto, and, in my opinion, were not of such import as to wrest from the Hardin Circuit Court the legal right to adjudicate the issue of the immediate custody of the child and reserve the issue of permanent custody to be determined in a proper proceeding in the same forum. I am not persuaded that the immediate welfare and best interests of the child involved can best be accomplished by this court’s placing the custody of the child with the Department of Child Welfare. To me, the report of the Department of Child Welfare dated January 21, 1971, was advisory, and the trial court chose not to accept the advice. This was not a clear abuse of discretion. As between the report of the Department of Child Welfare and the finding of the trial court, I would accept the latter. For these reasons I respectfully dissent. I would affirm the judgment of the Hardin Circuit Court. It should be explained that the Department’s recommendations were based on factors having nothing to do with the moral fitness of the Byerlys or with their ability to provide for the child.

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Hilda L. STEIDEN and Douglas Steiden, her husband, Appellants, v. The KROGER COMPANY, Appellee. Court of Appeals of Kentucky. June 23, 1972. Clinton R. Burroughs, Louisville, for appellants. William Mellor, Mellor & Shaw, Louisville, for appellee. C. J. WADDILL, Special Commissioner. Appellants, Hilda L. Steiden and her husband, Douglas Steiden, were plaintiffs in the trial court. Appellee, The Kroger Company, was the defendant in the trial court. Mrs. Steiden was injured by being struck on the left shoulder while in the path of the exit door at a grocery operated by The Kroger Company. Mr. Steiden’s right to recovery is dependent upon his wife’s right to recovery. The circuit judge granted summary judgment in favor of The Kroger Company. We are concerned with the question of whether Mrs. Steiden’s testimony, recorded in a discovery deposition, establishes as a matter of law that she was guilty of negligence contributing to cause her injury. Mrs. Steiden occasionally patronized the Kroger store located at 1318 Berry Boulevard in Louisville. Ingress and egress to this store were available to the public at the front of the building by means of two side-by-side doors, one being the “in” door, which swung in, and the other being the “out” door, which swung out, each of the doors being activated by an electric eye. The “out” door had a glass insert through which a person outside the store in front of the door could see if anyone inside the store was about to activate the “out” door. Normally there was a rail which extended out between the two doors. This rail was not in place on the day of the accident because of alterations being made to the store. When Mrs. Steiden went to the store on the day of the accident, she found that a crowd of people, attracted by an automobile collision in the street, had congregated in front of the store, some of whom were keeping the “in” door open by standing in the entrance in such a way as to break the beam of the electric eye for the “in” door. Mrs. Steiden stated that she was not interested in the automobile collision but “wanted to go on in, and do my shopping and get out.” After noting that the rail between the two doors was not in place, Mrs. Steiden attempted to take advantage of its absence by weaving her way on a course which brought her in front of the “out” door on her way to the “in” door. She says she knew that if someone on the inside came up to the electric eye, it would open the “out” door, but that she tried to keep far enough away so the door would not hit her if someone opened it. She stated that she then looked at the door, saw no one coming out, turned her back to the door intending to go around a woman when a person coming out of the store activated the door which swung open and hit her on the left shoulder. As an invitee to the store, Mrs. Steiden had a right to assume that The Kroger Company had exercised ordinary care to have the premises in a reasonably safe condition and would give her adequate warning of any artificial or natural condition unknown to her which might cause her injury. Peerless Mfg. Corp. v. Davenport, 281 Ky. 654, 136 S.W.2d 779; Department of Conservation v. Floyd, Ky., 254 S.W.2d 495. Mrs. Steiden chose her route of passage to enter the store with full knowledge that the crowd was present and that the rail, normally between the two doors, was not in place. When the person leaving the store activated the “out” door of the building, the door operated in the anticipated manner. The variable factors causing her injuries were Mrs. Steiden’s dangerous location and reckless behavior in relation to the door. Her right to make the assumptions set out above did not relieve Mrs. Steiden of the duty to exercise ordinary care for her own safety nor license her to walk blindly into dangers which were obvious, known to her, or that would be anticipated by one of ordinary prudence. J. C. Penny Company v. Mayes, Ky., 255 S.W.2d 639; Lachat v. Lutz, 94 Ky. 287, 22 S.W. 218. Mrs. Steiden elected to try to enter the store by going in front of the “out” door. The danger of being struck by this door was obvious and known to her. She took the chance of injury. This was negligence on her part. Paducah Pole & Timber Co. v. Brockwell, 161 Ky. 424, 170 S.W. 970; Fisher v. Hardesty, Ky., 252 S.W.2d 877. In addition to positioning herself in the path of the door, she turned her back to the door. By her rash behavior, she contributed further to her peril and practically nullified all chances of taking evasive or protective action. Mrs. Steiden’s testimony is conclusive. There is no genuine issue of fact remaining. Reasonable men could only decide that Mrs. Steiden ignored her legal duties and failed to exercise ordinary care for her own safety, and that her negligence caused or contributed to cause her injuries. The general rule in Kentucky is that a person who fails to exercise ordinary care for his own safety is guilty of negligence, and his right of recovery for his injuries is barred. Houchin v. Willow Avenue Realty Company, Ky., 453 S.W.2d 560; Layman v. Ben Snyder Inc., Ky., 305 S.W.2d 319; Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405. The facts distinguish this case from those cited by the appellants. The judgment is affirmed. All concur.

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John W. YOUNG, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund and Paul Ernest Myers, Appellants, v. KENTUCKY BAPTIST HOSPITAL and Workmen’s Compensation Board of Kentucky, Appellees. Court of Appeals of Kentucky. June 30, 1972. Gemma M. Harding, Dept, of Labor, Louisville, for appellant Young. Freeman B. Blackwell, Louisville, for appellant Myers. Stuart E. Alexander, Louisville, for ap-pellee Kentucky Baptist Hospital. EDWARD P. HILL, Jr., Judge. The award by the Workmen’s Compensation Board allowed Paul Ernest Myers full compensation for total permanent disability following the loss of his right eye. He had lost the left eye when he was 12 years old. The award was entirely against the employer and released the Special Fund. The employer appealed to the circuit court where judgment was entered remanding the case to the Board with directions to enter an award allowing Myers compensation for 100 weeks against the employer and 325 weeks against the Special Fund. In 1969, Myers lost the sight of his right eye. It is to be noted at the outset that the extent of the liability of the employer is controlled by KRS 342.120(3) before it was amended by the 1970 Legislature. The Special Fund has appealed to this court claiming in substance that any disability under which Myers was laboring by reason of the loss of the sight of his left eye, when he was 12 years of age, is noncompensable and should be deducted from the disability chargeable to the Special Fund. We agree. In Cabe v. Stamps, Ky., 429 S.W.2d 361, we had a very similar factual situation in which this court approved an award for total permanent disability benefits limiting the liability of the employer to 100 weeks under KRS 342.105 and holding the Special Fund liable for the balance of the award. Since our opinion in Stamps, supra, this court has had at least two occasions to reevaluate apportionment under KRS 342.120(3) and (4). Those two cases are Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), and Young v. Young, Ky., 460 S.W.2d 832 (1970). All parties in this case agree that Myers is totally and permanently disabled and that he has complied with the procedures for presentation of his claim. The real argument centers around the apportionment of the liability for his compensation. For convenience, we shall first determine the liability of the employer, Kentucky Baptist Hospital. Its liability is governed by an act of the Legislature embodied in KRS 342.120(3), the relevant part of which we quote herewith: “ * * * [T]he employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no preexisting disability or dormant, but aroused diseased condition.” (Emphasis ours.) Clearly, under this statute, the liability of the employer is limited to the extent and consequence of the subsequent injury had there been “no preexisting disability.” So if there had been no preexisting disability, Myers would have had a good left eye and would not have sustained total disability; in which event, his compensation would have been governed by KRS 342.105(20) as it existed prior to the amendment in 1970, known as the Price Tag Statute. He was entitled to compensation from his employer for a period of 100 weeks. Next we come to the question of the liability of the Special Fund. In this query we return to KRS 342.120(4) from which we quote: “The remaining compensation for which such resulting condition would entitle the employe, including any compensation for disability resulting from , a dormant disease aroused into disabling reality by the injury or occupational disease, but excluding all compensation which the provisions of this chapter would have afforded on account of prior disabling disease or injury had it been compensated thereunder, shall be paid out of the Special Fund * * Of course, in the instant case, Myers sustained an injury (loss of left eye) which was not compensated therefor by anyone. Under the above statute, however, there must be excluded from “the remaining compensation * * * all compensation which the provisions of this chapter would have afforded on account of prior disabling * * * injury had it been compensated therefor.” See Owens v. Kroehler Mfg. Co., Ky., 461 S.W.2d 103 (1970). The loss of an eye constitutes a disabling injury by definition. KRS 342.105(20). One hundred weeks compensation should be paid by the employer and 100 weeks excluded for his first disabling injury, the balance is reimbursable by the Special Fund. Insofar as this opinion is inconsistent with Cabe v. Stamps, supra, the latter is herewith overruled. However, one saving grace in Stamps that should be noted herein is the announcement for the first time that the loss of an eye in Stamps was declared to be disability under the “otherwise” phraseology of KRS 342.120(1) (a). The judgment is reversed with directions to remand the case to the Board for appropriate findings consistent with this opinion. All concur.

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Minnie G. BRADLEY, widow, et al., Appellees. Court of Appeals of Kentucky. June 23, 1972. Carl T. Miller, Jr., Dept, of Highways, Frankfort, Charles W. Huddleston, Dept, of Highways, Bowling Green, for appellant. Harry W. Berry, Glasgow, for appellees. EDWARD P. HILL, Jr., Judge. A jury verdict awarded the appellees, landowners, $11,000 for a taking of 602 square feet from their lot to be used for the improvement of Lewis Street in Glasgow, Kentucky, so it could be used for state highway purposes. The state has appealed from the judgment entered on the verdict and relies upon the following three claimed trial errors for reversal: “(1) The trial court erred in refusing to admonish the jury that the value of the appellees’ property remaining after the taking should reflect the reasonable probability of a zoning ■ change from residential to commercial; (2) the trial court erred in refusing to strike the testimony of Minnie Bradley and Rudolph Watts as to the value of the property remaining after the taking because each assumed that it must remain zoned residential despite undisputed proof to the contrary; and (3) the verdict lacks the support of sufficient probative evidence, and it is excessive.” Before it was disturbed, the appellees’ property fronted 57 feet on Lewis Street and extended back in parallel lines 140 feet. Situated on the lot was a two-story frame building 30.5 feet by 40 feet, which housed a poolroom-restaurant combination and a barber shop. The building was approximately 50 years old and was not in a very good state of repair. It abutted onto the sidewalk. The property was zoned residential with a restriction that no residence could be constructed within 10 feet of the property line nor on a lot containing less than 7,500 square feet. The lot before the taking contained 7,980 square feet. The taking consisted of 602 square feet, leaving 7,378 square feet, which obviously is less than the restriction in the zoning regulation. The appellant removed the building in the process of the taking. Prior to the removal of the building, the appellees were realizing something between $115 to $145 per month as rentals. The appellant’s witnesses gave the following before and after values: Cox $ 9,600 $ 4,700 $ 4,900 Bishop 9,900 4,900 5,000 Appellees’ witnesses placed the following before and after values on the property: Bradley $15,000 $1,000 $14,000 Whitney 14,000 2,000 12,000 Watts 14,000 2,000 12,000 The verdict of the jury fixed the before value at $14,000, the after value at $3,000, and the difference at $11,000. The great variance between the testimony for the appellant and that given for the appellees on the value of the property before the taking is largely the result of differences in opinion. Both sets of witnesses were legally qualified. Considering the income-producing feature of the property, it is difficult for this court to disturb the before value fixed by the jury. The real bone of contention on this appeal relates to the disparity between after values fixed by the state’s witnesses and those fixed by the appellees’ witnesses. The jury took a happy medium and fixed the after value at $3,000. The substantial difference between the after values fixed by witnesses was attributable, according to appellant, to the zoning classification of the property. The appellant contends that the remaining vacant lot was located in a fast developing area and that the prospects that it will be, or may be, changed from residential to commercial are imminent and that this fact was a necessary element for the jury to consider in fixing the after value. It is pretty clear from the evidence that the appellant’s witnesses considered that the lot could be reclassified from residential to commercial within the near future in fixing their after values. However, the appellees’ witnesses declined to consider any possibility of a change in zoning. Appellant’s first argument claims error by the trial court in refusing to admonish the jury relative to the evidence on that question. The trial court permitted the state’s witnesses to testify that they considered the possibility of a zoning change in arriving at their after values. The trial court did not consider it necessary to give an admonition. The mere fact that the trial court allowed the jury to hear this evidence was in effect a ruling on its competency and no admonition was proper or necessary as to the state’s witnesses. A more serious question is presented in appellant’s second argument in which he questions the probative quality of the testimony of the landowners’ witnesses. Appellant moved the court to strike the testimony of the appellees’ witnesses on the ground that they failed to take into account an important and relevant factor in fixing their after values. That factor was the possibility or likelihood of a change in the zoning regulation of the area from residential to commercial. The possibility or probability of a change in the zoning regulation is a proper consideration to be weighed in fixing the after value. 29A C.J.S., Eminent Domain, § 160. See also Commonwealth, Department of Highways v. Siler, Ky., 411 S.W.2d 937; Chitwood v. Commonwealth, Department of Highways, Ky., 391 S.W.2d 381; and Tharp v. Urban Renewal and Community Development Agency of City of Paducah, Ky., 389 S.W.2d 453. This court has in condemnation cases, consistently condemned evidence which takes into account improper factors. See Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844; and West Kentucky Coal Company v. Commonwealth, Department of Highways, Ky., 368 S.W.2d 738. The question of whether the subject property may or may not benefit from a change in zoning regulations and the probability of a change in the zoning classification are questions for the jury to determine. The question of the credibility of the witnesses is also for the jury to resolve. The jury could have accepted the testimony of the state’s witnesses on the after value or it could have given more weight and consideration to the testimony of the appellees’ witnesses. But actually the jury did neither. Its after value, as said before, was “betwixt and between” the two sets of witnesses. No objections were made by the appellant to questions relative to the refusal of the property owners’ witnesses to admit the possibility of a change in the zoning classification and its effect on the after value. However, at the conclusion of the landowners’ evidence, the appellant moved the court to exclude all the evidence of appellees’ witnesses on the ground that they had not taken into account the probability of a change in the zoning classification. The trial court in overruling the motion to strike this evidence made the following comment: “Well, of course he just told how he arrived at his opinion. * * * And it’s a question of fact for the jury whatever weight they want to give to it.” We agree with the trial judge that the admitted failure of appellees’ witnesses to take into account the probability of a change in zoning classification was not a ground for striking the entire testimony of their witnesses. See Commonwealth, Department of Highways v. Rose, Ky, 392 S.W.2d 443; and Commonwealth Department of Highways v. Shaw, Ky., 390 S.W.2d 161. This is a matter that may go to the probative value to be given by the jury to their evidence. Appellant’s final argument to the effect that the verdict lacked support of sufficient probative evidence and is excessive is we think without merit. The amount of the verdict was within the range of the testimony, and we are not inclined to disturb the verdict of the jury in this respect. The judgment is affirmed. All concur.

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Minnie A. BURNETT, Appellant, v. Barbara AHLERS et al., Appellees. Court of Appeals of Kentucky. May 26, 1972. Alan T. Slyn, David L. Proffitt, Louisville, for appellant. James F. Donoghoe, Jr., Louisville, for Barbara and Robert Ahlers. E. Preston Young, Louisville, for Ky. Farm Bureau Mut. Ins. Co. Ronald R. Snyder, Jeffersontown, for Doris and Joseph Chandler. EDWARD P. HILL, Jr., Judge. A jury returned a verdict for Doris Chandler against both drivers involved in a two-car collision. She was a passenger in one of the cars. The appellant, Minnie A. Burnett, one of the drivers, argues among other things that there was no evidence of probative value tending to prove negligence on her part and she was, therefore, entitled to a directed verdict. We agree. On January 27, 1967, the appellant was driving her husband’s automobile west on Famous Way, a two-lane street in Jefferson County. Pauline Renfrow was a front-seat passenger and Doris Chandler was a rear-seat passenger in Mrs. Burnett’s car. They were on their way to pick up another passenger and thence to work at P. Lorillard Corporation. A light snow was falling. Appellee Barbara Ahlers, age 20, was driving her father’s car east on Famous Way with her brother as a passenger. The accident occurred just west of the intersection of Famous Way and Judge Boulevard. Famous Way is the dominant highway. Stop signs are provided for traffic entering Famous Way. A short distance west of the intersection, Famous Way curves south. Before getting to the evidence on the question of fault, it should be shown in this opinion how the issues arose. Appellant, Minnie A. Burnett, first filed civil action against Barbara Ahlers and her father, Robert Ahlers, and the Kentucky Farm Bureau Mutual Insurance Company (hereafter Ky. Farm Bureau) in which Minnie’s husband, Emory R. Burnett, joined claiming damages to his car and loss of its use. Minnie sued for pain and suffering, lost earnings, and for her medical expenses. Ky. Farm Bureau, Minnie’s insurance carrier, was joined on the theory it was liable to Minnie under its uninsured motorist provision. The second civil action was filed by Doris Chandler and her husband, Joseph Chandler, against the Burnetts, the Ahlers, and Ky. Farm Bureau. The two actions were consolidated. The trial resulted in a verdict for Emory R. Burnett against the Ahlers for the damages to his car and for Doris Chandler in the sum of $2,300 against Minnie A. Burnett and the Ahlers. After this appeal was perfected, Ky. Farm Bureau paid Doris Chandler the amount of her judgment, and she has moved this court to dismiss the appeal as to her. This motion is now overruled. See Bratton v. Speaks, Ky., 286 S.W.2d 526. Four witnesses testified for appellant Minnie A. Burnett on the question of fault. They were Pauline Renfrow, Doris Chandler, Richard Prewitt, and appellant Minnie A. Burnett. The only witness to testify on behalf of appellee Barbara Ahlers was Barbara herself. Although her brother was in the car driven by Barbara at the time of the collision and was in court at the time of the trial, he did not testify. Of the eleven “questions” presented, we shall discuss only one except to briefly refer to some evidence as to previous accidents and injuries of appellant Minnie A. Burnett. The dispositive question to which we now turn is whether there was any probative evidence produced on the trial which tended to charge appellant, Mrs. Burnett, with negligence; or stated another way, whether appellant, Mrs. Burnett, was entitled to a directed verdict on her claim against Barbara Ahlers and as to the claim of Doris Chandler. We shall now review the evidence as it relates to the question of fault on the part of Mrs. Burnett. The sum and substance of the testimony of Mrs. Burnett was that as she approached the intersection of Famous Way and Judge Boulevard, she observed a stopped car headed east on Famous Way with its signal lights indicating a desire of the driver to make a left turn onto Judge Boulevard; that she passed the stopped car without incident and while on her side of the road; that there was a sharp curve on Famous Way west of its intersection with Judge Boulevard and that “around the curve came a car on my side of the road, directly on my side of the road as it rounded the curve, and immediately the car passed back over sharply on its side and back again as if it was out of control. I immediately steered my automobile to the right * * * but I didn’t get out of the way. She hit me in the side.” The appellant, Mrs. Burnett, further testified that she was in her right-hand lane, traveling about 25 miles per hour. The testimony of Pauline Renfrow substantiated that of Mrs. Burnett. Pauline stated that at no time did the Burnett car get over in its left lane of traffic; that it was traveling at a reasonable rate of speed; that she observed the Ahlers car “just seconds before” the collision; that she “became aware that Mrs. Burnett’s car was being braked and pulling to the right and looked up to see what was going on and saw the Ahlers’ car coming toward” the Burnett car; that at this time the Ah-lers car was “in the middle of the street or in the righthand lane”; that at the time of the contact of the two vehicles, the Burnett car was partly off the road on her right. Mrs. Renfrow also testified that as the Burnett car approached the intersection, she saw a car traveling east on Famous Way slowing down with its left blinker lights functioning indicating its desire to make a left-hand turn onto Judge Boulevard. This testimony is mentioned here to substantiate the testimony of Richard Prewitt whose deposition asserts that he was the driver of the car slowing down to make a left turn. The appellee Barbara Ahlers gives a completely different version as will be shown later in this opinion. The third person to give evidence favorable to Mrs. Burnett was Doris Chandler, the back-seat passenger in the Burnett automobile. It should be noted in connection with weighing Mrs. Chandler’s evidence that she was claiming damages from both Mrs. Burnett and the Ahlers. Doris stated that after they had passed the intersection, she “looked up and saw the car coming toward us, and I thought she was going to hit us head on and I screamed”; that she could “feel the (Burnett) car kind of swerve”; that she thought at the time of impact the Burnett car was “off the pavement.” She also stated that the Burnett car passed another car which was preparing to make a left turn onto Judge Boulevard. The fourth and last person to give evidence concerning the accident was Richard Prewitt, a member of the U. S. Navy. He testified that at that time he knew appellee Barbara Ahlers; that at the time of the collision, he had stopped to let the Burnett car pass so he could make a left turn onto Judge Boulevard; that while he was “sitting there, the car passed * * * me and then I heard tires squealing * * * and then I heard the thud and I turned around and seen that the Chevy (Burnett car) had veered off to the right and landed off the road”; that the Ford (Ahlers car) “just about” hit him; that when he looked in his rear-view mirror, the Ahlers car was partly on the north side of Famous Way, which was in the Burnett lane of traffic; that his car was standing stopped after the collision. Prewitt, who was a resident of the community not far from the scene of the accident, testified that he was acquainted with Barbara from their school days; that prior to the accident, Barbara was following “pretty close” behind him, “close enough for me to feel un-at-ease and give a Jittle more gas to get from in front of her”; that she was “tailgating” him; that Barbara was “going faster than the speed limit”; that the Ahlers car attempted to pass him but was prevented from doing so by oncoming, westbound traffic; that the Burnett car came to a stop about one car length west of the intersection. Prewitt testified that he did not see another car on Judge Boulevard which turned onto Famous Way just prior to the accident as claimed by the appellee Barbara Ahlers. Prewitt stated that as the Burnett car passed him, it was traveling at about 25 miles per hour and in its lane of traffic. We turn now to the testimony of appel-lee Barbara Ahlers in quest of some evidence of probative value on the question of negligence on the part of Mrs. Burnett. No other witness testified for Barbara Ah-lers. Barbara’s theory of the accident, briefly stated, was that as she approached Judge Boulevard, she did not see the Prewitt car, but that she observed another car in the process of stopping at the stop sign on the southeast corner of the intersection preparing to make a left turn onto Famous Way. Although she had the right-of-way and did not know the occupant of that car, she testified she slowed down to a stop twenty feet back from the intersection and “nodded” to the occupant of the car on Judge Boulevard to proceed with his left turn; that while she was stopped appellant, Mrs. Burnett, caught the rear of her car thereby causing the accident. Barbara did not produce the driver of the “other car” she says she was trying to assist. Neither did she introduce her brother who was in her car at the time of the accident and who was present at the trial. The car of appellant, Mrs. Burnett, was struck on its left side. It would have to have been on its wrong side of the road just prior to the impact for it to have been struck on its left side, assuming the facts given by appellant’s four witnesses to be true. The accident occurred so close to the intersection and so soon after passing the Prewitt car that it was physically impossible for the Burnett car to have been in its left (south) lane of traffic. Prewitt gave the names and addresses of his sister, his brother, and others who were present in his car, but Barbara did not call any of them as witnesses to contradict any of the testimony of Prewitt. Running through Barbara’s testimony are many instances of inconsistencies and contradictions, to say nothing of absurd and ridiculous evidence. For instance, she said that as she approached the curve west of the intersection, she was traveling at five miles per hour; that as she came around the curve she was making two miles per hour. Another obvious fallacy and physical impossibility in Barbara’s testimony can be seen when we take as true her evidence that she had stopped before the accident. Her car was struck on its left side near the rear-left fender. After the impact, her car came to a stop with its front end headed in a southerly direction near the south side of Famous Way. Had it been stopped while on its side of the road and struck.in its left rear, the front end would have headed across the road in the opposite direction to which it headed after the accident. When asked to explain how far back from the intersection her car came to a stop before the impact, Barbara said: “Pretty far back. I have a pretty bad habit of doing that.” If the Prewitt car was not stopped at the intersection, there was no occasion for her to stop 20 feet or more back of the intersection. Fully recognizing the rule that it is the province of the jury to weigh the evidence, it is for the court to determine whether evidence has enough probative value to be weighed. In Wadkins’ Adm’x v. Chesapeake & Ohio Railway Co., Ky., 298 S.W.2d 7, 9, in considering the identical question with which we are here concerned, this court in a very thorough and well-written opinion said the following: “It is possible that initially sufficient evidence at the close of the plaintiff’s case may lose every vestige of its persuasive character in the light of the defendant’s evidence. Thus what was once more than a scintilla may, upon ultimate analysis, be no longer that sufficient quantum of proof required to present a true issue of fact to the jury. To°restate in another form the rule of the Nu-gent case, which was fundamentally sound, the governing principle is: When the evidence given at the trial with all inferences that the jury could justifiably draw from it would not support a verdict for the plaintiff, because the plaintiff’s evidence whether taken alone or in the light of all the evidence is not of sufficient probative value to induce conviction in the minds of reasonable men, a verdict should be directed for the defendant. “It may be argued that in passing upon the probative value of the evidence the court is invading the province of the jury. Such argument overlooks the fact that the court has a very definite function to perform even in jury cases. It has long since been settled that the court may examine evidence to determine its sufficiency in law, and the exercise of the inherent power to take the case from the jury by directing a verdict does not violate the constitutional right of a jury trial. Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S.W.2d 877, Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. “It may also be argued that if we permit the trial court to consider the probative value of the plaintiff’s evidence in the light of the defendant’s evidence, we are allowing the court to determine questions of credibility and to weigh the evidence. To a limited extent this may be true. However, it must be noted that the court is not evaluating the evidence to determine the merits of the controversy, which is the jury’s province, but it is exercising a judicial function in determining whether or not a jury issue has been presented. See Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231. No reason is apparent why the trial judge may not render a value judgment on the sufficiency of the plaintiff’s proof at the conclusion of all the evidence in the same manner as he may do at the close of the plaintiff’s evidence. Yet no one would contend that the court may not examine the quality of the evidence at that earlier state of the proceedings. “We are of the opinion that the trial judge in this case was properly exercising a judicial function when he determined as a matter of law that a true jury issue was not presented with respect to the violation of statutory duties by the railway company because plaintiff’s evidence was not of sufficient probative value. The directed verdict was proper as to this charge of negligence.” See also Harris v. Cozatt, Ky., 427 S.W.2d 574; Cecil v. Oertel Company, 239 Ky. 825, 40 S.W.2d 328; Hauser v. Public Service Company of Indiana, 271 Ky. 206, 111 S.W.2d 657; and Louisville, R. Co. v. Prather, 290 Ky. 791, 162 S.W.2d 780. In his closing argument, counsel for ap-pellees brushed off the question of the sufficiency of the evidence of Mrs. Burnett’s negligence by saying it was an “academic” one. He hammered on the evidence of other car wrecks in which Mrs. Burnett was involved, two previous to and one after the instant wreck of January 1967, to which we refer in the succeeding and concluding parts of this opinion. Evidence of other injuries, whether received in an automobile accident or in a bullfight, would be competent if such evidence had any bearing on the pain or disability claimed as a result of the subject injury. But to emphasize the cause or fault which contributed to produce a previous or subsequent injury is calculated to lead a jury to conclude that the party so injured is a reckless driver, or “accident prone.” We believe that due to the extensive interrogation of some of the witnesses relative to previous and subsequent car accidents of Mrs. Burnett and the emphasis placed thereon by counsel, together with questions by prospective jurors, the jury was influenced and biased. We do not reverse this case on this ground for the simple reason that counsel for appellant brought up the other accidents in his opening statement of the case. He undertakes to excuse himself by saying that he anticipated appellees’ counsel would inject the other accidents and moved the court, prior to the trial, to prevent reference thereto, and having been overruled by the court in his efforts to keep out all references to other accidents, he concluded he would soften the impact of the evidence of other accidents by adverting thereto in his opening statement. This may have been a good, practical maneuver, but apparently it did not work in the present instance. Of course, some evidence of other accidents may have been, and probably was, competent. It was the duty of counsel for appellant to pursue a course of separating the good from the bad. It is concluded that there was no substantial, probative evidence tending to charge appellant Minnie A. Burnett with any negligence. It follows, therefore, that she was entitled to a directed verdict both on her claimed damages against the Ahlers and on the claim of Doris Chandler. We reverse the case with directions to grant appellant Minnie A. Burnett a new trial on the question of damages only. It is unnecessary to discuss the ten other questions presented in appellant’s brief. All concur.

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Earl Wayne POWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. Cecil C. Wilson, Wilson, Herbert, Gar-mon & Gillenwater, Glasgow, for appellant. Ed W. Hancock, Atty. Gen., Jackson D. Guerrant, Asst. Atty. Gen., Frankfort, for appellee. EDWARD P. HILL, Jr., Judge. By this appeal, Earl Wayne Powell seeks to reverse a judgment convicting him of having in his possession for the purpose of sale 43,100 amphetamine type pills or capsules, classified as a dangerous drug and made unlawful by KRS 217.731(1) (b). This drug is defined as a dangerous drug by KRS 217.725(2) (a). His penalty was fixed at five years in prison and a fine of $5,000. Appellant’s plea for a reversal is divided into two parts. First he contends that the Barren Quarterly Court had no jurisdiction to issue a warrant or hold the appellant to the grand jury; and his second point is that the search warrant was void for lack of a proper supporting affidavit. In appellant’s first argument, he reasons that KRS 217.995(9) gives exclusive jurisdiction to the circuit court in all prosecutions under the Dangerous Drug Act of 1968 and the amendment of 1970. We cannot accept this argument because these statutes must be read along with other statutes giving quarterly courts jurisdiction to conduct examining trials and to hold persons charged with crimes to answer charges that may be later returned by a grand jury. The ink is barely dry on the opinion of this court in Powell v. Walden, Ky., 473 S.W.2d 147, wherein it was written : “The only plausible interpretation of the phrase ‘exclusive jurisdiction’ is that the circuit court shall be the only tribunal to conduct the trial of the case. The statute precludes the quarterly court, which under other statutes would have triable jurisdiction of misdemeanors, from trying any case under this statute. To interpret the statute as meaning the quarterly court cannot conduct the usual preliminary proceedings is to read into it something that simply is not there. Petitioner cites no pertinent authority upholding his position.” We are not persuaded to overrule Powell v. Walden, supra. The appellant’s second argument is no more convincing than the first. He questions the affidavit for the search warrant. The pertinent part of it is as follows : “The affiant Detective Jerry Pitcock, Kentucky State Police No. 377, states that he has reasonable grounds to believe and does believe that narcotic and/or dangerous drugs are now being unlawfully kept in possession for the illegal purpose of sale in Barren County, Kentucky, on the following described premises * * *. [W]hich is believed to be in possession and control of Wayne Powell, truck stop operator. “The affiant states for his belief that within the last two weeks various pieces of information have led this officer to believe that dangerous and/or narcotic drugs are being sold and possessed for sale on and from said described premises: that on or about Wednesday, November 11, 1970, Trooper William Barrett, KSP No. 602, told this affiant that on said date while in plain clothes he purchased a bottle of amphedimine (sic) pills from an employee there at said old Pure Oil Truck Stop which is run by and in possession of Wayne Powell; that said Barrett paid $16.00 for said bottle of pills; that said pills were analyzed by the State Police Laboratory to be amphedimine (sic) drugs; "That today, November 16, 1970, about 8:30 a. m., this affiant obtained information from a reliable informant who is and has been known to this affiant for at least the past four years to be a reputable citizen of the Barren County area of Kentucky and who has furnished to this affiant correct and reliable information on previous occasions: That said reliable informant who remains confidential under KRS 218.24S for the purposes of this affidavit but whose identity is disclosed orally to the court along with this affidavit, told this affiant that a large quantity of several hundred pills of narcotic and/or dangerous drugs had been seen by him a short time earlier this morning and were then this date in possession of Wayne Powell on the above described premises * * * ; that said pills appeared to the informant to be the same type pill sold to Trooper Barrett above described as amphedimine (sic) and possibly including other dangerous drugs and/or narcotics. “That a large quantity of narcotics and/or dangerous drugs is now stored on said premises for the purpose of illegal sale.” Without repeating here what was written in our late case of Berkshire v. Commonwealth, Ky., 471 S.W.2d 695, it is sufficient to say what is obvious, and that is the affidavit in question meets all the requirements outlined in Berkshire with plenty to spare. It is equally obvious that the affidavit in question is valid and sufficient under the rules of any other jurisdiction, including those strict and exacting rules of the Supreme Court of the United States of America. The judgment is affirmed. All concur.

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Charles Robert OTIS, Petitioner, v. N. Mitchell MEADE, Judge, Fayette Circuit Court, Respondent. Court of Appeals of Kentucky. June 9, 1972. James D. Elam, Lexington, for petitioner. George E. Barker, Commonwealth Atty., Lexington, for respondent. GARDNER, Commissioner. Charles Robert Otis was held in contempt of court for failing to appear as a witness in the case of Commonwealth of Kentucky v. Ollie Craycraft and Jack Shirley Jaggers and his punishment was fixed at six months in jail and a $500 fine. His bond for appearance as a witness in the second trial of the same case was fixed at $50,000. He now seeks a writ of prohibition to prevent the enforcement of the contempt order. Otis asserts that he was not served with a subpoena nor was he recognized to appear. The record discloses that Otis had been jointly indicted with Craycraft and Jaggers as accessories before the fact of selling heroin. Before the trial the case against Otis was dismissed on motion of the Commonwealth. Thereupon Otis was served with a subpoena as a witness in the case. He remained in the courtroom during the day he was subpoenaed. That was Wednesday, February 16. Upon adjournment of the court for the day, Otis was called to the bench and respondent notified him that because one of the attorneys could not be present the next day court would reconvene on Friday, February 18. Respondent specifically instructed Otis to return on Friday morning at 9 o’clock. Otis failed to appear on Friday and the trial was concluded without his testimony. Otis was later arrested, brought before respondent and was asked to show cause why he should not be held in contempt of court for failure to answer when called as a witness. Otis admitted the happenings as outlined above. His excuse appears in the following colloquy of him and respondent: “THE COURT: Well, why didn’t you come back on Friday like I told you on Wednesday evening before you left ? CHARLES ROBERT OTIS: I couldn’t afford to put my family in jeopardy, you know. THE COURT: Somebody was threatening you? CHARLES ROBERT OTIS: Yes, sir. THE COURT: Who was that? CHARLES ROBERT OTIS: Well, that would be the same as being a witness, you know. THE COURT: Who? Sir? CHARLES ROBERT OTIS: I can’t say, Your Honor.” As noted, Otis was served with a subpoena on Wednesday. It is our opinion that the subpoena created a continuing obligation on his part to be available as a witness until the case was concluded or until he was dismissed by the court. It is stated in State v. Goff, 228 S.C. 17, 88 S.E.2d 788, 792, 52 A.L.R.2d 1292 (1955): “As the trial Judge held in the instant case, the witness, Dutch Mishoe, was under subpoena and although he had testified in the case and argument of counsel had been completed, the Court had not dismissed him and he remained attendant upon the Court subject to possible recall. The fact that he was not actually recalled does not alter the situation. He retained his status as a witness until the completion of the case in which he was subpoenaed.” Cf. Brannon v. Commonwealth, 162 Ky. 350, 172 S.W. 703 (1915). In the recent opinion of Miller v. Vettiner, Ky., — S.W.2d - (decided May 12, 1972), we pointed out that where a factual issue is presented, a hearing either by the court or by the jury is required. In the instant case, however, there was no factual issue. Otis acknowledged that he was served with a subpoena, that in addition the judge orally directed him to appear as a witness at a certain time and that he did not appear. His excuse was that he was fearful for the safety of his family if he testified. Respondent considered the excuse untenable, and we cannot say he was clearly erroneous. It must be conceded that disobedience of a subpoena is a contemptuous act. KRS 421.110. Otis argues that the punishment exceeded that provided by KRS 432.230, which limits the punishment to a fine not exceeding $30. In Arnett v. Meade, Ky., 462 S.W.2d 940 (1971), we had occasion to look at KRS 421.140, a statute similar to KRS 432.230 (on which Otis relies) as it relates to punishment meted for contempt. We there held that the statute unreasonably restricted the courts in the administration of justice and, therefore, was unconstitutional. We reaffirmed the holding in the Vettiner case, supra. For the same reasons expressed in Arnett we hold that KRS 432.230, limiting the fine to $30, is unconstitutional. Otis contends that the amount of punishment (six months in jail and a fine of $500) placed the case in the category of a serious offense as described in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), and therefore the punishment could not be exacted without a jury trial. By Cheff v. Schnacken-berg the court upheld the lower court’s contempt order placing Cheff in jail for a period of six months without a jury hearing. The court justified its ruling on the ground that historically it has been permissible to try persons for petty offenses without a jury. The court added: “ * * * we rule further that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” We accede to the rule announced in Schnackenberg that a sentence of more than six months constitutes a serious offense requiring the intervention of a jury, but we do not agree with petitioner that the tacking on of a $500 fine to the six-months’ jail sentence creates a serious offense in the context of Schnackenberg. It goes without saying that a fine partakes of a different nature of punishment from that of personal confinement. When it set the sentence at not to exceed six months for contempt without a jury trial, we believe the Supreme Court said, in effect, that incarceration should not exceed six months. The court made no expression relative to a fine. It is argued that an excessive fine is also onerous and there should be a limit beyond which an assessment should not be made without a jury’s verdict. We quite agree. We do not believe, however, that the $500 fine passes that point. It is noted that under federal law a misdemeanor, the penalty of which does not exceed imprisonment for more than six months and a fine of not more than $500, is classified as a petty offense. 18 U.S.C. § 1. That appears to be a reasonable classification. The writ of prohibition is denied. STEINFELD, C. J., and MILLIKEN, NEIKIRK, OSBORNE, PALMORE and REED, JJ., concur. EDWARD P. HILL, Jr., J., dissents. EDWARD P. HILL, Jr., Judge (dissenting). I do not concur in the result reached by the majority opinion in the instant case for the same reason which impelled me to decline to concur in Arnett v. Meade, Ky., 462 S.W.2d 940. I do not concur for the further reason that I am firmly of the opinion that conduct justifying a punishment of six months in jail and a $500 fine cannot in reason be classified as a petty offense as found by the august Supreme Court of the United States in Cheff v. Schnackenberg, 385 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629. I may not have any business blasting at a majority opinion of the Supreme Court of the United States, but blast I must even though it may reverberate as a pop gun. It seems to me that the declaration that any punishment not over six months in prison or a fine of $500 must be categorized as a petty offense is arbitrary and unrealistic. It is upon these propositions that I not only decline to concur, but I dissent from the majority opinion. . The case of Commonwealth v. Craycraft and Jaggers has been disposed of since the filing of the petition for a writ of prohibition so the question of excessive appearance bond is moot. . In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the court held that the right to trial by jury in criminal cases was extended to the states.

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Donald Ray MORRISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. June 23, 1972. Gary L. Schneider, Covington, for appellant. Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, for appellee. EDWARD P. HILL, Judge. Appellant was found guilty by a jury of selling a dangerous drug (marijuana) in violation of KRS 217.731(4). His punishment was fixed at 5 years in prison. Reduced to essentials, appellant’s only argument is that the Commonwealth’s evidence was insufficient to convict. After an examination of the record, we find appellant’s argument so unmeritorious that we shall point out only some of the abundant evidence on the question of guilt. The evidence discloses these facts: On May 19, 1971, State Detectives William Kline and James Wells, members of the State Police assigned to the Narcotics Unit, visited the “Downstairs Club,” a night club in Kenton County, Kentucky, apparently looking for “dope pushers.” Kline was introduced to appellant by a Mr. Kessling, who told appellant that Kline was “all right” and for appellant “to take care of him.” After some few words, Kline and appellant left the club for the parking lot where appellant got a sack of marijuana from an orange colored Barracuda automobile and sold it to Kline for $15. The license number of the car was recorded by Kline, and after investigation it was found that the car belonged to the appellant’s father. Although appellant’s brother was present in the night club and resembled the appellant, Officer Kline positively identified the appellant as the person who sold him the dope. Detective Wells also identified appellant and observed the bag containing marijuana when Kline returned to the club with same. Wells also checked the Ohio license on the orange Barracuda. Competent evidence was presented showing that the contents of the bag which Kline said he purchased from the appellant was marijuana. Appellant and his brother, Kenneth, denied all of this. Under our system, a jury issue was presented. Clearly the verdict of the jury was amply supported by the evidence. See Hack v. Commonwealth, Ky., 418 S.W.2d 216 (1967), and Carr v. Commonwealth, 307 Ky. 207, 210 S.W.2d 778 (1948). The judgment is affirmed. All concur.

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KENTUCKY STATE BAR ASSOCIATION, Complainant, v. INTERSTATE SECURITIES COMPANY #2 and Carl J. Powers, Individually, Respondents. Court of Appeals of Kentucky. June 30, 1972. Henry H. Harned, Director, Leslie Whit-mer, Asst. Director, Ky. State Bar Assn., Frankfort, for complainant. PER CURIAM. During our consideration of the question decided in Kentucky State Bar Association v. Tussey, Ky., 476 S.W.2d 177 (1972), the respondent Carl J. Powers engaged in the unlawful practice of law by preparing two mortgages for his employer, the respondent Interstate Securities Company #2. Upon motion of the Kentucky State Bar Association a rule was issued pursuant to RCA 3.460 against both respondents to show cause why they should not be held in contempt. The response admits the unlawful practice but urges in mitigation that the act complained of occurred at a time before respondents had knowledge of the Tussey decision. We think the matter follows Tussey so closely in point of time as to warrant absolution of contempt. Accordingly the respondents are not held in contempt but each of them is permanently enjoined from engaging in the unauthorized practice of law and the costs of this action are assessed against them. All concur.

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Harold SELLERS et al., Petitioners, v. HARRIS COUNTY, Texas, Respondent. No. B-2892. Supreme Court of Texas. May 31, 1972. Rehearing Denied June 28, 1972. Reynolds, White, Allen & Cook, Grant Cook, John L. Buvens, Houston, for petitioners. Joe Resweber, County Atty., Billy E. Lee, Asst. County Atty., Houston, for respondent. ON MOTION FOR REHEARING REAVLEY, Justice. The motion for rehearing is overruled since the judgment originally entered is not changed. The opinion delivered April 5, 1972 is withdrawn, and the following is delivered in its stead. When trust funds are paid into court during litigation and invested at interest by the clerk or auditor, may the judge of that court direct the ultimate payment of the interest to the owner of the principal or, under existing statutes, must all interest be paid to the county ? The trial court by its judgment in this case answered this question in favor of the owner of the principal. The court of civil appeals reversed and ordered payment of the interest to the county. 468 S.W.2d 950. We agree with the trial court. North American Insurance Company filed suit in the district court of Harris County impleading Harold Sellers and Joyce Karback Watson who were adverse claimants to the proceeds of an insurance policy on the life of Thomas Douglas Watson, Jr., deceased. The net proceeds of the $1,000,000 policy were tendered and received in the registry of the court, and the insurance company was discharged from liability. A series of orders were entered by the trial judge to direct the handling of this money in a manner to assure that the ultimate victor in the litigation would also receive the interest earned during the time the money was in the court’s charge. Since the size of the principal brought a return of approximately $6,000 each month, the matter attracted special attention. Harris County, the District Clerk and County Auditor intervened in the cause to assert that the statutes require that this money be deposited in the Harris County depository bank and that all interest accruing therefrom be paid into the general fund of the County. The claims of ownership of interest and of principal were severed by the trial court in order that the court could enter a final judgment in the cause involving the interest and in which Harris County, the District Clerk, and the County Auditor were parties. By this judgment the court declared that the proceeds of the policy were to be deposited in the Harris County depository bank and maintained in a separate account for the benefit of the ultimate victor in the contest between Sellers and Watson. The interest to be earned as provided in the contract between the county and the depository was to be retained for the benefit of the same party. At the conclusion of the litigation the trial court was to determine a reasonable fee to compensate Harris County for its accounting and administrative expenses incurred in handling the fund. The contention by Harris County that it is entitled to all of the interest is based on the terms of Articles 1656a and 2558a, Vernon’s Ann.Civ.Stats. Article 1656a is a general direction to the county auditor as to the accounting system and the handling of money collected by officers of the county. Such money is to be deposited in the county depository to “draw interest for the benefit of the county.” Article 2558a is a comprehensive statute setting procedure and liability in the handling of trust funds in the possession of county and district clerks. It makes the county liable if funds on deposit with its designated depository are lost. The clerk is relieved of responsibility for the safekeeping of the funds so long as they are deposited in the legally selected depository. Sections 4a and 4b of Article 2558a direct the commissioners court of the county to receive the interest earned on the trust fund and to place that interest in the general fund of the county “as an offset to the expenses of handling such trust funds for the benefit of litigants.” The court of civil appeals has held that funds deposited in an interpleader suit are under the control of the court and subject to its orders, but that as soon as the district clerk receives these funds in his official capacity the statute makes it necessary that he place them in the county depository and that the interest must then be drawn for the benefit of the county. The difficulty with this holding is that these funds are not owned by the county but are only held in trust for the litigant who establishes his right thereto. Article 2558a designates this money as “trust funds.” The interest earned by deposit of money owned by the parties to the lawsuit is an increment that accrues to that money and to its owners. Lawson v. Baker, 220 S.W. 260 (Tex.Civ.App.1920, writ ref’d); Bordy v. Smith, 150 Neb. 272, 34 N.W.2d 331 (1948); Southern Oregon Co. v. Gage, 100 Or. 424, 197 P. 276 (1921). Under Sec. 4a of Article 2558a all of the interest is taken from its owner and given to the county without any consideration of benefit to the owner or expense to the county. It is the position of Harris County that it now owns the $6,000 paid each month by the depository bank. If the litigation over the principal lasts as long as some lawsuits do, the County will profit enormously. This result is untenable so long as private property is constitutionally protected. The Supreme Court of North Carolina had a similar question before it in McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964). The clerk was directed by statute to pay interest to the general fund of the county, but this clerk refused to do so and was upheld by the court on this ground: “The earnings on the fund are a mere incident of ownership of the fund itself. The constitutional provision, Art. I, Sec. 17, that no person shall be deprived of his property ‘but by the law of the land,’ applies to the earnings in the same manner, and with the same force, it applies to the principal.” 137 S.E.2d 108. By depriving the owner of a sum not reasonably related to the value of the county’s services in safeguarding and investing the principal, the statute offends Article 1, Section 19 of the Texas Constitution, Vernon’s Ann. St. as well as the Fourteenth Amendment of the United States Constitution. Myles Salt Co. v. Board of Commissioners, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392 (1916). The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed. The parties will have IS days in which to file a second motion for rehearing.

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CITY OF PEARLAND, Petitioner, v. John ALEXANDER, as Independent Executor and Trustee of the Estate of C. H. Alexander et al., Respondents. No. B-2911. Supreme Court of Texas. June 28, 1972. Rehearing Denied July 26, 1972, Sears & Burns, Robert L. Burns, Houston, for petitioner. Fulbright, Crooker, Freeman, Bates & Jaworski, Fred M. Lange and William H. Young, Houston, Wiley Thomas, Angleton, for respondents. STEAKLEY, Justice. This is an eminent domain proceeding. The City of Pearland, petitioner, acquired from the Alexanders a surface tract of ten acres as a site for a sewage disposal plant, together with 2.04 acres for a public street easement, .046 acres for a pipeline easement and certain temporary construction easements. The award of damages in these respects is not in question. What is questioned by the City is the manner in which the award of severance damages of $143,000 to the remainder Alexander tract of 810.724 acres was reached. The trial court judgment was affirmed by the court of civil appeals. 468 S.W.2d 917. Pursuant to the order of the trial court in response to the motion in limine of the landowners, the court in the course of trial restricted the City in showing by direct examination of its own witnesses or by cross-examination of the witnesses for the landowners, the actual uses of the ten acre site which at the time of the taking were reasonably foreseeable and probable, and hence would be a factor in the market value determinations as to the remainder tract. In its submission of the case to the jury, the trial court gave the following special instruction immediately preceding the crucial market value issues pertaining to the remainder tract: “You are instructed that the surface estate of the ten (10) acre tract of land condemned by the City of Pearland in this case and described as Tract One in the evidence before you will be used by the City of Pearland as a site for a sewerage disposal plant and you are to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant.” We granted the writ of error of the City of Pearland to resolve the problem of whether these trial procedures, particularly the giving of the above special instruction, conformed to the established willing-seller willing-buyer method of determining market value in the assessment of severance damages, see City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954) and State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, ibid 979 (1936); and if error was committed, whether the error was prejudicial within the requirements of Rule 503, Texas Rules of Civil Procedure; see Gomez Leon v. State, 426 S.W.2d 562 (Tex.1968). Our conclusion is that reversible error was committed by the trial court and we accordingly reverse the judgments below and remand the cause for another trial. This Court in G. C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885), early established the fair market value criterion in the determination of severance damages. Charges given by the trial court to such effect were approved as fairly submitting to the jury the law for the government of the case: “. . . the measure of damage is for the actual loss thereby sustained in the fair, reasonably salable value of plaintiff’s said property: that is to say, if by reason of defendant’s acts complained of, plaintiff’s property is lessened in value, he is entitled to recover the fair and actual difference between the fair valuation of said property. . . .” Later, in St. Louis, A. & T. Ry. Co. v. Henderson, 86 Tex. 307, 24 S.W. 381 (1893), this Court quoted another authority with approval in saying that all damages, present and prospective, that are the natural, necessary or reasonable incident of the improvement constitute the compensation which our Constitution requires to be made in advance. The Court concluded that severance damages are those which would naturally or necessarily flow from the taking and proper construction and operation of the improvement; and that other damages caused to the balance of the tract which may be known with reasonable certainty would be included. This rule became even more settled in State v. Carpenter, supra. It was there reaffirmed that where a part of a tract of land has been taken for a public use, damages to the remainder tract are to be determined by ascertaining the difference between its market value immediately before and after the appropriation, taking into consideration the nature of the improvement, the use to which the land taken is to be put, and all circumstances which tend to increase or diminish the present market value. The recovery is for damages which reasonably could have been foreseen and determined at the time of condemnation. City of LaGrange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943). The willing-seller willing-buyer test of market value is to be applied and those factors are to be considered which would reasonably be given weight in negotiations between a seller and a buyer. City of Austin v. Cannizzo, supra. In Texas Electric Service Co. v. Campbell, 161 Tex. 77, 336 S.W.2d 742 (1960), we ruled evidence based on possibilities rather than reasonable probabilities to be incompetent, citing State v. Carpenter, supra, that “evidence should be excluded relating to remote, speculative, and conjectural uses, as well as injuries, which are not reflected in the present market value of the property.” This is but saying, as in Cannizzo, that the question of the competency of evidence bearing on the issue of market value at the time of the taking rests on those factors of reasonable weight in the factual determination of what a willing seller would sell for and what a willing buyer would pay. See also Andrews v. Cox, 127 Conn. 455, 17 A.2d 507 (1941); Taft v. Commonwealth, 158 Mass. 526, 33 N.E. 1046 (1893); and Chicago & S. L. R. Co. v. Kline, 220 Ill. 334, 77 N.E. 229 (1906). The Nichols treatise states the following: “The use to which the condemnor proposes to devote the property taken must be considered in ascertaining the damages to the remainder area. . . . The condemnee is entitled to consideration of the damage which the condemnor has a right to inflict although it cannot be assumed that the property will be put to its most damaging use.” 4-A NICHOLS ON EMINENT DOMAIN sec. 14.24. It has been uniformly recognized in the development and refinement of the market value test for determining severance damages that the State v. Carpenter method of trial and submission is appropriate in all but exceptional cases. The jury is instructed that the term market value is the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying. The jury is asked to find the market value of the remainder tract immediately before the taking and the market value thereof immediately after the taking. In the determination of the latter, the jury is instructed to take into consideration the uses to which the land taken is to be subjected. The answers to the issues are to be determined in the light of the evidence offered by the parties and admitted under the rulings of the trial court. As said in State v. Carpenter, everything which affects the market value of the land itself, having due regard for past and probable future injuries, may be accurately reflected by ascertaining the difference in value, when all the legitimate testimony is properly submitted to the jury for consideration ; and it is proper to admit evidence upon all matters which tend to increase or diminish the present market value. The landowner may recover damages which are reasonably foreseeable, and he may show the reasonably probable uses of the tract taken that are calculated to depress the value of the remainder tract and thus enhance the recovery of damages. See Can-nizzo, supra, where it was recognized that the determination of the value of a tract taken permits consideration of all uses to which the property was reasonably adaptable and for which it was, or in reasonable probability would become, available within a reasonable time. But the public authority should not be required to pay severance damages on the basis of uses of the tract taken which are not at the time of the taking so reasonably probable as to be reflected in present market value and the jury should be permitted to give such weight to this factor as a prospective purchaser of the remainder tract would give. In our view this was erroneously precluded under the procedures of the trial court here, and the harm to the City would appear manifest. The testimony of the three value witnesses of the landowners was based on the premise that the City would use the whole of the site for a plant and the City was restricted to this approach in the cross-examination of these witnesses. These three witnesses for the landowners expressed the opinion that the damages to the remainder tract, i. e., its diminished market value, was, $165,000, $162,500 and $98,400. The finding of the jury was in the sum of $143,000, which, it is seen, was more than $14,000 in excess of the mean estimates of these witnesses. In contrast, the value witnesses presented by the City testified to the opinion that the remainder tract suffered no consequential damages. Further, the court admitted into evidence photographs depicting the large Lockwood and La Porte sewage plants of the City of Houston. This evidence was admitted under the testimony of a landowner witness that he knew of these two plants which in his opinion would be “probably comparable.” He testified, however, that each plant was in an industrial area “vacant all around it” and “no homes within a good distance from it.” The testimony was unclear and disputed regarding the acreage which would be required for a plant of the size and with the capacity of the Lockwood plant, although it was shown that the Lockwood plant had a rated capacity of thirty million gallons a day, thirty times the size of the plant constructed by the City after the taking of the ten acre site. The issue drawn by the parties is seen in the objection of the City to the photographs and the reply of counsel for the landowners. The photographs were admitted into evidence consistent with other evidence rulings of the trial court, and their display to the jury undoubtedly conveyed the impression that the market value issues as to the remainder tract were to be determined upon the assumption that the entire site would be covered by a physical plant. This was the purpose of their introduction by the landowners as shown by the reply to the objection of the City copied in the margin. As is evident, the overriding issue between the parties concerned the actual uses the City would make of the ten acre site, together with the right of the City to establish those which were reasonably probable. The court told the jury by the special instruction not only that the City would use the tract as a site for a sewage disposal plant, but that in determining the before and after market value of the remainder tract it was required “to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a- sewerage disposal plant.” In our view, this instruction could only be understood by the jury as a mandate to presume a full use of the entire ten acres for an actual plant, rather than as a site for the plant and facilities that would be reasonably required; and as a further directive that in answering the market value issues the jury was to be governed by this presumption regardless of any evidence to the contrary, and whether or not such presumed use of the entire site for an actual plant was reasonably probable at the time of taking and would, or would not, be reflected in the market value of the remainder tract at such time. As such, the instruction was clearly erroneous as a comment on the weight of the evidence. Moreover, the opinion testimony of the value witnesses offered by the landowners rested on this same presumption and it is not surprising that the market value findings of the jury reflected the weight of their estimates of damages to the remainder tract. We will not detail the evidence rulings of the trial court in this lengthy record. Suffice it to say that in view of the state of the evidence, it is our opinion that the jury was materially influenced in its market value findings by the special instruction ; and that the error of the trial court in this respect, if for no other, was “reasonably calculated to cause and probably did cause the rendition of an improper judgment” under Rule 503, Texas Rules of Civil Procedure. The landowner-respondents rely almost entirely on Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App.1941, writ dismissed), and cases which followed. We have not construed Perkins as prescribing the rules or procedures for determining the measure of severance damages, see Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958); and White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (Tex.1969), but only as recognizing the ineffectiveness of promissory statements to reduce or mitigate damages. See also the annotation in 7 A.L.R.2d 364. Thus, the City would not be permitted under the Perkins rule to elicit testimony in the nature of a promise or representation that the physical structures erected on the ten acre site after the taking and before the trial, would not be increased in the future; and that the question of damages to the remainder tract should be determined on the basis of such a promise or representation. We agree that this would not be consistent with the whole taking. But we do not understand that the City sought to do this, or claims the right to do so. As we understand the record, the City claimed the right to show the reasonably foreseeable and probable uses of the ten acre site which at the time of taking would be required in accomplishing the municipal purposes for which it was taken; and that the jury should have been permitted to hear evidence upon, and to consider, this factor with all else a prospective purchaser would consider in reaching a market value determination respecting the remainder tract. This was not the problem in Perkins. We are in general agreement with the rulings of the court of civil appeals on the other points of error urged by the City there, and here. We note, however, that most of these points present problems not likely to arise again. The judgments below are reversed and the cause is remanded for trial conformable to this opinion. McGEE, Justice (dissenting). I respectfully dissent. The Alexander tract contains 822.21 acres; it is bounded by Clear Creek on the east and on the west by over a half mile of frontage on Farm-to-Market Road 518. This is the largest undeveloped tract left in the City of Pearland. The tract is surrounded by residential development. The jury found that the value of the tract taken was $22,000, or $2,200 per acre. There is ample expert opinion testimony to the effect that the highest and best use of the remainder would be for residential purposes. The 10-acre site that was chosen for the sewer plant was located in the approximate center of the east line of the subject property. The plant located thereon is within clear view from almost every point on the remaining tract and from the Farm-to-Market road. Opposite this tract on the west side of the Farm-to-Market road is a shopping center. Extending from the sewage disposal plant on the east side of the tract, the 40 foot wide road easement extends to the west line and divides the large tract. Under the road easement extends the trunk sewer line. The City’s first sixteen points contend that the Court of Civil Appeals erred in not holding that the Trial Court erred in sustaining the landowners’ Motion in Lim-ine, its rulings on the admissibility of evidence consistent therewith, and its approval of an instruction given in the charge to the jury concerning the same matter. The City complains of the order of the court sustaining the Motion in Limine which reads as follows: “It is legally presumed that Plaintiff will exercise its rights in regard to the entirety of the surface estate of the 10-acre tract . . . for use as a sewage disposal plant site, to the fullest extent and for the highest use for which it is taken, and Plaintiff is hereby prohibited from introducing any evidence to the effect that less than the full ten acres will be used for such a sewer plant.” The error of the majority opinion in intimating that the Motion in Limine granted by the Trial Court was improper is clearly evidenced by the Plaintiff’s (City of Pear-land) requested instruction No. 2 quoted below: “In answering Special Issue No. 6, you are instructed that the term ‘uses to which the condemned parcels are to be subjected’ means use of the ten acres of land as a site for a sewage disposal plant and use of the 2.04 acres of land as a public street. Use for a sewage disposal plant includes erection and maintenance of structures for the disposal of sewage and all uses which are reasonably incidental thereto, such as open spaces for light, air, and appropriate ornamentation, landscaping, drives for vehicles and walks for pedestrians, automobile parking areas, areas for repair and replacement, storage facilities, and recreational areas for employees. Use for a public street includes the right of the public, including the defendants, to walk and drive vehicles on the street and uses incidental thereto.” (Tr. 41.). [Emphasis added.] It should be obvious that upon retrial of this case the City and its witnesses will testify as to the “open spaces and light, air, and appropriate ornamentation, landscaping, drives for vehicles and walks for pedestrians and recreational areas for employees.” Is the City saying, “I promise you a rose garden” ? By sustaining the Motion in Limine the Trial Court properly prevented such promissory statements. The true issue in this case is whether or not the proper amount of severance damages has been awarded for damages to the remaining properties. The sufficiency of this evidence has been passed upon by the Court of Civil Appeals. We have “no evidence” points before this Court. The majority opinion does not suggest that there is no evidence to support the jury verdict. The City also complains of the following instruction contained in the Court’s charge: “You are instructed that the surface estate of the ten (10) acre tract of land condemned by the City of Pearland in this case and described as Tract One in the evidence before you will be used by the City of Pearland as a site for a sew [er] age disposal plant and you are to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sew[er]age disposal plant.” A similar instruction has been approved at least twice by a Texas appellate court. City of Corpus Christi v. Polasek, 404 S.W.2d 826 (Tex.Civ.App.1966, n. w. h.); City of Corpus Christi v. Nemec, 404 S.W.2d 834 (Tex.Civ.App.1966, n. w. h.). Nowhere in that instruction does the Court instruct the jury that they must presume uses of the tract most injurious to the remainder or presume most value depressing uses. The testimony of the landowners’ value witnesses was not predicated on the presumed most damaging use or that a plant would be constructed on every square foot of the ten acre site. It is undisputed that the entire ten acres at the time of trial was being used for a sewage disposal plant. The entire 10-acre site is enclosed by an unattractive cyclone fence. This constitutes “full use of the premises” as contemplated by the instruction. Contrary to the observation in the majority that the jury must presume “full use,” it is undisputed in this record that the entire 10-acre tract is now in “full use” by the City of Pearland. Although the City has alleged the necessity for a 10-acre site for sewage plant purposes and had admitted that it has the right to use the entire surface for such purpose, the City nevertheless contends that it has the right to offer evidence to show “in all reasonable probability” it would not exercise its full rights “in the reasonably forseeable future.” The City by its pleadings has never limited or restricted its right to use the entire surface for sewage plant purposes. If it had no intention to use ten acres, the City could have condemned a smaller site. Any effort of the condemnor to minimize its damage by such proof of intention to use less than the full rights being sought has consistently been denied by our Texas courts. In Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App., 1941, writ dism’d), the State condemned a narrow strip off of the front of the landowner’s homestead. The strip contained ornamental trees and shrubs, a honeysuckle hedge, rose bushes, a water pipeline and a drainage ditch. Over objection, a State’s witness was permitted to testify that the present policy of the State Highway Commission was not to remove shrubs, etc., from highway rights-of-way unless they were hazardous to traffic. In holding the Trial Court erred in admitting such testimony, the Court said: “The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired, should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.” 20 C.J. 768, § 227. [Emphasis added.] The Court said in Creighton v. State, 366 S.W.2d 840, at page 843 (Tex.Civ.App.1963, writ ref’d, n. r. e.): “The presumption is that the State will exercise its rights and use and enjoy the property taken to the full legal extent.” The rule as set forth in the above quotations has long been followed by Texas courts. Hill v. State, 289 S.W.2d 801 (Tex.Civ.App.1956, n. w. h.); Strickland v. City of Friona, 294 S.W.2d 254 (Tex.Civ.App.1956, writ ref’d, n. r. e.); Wiseman v. State, 406 S.W.2d 253 (Tex.Civ.App.1966, writ ref’d, n. r. e.) ; City of Corpus Christi v. Polasek, supra. See White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298 (Tex.1969); Texas Power & Light Company v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958). See also Nichols on Eminent Domain, Vol. 4A, § 14.24; 7 A. L.R.2d 364 at page 366, § 2, to the effect that it is not what the condemnor actually does or plans to do that determines the quantum of damage but rather what it acquires the right to do. For additional cases see Rayburn, Texas Law of Condemnation (1960) § 136; 27 Am.Jur., Eminent Domain § 272, p. 61; Vol. 29A C.J.S. Eminent Domain, § 155 p. 658; Vol. 5 Nichols, the Law of Eminent Domain, § 16.11 (1969). The reasons for the rule are clearly set out in Nichols, supra: “In other words, payment must be made for the rights which have been acquired, not the more limited use to which the condemnor may intend to devote the property taken. The question is not— How does the condemnor intend to use the property? — but, rather, — What right to use has been acquired? Various reasons have been given by the courts to support the above conclusion: “(1) Damages are payable in money and the condemnor cannot substitute promises to mitigate damages in lieu thereof; “(2) Damages may not be paid piecemeal, and are payable once and for all; “(3) The constitution requires payment of full and just compensation. “The foregoing is to be distinguished, of course, from those cases where (a) the taking is limited, (b) certain rights are reserved to the condemnee, or (c) the agreement as to future use is otherwise in binding form.” Based upon the authorities above discussed, I would hold that the special instruction, the order sustaining the Motion in Limine, and the rulings upon the admissibility of evidence consistent therewith were proper. By its points 17 and 18 the City contends that there is no evidence to support the findings of the jury in answer to Special Issues No. 4 and No. 6. The jury found (4) that the market value of the remainder was decreased, and (6) that the market value of the remainder after taking was $1,640,592.80, a decrease of $143,000.00. The evidence on these issues was in sharp conflict. V. P. Ringer and Sid Holdridge, the city’s witnesses, testified that the remainder was enhanced by the taking. Among others, John Alexander, Charles Osenbaugh and Marvin McGlathery gave testimony that would support the jury’s answers to these issues. A brief summary of the evidence in support of the jury’s answers to Special Issues No. 4 and No. 6 is set forth below: 1. The City engineering expert testified that in March, 1966, that a 10-acre sewer plant site was chosen in order to serve sewage needs from 6000 acres of the 9000 acres of the City of Pearland. The other 3000 acres would be served by the Long-wood plant. He further testified that the unit actually constructed is just the first unit of the sewer plant and covers about i/sth of an acre. Pictures of the present plant were introduced into evidence and its operations explained. 2. If a developer had chosen the site for the sewage plant, he would have located it in a boundary line corner in order to hide the site and facilities from as many prospective homes as possible. This is exactly what the City did not do. The same argument is made with reference to the 2.-04 acre and 40 foot wide roadway easement. At the time of trial the City had constructed on the easement a narrow shell-topped road approximately 10 feet wide with open ditches on both sides. It is an eyesore constructed in a manner inconsistent with the development of a first class subdivision. This is the type road that would appear in a substandard subdivision. The City has also constructed a barbed wire fence along the west side of the easement together with transmission poles, cross arms and lines along the same side of the easement to bring electricity into the sewage plant. This construction by the City creates an eyesore, splitting the Alexander tract and creating a hindrance to orderly future development of the Alexander remainder. It is undisputed and testified to by the City’s witness that “the vat usually overflowed every time it rained.” Thus, fecal matter and other raw sewage pollutes the adjoining area and Clear Creek. 3. The landowners offered evidence, including pictures, to demonstrate that from time to time raw sewage overflowed from the tanks down on to the ground and ultimately to Clear Creek. That same was ugly and created unpleasant odors and further that same was unsanitary. Strong obnoxious odors emanate from this first unit extending in all directions for distances up to 1500 feet. 4. Loud noises coming from large blowers which pump air into the open vats can be heard in every direction as far as 1200 feet from the plant. 5. The ugly plant, substandard road, barbed wire fence, ditches and poles and crossbars are visible from nearly every point on the Alexander tract and from across the road on the west. Taking those, and other facts into consideration, the expert witnesses concluded that the value of the acreage within 1000 to 1500 feet (98 to 125 acres) was decreased an average of 50% to 75%. In passing upon the lav/ question of “no evidence,” appellate courts must consider only the evidence which supports the jury verdict and consider only the facts and circumstances which tend to sustain the verdict. Moreover, we must reject all evidence and inferences which are contrary to the finding of the jury. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 364 (1960). The evidence shows that the sewage plant located on this 10-acre tract will serve a much larger area than the remaining lands of these landowners. While it is true that the Alexander’s remainder might not have enjoyed the availability of sewage disposal but for the 10-acre sewage plant, neither would the other acreage which will be served by this plant. All of the surrounding acreage will also benefit by the presence of this 10-acre sewage plant. Alexander lands received special damages in that the sewage plant on the 10-acre tract produces offensive odors and noises and presents an unattractive appearance. The Trial Court gave the proper and customary instruction in connection with Special Issue No. 6: “Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants in common with the community generally, and not peculiar to them, and connected with their ownership, use and enjoyment of the particular tract of land out of which Parcels have been condemned by the City of Pearland, and taking into consideration the uses to which the condemned parcels are to be subjected, what do you find from a preponderance of the evidence was the market value of the defendants’ 810.724 acre remainder tract of land immediately after the acquisition of said parcels by the City of Pearland on March 18, 1966 ? ” This Court has approved the above instruction. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). See Article 3265, Vernon’s Ann.Texas Civil Statutes. Pictures of the sewage plant on the 10-acre site were admitted into evidence. Costs of the sewer lines and of the plant were also admitted into evidence. The City’s witnesses testified that the Alexander lands were specially benefitted. The City’s attorney argued to the jury that the Alexander lands were specially benefitted. The jury concluded otherwise. Under the proper instruction set forth above a community or special benefit is a mixed question of law and fact, one to be determined by a jury. Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259 (1890); Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex.Civ.App.1931, affirmed, Comm. of App., 55 S.W.2d 797); Rayburn, Texas Law of Condemnation, (1960), § 138.2 at page 423. There is ample competent and credible evidence of probative force to support the jury’s findings in answer to Special Issues No. 4 and No. 6. I agree with the holdings of the Trial Court and Court of Civil Appeals on these points. The majority opinion says: “What is questioned by the City is the manner in which the award of severance damages of $143,000 to the remainder. . . . ” During the trial the City’s experts contended that there was no damage to the remainder —that the remainder enjoyed special benefits. The jury, the Trial Court, and Court of Civil Appeals found to the contrary. The majority opinion does not suggest that there is no evidence to support the jury verdict. The majority states that the Trial Court restricted the City from showing the uses of the tract which were reasonably foreseeable at the time of taking. William C. Walsh, Registered Professional Engineer and witness for the City, testified to the following matters: 1.That Pearland had a population of 5,-000 in 1966 and had approximately 1,200 to 1,400 residences. 2. That at the time of trial Pearland had about 6,500 population and an additional 300-400 residences. 3. That his firm designed and supervised construction of the sewage plant. 4. That this plant was a contact stabilization type disposal plant. 5. That this plant has the capacity of 1,200,000 gallons per day. 6. That the plant has been regularly inspected by the Water Quality Board. 7. Walsh then gave a complete description of the plant processes step by step. 8. That there is no odor being emitted from the plant. 9. That there is no odor along the downstream creekbed. 10. That the sewer plant cost $290,638.-05. 11. That the trunk line cost $164,808.00. 12. That the Alexander tract would derive a great advantage from the sewer plant and trunk line. 13. That the best place to put a sewer plant on the Alexander tract for subdivision purposes would be the middle. 14. The actual plant on the condemned tract is within 75 feet of the property line adjacent the Alexander remainder. 15. Walsh testified that this is just the first unit of the sewer plant. 16. That there are subdivisions built around sewer plants in Houston with houses ranging up to $50,000. 17. That the Alexanders would have to construct a central sewage plant and the $164,000 trunk line to build the subdivision as septic tanks would have been impractical absent the city plant. 18. That the subdivision would need a larger plant than the one the city has built. 19. That the 2,400 home subdivision on the Alexander remainder would require a larger plant than the existing one on the condemned tract. 20. That 75 feet from the blowers, they could not be heard. 21. That the creek below the plant was crystal clear. 22. That the State Health Department has monthly inspections of the effluent. 23. That the 800 acres would require a trunk line like the city had put in for subdivision purposes. 24. That the cost of such a trunk line would be $70,000 to $90,000. 25. That the landowner’s appraisal witness was erroneous when he assumed he would tie on to existing lines because that would have been impossible. 26. That in order to build the subdivision without the sewage plant on the condemned site, the trunk and lateral lines would have been very expensive and a lift station would be required. The City did not have the capacity to dispose of the sewage without additional facilities. 27. That the old plant was some distance from Clear Creek and the effluent was discharged into a ditch which ran into Clear Creek. 28. That Walsh was familiar with the new Pearland plant number three downstream from the plant on the Alexander tract. 29. That plant number three is on 2.96 acres. 30. That in other subdivisions in the area, houses were built after and close by sewer plants. 31. That the sewage plant pollutes the Clear Creek. 32. That this sewage plant will serve 6,000 of the 9,000 acres in Pearland. 33. That 6,000 acres would be served is the reason 10 acres were taken. The majority opinion wholly fails to point out any specific ruling on the admission or exclusion of evidence which would constitute reversible error. All of the Trial Court’s rulings were consistent with the order sustaining the landowners’ Motion in Limine. That order was not erroneous, and the majority opinion does not so hold. That order was entirely proper. The City sought to condemn the ten acre tract as a site for a sewage disposal plant with “supply reservoirs or stand pipe for water works or sewers; . . . vats, Alteration pipes and other pipes,” etc. Art. 3265, Vernon’s Annotated Texas Civil Statutes, directs as the rule of damages in such cases that evidence shall be heard “as to the value of the property sought to be condemned and as to the damages . . . that will result to the remainder of such property belonging to such owner, if any, by reason of the condemnation of the property, and its employment for the purpose for which it is to be condemned. ...” The judgment of the Trial Court awarded the City “[t]he fee simple title in and to the surface estate of the ten (10) acre parcel of land . . . for use as a site for a sewerage disposal plant. ...” The City thus sought the full ten acres as a site for a sewage disposal plant and the judgment of the Court awarded title to the City to the full ten acres as a site for a sewage disposal plant. The order in limine did no more than to prohibit the City from introducing evidence that “less than the full ten acres” would “be used for such a sewer plant.” Even if the foregoing order was erroneous, it did not constitute reversible error. As pointed out in our per curiam opinion in Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366 (1962), the purpose of orders of this type is “to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury.” Such orders do not eliminate the necessity for showing the availability of evidence, nor do they preclude inclusion thereof in a bill of exceptions at the proper time in the course of trial. “Before a party can correctly claim error, he must offer his evidence, and secure an adverse ruling from the court.” City of Corpus Christi v. Nemec, 404 S.W.2d 834 (Tex.Civ.App., Corpus Christi, 1966, no writ). Cf. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963). The only relevant evidence offered and excluded by the Trial Court was opinion testimony of City’s expert witness that, while the ten acre site was capable of accommodating a plant of twelve million gallons of sewage per day, it was not “reasonably foreseeable that there would ever he constructed on the ten acre site plants having a capacity greater than six million gallons per day”; and opinion testimony of the landowner’s expert witness, given on cross examination, that the City was in error “when they said they needed ten acres”; that they were “not going to need it for years and years and years.” The net effect of this testimony is that it was not reasonably probable that the City would ever use all of the ten acres it was condemning for the purpose for which it was condemned. Under the provisions of Art. 3265, V.A.T.C.S., quoted above, such testimony was not admissible and was properly excluded. I suggest, therefore, that City was not precluded by the Trial Court’s order in limine from offering any admissible evidence of reasonably probable uses of the condemned property in the reasonably foreseeable future. Admission into evidence of photographs of the Lockwood and La Porte sewage plants has not been held by the Court to be erroneous, and need not be noticed further. Notice should be taken on this point, however, that the majority do not look at the “whole record” but only at evidence unfavorable to the City. Neither is it suggested by the Court that the footnoted statements by counsel of their respective theories of the issue in the case were erroneous and prejudicial. Indeed, such statements were made out of the presence of the jury. Finally, it will be noted that the judgment of reversal and remand by the majority opinion is based solely on its holding that the Trial Court committed reversible error by giving the special instruction which constituted a comment on the evidence. I submit that the majority opinion wholly fails to demonstrate that this error, if any, was harmful under a proper interpretation of Rule 503, Texas Rules of Civil Procedure. I would affirm the judgments of the courts below. CALVERT, C. J., and GREENHILL, J., join in this dissent. . “It is therefore further ordered that it is legally presumed that Plaintiff will exercise its rights in regard to the entirety of the surface estate in the ten acre tract being condemned herein as Tract No. One for use as a sewerage disposal plant site, to the fullest extent and for the highest use for which it is taken, and Plaintiff is hereby prohibited from introducing any evidence to the effect that less than the full ten acres will be used for such a sewer plant.” . “ . . . The jury is limited to reasonable probabilities as can be shown from the evidence, and should not be permitted by this court just to speculate that on any type of improvement that could be put there. . . . One that might in all reasonable probability be put on this property and not because the City of Houston or somebody else has constructed something of this type somewhere else, your honor. “ . . . Your honor, the jury is not entitled to go on reasonable probabilities. Tbe jury in this ease is to presume that they will fully develop and fully use this ten aere site for a sewage disposal plant. That is what the cases and the motion in limine stood for this morning, and if they didn’t need ten acres they shouldn’t have taken ten acres, but when they walk out of this courthouse they are entitled to cram every square inch with a sewer disposal plant to service two-thirds of the City of Pearland and on into the future forever, and we are entitled to show them what a ten acre sewer plant looks like.” . Our emphasis.

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George HIGHT, Petitioner, v. The STATE of Texas, Respondent. No. B-3137. Supreme Court of Texas. July 12, 1972. Green & Richardson, Harry C. Green, Texas City, for petitioner. Jules Damiani, Jr., Dist. Atty., Ron Wilson and Louise C. Rowen, Asst. Dist. Attys., Galveston, for respondent. ON REHEARING PER CURIAM. On July 2, 1971 the State filed a petition to declare George Hight a juvenile delinquent, based on certain criminal acts alleged to have taken place on June 27, 1971. George Hight was born on September 23, 1954; thus, he was sixteen years old and therefore subject to juvenile delinquency proceedings when the offenses occurred and when the State sought to have him declared a delinquent. Article 2338-1, Sec. 3-5, Vernon’s Ann.Tex.Civ.Stat. The State abandoned its efforts to have him adjudicated a delinquent and then sought to have the juvenile court waive its exclusive jurisdiction over this minor in order that the Grand Jury could indict him for the criminal offenses. After a hearing as required by Article 2338-1, Sec. 6, Vernon’s Ann. Tex.Civ.Stat., the juvenile judge waived jurisdiction over George Hight on August 18, 1971. George Hight appealed the waiver order to the Court of Civil Appeals claiming error in the waiver proceeding. That court refused to consider the merits of the case but took notice of the fact that George Hight had reached age seventeen and that the juvenile court had lost jurisdiction. This loss of jurisdiction was said by the court to make the case moot, and following established Texas procedure, set aside all previous orders. Tex.Civ.App., 473 S.W.2d 348. We disagree with this reasoning. The single fact of his reaching age seventeen has nothing to do with whether the case is moot; the loss of jurisdiction in the juvenile court only prevents a remand if the case is reversed. See Carrillo v. State, 480 S.W.2d 612 (Tex.1972). We do agree, however, with the judgment of the Court of Civil Appeals but for a different reason. An affidavit by the District Attorney advised this Court that George Hight became seventeen years of age in September 1971; that the Grand Jury did not meet until October 1971; that the Grand Jury handed down its indictment in November 1971. It is thus apparent that the waiver order was not relied upon by the Grand Jury, and this case is therefore moot. No judgment we could render concerning the waiver order would in any way affect anyone’s rights. The waiver order did not serve as a predicate to the indictment by the Grand Jury, and no stigma attached to George Hight because he was never adjudged by the juvenile court to have committed any offense. The motion for rehearing is therefore overruled.

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Ex parte Alfred McDONALD, Jr. No. 45888. Court of Criminal Appeals of Texas. July 26, 1972. Stanley Rentz, Waco, for appellant. Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., by an inmate of the Texas Department of Corrections, attacking as void the conviction under which he is now confined. A hearing was held before Honorable Carl C. Anderson, Judge of the 54th District Court of McLennan County, at the conclusion of which findings of fact and conclusions of law were filed by the court establishing that petitioner was convicted of murder in Cause No. 11,486, on July 21, 1941, with punishment assessed at life; that petitioner was represented by court-appointed attorney who gave notice of appeal after motion for new trial was overruled on August 28, 1941; that after sentence was pronounced, the petitioner signed a pauper’s oath, requested appointment of attorney for purpose of appeal and preparation of a statement of facts as reflected by exhibit introduced into evidence at this hearing; that at the bottom of said exhibit, there apeared a notation, “Motion Granted,” signed D. W. Bartlett, Judge; that no brief, statement of facts or transcript were ever filed with the Court of Criminal Appeals; that petitioner’s court-appointed counsel withdrew from the case, but no request to withdraw or order permitting withdrawal is reflected by the record; that there is no statement of facts available upon which petitioner may be granted an out-of-time appeal. The findings of fact are supported by stipulated evidence and exhibits introduced at the hearing. We agree with the trial court’s conclusion that the relief prayed for should be granted. The petioner was denied effective representation of counsel on appeal and the conviction cannot stand. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; Ex parte Tullos, Tex.Cr.App., 476 S.W.2d 689; Ex parte Gaines, Tex.Cr.App., 455 S.W.2d 210; Ex parte Marshall, Tex.Cr.App., 445 S.W.2d 212. The petitioner is ordered released from the Department of Corrections and delivered to the custody of the Sheriff of McLen-nan County to answer the indictment in Cause No. 11,486 pending against him. It is so ordered. Opinion approved by the Court. ROBERTS, J., not participating.

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Ex parte Daniel RAMIREZ. No. 45904. Court of Criminal Appeals of Texas. July 28, 1972. Vincent W. Perini, Dallas, for petitioner. Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is a post-conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. The applicant was convicted for rape May 13, 1960. The punishment was assessed by the jury at fifty years. The applicant filed his application for writ of habeas corpus in Criminal District Court No. 2 of Dallas County, the convicting court. He alleged, among other things, that his court-appointed counsel did not advise him of his right of appeal and did not take the necessary steps to preserve such right. The judge of the court at the time of the conviction had died before the hearing on the application for habeas corpus. Trial counsel who had been appointed testified and recalled only parts of the trial. He did not remember anything about advising the applicant of his right to appeal. The judge who conducted the hearing on the application found that the applicant was not informed that he had a right to appeal his conviction at no expense to himself and that if he were too poor to pay for a record or an attorney they would be provided. He also found that the applicant was denied his constitutional right to appeal. Since the trial court found from the evidence that the indigent applicant was denied his right to appeal, he is entitled to an out-of-time appeal. However, the record shows that it is not possible to obtain a statement of facts for that purpose. He is entitled to a retrial. See Ex parte Perez, Tex.Cr.App., 479 S.W.2d 283, and Ex parte Gaines, Tex.Cr.App., 455 S.W.2d 210. Applicant is ordered released from confinement in the Department of Corrections and delivered to the sheriff of Dallas County to answer to the indictment pending against him. ROBERTS, J., not participating.

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Charles Eugene MORRIS, Appellant, v. The STATE of Texas, Appellee. Nos. 45606, 45607. Court of Criminal Appeals of Texas. July 28, 1972. Sam A. Maida, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Calvin Botley and Allen McAshan, Asst. Dist. Attys., and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ODOM, Judge. These appeals are taken from a joint trial in which appellant plead guilty to the charge of forgery of a credit card in Cause No. 45,607, punishment being assessed by the court at 4 years; and in which the trial court revoked appellant’s probation in Cause No. 45,606 and sentenced him to 3 years for the offense of passing a forged instrument. The record reflects that appellant was convicted on April 23, 1971, for the offense of passing a forged instrument. Punishment was assessed at 3 years and appellant’s application for probation was granted. One of the conditions of probation was that appellant commit no offense against the laws of this state, or any other state, or of the United States. Thereafter, on June 16, 1971, the state filed a motion to revoke probation, alleging that on or about May 24, 1971, appellant had committed the offense of forgery of a credit card (the offense to which he pleaded guilty herein). Appellant was indicted for this offense on August 12, 1971. Among the instruments executed by appellant with regard to the two causes now before us, we find the following: (1) a waiver of appellant’s right to trial by jury in our Cause No. 45,607 (the plea of guilty) signed by appellant, his attorney, an attorney representing the state, and approved in writing by the trial judge. (2) a stipulation of evidence in our Cause No. 45,607, in which appellant waived the appearance of witnesses, his right to confront and to cross-examine these witnesses, and his right against self-incrimination, in which appellant confessed to the facts of the offense as charged in the indictment, and which was signed by appellant and his attorney but was not signed by the trial judge. (3) a written stipulation with regard to the revocation of probation hearing, our Cause No. 45,606, in which appellant confessed that he had forged the charge slip in question and which was signed by appellant and his attorney and approved in writing by the court. On September 1, 1971, a hearing was held in both these causes. At such hearing, appellant entered a plea of guilty to the forgery of a credit card. He was duly admonished concerning the nature and consequences of his plea, and both he and his attorney orally agreed to the use of documetary evidence, including statements of the witnesses. Appellant contends that the trial court committed reversible error “in that it did not approve in writing the stipulation of evidence ... by failing to place his signature on said stipulation as required in Article 1.15 of Vernon’s Annotated Code of Criminal Procedure.” He argues that the evidence is therefore insufficient to support the conviction. Appellant took the stand at the hearing and acknowledged that he had voluntarily signed, with advice of counsel, the two stipulations in which he confessed that he had committed the act which forms the basis of the indictment and the state’s motion to revoke probation. Since the stipulation with regard to the revocation matter was in proper form and was before the court, the court could permissibly take judicial notice of its own records. 1 McCormick & Ray, Texas Evidence 2d, Sec. 185, and cases therein cited. Thus, even assuming the validity of appellant’s contention with regard to the stipulation of evidence on the plea of guilty, the trial court had before it an instrument which is in full compliance with statutory requirements and which contains the same stipulations as the instrument now being challenged. The judicial confession contained in the stipulation for the revocation hearing is sufficient to support the conviction. Holder v. State, Tex.Cr.App., 469 S.W.2d 184. See also Drain v. State, Tex.Cr.App., 465 S.W.2d 939, at fn. 1. This stipulation is also sufficient to support the trial court’s decision to revoke appellant’s probation. The judgments are affirmed. ROBERTS, J., not participating. ONION, Presiding Judge (concurring). Appellant’s contention, as I understand it, is that the trial judge did not approve in writing the appellant’s written waiver of his right of confrontation and his consent to stipulate the evidence regarding his plea of guilty before the court on September 1, 1971. He urges that as a result of the trial court’s failure to approve the waiver and consent none of the stipulated evidence can be considered in an assessment of the sufficiency of the evidence to support his plea of guilty, and that, without the same, the evidence is not sufficient to sustain his conviction under Article 1.15, Vernon’s Ann.C.C.P., or to justify the revocation of probation. Article 1.15, supra, as amended in 1971 and effective June 15, 1971, provides that if evidence upon a plea of guilty before the court is to be stipulated, either orally or in writing, the waiver of the right of confrontation and the consent “must be approved by the court in writing, and be filed in the file of the papers of the cause.” The written waiver and consent and stipulation of evidence was signed by the appellant and sworn to before the clerk of the court and approved by his counsel. The place on the printed form for the approval of the trial judge was left blank. Repeatedly throughout the proceedings, the trial judge inquired if the procedure of stipulating evidence was agreeable to the appellant and his counsel, and, upon receiving affirmative answers, permitted such stipulations and permitted the trial to proceed. Such stipulations were clearly sufficient to sustain the conviction. At the conclusion of the stipulated testimony, the court inquired personally of the appellant if the stipulations were “true and correct” and the appellant answered, “Yes, sir.” Thereafter, the appellant was sworn and voluntarily took the witness stand. He acknowledged that he had executed the written sworn stipulation of evidénce and the same was introduced as State’s Exhibit No. 2 without objection. There exist then at least two reasons why appellant’s contention is without merit. First, appellant’s testimony while on the witness stand and the introduction of State’s Exhibit No. 2 constituted a judicial confession which, independent of the oral stipulations, was sufficient to sustain the conviction. Beaty v. State, 466 S.W.2d 284 (Tex.Cr.App.1971); Bell v. State, 455 S.W.2d 230 (Tex.Cr.App.1970); Alvarez v. State, 374 S.W.2d 890 (Tex.Cr.App.1964). Second, the written judgment entered and bearing the same date as the trial reflects that “. . . [t]he Defendant, having in open court, in writing, waived the appearance, confrontation, and cross-examination of witnesses, consented to the stipulation of evidence and to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence; and such waiver and consent having been approved by the Court in writing and filed in the papers of the cause, the said plea of the Defendant was received and entered of record upon the minutes. . . .” We do not find that a motion for new trial was filed or that there was an objection to approval of the record containing the written judgment. It was obviously the legislative purpose not to permit stipulated evidence to be used in proceedings under Article 1.15, supra, unless the same was approved by the trial judge and to keep a permanent record of the same. In the instant case, it is clear that in permitting the plea of guilty to proceed where stipulated testimony was being utilized, the trial court was of necessity giving his approval, and the entry of the written judgment approved by the court would certainly seem to satisfy the requirements of the statute. Cf. Schoolcraft v. State, 129 Tex.Cr.R. 608, 91 S.W.2d 361 (1936). The statute does not require that the court’s written approval be on the same instrument which constitutes the waiver and consent though that is the normal practice. While the practice here used is not to be commended, it certainly does not present reversible error. The evidence was sufficient to sustain the plea of guilty to the charge of forgery of a credit card. Likewise, the evidence was sufficient to sustain the revocation of probation, it being noted that the requirements of Article 1.15, supra, are not applicable to hearings on revocation of probation. It is for these reasons that I cannot agree with the majority’s apparent holding that where a hearing on a revocation of probation and a trial upon a plea of guilty before the court are heard together that evidence admissible with regard to the revocation matter can be used to justify and overcome a failure to comply with statutory requirements and legislative mandate as to procedure involved in accepting pleas of guilty before the court. There is no necessity to reach such a conclusion under the circumstances of this case. And, I might add that the practice of hearing such matters together and at the same time is not as desirable as it may appear. It smacks of judicial economy, but in attempting to attend to the details of both proceedings at the same time, courts frequently overlook required procedure in one or both matters. Thus, a fertile breeding ground for unnecessary appeals is established. For the reasons stated, I concur. ROBERTS, J., not participating. . Acts 1971, 62 N.D.Leg., ch. 996, p. 3028.

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Jody Lee WHARTON, Appellant, v. The STATE of Texas, Appellee. Nos. 45662-45665. Court of Criminal Appeals of Texas. July 28, 1972. Kenneth L. Sanders, Houston, for Jody Lee Wharton. 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. These appeals arise out of convictions for robbery by assault (No. 45,662), forgery (No. 45,663), felony theft (No. 45,664), and burglary with intent to commit theft (No. 45,665). In the forgery case, the punishment was assessed at seven years. In the others, the punishment in each case was assessed at ten years. On August 27, 1971, the appellant entered pleas of guilty before tne court after waiving trial by jury in each case. He was duly admonished of the consequences of his plea in each case before the particular plea was accepted. He further agreed that the evidence to support the pleas of guilty could be offered at the same time. In each case, the evidence was stipulated in accordance with Article 1.15, Vernon’s Ann.C.C.P. Included within such stipulations which were introduced was a written sworn judicial confession in each case. On appeal, the appellant challenges the sufficiency of the evidence in each case. Without the necessity of passing upon any possible defects in the other stipulated evidence, the judicial confession introduced was substantially in the form approved in Bell v. State, 455 S.W.2d 230 (Tex.Cr.App.1970). See, also, DeGay v. State, 455 S.W.2d 205 (Tex.Cr.App.1970). A judicial confession, standing alone, is sufficient to support a plea of guilty. See Beaty v. State, 466 S.W.2d 284, 286 (Tex.Cr.App.1971), and cases there cited. The evidence in each case is, thus, suf fi • cient to sustain the convictions. In his pro se brief, appellant complains that the court erred in failing to make available to him the appellate record for the purpose of preparing a pro se brief. First, it should be noted that we are not dealing with a case where appointed appellate counsel has determined that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969). Second, upon request, the court ordered the appellate record in each case made available to the appellant. The record in these cases further reflects that only four days prior to the filing of the pro se brief, the appellant examined the appellate record from 9:30 to 11:50 a. m. on July 6, 1972, and stated the record was “in order.” We find no merit to appellant’s contention. The judgment is affirmed. ROBERTS, J., not participating.

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Joe MILLS, Appellant, v. The STATE of Texas, Appellee. No. 45202. Court of Criminal Appeals of Texas. July 28, 1972. M. Gabriel Nahas, Jr., George Ellis, Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for the offense of possession of marihuana The jury assessed the punishment at ten years. Appellant contends that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. Appellant had counsel of his choice. Any incompetency of retained counsel cannot be imputed to the State. Erdelyan v. State, Tex.Cr.App., 481 S.W.2d 843; Davis v. State, Tex.Cr.App., 429 S.W.2d 895. We have carefully examined the record and cannot conclude there was ineffective assistance of counsel. This record does not support or reflect any wilful misconduct by an employed counsel without appellant’s knowledge which amounts to a breach of the legal duty of an attorney. Trotter v. State, Tex.Cr.App., 471 S.W.2d 822. Nothing appears in the record to show any bad faith, insincerity or disloyalty toward appellant by his attorney. A good faith error or mistake, if any, made by retained counsel with earnest and honest purpose to serve his client cannot be the basis of a claim of reversible error. See Popeko v. United States, 294 F.2d 168 (5th Cir.1961). Appellant next contends that the court committed error when it submitted to the jury a printed form with the word “years” typed in on the second and alternative verdict of the jury on assessment of the punishment, the first form being for life imprisonment. The form of the verdict in question reads as follows: “The Defendant, Joe Mills having been found guilty as charged in the indictment, we, the Jury, assess his punishment at confinement in the Department of Corrections of the State of Texas for a period of- years.” Appellant argues that the use of the word “years” restricted the jury on assessment of the punishment in that it prevented them from returning a verdict in terms of years and months, months, or days. This contention is without merit. The court in its charge to the jury on punishment correctly stated that the punishment for possession of marihuana shall he confinement in the Texas Department of Corrections for not less than two years nor more than life. Two forms were provided the jury. Even if an objection had been made to the charge or the form of verdict, no error would be presented. The jury could have assessed the punishment at any fractional part of a year in excess of two years had it so desired. In his final ground of error appellant alleges that the evidence presented in the case is insufficient to support the verdict of the jury. The record shows that appellant and one John Austin were observed by two narcotics officers of the Houston Police Department standing next to a building, that in the course of their conversation appellant withdrew a brown paper bag from a hole in the wall on the side of the building, and that an exchange of money and a small package occurred between appellant and John Austin. Appellant was then observed placing the brown paper bag back in the hole in the wall of the building. At this time the officers approached and identified themselves and withdrew the brown bag from the hole in the wall. The .bag was found to contain four (4) penny matchboxes containing a green plant-like substance later analyzed as marihuana by a chemist of the Houston Police Department. We hold the evidence is sufficient to establish directly actual possession of marihuana by appellant. No reversible error is shown. The judgment is affirmed. ROBERTS, J., not participating.

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Cecil Bennett ROBERTS, Appellant, v. The STATE of Texas, Appellee. No. 45221. Court of Criminal Appeals of Texas. July 26, 1972. Lester O. Berg, Abilene, for appellant. Ed Paynter, Dist. Atty., Britt Thurman, Asst. Dist. Atty., Abilene, 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 burglary with intent to commit theft. Two prior non-capital felony convictions were alleged for enhancement under Article 63, Vernon’s Ann.P.C. The punishment was assessed at life In two grounds of error, appellant challenges the sufficiency of the evidence to sustain the conviction for the instant offense of burglary. Earl Lunn, a truck driver for the Featherlite Block Company in Abilene, testified that he went to the company plant on Sunday, July 12, 1970, to secure the load on his truck so he would be ready to leave early Monday morning. As he approached, he noticed an unfamiliar pickup truck parked between the warehouse and the plant. As he was tying the load down on his truck, Lunn observed an individual sitting in the pickup. He then testified that the appellant was one of the individuals he saw coming out of “. . . that portion of the building,” “. . . that area back there . . .” —the open portion of the building, and observed that he was “carrying something.” At this juncture, Lunn approached and asked the appellant and his companion what they were doing there. They did not reply. Lunn looked in the pickup truck and saw “our cutting torch, and a bunch of other stuff in there,” including rubber gloves which were normally used in the plant. Lunn then went to the room where the tools and equipment were usually kept and found the window broken out. He found the cutting torch gone. He then returned and told the appellant that he was going to call the police. The appellant then said, “Well, let’s go,” and crawled into the pickup with his companion and tried to start the pickup. Lunn then went to call the police, but when he looked back, “ . . . they were getting out of the pickup and began to push it.” After he called the police, he returned to find the pickup, but the appellant had completely “vanished.” He then looked into the pickup and described the items that had been taken out of the building as “ . . .a cutting torch, and the tip, and the gauges, and about fifty foot (feet) of hose, I would say, and several pairs of gloves, and crescent wrench, I believe, and a pipe wrench.” The record also reflects that the open portion of the building contained a dayroom, but the completely enclosed tool and equipment room was closed and locked. C. A. Henson, Jr., Manager of the Featherlite Block Company, testified that on the date in question he had control of all the buildings and all the material therein, and that he did not give consent to the appellant, or anyone else, to break and enter the business establishment. He related the tool and equipment room had four walls and a roof and was on a permanent foundation, and that when he arrived on the scene on July 12, 1970, he found the glass in the window had been broken out and “some things” had been taken, “but they were gone by that time. The police had left.” Lieutenant Dwain T. Pyburn, Abilene Policeman, testified he investigated the burglary in question and related that the building was a “partially . . . open building, with a dayroom, and a tool room enclosed and locked, and entry had been gained into that locked building . . . (b)y breaking a window pane out.” He testified, without objection, that “(a)pparently after the window was broken, the parties crawled inside, and that enabled them to unlock a door . . . ” Pyburn further revealed that he removed the equipment taken from the building from the white pickup parked at the scene. David Lee Dalbert, Deputy Sheriff, testified that subsequently, in October, he went to Mobile, Alabama, where the appellant was in custody, and returned him to Abilene. The appellant did not testify or offer other evidence. The court charged on the law of circumstantial evidence. Appellant argues that since Lunn could not identify what the appellant had in his hand that “ . . .we could just as well reasonably conclude that the appellant was on his way to Mobile(,) Alabama and came by with his suitcase and stopped to see what was going on . . . ” Appellant also noted that the State failed to prove directly that he was inside the locked portion of the building or that he removed anything therefrom. Considering the jury’s verdict, in the light most favorable thereto as we are required to do, we conclude the evidence is sufficient to sustain the conviction for burglary. The judgment is affirmed. ROBERTS, J., not participating.

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REPUBLIC BANKERS LIFE INSURANCE COMPANY, Appellant, v. Jack F. HOFFMAN, Appellee. No. 17886. Court of Civil Appeals of Texas, Dallas. June 1, 1972. Thomas L. Cook, Beard & Kultgen, Waco, for appellant. James E. Price, Irving, for appellee. GUITTARD, Justice. Jack Hoffman recovered judgment on a jury verdict for disability benefits under a health insurance policy issued by defendant Republic Bankers Life Insurance Company. Defendant appeals. Defendant’s first point asserts that the trial court erred in refusing to submit to the jury a series of issues concerning its pleaded defense of a fraudulent representation by plaintiff in the policy application that he had never had “mental illness.” We overrule this point on the ground that there is no evidence to support this defense, and also on the ground that the issues requested did not include the essential issue as to whether the representation was false. The question in the application was: “Have you * * * ever had rheumatism, paralysis, or mental illness?” The answer was indicated by checking the box marked “No.” In his testimony at the trial plaintiff admitted that before issuance of the policy his physician, Dr. Powell, sent him to a “medical psychologist,” whom he visited once a week for approximately six months. He said the psychologist did not treat him for anything specific, just everyday problems that seemed to build up on him. No medication was prescribed. They just discussed his problems and each visit lasted about forty-five minutes. He testified that he did not put that down on his application for insurance because he was not mentally ill. Medical records concerning one of the periods of hospital confinement now in question contain a notation that plaintiff “had quite a history of emotional upsets.” The requested issues would have inquired of the jury whether plaintiff answered “No” to the question whether he had ever had rheumatism, paralysis or mental illness, whether such answer was material to defendant in issuing the policy, whether plaintiff knew that the answer was false, whether such answer was with intent to misrepresent his medical condition to defendant, and whether defendant relied on such answer in issuing the policy. No issue was requested which would have inquired whether such answer was false. We hold that the issues were correctly refused because the defense of intentional misrepresentation was not raised by the evidence. In order to avoid an insurance policy for fraud, false statements must have been made with knowledge of their falsity and with intent to deceive. Allen v. American National Ins. Co., 380 S.W.2d 604 (Tex.Sup.1964); Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (1947). No evidence of intentional deception appears in this record. All it shows is that plaintiff had emotional upsets and consulted a psychologist weekly for several months about his personal problems. There is no evidence tending to show that plaintiff understood “rheumatism, paralysis, or mental illness” to include the kind of emotional problems he had experienced, or even that a person of ordinary intelligence would have so understood. It is significant that the term “mental illness” was included in the same question with such obviously disabling conditions as rheumatism and paralysis. It is also significant that Dr. Powell sent him to a psychologist rather than a psychiatrist. There is no evidence that plaintiff’s emotional disturbance affected his activities or his general health. The jury had no reason to conclude that his emotional problems had an irrational basis. So far as this record shows, plaintiff may have been emotionally upset by circumstances that would have justified a normal person in seeking advice from a psychologist. Plaintiff testified that he was not in fact mentally ill, and there is no indication in the record that he did not hold that view when he signed the application. Consequently, there is no evidence of intentional fraud. Moreover, the series of issues requested by defendant was properly refused because it omitted the essential element of falsity. The requested issue inquiring whether plaintiff knew that the answer in the application was false would not have submitted the issue of falsity. It merely assumed it. The fact of falsity, as well as knowledge of falsity, must be established. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208 (1954); Steine v. Hillcrest State Bank, 423 S.W.2d 443 (Tex.Civ.App., Dallas 1967, no writ). Omission of the issue cannot be justified on the ground that falsity was established as a matter of law, since the evidence does not show conclusively that plaintiff’s emotional disturbance would have been considered “mental illness” by an ordinary person in his circumstances. Defendant’s second point urges that the judgment for plaintiff is erroneous because plaintiff failed to meet his burden of establishing that the illness for which he was hospitalized on February 14, 1970 did not originate before issuance of the policy on November 23, 1969. Defendant pleaded that plaintiff’s mesen-teric adenitis was excluded from coverage of the policy because it was a condition that existed before the issue date. The hospital records, as well as plaintiff’s testimony, show that when plaintiff was admitted to the hospital on February 14, 1970, his complaint was recurrent pain in the right side of his abdomen of about two and a half weeks duration. Dr. Powell’s initial impression was a liver or gall bladder ailment and “possible appendicitis or mesen-teric adenitis.” X-ray reports indicate that the liver and gall bladder were found to be normal. Dr. Powell requested consultation with a surgeon, Dr. Hendricks, who recommended an appendectomy. The surgeon’s report shows that an incision was made in the right lower quadrant, the appendix was removed, and a “mesenteric lymph node” was excised for biopsy. Although the surgeon’s pre-operative diagnosis was “acute appendicitis,” his post-operative report was “mesenteric adenitis.” This diagnosis is confirmed by a post-operative pathology report which shows no inflammation or abnormality of the appendix but does show “reactive hyperplasia” of the mesenteric lymph node. From this evidence the jury was warranted in concluding that plaintiff had no appendicitis or liver trouble and that the pain in his right side was caused by mesenteric adenitis. The jury found that the illness plaintiff suffered from during his hospital confinement beginning February 14th was not the result of a pre-existing condition. Defendant argues that there is no evidence to support this finding, since there was no evidence that the mesenteric adenitis did not exist before issuance of the policy. We find that the record does contain such evidence. The only evidence that mesenteric adenitis existed before the policy is a notation in the medical records made by Dr. Hendricks. He noted that plaintiff had “pinching right lateral abdomen for last three weeks,” and also, “he had previously had episodes of this on and off for short periods over last year.” This latter notation is disputed by plaintiff, who testified positively that he had never suffered pain in his side similar to that for which he went to the hospital until a week or two before February 14th, and that he had not told Dr. Hendricks that he had episodes over the preceding year. We hold that this testimony is some evidence that the mesenteric adenitis was not a condition that existed before the issuance of the policy. In similar cases, testimony of the insured that before issuance of the policy he was not suffering from the condition for which he was later hospitalized has been held to raise a fact issue. Reserve Life Ins. Co. v. Everett, 275 S.W.2d 713 (Tex.Civ.App., Dallas 1955, writ ref’d n. r. e.); Reserve Life Ins. Co. v. Kelly, 266 S.W.2d 395 (Tex.Civ.App., San Antonio 1954, writ dism’d). Consequently, the judgment was properly rendered on the jury finding that his illness was not a pre-existing condition. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

FARAH MANUFACTURING CO., Inc., Appellant, v. AMALGAMATED CLOTHING WORKERS OF AMERICA, SOUTHWEST REGIONAL JOINT BOARD et al., Appellees. No. 15122. Court of Civil Appeals of Texas, San Antonio. July 5, 1972. Kenneth R. Carr, El Paso, Fulbright, Crooker & Jaworski, Houston, for appellant. Baskin, Casseb, Gilliland, Rodgers & Robertson, McGown, McClanahan & Ham-ner, San Antonio, amicus curiae. Herrera, Rocha & Segura, Inc., Phillip D. Hardberger, San Antonio, for appellees. CADENA, Justice. This is an appeal by Farah Manufacturing Company, plaintiff below, from the order of a district court of Bexar County dissolving a temporary restraining order which had been previously issued, denying plaintiff’s application for an injunction, dismissing plaintiff’s suit. The case arises out of a labor dispute. The defendants are Amalgamated Clothing Workers of America, Southwest Regional Joint Board, an unincorporated labor organization, which will be referred to in this opinion as “Union”; Jose M. Perales, alleged to be an organizer for Union; and Robert I. Montez and Juanita R. Naranjo, whose connection with Union is not disclosed by the pleadings, but who are alleged to have engaged in conduct supporting Union in the labor dispute. Plaintiff, a Texas corporation with its principal office in El Paso, owns and operates three manufacturing plants in San Antonio. Plaintiff’s allegations may be summarized as follows: (1) Since May 4, 1972, Union has maintained a picket line at plaintiff’s facilities in San Antonio. (2) Union, “singly and in concert” with the three individual defendants and others, has, by the use of violence, threats of violence, property damage, and illegal picketing, hindered plaintiff’s employees and person wishing to do business with plaintiff “. . .in the exercise of their lawful rights to work . . . and from freely and without fear entering or leaving .” plaintiff’s premises. (3) The illegal picketing complained of consists of “mass picketing” in the sense that Union has maintained more than two pickets at various entrances to plaintiff’s plants, and has stationed “. . . more than two pickets within fifty (50) feet of any other picket or pickets.” (4) The pickets, by the “. . . use of insulting, threatening and/or obscene language, . . .” have “repeatedly and continually” interfered with and “obstructed” plaintiff’s employees and others in the exercise of their lawful right to work or freely enter and leave plaintiff’s premises. The petition does not set out the language which it describes as “insulting, threatening and/or obscene.” (5) On one occasion the picketing was accompanied by “. . . the public display or publication of oral and or [sic] written misrepresentations, . . .” known to Union to be false. The petition neither sets out verbatim nor summarizes the “misrepresentations.” (6) Since the picketing began, the pickets have thrown “large quantities” of rocks, fruits, eggs, tomatoes and other objects at plaintiff’s premises and at plaintiff’s employees as they left plaintiff’s premises. Numerous employees have been struck by such objects. (7) On one occasion, the pickets hit some of plaintiff’s employees with picket signs as the employees left plaintiff’s premises, and on another occasion, nine days later, defendant, Naranjo, struck plaintiff’s employees with a picket sign. (8) On one occasion defendant, Perales, said that he would use “. . . knives, guns, machine guns or whatever force is necessary to ‘get . . .’” plaintiff. (9) On one occasion defendant, Montez, “damaged the property of several” employees of plaintiff and threatened the employees “. . . with further physical violence if they continued to exercise their lawful rights to work, . . . .” (10) Unless restrained, defendants will continue the “. . . foregoing course of violence, threats, property damage and illegal picketing . . .” causing plaintiff irreparable injury for which it has no adequate remedy at law. Based on these allegations, plaintiff sought a temporary restraining order restraining defendants “. . . from engaging, in any violence toward, or threatening with physical violence, . . . ” plaintiff’s employees; from . . stationing more than two pickets at any one time at any entrance to . . . ” plaintiff’s premises “. . .or within fifty (50) feet of any other picket or pickets; and from picketing “. where such picketing is accompanied by insulting, threatening or obscene language or by oral or written misrepresentations.” Plaintiff further prayed that, after hearing, a temporary injunction issue and that, on final hearing, the injunction be made permanent. On June 2, 1972, the date plaintiff’s petition was filed, the trial court issued the temporary restraining order and ordered that a hearing be held on the application for temporary injunction on June 9. Defendants filed a motion to dissolve the temporary restraining order and to “. . dismiss the application for temporary and permanent injunction . . .” because exclusive jurisdiction over the subject matter of the suit is vested in the National Labor Relations Board, since the conduct complained of by plaintiff “. . . is either protected or proscribed . . .’’by the Labor-Management Relations Act (29 U.S.C.A. Sec. 151 et seq.). On June 9, the trial court announced it was ready to hear defendants’ counsel “. . .on your motion.” Counsel for defendants stated that he would like to present evidence showing that plaintiff’s volume of business satisfied the jurisdictional standards of the NLRB. Defendants then called to the stand plaintiff’s San Antonio plant manager and questioned him solely on matters concerning the nature and volume of plaintiff’s business. Plaintiff did not cross-examine this witness and, after defendants’ counsel declared that he had no further testimony to offer, the court asked for written briefs on the question of the court’s jurisdiction and recessed until June 12. On June 12 the court declared that it was granting defendants’ “. . . motion to dismiss for want of jurisdiction, and that terminates the case at this time.” On June 14 the court entered an order dissolving the temporary restraining order and denying the application for temporary injunction. In addition, this order recited that defendants’ motion to dismiss for want of jurisdiction was “. . . granted in all things, with cost of Court being taxed against Plaintiff for which let execution issue if not timely paid.” It is clear that the trial court, believing it lacked jurisdiction of the subject matter of the litigation, dismissed the entire case, and not merely the application for temporary injunction. A reading of defendants’ motion and of the order granting such motion “in all things” compels this conclusion. Plaintiff concedes that the nature and volume of its business are such as to meet the jurisdictional requirements of the NLRB. Defendants recognize that, despite the “pre-emption” of the field of labor relations by the Federal government, the states still retain the power to deal with damage to property, violence, and threats of violence, even if such conduct occurs in connection with a labor dispute and attendant picketing. Plaintiff’s petition does not seek to enjoin all picketing activities, but merely seeks judicial intervention to prevent property damage, violence, threats of violence, mass picketing, insulting, abusive and obscene language, and misrepresentation. Plaintiff concedes that the factual situation involved is not such as to bring this case within the rule announced in Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941), where it was held that all picketing can be constitutionally enjoined if it is so enmeshed with acts of violence that . . it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful.” 312 U.S. at 294, 61 S.Ct. at 555. Since the policing of conduct which consists of actual or threatened violence to person or property is left to the states, even though such conduct arises out of a labor dispute which, as to other features, would be within the exclusive jurisdiction of the NLRB, and in view of the fact that plaintiff’s prayer for injunctive relief seeks a prohibition only of actual or threatened violence and recognizes that interdiction of all picketing would not be warranted by the pleadings, an injunction reaching only the violent aspects of defendants’ course of conduct would not encroach upon that area of regulation of labor disputes which has been pre-empted by the national government. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The trial court, therefore, had jurisdiction to hear and determine this aspect of the case. Plaintiff alleged that defendants had knowingly made false representations. In Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 55, 86 S.Ct. 657, 659, 15 L.Ed.2d 582 (1966), the Supreme Court held that where a party to a labor dispute circulates false and defamatory statements, a court has jurisdiction to apply state remedies “. . . if the complainant pleads and proves that the statements were made with malice and injured him.” It is true that the Linn holding was made in the context of a suit for damages, but the basis for the holding is manifestly the conclusion of the Court that the NLRB does not have exclusive jurisdiction to deal with questions concerning defamation. “Nor should the fact that defamation arises during a labor dispute give the Board exclusive jurisdiction to remedy its consequences. The malicious publication of libelous statements does not in and of itself constitute an unfair labor practice. While the Board might find that an employer or union violated § 8 by deliberately making false statements, . . it looks only to the coercive or misleading nature of the statements rather than their defamatory quality. The injury that the statement might cause to an individual’s reputation — whether he be on employer or union official — has no relevance to the Board’s function. . . The Board can award no damages, impose no penalty, or give any other relief to the damaged individual. . . . The Board’s lack of concern with the ‘personal’ injury caused by malicious libel, together with its inability to provide redress to the maligned party, vitiates the ordinary arguments for preemption.” 383 U.S. at 63-64, 86 S.Ct. at 663. The Linn opinion makes clear that in using the term “malicious” in defining the type of defamation which is left to state control it is applying the standards enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). That is, “malicious defamation” refers to “. . . defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false. . . .” 383 U.S. at 65, 86 S.Ct. at 664. Since plaintiff alleges, albeit in general terms, that defendants have been guilty of malicious defamation, a state court has the power to deal with such conduct. It is true that difficult constitutional questions may arise in a suit involving defamation and the power of a court to enjoin it, but those questions are irrelevant to the disposition of a plea to the jurisdiction. The determination of whether the defamatory statements may be constitutionally suppressed must await the introduction of evidence. But, in view of the Linn holding, the power of a state court to hear and determine such constitutional issues as may arise is not divested by the Labor-Management Relations Act. We believe that the Linn rationale is also applicable to plaihtiff’s prayer that the use of insulting and obscene language be enjoined. The Board’s concern with such would be limited to that examination which would be required in order to determine the coercive nature of such statements. Whether the use of such language created a reasonable apprehension of a breach of the peace or other unlawful conduct which is not beyond the reach of the state’s police power has no relevance to the Board’s function. Again, in view of decisions such as Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), difficult constitutional questions may face the trial court when it attempts to determine whether the language falls into the category of “fighting words” which a state may constitutionally suppress. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). But, again, there is nothing in the federal labor legislation which deprives the state courts of the power to make that determination. Nor do we feel it necessary, given the posture of the case before us, to consider the validity of the Texas “mass picketing” statute, Vernon’s Tex.Rev.Civ. Stats.Ann., Article 5154d, Sec. 1, Par. 1 The NLRB itself has consistently recognized that the Labor-Management Relations Act does not contemplate that the Board shall affirmatively regulate the number of pickets, and this is primarily a matter for local authorities. The function of the Board is limited to determining whether picketing as conducted in a given situation “restrains” or “coerces” employees. Cory Corp., 84 N.L.R.B. 972, 24 L.R.R.M. 1326 (1949). Under the Linn rationale, then, the state’s power to regulate the number of pickets has not been preempted. Again, the question of whether the Texas statute is invalid because of “overbreadth” or because of any “chilling effect” it may have on the exercise of First Amendment rights is a question which state courts may determine in the exercise of their jurisdiction which has not been pre-empted. The judgment of the trial court is reversed and the cause is remanded for reinstatement on the docket and trial on the merits.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Homer TRIMBLE, Appellant, v. TEXAS STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS, Appellee. No. 6252. Court of Civil Appeals of Texas, El Paso. June 21, 1972. Rehearing Denied Aug. 2, 1972. Lee & Williamson, John R. Lee, Kermit. for appellant. Crawford Martin, Atty. Gen., Sam J. Jones, Asst. Atty. Gen., Austin, Shafer, Gilliland, Davis, Bunton & McCollum, W. O. Shafer, Odessa, for appellee. OPINION RAMSEY, Chief Justice. Homer Trimble instituted this action in the District Court for the purpose of setting aside an order of the Texas State Board of Registration for Professional Engineers, whereby the Board entered its order revoking the license of Trimble. Trial was before the Court and, from the judgment entered by the trial Court, both parties have appealed. We modify and reform the judgment of the Court below, and, as so modified and reformed, the judgment is affirmed. This is the third time this case has been appealed to this Court. Since the facts giving rise to the litigation have appeared in other published opinions, reference will be made to the citations without repeating the facts. 366 S.W.2d 124 and 388 S.W.2d 331; 387 S.W.2d 876 (per curiam opinion, Supreme Court of Texas); 382 U.S. 817, 86 S.Ct. 39, 15 L.Ed.2d 64 (cert. denied). The judgment entered by the trial Court recited that upon motion of the Board the case was removed from the jury docket and tried under the substantial evidence rule. The Court, after hearing the evidence, made the following findings of fact and conclusions of law: “1. The defendant failed to make a formal order setting the charges upon which the revocation of the plaintiff’s Professional Engineering License was revoked and specifying a time and place for a hearing thereon. 2. The defendant failed to cause a copy of such formal order, if any, setting the charges upon which plaintiff’s Professional Engineering License was revoked at least thirty days before the date appointed in said formal order, if any, for such hearing, to be served upon the plaintiff. 3. The defendant failed to give plaintiff a full and open hearing on thé charges, if any, upon which the revocation of plaintiff’s Professional Engineering License was based. 4. The order of the defendant made and entered on November 7, 1961 was arbitrary, unreasonable and capricious. 5. The order, entered by defendant Board on November 7, 1961, was an abuse of discretion by the defendant. 6. There is reasonable support in substantial evidence to support the order of the Texas State Board of Registration for Professional Engineers entered on the 7th day of November, 1961 revoking and cancel-ling the license of plaintiff.” Thereupon, the Court concluded that the action previously taken by the Board on November 7, 1961, revoking Trimble’s license was supported by substantial evidence and was sustained. Trimble excepted to the finding numbered 6 and to the ruling of the Court sustaining the revocation. The Board excepted to the Court’s findings numbered 1 through 5 inclusive. In a prior appeal in this cause, reported in 388 S.W.2d 331, the Board appealed the judgment of the lower Court complaining of error in that the cause was tried to a jury under the preponderance of the evidence rule rather than the substantial evidence rule. This Court, in an opinion by Judge Preslar, reversed the judgment of the trial Court and remanded the cause with instructions that the testimony of two witnesses should be admitted unless the testimony was objectionable for some other cause. On Trimble’s application for writ of error, the Supreme Court affirmed, and in a per curiam opinion on rehearing, reported in 387 S.W.2d 876, stated as follows : “The Court of Civil Appeals did not discuss petitioner’s complaint that he had not been afforded procedural due process of law in the proceeding leading to the revocation of his license. “We have carefully read the Statement of Facts, and have concluded that the evidence does not raise the issue. * * * “Therefore, this record shows conclusively that petitioner was afforded due process in all orders and steps taken by the Board and the trial court. Northwestern Bell Telephone Co. v. Nebraska State Railway Commission, 297 U.S. 471, 56 S.Ct. 536, 80 L.Ed. 810.” Writ of certiorari was denied by the U. S. Supreme Court, 382 U.S. 817, 86 S.Ct. 39, 15 L.Ed.2d 64. The testimony and evidence in this appeal is the same and identical as previously reviewed on appeal, except that the testimony of the two city officials was admitted in evidence rather than by bill of exception. We conclude that the law of the case has been established as to all matters pertaining to procedural due process of law and that such conclusions are binding on this Court and the trial Court and must govern all subsequent proceedings. Frankland v. Cassaday, 62 Tex. 418 (1884); Stare Decisis and Law of the Case, 21 T.L.R. 514. The only matter remaining for the trial Court’s determination would be whether or not the action of the Board found reasonable support in substantial evidence. The trial Court findings numbered 1, 2, 3, 4 and 5 are procedural due process findings which are contrary to the Supreme Court decision and therefore must yield to the law of the case. Trimble, as appellant, assigns seventeen points of error. The first thirteen of these points complain of a denial of due process. Points numbered one, two and three complain that Trimble was denied a jury determination of the jurisdictional facts and in support of this contention, Trimble cites: Coleman v. Railroad Commission of Texas, 445 S.W.2d 790 (CCA — Texarkana 1969), 460 S.W.2d 404 (Sup.Ct. 1970); and Rock Island Independent School District No. 907 v. County Board of School Trustees of Colorado County, Texas, 423 S.W.2d 665 (CCA — Houston 1968, ref. n. r. e.). It is not necessary for this Court to pass on these points in view of the opinion of the Supreme Court above, cited in 387 S.W.2d 876, holding that Trimble was not denied due process and such issue was not raised by the evidence. This same disposition must be made as to all other points involving due process and under the law of the case. Trimble’s first thirteen points of error are overruled. Trimble’s points fourteen, fifteen and sixteen complain that Art. 3271a, Sec. 22, Vernon’s Ann.Civ.St, is unconstitutional in that it is an unlawful delegation of power to an administrative agency providing for revocation of license based upon the substantial evidence rule without full judicial review by trial de novo and without providing for supersedeas or stay pending review. This Court in a prior appeal has already determined that the review from the order of the Board is to be governed under the substantial evidence rule. Texas State Board of Registration for Professional Engineers v. Trimble, Tex.Civ.App., 388 S.W.2d 331; Tex.Civ.App., 387 S.W.2d 876. The Supreme Court has approved legislative enactment providing appeal to be governed by the substantial evidence rule. Korndorffer v. Texas State Board of Medical Examiners, 460 S.W.2d 879 (Sup.Ct. 1970). The legislature may specify the nature of review within constitutional limitations. Gerst et al. v. Nixon et al., 411 S.W.2d 350 (Sup.Ct. 1967). The State may properly delegate to a board or agency the power to grant, refuse, revoke or cancel licenses. Francisco v. Board of Dental Examiners et al., Tex.Civ.App., 149 S.W.2d 619 (writ refused). Also, the legislature may delegate and an administrative agency may perform quasi-judicial functions. 29 Tex.Law.Rev. 213; Carr v. Stringer, Tex.Civ.App., 171 S.W.2d 920 (writ refused). An appeal from an administrative order under the substantial evidence rule satisfies the requirements of due process. Brazosport Savings and Loan Association, et al. v. American Savings and Loan Association et al., 161 Tex. 543, 342 S.W.2d 747 (1961); Martinez v. Texas State Board of Medical Examiners, Tex.Civ.App., 476 S.W.2d 400 (Ref. n. r. e.). Trimble further asserts that the failure of the statutory provision for revocation of his license to provide for superse-deas or stay of the effect of the order under the statute unconstitutional, citing Francisco v. Board of Dental Examiners et al., supra. The brief filed by the Board contains the unchallenged statement that as far as is known to the Board Trimble is still practicing his profession. There is no showing in the record that Trimble has been denied the right to practice during the pendency of these proceedings which commenced in 1961. The Courts of this State have consistently restrained the enforcement of administrative orders pending trial and appeal. Railroad Commission et al. v. Shell Oil Co., Inc., et al., 146 Tex. 286, 206 S.W.2d 235 (1947); Transport Co. of Texas et al. v. Robertson Transport, Inc. et al., 152 Tex. 551, 261 S.W.2d 549 (1953); Bloom v. Texas State Board of Pharmacy, 390 S.W.2d 252 (Sup.Ct. 1965). The record does not disclose that any in-junctive relief was necessary, sought or denied. We conclude that Art. 3271a, Sec. 22, V.A.T.C.S., is constitutional and overrule points of error numbered fourteen, fifteen and sixteen. Trimble’s seventeenth point of error complains of the trial Court’s finding that the order of the Board was supported by substantial evidence. The testimony heard at the time of trial relating to an alleged bribe offer consisted of the testimony of the Mayor and a City Councilman of the City of Kermit. Their testimony was unequivocal that Trimble, in April, 1961, offered them $15,000.00 in cash if they would obtain an engineering contract for him with the City of Kermit relating to contemplated plan projects and city improvements. Trimble testified that the first he knew of any alleged offer of a bribe was on June 16, 1961, when a Deputy Sheriff in Austin served him with an indictment. We conclude that the Board’s order is supported by substantial evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston Texas v. Marks, 150 Tex. 433, 242 S.W.2d 181 (Sup.Ct. 1951). The seventeenth point of error is overruled. Under the provisions of Rule 435, Texas Rules of Civil Procedure, it becomes incumbent upon this Court to enter the judgment as should have been entered by the trial Court and to do so requires that the judgment he modified and reformed to comply with the law of the case whereby findings and conclusions numbered 1, 2, 3, 4 and 5 be deleted and such judgment, as modified and reformed, is hereby affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

W. W. LAFFERTY, Appellant, v. A. E. M. DEVELOPERS AND BUILDERS COMPANY, Appellee. No. 15055. Court of Civil Appeals of Texas, San Antonio. May 24, 1972. liehearing Denied July 12, 1972. William T. Miller, San Antonio, for appellant. Gilliland, McNeel & Garwood, San Antonio, for appellee. BARROW, Chief Justice. Appellee brought this suit to recover from appellant under Article 5069-1.06, Subdivision (2), Vernon’s Annotated Civil Statutes, for usurious interest in excess of 20 per cent per annum. Appellee’s second motion for summary judgment was granted and judgment entered that it recover from appellant the sum of $8,587.18, being $7,000.00 for principal and $1,587.18 for double the usurious interest. Attorneys’ fees were waived by appellee. Appellant, hereinafter referred to as Lafferty, asserts by eight assignments of error that the pleadings, depositions and affidavits filed herein raise material questions of fact which preclude a summary judgment. One point complains that the trial court erred in awarding appellee recovery for double the amount of usurious interest. The final point urges that the statute in question provides only for forfeiture of unpaid principal and does not permit recovery for repaid principal. Despite voluminous pleadings and several long affidavits filed by and on behalf of appellant, the material facts are substantially undisputed. In February, 1970, ap-pellee, a corporation headed by Jake Elliott as President, needed to borrow some money to discharge a lien of the Internal Revenue Service and release a judgment lien. Neither appellee nor Elliott was apparently able to negotiate a loan from a lending institution. Elliott was acquainted with Sam Ruffino, a closer at Commercial Abstract and Title Company, and through him negotiated the loan with Lafferty. There was no direct contact between Elliott and Laf-ferty, but all dealings of Lafferty and Elliott were with Ruffino. The corporation owned 22.67 acres of land, then being subdivided, which was subject to a first lien note payable to Lake Croft Beach Estates, Inc. On February 26, 1970, appellee executed its real estate lien note payable to W. W. Lafferty in the principal sum of $7,500.00 with interest at the rate of 10 per cent per annum to be payable in monthly installments of $659.37 or more each, including interest. This note was secured by a second lien and deed of trust on the 22.67 acres of land. In consideration of this note, Lafferty delivered to Commercial Title Company his personal check in the sum of $7,000.00, retaining the other $500.00 as a charge for securing a loan for appellee. Ruffino, on behalf of Commercial Title Company, delivered a guaranty title policy to Lafferty and furnished a closing statement to appellee. In addition to the $500.-00 retained by Lafferty as a “discount,” the closing statement shows a deduction of $500.00 for a “Brokerage Fee.” This was purportedly dispersed to one Fernando Fernandez, although Ruffino received part of same. Five monthly installments were made; and on October 2, 1970, the balance of principal, together with all accrued interest, was paid to Lafferty. On November 5, 1970, this suit was filed. Both Ruffino and Lafferty averred that the parties intended that $500.00 be paid to Lafferty as a fee for use of his credit and other services to appellee, rather than as interest. It is seen that Lafferty borrowed $7,500.00 from the Highland Park State Bank shortly before issuing his own check for $7,000.00 to Commercial Title on behalf of appellee. Accordingly, it is urged by Lafferty that the $500.00 retained by him should not be considered as interest. A similar contention was considered by the Supreme Court in Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709, 711 (1942). The Court held: “An agent or a broker may lawfully charge a commission for his services in negotiating a loan with a third party, and such commission will not be taken into consideration in determining whether or not the loan is usurious, where it is done in good faith, and not as a mere cloak to avoid the usury law. But, in order to be valid it must appear that the loan was ultimately made with or passed on to a third party, and that the extra charge was made in good faith for so negotiating the loan.” Further: “The fact that the party has to pledge his credit or collateral with a third party in order to obtain the funds which he himself lends to the borrower does not authorize him to charge the commission in addition to the highest legal rate of interest.” See also: Chagas v. Irvin, 458 S.W.2d 840 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.) ; Sapphire Homes, Inc. v. Gilbert, 426 S.W.2d 278 (Tex.Civ.App. — Dallas 1968, writ ref’d n. r. e.). This rule squarely controls the situation before us. The loan was from Laf-ferty to appellee, and the fact that Lafferty borrowed the money on his own credit did not authorize him to charge a commission plus maximum interest for doing so. Nor is there any showing that Lafferty performed any other service on behalf of appellee or agreed to perform any certain service for appellee in the future so as to justify a fee for such service. Chagas v. Irvin, supra. The trial court properly considered the $500.00 retained by Lafferty as interest. In addition to this $500.00, the note provides for 10 per cent interest on the principal of $7,500.00 with the note payable in equal monthly installments. Since the average loan balance would be much less than this principal sum, the note actually provides for interest in excess of 10 per cent per annum. The records show that in addition to the $500.00 discount retained by Lafferty, he was paid additional interest of $335.94 before the note was fully discharged on October 2, 1970. The total sum of $835.94 represents an interest charge in excess of 20 per cent per annum. Lafferty urges by several points that material fact issues are raised as to whether appellee should be prohibited from recovery by reason of fraudulent representations, concealment or conduct of appellee’s president, Elliott. Most of these complaints relate to the security given to protect the note. Lafferty urges that appellee violated Article 1137j, Vernon’s Tex.Pen. Code Ann., by purporting to convey an interest in land by the deed of trust when it was not the owner of said land. The basis of this complaint is that some of the lots had been previously sold under contracts of sale. Elliott admitted that this is true, and, in fact, the note was to be discharged with monthly payments made on these contracts of sale. Lafferty further urges that it was represented to him that the loan was to be made directly to Elliott rather than to a corporation such as appellee. We fail to see how these alleged fraudulent misrepresentations could have harmed Lafferty. A Mortgagee’s Policy of Title Insurance was issued by Commercial Abstract and Title Company guaranty ing to him that the note of February 26, 1970, executed by appellee was a valid and subsisting lien on the property mortgaged, subject only to the first lien held by Lake Croft Beach Estates, Inc. Furthermore, any misrepresentation or misunderstanding as to who was borrowing the money was fully ratified by Lafferty after receipt of the closing papers. Finally, it is seen that the note was fully discharged by appellee, and the lien securing same released by Laf-ferty. The amount paid Lafferty in discharge of the note was in full payment of his demand and no evidence is raised of a compromise settlement. The trial court properly granted summary judgment for appellee since the record demonstrated that usurious interest had been charged and received by Lafferty on this note. Lafferty asserts by two points that the judgment of the trial court is improper in that it permits recovery by appellee of excessive penalties. Article 5069-1.06, supra, which was enacted in 1967, provides for two penalties. Subdivision (1) provides that a lender “. . . who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle [10 per cent], shall forfeit to the obligor twice the amount of interest contracted for, charged or received, . . ..” Subdivision (2) provides that a lender “. . . who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges. .” Lafferty urges that the forfeiture of principal should be construed to mean “all unpaid principal.” This narrow construction of the word “forfeit” would nullify the express provisions of this statute which authorizes penalties and suits after the interest was received or collected. We conclude the Legislature intended that where it was shown that interest greater than double the authorized rate was received, all principal and not just the unpaid principal sho.uld be forfeited by the lender. A more difficult question is presented by Lafferty’s contention that Subdivision (2) of this statute does not authorize recovery of double the amount of interest as does Subdivision (1). This subdivision authorizes an additional penalty of forfeiture of all principal as well as interest and all other charges. By use of the phrase “additional penalty,” the Legislature obviously intended that this forfeiture would be in addition to the penalty provided for in Subdivision (1). Since the interest charged was in excess of 20 per cent, the trial court properly permitted recovery for double the amount of interest paid as well as all principal. The judgment is affirmed. ON MOTION FOR REHEARING. Appellant asserts on motion for rehearing that we erred in affirming the judgment of the trial court which provided for forfeiture of the principal sum of the note since the interest charged was in excess of double the amount of interest allowed because Article 1302-2.09, Tex.Rev.Civ.Stat. Ann. (Supp.1972), prohibits the claim or defense of usury to be made by a corporation if a rate of interest not to exceed one and one-half per cent (1½%) per month was agreed to by said corporation. Such assignment of error is not briefed. This contention was not raised in the trial court or in this Court prior to said motion for rehearing and, therefore, comes too late for consideration. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1956); W. T. Burton Company, Inc. v. Keown Contracting Company, 353 S.W.2d 909 (Tex.Civ.App. — Beaumont 1962, writ ref.’d n. r. e.); Brewster v. Union State Bank, 347 S.W.2d 634 (Tex.Civ.App. — San Antonio 1961, no writ) ; Harris v. Cleveland, 294 S.W.2d 235 (Tex.Civ.App. — Galveston 1956, writ dism’d); Aycock v. Travis County, 255 S.W.2d 910 (Tex.Civ.App.- — Austin 1953, writ ref’d). It necessarily follows that we express no opinion regarding the application of Article 1302-2.09, supra, to the Title 79, Interest, Revised Civil Statutes, as enacted by Acts 1967, 60th Leg., p. 609, Ch. 274. The motion for rehearing is overruled. . See Article 5069-1.06, Vernon’s Ann.Civ.St.

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The CITADEL CONSTRUCTION COMPANY, Inc., and American General Insurance Company, Appellants, v. Chester SMITH and United States Fidelity and Guaranty Company, Appellees. No. 11919. Court of Civil Appeals of Texas, Austin. June 21, 1972. Rehearing Denied July 26, 1972. Small, Herring, Craig & Werkenthin, C. C. Small, Jr., John F. Morehead, Lawrence S. Smith, Austin, for appellants. Wood, Burney, Nesbitt & Ryan, James P. Ryan, Corpus Christi, for appellees. O’QUINN, Justice. This lawsuit is between the general contractor and a subcontractor on a public project for the construction of a building in 1968 and 1969 at Southwest Texas State University in San Marcos, Texas. Other parties are the surety companies for the respective principal parties. Citadel Construction Company, Inc., prime contractor on the project, brought this suit against Chester Smith, who was the subcontractor of all lath and plaster work on the building, alleging breach of contract. Citadel sought to recover $163,526.75 for reasonable cost of completing Smith’s contract, plus consequential damages in the sum of $23,874.01. After allowance of credit due Smith in the amount of $95,808.65, Citadel sought a net recovery of $91,592.11. Chester Smith filed his counterclaim against Citadel in the sum of $66,703.96 for work and materials, $18,005.33 in re-tainage held by Citadel, and $2,298.55 as profit Smith alleged he would have earned if he had been permitted to complete the proj ect. American General Insurance Company, as surety for Citadel, and United States Fidelity and Guaranty Company, as surety for Smith, were made parties to the suit. On trial Citadel took the position that Smith’s performance of his subcontract had been so slow that Citadel was forced to ask Smith to leave the job in February of 1969 and to complete the lath and plaster work at Citadel’s expense. Smith’s position was that his performance was at a proper rate and that if the rate of his performance was not satisfactory, this was due to Citadel’s lack of coordination and supervision of the job. All issues submitted to the jury were answered favorably to Smith. Upon the jury’s findings, the trial court entered judgment against Citadel and American General, jointly and severally, in the sum of $60,312.50 plus interest. Citadel and American General have appealed and bring four points of error. Under the first two points appellants urge error in permitting appellees to introduce twelve exhibits that reflect claims Citadel initially made against Smith and against a tile subcontractor on the same job. The two claims were duplicated in part, and by the éxhibits appellees were able to show inconsistencies between the first claim against Smith and the claim upon which Citadel finally relied in the trial. Exhibit 16 constitutes the details of the claim Citadel made against the tile subcontractor. Exhibits 17 through 27 are parts of a file maintained by Citadel containing material upon which Citadel based its claim against Smith. It is undisputed that the two claims contained charges for identical material and labor, and that the duplicated charges were not properly included in the claim against Smith. The duplications were in excess of $58,800. Appellants’ position is that because ap-pellees were unable to show any inconsistency between Exhibit 16 and any claim urged by Citadel against Smith at the trial, or any evidence Citadel introduced in support of its claim against Smith, it was error to admit Exhibit 16 for impeachment purposes. Citadel’s principal witness as to the claim against Smith was B. F. Davidson, president of the company. Davidson’s testimony was given in support only of the claim ultimately stated in Citadel’s amended petition, and that claim did not include the duplications discovered before trial in the Smith claim and the claim against the tile subcontractor. The position of appellees is that Exhibit 16 and Exhibits 17 through 27 were admissible to show a prior inconsistent statement of Davidson. The record shows that the materials found in all the exhibits were prepared and compiled for Citadel by a former employee, and that the materials in Exhibits 17 through 27 were delivered by Davidson to an accountant for Smith as the claim of Citadel against Smith. The accountant later obtained access to the materials found in Exhibit 16 which led to discovery of the extensive duplications amounting to more than $58,800. Appellants contend that because Exhibits 17 through 27 are not “coextensive with Citadel’s claim in the instant suit,” the exhibits were admissible on the part of appel-lees only if inconsistent with Citadel’s claim under evidence Citadel introduced in the trial. Appellants admit the existence of duplications of many items from the initial claim against the tile subcontractor, as shown by Exhibit 16, in the initial claim against Smith, as reflected by Exhibits 17 through 27. But appellants argue: “To allow Exhibit 16, into evidence because it is inconsistent with Exhibit 17-27 is to allow Smith to pile an inconsistency on top of an inconsistency.” Smith’s accountant was permitted to testify from the exhibits and to point out items in the Smith claim that were also found in the claim against the tile contractor. Appellants objected to introduction of Exhibit 16, stating to the trial court, “ . . . the theory of admission of . Exhibit No. 16 is that it is inconsistent with . . . Exhibit Nos. 17 through 27 . [and] the theory of admissibility propounded on Exhibits 17 through 27 is that it is inconsistent with what’s alrpady [already] in evidence We would . . . point out . that this is piling an inconsistency on an inconsistency and therefor is not relative or relevant to a prior inconsistent statement which has been made in this case from the witness stand or from any exhibit which has been admitted into evidence, and would object to the admission of . Exhibit No. 16 on this ground.” Smith’s accountant testified that he had not examined the exhibits introduced by Citadel at the trial, and, being a witness placed under the rule (Rule 267, Texas Rules of Civil Procedure), was unable to say whether the claim represented by Exhibits 17 through 27 was the same claim Davidson had already testified to at the trial. Appellants made objection, stating to the court, “ . . . we’re going to object to both Defendant’s Exhibit Nos. 16 and the group Exhibit 17 through 27 as wholly irrelevant to the matter at issue before this Court, and object to further testimony on the part of the witness for purposes stated he testified about . . . [and] point out . . . that Plaintiff’s Exhibit Nos. 1 through 110 have been offered, and marked, and in evidence in this case since . last week, with ample opportunity for this witness knowing that he was going to testify to have made an examination to see whether or not there was any relevancy to what he had to testify to as to what’s been admitted in evidence . . . ” Appellees did not question Davidson while he was a witness at the trial about the materials Davidson had furnished Smith’s accountant prior to trial. These materials, as Exhibit 16 and Exhibits 17 through 27, were offered for the first time through the accountant as a witness. It is settled that a proper predicate generally must be laid before a witness can be impeached by introduction of prior inconsistent statements. International & G. N. R. Co. v. Boykin, 99 Tex. 259, 89 S.W. 639, 640 (1905); Thompson v. Denham, 250 S.W.2d 460 (Tex.Civ.App. Galveston 1952, writ ref. n.r.e.); Carrick v. Hedrick, 351 S.W.2d 659 (Tex.Civ.App. Amarillo 1961, no writ); Texas Law of Evidence, McCormick and Ray, 2d ed., sec. 692. Timely objection must be made that no predicate was laid for admission of the evidence, offered to show a prior inconsistent statement and to impeach or contradict the witness, if the evidence is to be excluded. Morgan v. Fleming, 63 Tex.Civ.App. 432, 133 S.W. 736 (Galveston 1911, writ ref.). We find no objection by appellants to the introduction of Exhibit 16 and Exhibits 17 through 27 on the ground that a proper predicate had not been laid. The objections made were general in nature, the grounds being lack of relevance or materiality. An objection in general terms is insufficient to require consideration by an appellate court Sternenberg v. Marshall, 257 S.W.2d 312, 319 (Tex.Civ. App. Austin 1953, writ ref. n.r.e.) ; Texas Law of Evidence, McCormick and Ray, 2d ed. sec. 25. Davidson was in attendance throughout the trial and could have been recalled for further questioning in order to lay a proper predicate if objection to the exhibits had included want of such predicate as the grounds for excluding the exhibits. Stating clear and specific grounds for excluding evidence enables the trial court “to make an intelligent ruling” and “affords the offering party an opportunity to remedy the defect if possible.” Texas Law of Evidence, McCormick and Ray, 2d ed. sec. 24, vol. 1, p. 23. Appellants’ points one and two are overruled. Under appellants’ remaining points, three and four, contention is made that (1) judgment against American General was erroneous because there were no issues properly submitting the correct theory of recovery and that (2) it was error to render judgment against American General for the difference between the amount previously paid Smith and the value of Smith’s work as of February 12, 1969, the date Citadel required Smith to leave the job. The issues to which appellants objected in the trial court, and which on appeal they argue failed to submit a correct theory of recovery, are Issues Nos. 7 and 8. Issue 7 inquired as to the “reasonable value of the total work completed by Chester Smith under his contract . [as of] February 12, 1969.” Issue 8 asked the jury to find “ . . . the reasonable value ... of the total work completed by Chester Smith under his contract . by the end of October, 1968.” In answer to Issue 7, the jury found $157,250.00 was the reasonable value of work completed on February 12, 1969. The trial court arrived at the basic figure in the joint and several judgment against Citadel and American General by subtracting from $157,250.00 payments of $95,737.-50 which Citadel had made to Smith during construction and the sum of $1,200, a sum agreed upon by counsel in settlement of claims of Citadel against Smith. By this procedure, appellants contend, the trial court “allowed Chester Smith a quantum meruit recovery against American General instead of a recovery for labor and materials furnished, as required by Article 5160 [Vernon’s Ann.Civ.St.].” Appellants insist that Smith should have presented evidence, consisting of his bills on materials and his labor costs, to prove the value of materials and labor furnished, and that the total of these categories properly constituted the limit of the surety’s liability. We have concluded that the trial court applied the correct theory and that the judgment properly held Citadel and American General, jointly and severally, liable for the reasonable value of partial completion, less the sums previously paid by Citadel to Smith. Article 5160, Vernon’s Anno. Civ. Sts., requires the claimant, giving periodical notices to the contractor and the surety, to present with the notice a sworn statement of account with allowance for all prior payments known to the claimant. When the claim is based on a written contract, as in this case, the claimant may furnish a copy of the agreement and advise “completion or value of partial completion” of the contract. Art. 5160, subd. B(a). A subcontractor is defined under the statute as “ . . . any person . who has furnished labor or materials or both ... to fulfill an obligation to the prime contractor ... to perform and install all or part of the work required by the prime contract.” Art. 5160, subd. C(c). This subsection also states: “A subcontractor shall have a claim, but such claim, including previous payments however, shall not exceed that proportion of the subcontract price which the work done bears to the total of the work covered by the subcontract.” A claimant whose claim remains unpaid after sixty days following the filing of the claim is authorized “to sue the principal and the surety . . . jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit . . . ” Art. 5160, subd. B. The payment bond required of the contractor must be “ . . . in the amount of the contract, solely for the protection of all claimants supplying labor and material . in the prosecution of the work provided for in said contract, for the use of each such claimant.” Art. 5160, subd. A(b). Appellants argue that Smith was not entitled to judgment against the surety for any sum that might include compensation for items such as profit figured in the contract, over and above “the cost of labor and materials he furnished.” We are convinced that the design of the statute, upon reading the Act as a whole, expresses a legislative intent that the surety, together with the principal, be held liable to a subcontractor for the reasonable value of the balance unpaid on the contract at the time of making the claim, with allowance for prior payments. Not to be included in such recovery against the surety are amounts claimed for damages for breach of contract or loss of anticipated profits which might have been realized if the subcontractor had been allowed to complete his work. The trial court carefully separated from the award against both surety and principal an award to Smith for loss of anticipated profits, which was assessed in the judgment against Citadel alone. The McGregor Act (Article 5160) in a significant number of its provisions bears evidence that the statute was drawn after the pattern found in the Miller Act (40 U. S.C.A. secs. 270a-270d) a federal statute on the same subject. Johnson Service Company v. Climate Control Contractors, Inc., 478 S.W.2d 643, 645-646 (Tex.Civ.App. Austin 1972, no writ). Appellants have cited no Texas cases expressly dealing with the issue raised under point three, and appellees state they have found none on the question. From an examination of the McGregor Act and the Miller Act in cases decided by federal courts construing the Miller Act, we reach the conclusion that since the payment bond must be “in the amount of the contract,” such elements as overhead, supervision, and profit, being implicit in the contract, are not to be denied the subcontractor even as against the surety. Both statutes authorize suit on the payment bond against principal and surety for the amount, or the balance, unpaid on the contract at the time of suit or date of the claim. As already suggested, anticipated profits beyond the date of the claim and damages for breach of contract are not elements of recovery fairly to be understood as a part of the agreement between the subcontractor and the prime contractor so as to be covered by the surety bond. Recovery by the subcontractor against the surety is not limited, however, to the actual cost of materials and labor. As stated by one federal court, “Out-of-pocket expense is not the limit of the fair value of labor and materials.” Arthur N. Olive Co. v. United States, 297 F.2d 70, 73 (1 Cir. 1961); see Continental Casualty Co. v. Schaefer, 173 F.2d 5 (9 Cir. 1949). The subcontractor performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, and his efforts, as with the efforts of the prime contractor, contribute to the ultimate production of the project. The McGregor Act must be accorded a liberal interpretation to achieve the intent of the Legislature in requiring payment bonds “in the amount of the contract, solely for the protection of all claimants supplying labor and material . in the prosecution of the work provided for in said contract . . . ” United States Fidelity and Guaranty Co. v. Henderson County, 276 S.W. 203 (Tex.Comm.App.1925), motions for rehearing overruled 276 S.W. 1119; Art. 5160, subd. A(b). Under their final point, appellants contend that although Smith “timely presented claims relating to labor and materials delivered between October 1, 1968 and February 12, 1969,” the date Citadel forced Smith to leave the job, no recovery against American General may be had for work and materials prior to October 1. Appellants insist that “ . . . for this judgment to be proper [as to the surety] Smith would have had to secure from the jury a finding that the payments made relate solely to work done prior to October 1.” The essence of this argument appears to be that part of the money awarded Smith in the judgment was earned before October 1, and that Smith is not entitled to retain this award because it was not covered by a valid claim under Article 5160. We have examined the record with care and conclude that this position is not supported by the evidence. We agree with appellees that Citadel was current with payments through August, 1968, when Citadel paid Smith late in September, and that, by early December, Citadel had more than paid Smith’s billing for September, in an amount in excess of $44,676.00, leaving a credit balance in Citadel’s favor in excess of $12,000.00. Claims after September, as appellants admit, were timely filed, constituting the basis for Smith’s claims in this lawsuit. Appellants’ points three and four are overruled. Judgment of the trial court is in all things affirmed. Affirmed. SHANNON, J., not sitting.

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Maria ALLEN, Appellant, v. Roberto Rolando SALINAS, Jr., Appellee. No. 6243. Court of Civil Appeals of Texas, El Paso. July 5, 1972. Calhoun & Morton, Ronald R. Calhoun, El Paso, for appellant. Mitchell Esper, El Paso, for appellee. OPINION WARD, Justice. This is a change of custody proceeding. On December 16, 1970, the permanent custody of the two year old minor child, Lisa, was granted to her maternal grandmother, Maria Allen, in the final judgment of divorce between her parents. On August 17, 1971, the Court of Domestic Relations of El Paso County, upon a trial without a jury, granted change of custody of the child to her father, Roberto Rolando Salinas, Jr. The judgment of the Court of Domestic Relations is hereby reversed and rendered. A history of immaturity on the part of the parents of the child is reflected. In July of 1970, by order of the 41st District Court, the temporary custody of the child was granted to Gloria Salinas, the child’s mother, after the father had taken the minor child away from her. In December, 1970, an action for contempt was filed against Roberto Rolando Salinas, Jr. to again effect a return of the child. In December, 1970, Roberto Rolando Salinas, Jr. and Gloria Salinas were divorced by final judgment of the 41st District Court and the permanent custody of Lisa Renee Salinas was awarded to the grandmother, Maria Allen. Thereafter, on July 1, 1971, Roberto Rolando Salinas, Jr. came to the home of Maria Allen and again took the child against the expressed desires and wishes of the custodial grandmother, who immediately filed her petition for writ of habeas corpus in the 120th District Court to the end that the custody of the child be again formally affirmed in the custodial grandmother. The hearing on the writ of habeas corpus was then held, the judgment reciting the appearance of Maria Allen and her attorney and of Roberto Rolando Salinas, Jr. and his attorney. The Court having heard the testimony of the parties, granted the writ, ordered that Roberto Rolando Salinas, Jr. discharge the minor, Lisa Renee Salinas, from the illegal confinement, “and that he forthwith deliver the body of the said LISA RENEE SALINAS to the Petitioner, MARIA ALLEN, and it is the formal judgment of the Court that custody of the minor, LISA RENEE SALINAS, is hereby affirmed by this order in the Petitioner, MARIA ALLEN.” At this time, by judgment entered on July 21, 1971, is the 41st District Court, Roberto Rolando Salinas, Jr. was found guilty of willful contempt of the support order of the divorce decree. On July 2, 1971, in the Court of Domestic Relations of El Paso County, the present petition for readjudication of custody was filed by Roberto Rolando Salinas, Jr., asserting a material change of circumstances surrounding the custodial grandmother’s home and of his own conditions. As stated on August 17, 1971, the judgment of the Court of Domestic Relations was entered, granting the change of custody in favor of Roberto Rolando Salinas, Jr. Thereafter, the following findings of fact were entered in the case by the Court: “1. I find as a fact that the Plaintiff, ROBERTO ROLANDO SALINAS, JR., is the natural father of the minor in question, LISA RENEE SALINAS. 2. I find that GLORIA SALINAS is the natural mother of the minor child in question, LISA RENEE SALINAS. 3. I find that ROBERTO ROLANDO SALINAS, JR. and GLORIA SALINAS were divorced by a final judgment entered in the 41st Judicial District Court on December 16, 1970 in Cause No. 70-998. 4. I find that the final judgment in said Cause No. 70-998 in the 41st District Court of El Paso County, Texas, was specifically approved in writing by ROBERTO ROLANDO SALINAS, JR., the natural father of said child, and GLORIA SALINAS, the natural mother of said child. 5. I further find that in said final judgment in Cause No. 70-998 in the 41st Judicial District Court of El Paso County, Texas, that the custody of the minor child in question, LISA RENEE SALINAS, was vested in MARIA ALLEN, the Defendant in this cause, who was found by the 41st Judicial District Court to be the mother of the natural mother of said child, GLORIA SALINAS. 6. I find as a fact that the Plaintiff herein, ROBERTO ROLANDO SALINAS, JR., failed to carry his burden of sustaining the pleadings contained in Paragraph III of his petition for readjudication of custody alleging specific grounds of material change in the circumstances surrounding the Defendant, MARIA ALLEN’s, home. 7. I find as a fact that the Plaintiff did carry his burden of sustaining his pleadings contained in Paragraph IV of his petition for readjudication of custody showing a material change in the Plaintiff’s circumstances. 8. I find that the Plaintiff herein now has an established home with his family and is gainfully employed. 9. I find that the Plaintiff herein is in good health and that his mother, with whom he resides, is in good health and able to devote her full time and attention to caring for the minor child in question while the Plaintiff herein is employed. 10.I find that the Plaintiff herein, ROBERTO ROLANDO SALINAS, JR., has shown a change in his circumstances demonstrative of his improved condition and fitness as a custodian of his own child. 11. I find that the Defendant, MARIA ALLEN, has failed to prove that the best interest of the child require that its natural father be deprived of its custody. 12. I find that the Defendant, MARIA ALLEN, has failed to prove that the natural father is unfit to have custody or is disqualified to have custody or that the best interest of said child demands that the natural father be deprived of its custody. 13. I find that the rights of the natural mother, GLORIA SALINAS, are not at issue herein for the reason that she is not a party to this proceeding. 14. I find that the Defendant, MARIA ALLEN, during the time that she has had physical custody of the child under the prior judgment of the 41st Judicial District Court on December 16, 1970, has shown a love for the child and has well cared for said child during that period of time, as evidenced by the Plaintiff’s own admissions in testimony.” Based upon the findings of fact, the following conclusions of law were made: “1. As between a minor child’s father and its maternal grandparent, the father is entitled to the custody where he has not abandoned and is not unfit to have custody of said minor so long as there are no other extraordinary circumstances requiring that he be deprived of custody. 2. The Plaintiff herein, the natural father of the minor child in question, has made out a prima facie case for custody that has not been refuted by the Defendant, MARIA ALLEN, the natural grandmother, and the natural father, Plaintiff herein, is entitled to custody of such prima facie case unless the Defendant rebuts such proof. 3. The Defendant, MARIA ALLEN, failed to carry her burden of rebutting the prima facie case proved by the Plaintiff, ROBERTO ROLANDO SALINAS, JR. 4. That the interests of a minor child are best served by an award of its custody to its natural parent. The custody of the minor child, LISA RENEE SALINAS, should be vested in her natural father, ROBERTO ROLANDO SALINAS, JR.” The findings and conclusions reveal that the trial Court has determined the instant case on the basis of legal presumptions and burden that have no application to a change of custody situation. In previous Court actions, the care and custody of the child was awarded to the appellant. The difference between a first award of custody and a change of custody becomes important in determining what legal principles control. Clark et ux. v. Chrietzberg et vir., 348 S.W.2d 476 (Tex.Civ.App. — Dallas 1961, writ dism’d). Whatever effect a presumption in favor of a natural parent may have been in an original custody action, it cannot control a suit to change custody. The first judgment at the time it was entered becomes res judi-cata of the question of the child’s, best interest and of the custody. It cannot now be questioned that at that time it was to the best interest of the child to award custody to the grandparent. Because a change of custody disrupts the child’s living arrangements and the channels of a child’s affection a change should be ordered only when the trial Court is convinced the change is to be a positive improvement for the child. Taylor et vir. v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955). The well established rules have again been summed up by the Supreme Court in Knowles et al. v. Grimes et vir., 437 S.W.2d 816 (Tex.1969): A final judgment in a custody proceeding is res judicata of the best interest of a minor child as to conditions then existing. Ogletree v. Crates, 363 S.W.2d 431 (Tex.Sup.1963); Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, [75 S.W. 368] (1903). There must be a showing of materially changed conditions to authorize a change of custody. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (1962). As a matter of public policy, there should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the disturbing influence of re-litigation should be discouraged.” From December 16, 1970, the date of the divorce judgment granting the custody to the grandmother, the only testimony in the record before us favoring the father’s position is that at the time of the divorce he was in the Army, that “he was unstable,” and that he now lives with his parents and has a job. Admittedly, there has been no change in the status of the custodian and no change in the child’s condition. These slight changes of condition on the part of the noncustodian since the original adjudication do not meet the standard of the later Supreme Court cases. Short v. Short, 163 Tex. 287, 354 S.W.2d 933 (1962); Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966); Knowles et al. v. Grimes et vir., supra; Meucci v. Meucci, 457 S.W.2d 48 (Tex.1970). More important and entirely overlooked is that no evidence is before the Court as to any change of condition from that adjudication of July 8, 1971, by the 120th District Court, reaffirming the custody in the grandmother. Of concern to us has been a motion made by the appellee to dismiss the appeal based on the alleged contemptuous act of the appellant in defying the trial Court’s order by refusing to deliver the minor child to the appellee. The motion is supported by affidavits which would justify this Court in dismissing the appeal. By answer to the motion to dismiss, and amply supported by affidavits, it is made to appear that the child’s natural mother, Gloria Salinas, soon after the hearing and before the pronouncement of judgment by the trial Court had taken the child and fled to California without the consent of the appellant. We are in full accord with the principles announced in Hopp et al. v. James, 470 S.W.2d 716 (Tex.Civ.App. — San Antonio 1971, no writ) and will grant no sanction to one who is in an attitude of contempt toward an order entered by the trial Court. However, facts which are the basis of the motion to dismiss are controverted by opposing affidavits of equal acceptance. The movant has failed to discharge the burden of proof and the motion to dismiss is overruled. Payne v. Campbell, 259 S.W. 693 (Tex.Civ.App. — Austin 1924, no writ). The judgment of the trial Court is reversed and rendered.

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Homer TAYLOR and Hailey Russell Company, Appellants, v. REPUBLIC GROCERY, Appellee. No. 6221. Court of Civil Appeals of Texas, El Paso. June 28, 1972. Rehearing Denied July 26, 1972. Scott, Hulse, Marshall & Feuille, Charles R. Jones, Stephen B. Tatem, Jr., El Paso, for appellants. Owen, Brewster & Steinberger, Jack L. Brewster, El Paso, for appellee. OPINION PRESLAR, Justice. This is an appeal by defendants-appellants, Homer Taylor and Hailey Russell Company, from a judgment in favor of plaintiff-appellee, Republic Grocery. Ap-pellee brought suit against appellants, alleging negligence in failing to procure fire insurance on a building. The jury found the cost to repair the fire damage to be $5,000.00. We affirm. The record reflects that at the time of the fire the building was owned by George S. Yee, Suey Yee, Poon Wong, Ben K. Wong and Chung Wong. Title had previously been in the name of George S. Yee, Trustee, for Suey Yee, Poon Wong, Ben K. Wong and Chung Wong, and that was the named insured listed on the policy of fire insurance which was allowed to lapse and brought on this suit. These five individuals had operated for a number of years a grocery store in the building, known as Republic Grocery. In 1965, one of the five, Ben K. Wong, bought out the interest of the others in the grocery business, and he and the others leased a portion of the building to him, Ben K. Wong, and he continued the operation of the grocery business, using the name Republic Grocery, but all five continued to share in benefits from the operation of the entire building. In the spring of 1967, the policy of fire insurance in effect on the building was in the amount of $40,000.00, placed by a local El Paso agency. At that time, Homer Taylor, a local representative of Hail-ey Russell Company, approached Ben K. Wong. Mr. Taylor testified that he was “running a survey,” meaning that : “A We run surveys for all of the members who are with Tri-State Wholesale Associated Grocers, and this simply means going out to their store, securing copies of their contracts, sending them to Dallas, having Dallas photostat the contracts, returning the contracts to the insured, and then making a survey based on our photocopies.” Mr. Taylor further stated that the purpose of the survey was to determine if there is a “savings in our insured’s insurance package.” Mr. Wong gave all policies, his complete insurance package, to Mr. Taylor who sent it to Dallas. Mr. Taylor then agreed to pick up appellee’s insurance coverage upon expiration of the current policies on April 9, 1967, so there would be no lapse in coverage. Mr. Wong’s insurance thereafter being handled by Hailey Russell and the Insurance Company of Pennsylvania. Subsequently, a fire occurred at Republic Grocery on April 27, 1967, and Mr. Wong immediately informed Mr. Taylor, who called Dallas to ascertain whether or not there was insurance coverage on the building. Mr. Taylor was informed no fire coverage on the building existed, but that loss of earnings and contents coverage was in effect. The jury found that appellants, Homer Taylor and Hailey Russell Company, failed to notify the plaintiff before the fire that they had failed to procure fire insurance coverage on the building in question; that such failure was negligence, and that such negligence was a proximate cause of the damages sustained by appellee. Appellants urge that the evidence failed to establish that “Republic Grocery” was a partnership composed of the owners of the building as alleged; that having brought an action as a partnership or unincorporated association, plaintiff-appellee must prove such an entity in order to recover; and that Republic Grocery cannot recover for loss of the building when the proof does not show title in Republic Grocery. Suit was by “Republic Grocery, hereinafter called Plaintiff,” with the further allegation : “At all times material hereto, Plaintiff was a partnership or unincorporated association composed of SUEY YEE, GEORGE S. YEE, POON WONG, CHUNG WONG and BEN K. WONG and that at all times material hereto, Plaintiff owned certain real property situate in El Paso, Texas, municipally numbered 501-03 South El Paso Street.” Defendants-appellants denied under oath, pursuant to Rule 93(f), Texas Rules of Civil Procedure, that Republic Grocery was a partnership or unincorporated association. No issue was submitted, and appellants objected to the failure to submit the question. The proof showed the building to be owned by the five named individuals. As the owners of the building, they would be the parties entitled to recover for its damage, and they were individually named as plaintiffs in such an action. We fail to see how the failure to prove they were a partnership or unincorporated association affected that right, assuming such proof failed. Under Rule 28, T.R.C.P., they may sue or be sued in a partnership name or in an assumed or common name under which they were doing business. This Rule must be construed with Rule 815, T.R.C.P., which reads: “These rules shall not be construed to enlarge or diminish any substantive rights or obligations of any parties to any civil action.” It would seem to be a denial or diminution of plaintiffs’ substantive rights to deny them recovery for failure to prove a form of their pleadings not essential to their cause of action. Also, we fail to see how appellants are harmed, for the plaintiffs are each named in their petition, and under principles of judicial estoppel they can never again assert this cause of action against the appellants. Long et vir. v. Knox et al., 155 Tex. 581, 291 S.W.2d 292 (Tex.1956). Also, Art. 6135, Vernon’s Ann.Tex.Civ.St., makes a judgment by or against an unincorporated association binding on the individual members thereof. The true thrust of appellants’ argument on this matter is that plaintiffs are not entitled to recover in the capacity in which they sued. This is a denial which must be specially pleaded under oath by the provisions of Rule 93(c), T.R.C.P. This was not done and is therefore waived. The jury found that the cost of repairing the building was $5,000.00, and judgment was entered for that amount. Appellants say this is excessive because appellants were convicted of negligence in failing to procure a policy of fire insurance, and therefore appellee’s damages should be measured by the position they would have been in had the policy been obtained. We agree that the proper measure of appellants’ liability is the amount that would have been due under the insurance policy, provided it had been obtained. Scott v. Conner, Tex.Civ.App., 403 S.W.2d 453 (CCA 1966, n. w. h.) and authorities there cited. And this amount is to be reduced by the cost of the insurance. Wallis et al. v. Liberty Mutual Insurance Company et al, 465 S.W.2d 422 (CCA Dallas 1971, ref. n. r. e.). Appellants ask that the judgment be reduced by the premium cost and by the application of the co-insurance provision of the policy which would have been in effect had one been obtained. We are of the opinion that appellants have lost their right to claim these deductions by failing to plead them in their pleadings on which the trial was conducted. The plea of co-insurance to diminish an insured award is defensive, and facts supporting such a plea must be plead and proved by the defendant insurer. New York Underwriters’ Ins. Co. v. Shanks et al, 78 S.W.2d 1026 (CCA 1935, writ refused) ; Texas City Terminal Railway Company v. American Equitable Assurance Company of New York et al, 130 F.Supp. 843 (U.S.Dist.Ct.S.D.Texas, 1955). Also, Rule 94, T.R.C.P., in part, provides: “Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists.” When the insurer pleads the exception, then the burden is on the plaintiff to prove that his right to recover is not defeated by the exception. Shaver et al. v. National Title & Abstract Co. et al, 361 S.W.2d 867 (Tex.1962). Since the extent of liability is to be determined as though a policy were in effect, Rule 94 should be applicable, and it is our opinion that the plea of co-insurance to diminish the award cannot be raised since it was not plead. Appellants’ claim for a reduction of the award by the cost of the premium is likewise foreclosed by their failure to plead it. In a case against a broker for failure to insure, the Supreme Court held that the broker was not entitled to reduce the award by the cost of the premium because he had not plead it. Diamond v. Duncan, 107 Tex. 256, 177 S.W. 955 (Tex.1915). Our research has found nothing contrary to this early statement of the law. Appellants seek to make much of the fact that assumed name certificates were filed in the name of Ben K. Wong and his wife as the owners of Republic Grocery. The record does not show that there was any knowledge of, or reliance on, these certificates in the dealings of the parties leading to the change of insurance coverage. All points of error have been considered, and all 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

George M. ROSS, Appellant, v. Dr. Malcolm F. SHER et al., Appellees. No. 633. Court of Civil Appeals of Texas, Houston (14th Dist.). July 5, 1972. liehearing Denied Aug. 2, 1972. John H. Holloway, Houston, for appellant. Frank B. Davis, Andrews, Kurth, Campbell & Jones, Sandra K. Foster, W. N. Arnold, Jr., Fulbright, Crooker & Jaworski, Houston, for appellees. SAM D. JOHNSON, Justice. This is a medical malpractice suit brought by George M. Ross, appellant, against two physicians, Dr. Malcolm Sher and Dr. M. F. Gottlieb. At the close of evidence, the trial court granted a motion for instructed verdict as to Dr. Gottlieb. Special Issues were submitted to the jury as to Dr. Sher. The jury’s findings on both negligence and damages were favorable to Dr. Sher. Based on the jury’s findings the trial court rendered a take-nothing judgment against the plaintiff, Ross. The instant appeal is therefore from an instructed verdict as to one defendant, Dr. Gottlieb, and a take-nothing judgment based upon a jury’s verdict as to the other defendant, Dr. Sher. The plaintiff Ross had trouble with his perirectal tissues since he received a gunshot wound in that area in 1933. In 1940, he was operated on for a fistula and had recurrent difficulties. In August of 1964, Ross went to Dr. Gottlieb, a general practitioner, who hospitalized the plaintiff for a rectal abscess and incised and drained the perirectal area. Dr. Gottlieb determined that the patient suffered from a rectal fistula and referred him to Dr. Sher, a general surgeon. Dr. Sher also diagnosed the underlying cause of much of Ross’s problem as a fistula. As used here a fistula is a medical term for an abnormal passage or tunnel which starts in the colon and comes out the skin or body surface. Treatment or repair of a fistula is made by inserting a small wire through the tunnel until it comes within the colon. The wire serves as a guide to the surgeon who attempts to repair the fistula by excising the infected tissue and converting the tunnel or passage into a trough. The trough is then expected to heal and close in from the bottom or interior. Dr. Sher performed a fistulectomy on the plaintiff on September 8, 1964. Plaintiff contends that the operation brought on incontinence, an inability to control bowel movement. It was plaintiff’s contention in the trial court that the incontinence was occasioned by Dr. Sher’s negligently severing the spliincter and levator muscles in the process of the operation. These are muscles by which bowel movement is controlled. Following the operation Dr. Sher followed the plaintiff in the hospital to September 17, 1964, and at the time he saw him last the wounds seemed to be healing. Ross was discharged from the hospital and Dr. Gottlieb followed him for some time thereafter. It was after the hospitalization that the plaintiff developed incontinence. In December of 1964, he was operated on by a Dr. Melton in an effort to cure the incontinence. He regained continence for an abbreviated period of time but the surgery was unsuccessful because the patient developed a myocin diarrhea, causing the surgery to break down. Later a colostomy was performed to allow optimum conditions for another attempted repair of the muscles. The trial court submitted twelve Special Issues to the jury. Special Issue No. 1 was an informed consent issue. It asked if Dr. Sher failed to make a reasonable disclosure of the nature and extent of the contemplated surgical procedure, to which the jury answered “we do not”. Predicated Special Issue No. 2 was appropriately not answered. Special Issue No. 3 asked if Dr. Sher incised the plaintiff’s sphincter muscles, to which the jury answered “we do”. Predicated Special Issue No. 4, the negligence issue, asked if Dr. Sher failed to exercise proper care and skill in so doing, to which the jury answered “we do not”. Predicated Special Issue No. S was appropriately not answered. Special Issue No. 6 asked if Dr. Sher incised the plaintiffs levator muscle, to which the jury answered “we do”. Predicated Special Issue No. 7, the negligence issue, asked if Dr. Sher failed to exercise proper care and skill in so doing, to which the jury answered “we do not”. Predicated Special Issue No. 8 was appropriately not answered. Special Issue No. 9 asked if Dr. Sher, in performing the fistulectomy in one procedure instead of multiple procedures, failed to exercise proper care, to which the jury answered “we do not”. Predicated Special Issue No. 10 was appropriately not answered. Special Issues No. 11 and No. 12 asked the expenses incurred for necessary medical care, and the sum necessary to compensate plaintiff for physical pain, mental anguish and loss of earnings. Both of these issues were answered “none”. Appellant urges fourteen points of error. The first nine of such points assert that the jury responses recounted above are supported by “no evidence” or “insufficient evidence”, or that they are “against the overwhelming great weight and preponderance of the evidence”. An examination of the issues reveals that Special Issue No. 1, the informed consent issue, is factual in nature. It is one on which the plaintiff had the burden of securing a favorable finding and failed to do so. In Special Issues No. 3 and No. 6 the jury found that the sphincter muscles and levator muscle were incised. In Special Issues Nos. 4 and 7, however, the jury failed to find that such action was negligence. Plaintiff again had the burden of securing a favorable finding and failed to do so. In Special Issue No. 9 the jury answered “we do not” to the question inquiring whether proper care was used by Dr. Sher in performing the operation in one procedure, rather than multiple procedures. Once again the plaintiff had the burden of securing a favorable finding and failed to do so. It is to be observed that in each instance the plaintiff is confronted with his failure to obtain an affirmative response on issues wherein the burden is clearly upon him to do so. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966). The jury was not, in any instance, persuaded by a preponderance of the evidence. “In situations such as this where a jury returns a negative answer to an issue upon which the proponent has the burden of proof, the jury’s negative answer need not be supported by affirmative evidence. Therefore, it avails the complaining party nothing to assert that a negative answer is without support in the evidence or is not supported by factually sufficient evidence. Under these circumstances, the complaining party is placed in the position of having to contend that the evidence establishes an injury as a matter of law. See Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Texas Law Review, 361, 363, (I960).” Smith v. Safeway Stores, Inc., 433 S.W.2d 217, 218 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.). Appellant’s no evidence points of error are overruled. Appellant’s other points of error nevertheless require a review of all the evidence in the record. Such review is made to determine whether an affirmative response to any of the enumerated Special Issues (1, 4, 7 or 9) was established as a matter of law or whether the jury’s negative answer is so against the greater weight and preponderance of the evidence as to be manifestly wrong. We do not so conclude. Other than what has been heretofore recited, the record reveals that in 1933 the plaintiff was shot twice during a robbery, one bullet exiting just below his tailbone. In 1940, he was admitted to the hospital, after a fall, for drainage of a bad bruise some three or four inches from his tailbone and during this time he was operated on for a fistula. In 1961, he was admitted to the hospital for something similar to a heart attack. In addition to the foregoing the plaintiff had emphysema, which was responsible for postponing the 1966 closure of his colostomy, necessitated by the incontinence. The closure had not, at trial, been rescheduled. On the consent issue plaintiff had the “burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from that standard, causation, and damages.” Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.Sup.1967). Plaintiff’s witness on this issue was a Dr. Melton who treated him subsequent to treatment by Dr. Gottlieb and operation by Dr. Sher. Dr. Melton was not completely informed as to the plaintiff’s prior medical history. Dr. Melton attempted to repair the sphincter and levator muscles to help Ross regain continence by suturing these muscles together. Dr. Melton’s operation was temporarily successful, but the antibiotics given at the hospital brought on myocin diarrhea and the repairs broke down. A colostomy was the end result. According to Ross’s testimony, Dr. Melton informed plaintiff before that operation to the same extent or degree as had defendants, Dr. Gottlieb and Dr. Sher. Dr. Sher and Dr. Gottlieb both testified that they informed Ross that a fistulectomy was needed and that this requires the removal of all diseased tissues, that this would involve excising any diseased portion of the sphincter muscle and that in all probability it would heal well. Both stated that they did not like the negative approach to surgery and that while Ross’s fistula was longer than average they felt that incontinence was only a possibility and a remote one at that. Received into evidence was St. Joseph Hospital’s “Authorization for Surgeon to Operate”, signed by Ross in the hospital a few days prior to the operation by Dr. Sher. Ross testified that he could not recall anything being on this consent form, but he was not willing to state that it definitely was signed in blank. Dr. Sher stated that the hospital had no policy of signing blank consent forms upon admittance into the hospital and generally such authorization when signed is specific for the surgical procedure to follow. We cannot conclude that the plaintiff sustained his burden on informed consent or that, as a matter of law, Dr. Sher or Dr. Gottlieb diverged from that standard of informed consent practiced in the community. We next consider plaintiff’s contentions of negligence on the part of Dr. Sher, applying again the community standard concept. The record shows that the jury was confronted with a plaintiff who had a history of poor health and rectal problems and, in this instance, an unusually long fistula. Dr. Melton testified that Dr. Sher did not, in his opinion, comport with accepted medical procedure; that due to the length of the fistula a two step operation should have been undertaken. Further, it is a matter of general medical knowledge that an incising of the sphincter and the levator muscles, no matter how thinly, results in incontinence. The counter of this was produced by the testimony of Dr. Sher and Dr. Gottlieb and the hospital records. The tissue involved was quite fibrotic, which means scar tissue. Generally, the different tissues or muscles can be readily identified, but in Ross’s case with the accumulated scar tissue involved, the tissues ran together and there was no recognizable line between them — all muscle layers and tissues being replaced by scars. Dr. Sher could not tell if the levator muscle was or was not within that scar mass. The pathology specimen showed mostly scar tissue and very little muscle. Dr. Sher did excise the diseased tissues, staying as close as possible to the probe — a recognized procedure — and expected the trough to fill in or scar in and heal from the bottom welding the muscles back together. This procedure had been successful for him on numerous occasions. It was the opinion of both Dr. Sher and Dr. Gottlieb that the operation should not be in two stages, especially considering the continued poor health of Mr. Ross. Further, the hospital records indicated that Ross had bowel control during his stay at the hospital and Ross testified that he had some control, but “couldn’t close up tight” (contrary to Dr. Melton’s contention that upon the cutting of these muscles there would be no control). Dr. Gottlieb saw Ross on September 28, and October 15, 1964, for cases of extreme constipation. On the 15th an enema was given to relieve Ross. An incontinent person is unable to successfully have administered an enema — at least a pint of water must be held. Ross was able to hold the water and the enema was successful. From the foregoing abbreviated review of the evidence we cannot conclude that the plaintiff sustained his burden on any one of the negligence issues or that, as a matter of law, negligence is to be imputed to either defendant. We next consider appellant’s contentions relative to the damage issues (No. 11 and No. 12) wherein the jury answered “none” in both instances. Appellant contends that as a matter of law the undisputed evidence established that medical expenses and general damages resulted from the surgery and that the jury’s “refusal to find damages is contrary to the overwhelming great weight and preponderance of the evidence as to he manifestly wrong and unjust.” Appellant contends that such findings are indicative of prejudice on the part of the jury in its attempt to exonerate Dr. Sher. Upon review of the evidence we cannot say that plaintiff’s showing or evidence on the damage issues preponderates clearly against the jury’s answer. Besides, the jury found that the muscle incisions by Dr. Sher were not negligent. Thus, plaintiff would not be entitled to any monetary recovery and error, if any, is harmless. Tex.R.Civ.P. 434. The case relied upon by appellant for a showing of prejudice is Qualls v. Miller, 414 S.W.2d 746 (Tex.Civ.App. — Texarkana 1967, writ dism’d) where plaintiff appealed from the damage portion of a judgment in his favor granting recovery of $1,200.00 upon a jury finding. The jury found the defendant’s negligence to have proximately caused injury to the neck and back of plaintiff, an electrician and welder, causing permanent elevation of his blood pressure, preventing him from assuming the stooping position and causing substantial medical and drug bills, with the prospect of substantial future bills. In the instant case, not only was there evidence of rectal problems for an extended period of years and overall poor health, but it was also established that plaintiff’s discontinuation of work was due to the condition of his chest and lungs, not the rectal problems and associated colostomy. Further to distinguish this from the Qualls case, there is no finding here of any negligence on the part of Dr. Sher proximately bringing about the condition. The evidence supports such failure to find. Appellant’s point of error is overruled. Appellant asserts error in the instruction of a verdict in favor of Dr. Gottlieb, alleging that a fact issue was raised as to his negligence, and as to informed consent. The latter issue has been disposed of earlier, but further, Dr. Gottlieb did not participate in the surgery. There being no duty imposed on Dr. Gottlieb in this instance, there can be no fact question on informed consent. Dr. Gottlieb was clearly shown to be the referring doctor and as such can not be liable for the negligence of that other doctor unless the evidence shows that he failed to exercise reasonable care in recommending the second physician. Moore v. Lee, 109 Tex. 391, 211 S.W. 214 (1919); Floyd v. Michie, 11 S.W.2d 657 (Tex.Civ.App. — Austin 1928, no writ). No evidence was introduced by appellant on this point. No fact issue being raised, the granting of Dr. Gottlieb’s motion for instructed verdict was proper. Appellant’s points of error, including those not discussed above, have been considered and each is 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

Jay U. KIRKMAN, Individually and dba Hotel Operating Company of Amarillo, Appellant, v. AMARILLO SAVINGS ASS’N OF AMARILLO and Joe Bob Brown, Trustee, Appellees. No. 8255. Court of Civil Appeals of Texas, Amarillo. June 30, 1972. Rehearing Denied July 31, 1972. Jay U. Kirkman, Amarillo, for appellant. Stokes, Carnahan & Fields (O. P. Fields, Jr.), Amarillo, for appellees. ELLIS, Chief Justice. This is an appeal from a judgment confirming a mortgagee’s title to real property acquired at a foreclosure sale under a deed of trust and denying plaintiff-appellant’s claims for recovery founded upon the trustee’s rejection of his bid submitted on a conditional basis. Affirmed. Jay U. Kirkman, d/b/a Hotel Operating Company of Amarillo, appellant herein, instituted suit against Amarillo Savings Association, and Joe Bob Brown, substitute trustee, appellees herein, seeking to establish appellant’s right, title and interest in and to real property designated as the Capitol Hotel property in Amarillo, Texas, allegedly acquired by virtue of his bid submitted at a foreclosure sale, along with certain claims for special and exemplary damages. In his first amended petition, Kirkman alleged the execution and delivery of the deed of trust note and the deed of trust involved in this litigation. He further alleged that after default had occurred in the payment of such note, which was secured by the deed of trust upon the Capitol Hotel property in favor of Amarillo Savings Association, all as set out and identified in his petition, the substitute trustee, Joe Bob Brown, proceeded to conduct the foreclosure sale on March 2, 1971. Kirkman bases his cause of action upon the contention that, at the foreclosure sale, he was the high and successful bidder upon the oral and written bid of $175,000 he made subject to the federal tax lien in the sum of approximately $20,000 and the redemption period provided by law. Also, Kirkman alleged that by reason of a prior agreement between the mortgagor and mortgagee in January, 1971, Amarillo Savings Association had waived all its rights as mortgagee in connection with the foreclosure sale of the property or the terms thereof. He further pleaded that the mortgagee’s representatives were in attendance from the beginning to the conclusion of the sale and made no protest concerning the appellant’s bid submitted to the substitute trustee or the conditions contained therein. Also, he asserts that the mortgagee has, in effect, waived any objections to such bid and is therefore estopped to complain regarding the same. Additionally, Kirkman contends that the substitute trustee’s subsequent acceptance during the day of the sale of the mortgagee’s bid of $173,769.76, and the execution and delivery of the substitute trustee’s deed to the mortgagee, constituted a deliberate, malicious and wanton attempt on the part of such trustee and mortgagee to vitiate the prior sale to appellant pursuant to his conditional bid submitted at approximately 11:15 a. m. By reason of this alleged conduct on appellees’ part, the appellant sought exemplary damages in the sum of $385,000. The appellant prayed that the substitute trustee be required to deliver an executory contract upon the terms of appellant’s conditional bid, and for damages flowing from the breach of the contract, special damages resulting from slander of appellant’s title, as well as damages for the value of the property in excess of the appellant’s bid. Additionally, he prayed for exemplary damages, the quieting of title in appellant and removal of cloud cast upon his title by-reason of claims of the appellees and instruments of record. The first amended answer of appellees was filed on May 21, 1971, and, as a part of such pleading, Amarillo Savings Association brought a cross-action against Kirkman seeking a judicial declaration that title to the property in question was vested in such association free and clear of any claims or interest of the appellant and for removal of cloud upon the title which may have been cast because of Kirkman’s claims and suit. Kirkman answered the cross-action by general and special denials and affirmative defenses. Also, on May 21, 1971, the appellees filed their motion for summary judgment, alleging that the pleadings, attached affidavit and various interrogatories and answers thereto on file show that there is no genuine issue as to any material fact. Attached to and made a part of the motion for summary judgment was the affidavit of Joe Bob Brown, the substitute trustee. A copy of the deed of trust and the notice of sale, each setting out that sale of the property was to be made to the highest bidder for cash, were attached to and made a part of Brown’s affidavit. Kirkman then filed a motion for refusal of the application for summary judgment along with exceptions to the motion and his controverting affidavit. The record also contains interrogatories and answers thereto by Kirkman, Tommy G. Lane, vice-president of Amarillo Savings Association and Joe Bob Brown, the substitute trustee. On June 9, 1971, the appel-lees filed their second amended answer, pleading, along with the cross-action of Amarillo Savings Association and other matters, that the claims alleged by Kirk-man regarding the conditional nature of his bid were in violation of the Statute of Frauds. Kirkman appeared at the hearing on the motion for summary judgment on June 10, 1971, but complained that since he was served with the cross-action on May 21, 1971, his answer thereto was not due and requested that the court not consider the motion for summary judgment as to the cross-action. The court granted such request and considered the motion for summary judgment only as to appellant’s claims and appellees’ defenses. On July 2, 1971, the court advised the attorneys of record by letter that the decision had been reached to grant the appellees’ motion for summary judgment and to deny the appellant’s claims for recovery in his suit. On July 7, 1971, the cross-action of Amarillo Savings Association was heard on its merits before the court without a jury. Kirkman appeared at the hearing and announced ready for trial. In this hearing, Amarillo Savings Association, as cross-plaintiff, presented the testimony of two witnesses, the president of Amarillo Savings Association, and the substitute trustee who had conducted the foreclosure sale. Also, Amarillo Savings Association introduced and the court admitted into evidence, over Kirkman’s objections, seven exhibits, including copies of the deed of trust note, the executed deed of trust, the instrument evidencing the appointment of the substitute trustee, notice of the trustee’s sale, affidavit of the substitute trustee regarding posting notices of sale, the substitute trustee’s deed to the mortgagee, and Kirkman’s written statement of his conditional bid. The cross-plaintiff also introduced into evidence an interrogatory previously propounded to Kirkman and his reply to the effect that on March 2, 1971, he (Kirkman) did not have in his possession nor accessible to him $175,000 in cash. The cross-defendant, Kirkman, offered no evidence during the trial of the cross-action. After the hearing of the evidence, the court rendered judgment for Amarillo Savings Association, vesting fee simple title to the Capitol Hotel property in it, free and clear of any interest of Jay U. Kirk-man and removing any cloud on the title to the property cast by Kirkman’s claim and suit. The judgment was entered on July 9, 1971, and incorporated therein the court’s adjudication with respect to both the summary judgment and the cross-action. From this judgment Kirkman has perfected his appeal. The evidence shows that after default in the payment of the indebtedness, the mortgagee exercised its option to sell the Capitol Hotel property at public sale pursuant to the terms of the deed of trust. Joe Bob Brown, who had been appointed as substitute trustee, posted notices relative to the sale of the property. The sale was set for March 2, 1971, between the hours of 10 a. m. and 4 p. m. On such date, at 11:10 a. m., the substitute trustee opened the bidding. The first bid was that of Jay U. Kirkman, who orally and in writing submitted the following bid: “I am authorized to bid $175,000.00, subject to Federal Tax liens and the redemption period. s/ Jay U. Kirkman Jay U. Kirkman, Attorney and authorized agent for Hotel Operating Company of Amarillo” A federal tax lien in the sum of approximately $20,000 was affixed and filed against the Capitol Hotel property more than 30 days prior to February 1, 1971, the date of the posting of the notices of the deed of trust sale. In addition to the above described bid by Kirkman there was one other bid — a bid by Mr. Garland Sell, an attorney, who bid the sum of $173,795.-76, the amount due on the note, on behalf of the mortgagee, Amarillo Savings Association. The substitute trustee testified that after receiving the two bids above mentioned, he determined there were no other bids and then asked Kirkman where his money was. Kirkman replied that he had some money in a bank in Dallas and that he would need some time to get his money. Also, the substitute trustee stated that before selling the property, he postponed the sale until 2 p. m. to give Mr. Kirkman the opportunity to secure the money. On cross examination of the substitute trustee by Mr. Kirkman, we note that the substitute trusee’s response appears to be significant: “Q. Now, why didn’t you accept the bid of Amarillo Savings at the first sale if you stated that you asked me where my one hundred seventy-five thousand dollars was? “A. Because it is my understanding of the law, if some one bids on a piece of property and they are a successful bidder and they indicate they can get a certain amount of money together; “Then you need to give them a period of time during the day of the sale to see if they can get their money together. “That is why I did not accept it at that time.” The sale was adjourned at approximately 11:15 a. m. and reconvened at 2 p. m. The substitute trustee stated that Kirkman was personally present at the time of his reconvening the sale, and that he then asked him to produce the money. The substitute trustee unequivocally testified that Mr. Kirkman never tendered him any money whatsoever on his bid of $175,000. The record shows that there was some discussion between Kirkman and the substitute trustee concerning Kirkman’s claim that he understood that he was to deposit some amount of earnest or “good faith” money instead of the full amount of the $175,000, but the substitute trustee tesified to the effect that there was never a meeting of minds or agreement along that line, and that he accepted what he considered to be the highest and best bid in accordance with the terms of the notice that he read prior to receiving bids. Also, there had been some discussion concerning Mr. Kirkman’s having a paper in his hand which purported to be a certificate of deposit with Amarillo Savings Association for the amount of $10,000, but the substitute trustee denied that he had seen any certificate of deposit and stated that no sum of money was ever tendered to him by Mr. Kirkman. The trustee further stated that he never considered that he had accepted Kirkman’s conditional bid, or had agreed to accept any sort of “good faith” deposit in connection with the foreclosure sale. On cross examination, when questioned by Kirkman concerning his interpretation of Kirkman’s bid, the substitute trustee testified that the way he inerpreted Kirkman’s bid was that he (Kirkman) would pay the one hundred seventy-five thousand dollars, and then if the Federal Government elected to redeem the property, the government would redeem it and pay Mr. Kirkman what he had bid for it. The substitute trustee further testified that following the postponement of the sale, and upon Kirkman’s failure to tender, in cash, the bid price of $175,000, he accepted the bid submitted by the mortgagee’s representative and announced that the property was sold to Amarillo Savings Association for the sum of $173,769.76. He then executed and delivered the trustee’s deed to Amarillo Savings Association on the bid made in its behalf. The trustee’s posted notice recited that the real estate would be sold at the door of the County Courthouse in Potter County, Texas, to the highest bidder for cash. This notice was in accordance with the deed of trust which recited that in the event of default in the payment of the indebtedness secured thereby, the holder could at his option request the trustee to sell the property “at public venue to the highest bidder for cash.” It is further noted that the deed of trust provided that the recitals contained “in the conveyance to the purchaser . . . shall be full and conclusive evidence of the truth of the matters therein stated and all prerequisites to said sale shall be presumed to have been performed. . . . ” The execution of the substitute trustee’s deed was proved by the testimony of the substitute trustee, and the instrument was duly admitted into evidence. The trustee’s deed contained factual recitations of the default and of the various steps taken in the foreclosure all in accordance with the procedural steps set forth in the deed of trust, and such recitals are presumed to be correct, unless rebutted by competent evidence. See Criswell v. Southwestern Fidelity Life Insurance Co., 373 S.W.2d 893 (Tex.Civ.App. — Houston 1963, no writ) and cases cited therein. The appellant submitted no evidence to rebut such presumption. The appellant has presented 38 points of error, and appellees have responded by 3 counterpoints directed to the correctness of the judgment rendered by the court. An examination of the brief submitted by the appellant discloses that each of the various points raised by the appellant tends to be multifarious, repetitious and argumentative rather than specific assignments of error submitted in the manner contemplated by Rule 418, Texas Rules of Civil Procedure. We have determined, therefore, not to consider each of the various 38 points and subdivisions thereof separately. An overview of the matters raised in this appeal indicates that points 1 through 9, inclusively, and the various subdivisions thereof, relate primarily to the court’s action in granting the appellees’ motion for summary judgment, while points 10 through 38, inclusively, and the various subdivisions thereof, deal with the alleged incorrectness of that portion of the judgment sustaining the claims of the ap-pellees in their cross-action and declaring the title to the Capitol Hotel property to be vested in Amarillo Savings Association and removing any cloud upon title cast by appellant’s claim of interest therein. Pursuant to appellant’s request, the trial court duly filed its findings of fact and conclusions of law. The court found that the foreclosure proceedings had under the deed of trust were regular and sufficient; that the property was offered for sale to the highest bidder for cash; that appellant Kirkman submitted a bid in the sum of $175,000, subject to Federal Tax Liens and the redemption period; that such bid was an offer by appellant Kirkman to pay $175,000 for the property and to take the title subject to the Federal Tax Lien and the right of the government to redeem the property by refunding his consideration within the statutory period and there was no higher bid; that the bids were called for at 11 a. m. on the date of the sale, and upon appellant Kirkman’s making of his conditional bid, the substitute trustee inquired of him if he had his money and Kirkman did not have with or accessible to him the bid price of $175,000; that the sale was adjourned until 2 p. m. on the same day for the purpose of giving Kirk-man an opportunity to produce the purchase price, and when the sale reconvened at 2 p. m. on the same day of the sale, Kirkman did not have with nor accessible to him the $175,000 bid price, and he did not tender such purchase money to the trustee in whole or in part and offered the trustee no evidence that he had any ability at all to pay same or any part thereof; that Kirkman never at any time from the day of the sale to July 7, 1971, the day of the hearing on the cross action, tendered to the trustee or to Amarillo Savings Association all or any part of his bid price and was unwilling or unable to pay such bid price or any part thereof. It is well established that the trier of the facts is entitled to consider all aspects of the weight and credibility of the evidence admitted. The record has been carefully reviewed, and we have concluded that there is sufficient admissible evidence in this case to support the court’s factual findings. Additionally, it is noted that, although Kirkman offered no evidence in support of his claim to the property, the record indicates that Kirkman purports to claim some interest to the real property in question based upon an offer to pay 5 per cent of the purchase price as good faith money. There is no evidence in the record of any additional terms of the proposed credit transaction, and there is no instrument in writing between the parties concerning any credit arrangement. Although the appellant’s conditional bid was written, it is apparent that the evidence does not support the existence of a written agreement between the appellant and the substitute trustee for a credit transaction involving the sale of the property under the foreclosure. It is our opinion that any attempt on the part of the appellant to enforce a sale of this real estate on the credit or upon any terms not evidenced by sufficient instrument in writing is violative of the Statute of Frauds, Article 26.01, Texas Business and Commerce Code, V.A.T.S. (encompassing the same provisions formerly contained in Article 3995a Vernon’s Annotated Texas Statutes), requiring that such agreement shall be in writing signed by the party or parties sought to be charged upon “a contract for the sale of real estate.” It has been held that the statute of frauds applies to trustee’s foreclosure sales. In Coffman v. Brannen, 50 S.W.2d 913 (Tex.Civ.App.— Amarillo 1932, no writ) the applicable rule was set forth in the following language by the court: “According to the record the attempted sale by the trustee . . . is a nullity, because of a failure to comply with the requirements of the statute of frauds. The statute of frauds applies to sales in mortgages. Rugely v. Moore, 23 Tex.Civ.App. 10, 54 S.W. 379; Dawson v. Miller, 20 Tex. 171, 70 Am.Dec. 380; Brock v. Jones, 8 Tex. 78.” See also, 37 C.J.S. Frauds, Statute of § 118, p. 611, (1943) and Campdera v. Reed, 131 S.W.2d 297 (Tex.Civ.App. — Galveston 1939, writ ref’d). In the instant case, the court found that Kirkman, as a bidder at the trustee’s sale, never tendered the amount of his bid. We find no case in which a bidder attempted to claim any interest in the property forclosed upon without tendering in cash the amount of the bid. In the case of Campdera v. Reed, supra, it was held that a vendee out of possession at a trustee’s foreclosure sale is in no position to recover against a vendor in possession (or his successor in interest) when the vendee has not paid the purchase money due even though the debt may be barred by the statute of limitations. It is obvious that the appellant in the instant case should be in no better position with respect to his claims than that of the vendee mentioned in the Camp-dera case. In the case of Moore v. Owsley, 37 Tex. 603, 605 (1872), the court stated : “ . . . We understand the law governing sales at public auction to be, where the sale is advertised to be on specific and restricted terms, any bid made at that sale, not in strict conformity with the terms advertised, is no bid at all, and the crier is not bound to notice the same.” Appellant cites the holding by the Texas Supreme Court in the case of First Federal Savings & Loan Ass’n. of Dallas v. Sharp, 347 S.W.2d 337 (Tex.Civ.App. — Dallas 1961, aff’d), 359 S.W.2d 902 (Tex.Sup.1962), to sustain his position that the tender of cash was not required in the instant case. The Sharp case involved a situation in which the trustee’s sale was attended by representatives of the mortgagee and by an attorney for a stranger to the title. The mortgagee made its bid, but the attorney made a higher one and then offered a personal check instead of cash when he was requested to comply with his bid. The trustee refused the check and the attorney offered to go to a bank located within two blocks and secure the cash from a lock box and return in about five minutes. This offer was rejected and the trustee sold the property to the mortgagee for the lower bid which the trustee regarded as the highest cash bid for the property. The court sustained the attorney-bidder’s contention, and, among other matters, stated in the majority opinion: “The findings of the jury were that either Hamilton or Sharp would have produced the cash within a reasonable time, which was defined to mean ‘such time under all of the circumstances a man of reasonable prudence and diligence would have needed to perform the act contemplated.’ It is the opinion of this court that ‘reasonable time’ should be limited to a reasonable time during the hours of the sale. . . . It is our opinion that in this case ‘reasonable time’ means before 4:00 p, m. on the day of the sale.” (emphasis ours) “ . . . In fairness to the mortgagor the trustee, who was the mortgagor’s agent, should have made a reasonable effort to determine whether the bid made by Mr. Hamilton was a cash bid. He not only made no effort, but refused the bidder’s offer to satisfy him in this respect.” In the instant case, the proceedings were recessed from about 11:15 a. m. to 2 p. m. to permit the bidder to secure the cash for his bid. There was not even an indication, much less any evidence, that by a further delay in the proceedings Kirk-man would or could have produced the cash during the remainder of the prescribed time on the day of the sale. We do not construe the Sharp case to hold that anything other than cash paid on the day of the sale would suffice. Certainly, this case does not sustain a “sale” on a credit basis or deferred payment plan beyond the day of the sale, but only holds that, under the circumstances, the trustee should have allowed a “reasonable time” for the bidder to produce the cash, but within the prescribed hours of the sale — i. e., a reasonable time before 4 p. m. on the day of the sale. The appellant contends, also, that since the substitute trustee did not have in his possession a substitute trustee’s deed prepared for delivery concurrently with the submission of the bid, he was not required to deliver the cash amount of his bid until the sale was consummated. As we interpret the appellant’s argument, he takes the position that a bidder is not required to produce cash until the precise moment that legal title to the property passes by the execution and delivery of the substitute trustee’s deed and that a substitute trustee not having such deed in his possession may neither demand nor expect the bidder to produce his cash. It has been held that where a foreclosure sale is held in accordance with the terms of the mortgage, i. e., a sale for cash, the purchaser obtains equitable title pending execution and delivery of the deed, although no deed is delivered at the time of the payment of the bid price. Pioneer Building & Loan Ass’n. v. Cowan, 123 S.W.2d 726 (Tex.Civ.App. — Waco 1938, writ dism’d jdgmt cor.). Since the evidence clearly discloses that, on the occasion in question, the substitute trustee could secure and deliver a deed within a very short period of time upon being satisfied that Kirkman was in a position to pay the amount of his bid in cash as required by the notice of sale and provisions of the deed of trust, we find no merit in appellant’s contention that the full cash payment was not required under the circumstances in order for him to prevail in his claim to the property. In view of the foregoing, it is our opinion that the judgment of the trial court is correct in confirming title to the property in the mortgagee and removing any cloud cast thereon by appellant’s claims and suit for the primary reason that Kirkman’s bid at the foreclosure sale was not a bid of which cognizance was required. Therefore, the substitute trustee was authorized, under the circumstances, to accept the bid of the mortgagee as the highest bid for cash and to execute and deliver the deed to such purchaser. It is our further opinion that the appellant is not legally entiled to rely upon his alleged acquisition of title to the real estate in question under his bid at a public sale “for cash” when, in fact, he has not tendered or paid the amount of his bid in accordance with the terms of the notice of sale and the provisions of the deed of trust. Additionally, any claim of right on appellant’s part to enforce a sale of the real estate not evidenced by a sufficient instrument in writing signed by the party or parties sought to be charged therewith is violative of the Statute of Frauds and unenforceable. We find that neither the record nor the applicable authorities support any method of purchasing real estate at a foreclosure sale other than by payment of the amount of the best bid, in cash in any event, at a reasonable time, under the existing circumstances, but, during the prescribed hours on the day of the sale. First Federal Savings & Loan Ass’n. of Dallas v. Sharp, supra. For the reasons above stated we overrule appellant’s points of error nos. 10 through 38, inclusive. Since we have sustained the action of the trial court in confirming title in the mortgagee free and clear of any claims by Kirkman, we consider that such holding renders moot all of the appellant’s points 1 through 9, inclusive, relating to the summary judgment, and therefore pretermits our specifically passing upon each such point. It is our further opinion that the trial of the cross-action upon its merits has effectively litigated all essential questions of fact and law relative to any claim which Kirkman may have to the property or against the appellees and that he cannot rely upon any of the alleged errors in connection with the summary judgment proceeding. Whether considering the appellant’s complaints regarding the action of the trial court in granting the summary judgment or as to the confirmation of title in the mortgagee, we are confronted with the vital undisputed fact that Kirkman did not pay the amount of his bid in cash as required by the conditions of the foreclosure sale. We have, therefore, determined that such failure precludes recovery under any theory asserted by appellant with respect to his claim of right to the property or upon any other claims against the appel-lees. Since we find 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

Keith McKINLEY, Indiv. and as Independent Executor of the Estate of Royal McKinley, Deceased, Appellant, v. Flora McKINLEY, Appellee. No. 633. Court of Civil Appeals of Texas, Tyler. July 6, 1972. Rehearing Denied July 27, 1972. Esir Tobolowsky, James H. Martin, Dallas, for appellant. Jerry W. Biesel, Dallas, for appellee. McKAY, Justice. This suit was filed November 6, 1970, in the District Court by appellee Flora McKinley against Keith McKinley, Individually and as Independent Executor of the Estate of Royal McKinley, Deceased, Kenneth McKinley and Louise McKinley Leichtfuss for a temporary restraining order and injunction to prevent them from distributing and disposing of the assets of the estate of Royal McKinley whose will had been admitted to probate. By amended pleading appellee asked the court to act under Article 2524-1 Vernon’s Ann.Tex. Civ.St. and to determine and set out by declaratory judgment that two savings and loan certificates totaling $26,400.00 were the community property of Royal McKinley, Deceased, and appellee, his surviving wife. Kenneth McKinley and Louise McKinley Leichtfuss were dismissed from the case. The trial court held the savings and loan certificates were community property and rendered judgment against appellant for $13,200.00 resulting in this appeal. We are met at the outset in Point 1 with the contention of appellant that the District Court was without jurisdiction to hear and render judgment in this cause. The deceased died on October 15, 1970, and appellant qualified as Independent Executor on October 19, 1970, and on November 2, 1970, the Probate Court admitted the will of deceased to probate. On November 4, 1970, appellant, as executor, filed an inventory and appraisement which listed the two savings and loan certificates involved here as “separate” personal property, and such inventory and appraisement were approved by an order of the Probate Court on the same day. This suit was filed two days later on November 6, 1970. Appellant maintains that appellee’s cause of action to contest the nature of the personal property as evidenced by the two savings and loan certificates was by appeal or certiorari from the order of the Probate Court approving the inventory and ap-praisement, and where appellant has not followed any of the rules or statutes pertaining to appeal or certiorari from the Probate Court, the District Court was without jurisdiction. Point 1 is overruled. Rules of Civil Procedure 332 through 337 set out the procedure in appealing a matter from the Probate Court to the District Court, and Rules 344 through 351 provide for an application for writ of certio-rari made to the District Court to try de novo specific grounds of error claimed by the applicant to have been made by the Probate Court. We agree that it is the settled law in Texas that the District Court has no original jurisdiction of probate proceedings in the administration of the estate of a deceased, and that its jurisdiction in this respect is appellate only. Dunaway v. Easter, 133 Tex. 309, 129 S.W.2d 286 (Comm. of Appeals, 1939); Callahan v. Stover, 263 S.W.2d 630 (Tex.Civ.App., Beaumont, 1953, writ ref.); Biddy v. Jones, 446 S.W.2d 388 (Tex.Civ.App., Tyler, 1969, n. w. h.). However, Article 2524-1, Uniform Declaratory Judgments Act, provides in Section 1 that courts of record “shall have power to declare rights, status, and other legal relations,” and Section 2 provides “(a)ny person interested under a deed, will, written contract * * * may have determined any question of construction or validity * * * and obtain a declaration of rights, status, or other legal relations thereunder.” Section 4 provides that “(a)ny person interested as or through an executor, administrator * * * of the estate of a decedent * * * may have a declaration of rights or legal relations in respect thereto * * * (B) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or (c) To determine any question arising" in the administration of the estate or trust * * *.” Section 5 provides the enumeration in Sections 2, 3 and 4 does not restrict the powers conferred in Section 1, and Section 9 provides that when a suit under the act involves the determination of a fact issue, such issue may be tried and determined as in other civil actions. It seems to be the rule of Texas that a declaratory judgment proceeding is an additional and cumulative remedy and does not supplant any existing remedy, and the existence of another adequate remedy does not bar the right to maintain an action for declaratory judgment. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (Tex.Supreme, 1945); Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588 (1948); Crow v. City of Corpus Christi, 146 Tex. 558, 209 S.W.2d 922 (1948); Zamora v. Zamora, 241 S.W.2d 635 (Tex.Civ.App., El Paso, 1941, n. w. h.). In Hilley v. Hilley, 305 S.W.2d 204 (Tex.Civ.App., Waco, 1957, writ ref., n. r. e.) a son of a deceased filed an action against the widow of deceased alleging that the widow was administratrix of deceased’s estate and that she was claiming certain property as her separate property which was in fact community property, and she had not included same in the inventory filed in the Probate Court. He asked the court to require the widow to file an inventory of the property she claimed as her separate estate and to enter a declaratory judgment decreeing such property to be community property. The widow claimed the Probate Court had exclusive jurisdiction and that the District Court had no jurisdiction. The court held: “(b)ut, regardless of whether the Probate Court did or did not have original jurisdiction to grant the relief sought by appellant, we think the remedy afforded to appellant under the Uniform Declaratory Judgments Act was cumulative of the remedy, if any, afforded to him under the provisions of Secs. 257, 258, 259 and 260 of the Texas Probate Code. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; Mason & Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729. If that be true, then it follows that both the Probate Court and the District Court have concurrent jurisdiction to declare the rights of the parties to the proceeding with reference to the title to the property alleged to be claimed by appellee as her separate property. However, the remedy afforded by the Uniform Declaratory Judgments Act would be more expeditious and complete than that afforded by the Texas Probate Code, because the former would authorize the rendition of a final judgment that would definitely declare the rights of the parties in relation to what appears to be the only controverted issue between them.” We hold that the District Court did have jurisdiction. The inventory of an estate filed in the Probate Court is prima facie evidence of title to property either listed or omitted, but it is not conclusive. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). By Points 2 through 31 appellant challenges the findings of fact numbered 8 through 16 and says there is no evidence and insufficient evidence to support the findings, and that each such finding is contrary to the great weight and preponderance of the evidence. Royal McKinley, deceased, and appellee Flora McKinley were married on January IS, 1965, and each had been previously married two times. The deceased was a barber and was semi-retired but continued to work part-time after the marriage and he had earnings each year from 1965 through 1970 from wages, salaries and tips which varied from a low of $659.57 in 1965 to a high of $1926.00 in 1969. There was interest income during the same period of $3,008.29, $1,327.84, $1423.88, $1,755.02, $2,261.00, and $1,638.81 from promissory notes and savings and loan deposits. Both appellee and deceased were drawing social security benefits at the time of marriage and continued to do so during the marriage, and together they received more than $19,000.00 from that source. There was more than $9,000.00 added by deposits to the Dallas Federal Savings & Loan account and these deposits were either from interest on the deposits or from unknown sources. There were additions to the First Federal Savings & Loan account from interest on the deposits or from unknown sources from the joint banking account. We believe the evidence is sufficient to sustain the findings of fact numbers 8 through 16, and, therefore, Points 2 through 31 are overruled. Appellant’s Point 32 complains of Conclusion of Law No. 1 wherein the trial court concluded “(t)hat the term ‘home’ as used in the will” of deceased includes “the house, lot, furniture, appliances and yard tools * * We sustain this point. We have been cited no case which holds that the word “home” includes the contents of a house used for a residence. 40 C.J.S. Home 419 defines the word home as “a dwelling house” or “the habitual abode of one’s family” or “the place of constant or permanent residence”. See Black’s Law Dictionary, Revised 4th Ed. 1968. However, the undisputed evidence reveals that only the television set valued at $500.00, a chair valued at $100.00, a bed valued at $35.00, and a washing machine valued at $75.00 were bought after marriage, and these items would be community property. Appellant complains in Point 33 of the trial court’s Conclusion of Law No. 3 that the two savings and loan certificates totaling $26,400.00 were community property, and also complains in Point 34 of Conclusion No. 4 that one-half of such sum accrued to the benefit of the appellee. We overrule these points. It was shown by the record that the funds in both the savings certificates accounts and the joint bank account had been so commingled that the source of the money could not be traced. While it is true that some of the funds owned by the deceased before marriage to ' appellee and evidenced by the savings and loan accounts might reasonably be a part of the savings and loan certificate accounts of the deceased and appellee at the time of his death, we hold that such funds had lost their identity because of the many transactions which commingled the funds in the name of both of them and the certificates became community property. Section 5.02, Family Code, V.T.C.A.; Tarver v. Tarver, 394 S.W.2d 780 (Tex.Supreme, 1965). Point 35 complains of Conclusion of Law No. 5 in which the court found that appellant, individually and as executor, wrongfully took possession of $13,200.00 and distributed it to deceased’s children. From what we have already stated here, the point is overruled inasmuch as we have held these funds to be community property and appellant had no authority to distribute appellee’s community interest to deceased’s children as if it were his separate property. Likewise, we overrule Point 36 complaining of the court’s Conclusion of Law No. 6 that the presumption of community had been overcome by the evidence. By cross action appellant alleged that ap-pellee had in her possession separate property of the deceased consisting of one automobile of the value of $400.00, one man’s diamond ring of the value of $2,842.-00, household and kitchen furnishings of the value of $2,500.00, and one 38 caliber pistol, and that she received $125.00 as a payment on a separate property note after deceased’s death. Appellant complains in Points 37, 38, 39, 40 and 41 that the trial court failed to find appellee took possession of the above items and converted them to her own use. From the evidence it appears the automobile, a man’s diamond ring of the value of $400.00, certain household items hereinbefore itemized, one 38 caliber pistol, and $125.00 in money as payment on a note should be delivered to appellant as executor. These points are sustained. By Point 42 appellant claims the trial court failed to find that appellee withdrew from First Federal Savings & Loan the sum of $4,737.43 and from Dallas Federal Savings & Loan the sum of $923.86 within a week after deceased’s death and that such funds were community property and should be an offset against any claim by appellee. We sustain this point. It is undisputed that appellee withdrew these funds and that they were community property. One-half of these funds should be offset against the $13,200 judgment awarded appellee against appellant. We have carefully examined appellant’s remaining points and find them without merit. The judgment of the trial court is reformed according to this opinion, and, as reformed, affirmed. . “8) That the Savings Certificates No. 161928 and No. 101046 were purchased during the marriage of the PLAINTIFF and the deceased. “9) The sources of the money to purchase said Savings Certificates were the joint checking accounts and/or joint savings accounts. “10) That both parties contributed sums of money to the accounts mentioned above during the course of the marriage. “11) No evidence of probative value as to the origin of any monies, from the joint savings accounts or/and joint checking accounts, used in the purchase of the certificates in question was offered. “12) During the marriage both parties made deposits of community income in the joint checking account. “13) That funds from the joint checking account were deposited in the Joint savings accounts. “14) That in the Dallas Federal Savings & Loan Account, there were 46 transactions during the marriage of the parties. “15) That in the First Federal Savings & Loan Account, there were 35 transactions during the marriage. “16) That no evidence of probative value was offered as to the nature of any of the transactions in regard to the two joint savings accounts.” . “1) That the term ‘home’ as used in the will of ROYAL C. McKINLEY, Deceased is defined by this Court to include the house, lot, furniture, appliances and yard tools located at 6825 Sperry, Dallas, Texas. “3) That the said Certificates heretofore mentioned in the total sum of $26,400 were the community property of the parties to the marriage and not the separate property of ROYAL C. MCKINLEY. “4) That one-half of the $26,400 derived from the conversion of the Savings Certificate heretofore mentioned accrued to the benefit of the PLAINTIFF as her Community Property share. “5) That KEITH MCKINLEY, Individually and as Independent Executor wrongfully took possession of said $13,200 and distributed it to KEITH MCKINLEY, and KENNETH MCKINLEY, LOUISE MCKINLEY LEICHTFUSS. “6) That no evidence of probative value was offered to rebut the presumption set forth in Article 4619, Vernon Civil Statements wherein it states ‘all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved’.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Thomas H. BARNETT, Appellant, v. Richard L. “Dick” MATZ, Appellee. No. 11932. Court of Civil Appeals of Texas, Austin. July 12, 1972. Sloan, Muller & Godfrey, Cullen M. Godfrey, Austin, for appellant. Brown, Maroney, Rose, Baker & Barber, Charlie D. Dye, Will G. Barber, Austin, for appellee. O’QUINN, Justice. This appeal is from a summary judgment in which the district court decreed that appellant, who was plaintiff below, take nothing in a suit for damages and, alternatively, to enforce a constructive trust on 6.10 acres of land. Appellant’s lawsuit was grounded on his claim that appellee had breached a fiduciary relationship between them and deprived appellant of an interest in the land and improvements which appellee acquired with a third party. The trial court found that based on the entire record there was no genuine issue as to any material fact between the parties and that appellee, as defendant below, was entitled to judgment as a matter of law. We agree with the trial court and will affirm its judgment. The appellant, Thomas H. Barnett, is a physician who lives in Austin but maintains offices in Round Rock where he owns and operates a nursing home. The appellee is Richard L. “Dick” Matz, a licensed realtor residing and maintaining of fices in Austin. In his petition filed in May of 1971 Dr. Barnett alleged a cause of action purporting to arise “out of personal and confidential information delivered to” Matz by Barnett pertaining to 6.10 acres of industrial property located at 8400 Research Boulevard in Austin. Barnett alleged that he anticipated entering into a partnership with Matz looking toward purchase of the property. Barnett “ceased to pursue his endeavor to purchase” the land after he learned that the property “was not available for purchase.” Barnett brought suit upon finding that Matz, several months subsequent to their joint efforts, had acquired an interest in the property with another person as partner. In moving for summary judgment, Matz assumed the burden of proof that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The rules guiding the courts in determining whether the movant is entitled to summary judgment under Rule 166-A, Texas Rules of Civil Procedure, were stated by the Supreme Court in Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex.Sup.1965). In reviewing this record we have followed these precepts, beginning with the requirement that the evidence be viewed in the light most favorable to the party opposing the motion for judgment. In addition to the pleadings, the parties filed affidavits and deposition testimony from seven witnesses, with more than twenty documentary exhibits. Dr. Barnett became interested in “outside investments,” aside from the nursing home in Round Rock, about 1962, and by 1968 had invested in at least ten real estate properties. Late in 1968, probably early fall, Barnett received a telephone call from William L. Grafton, a salesman with Patterson and Jones, a realty firm in Austin, about the property at 8400 Research Boulevard. Grafton told Barnett the property was available for purchase at a foreclosure sale, notice of which had been posted at the Travis County courthouse. Barnett called Matz, with whom he had had previous business dealings, and together they visited the property. During the next two weeks they kept in touch with Grafton and in addition made a brief visit to Barnett’s banker to learn whether there was a possibility of borrowing money to buy the property and consulted Barnett’s attorney regarding possible title defects. The record shows that R. D. Patterson, of the Patterson and Jones firm, had seen the public notice posted at the courthouse and after calling the trustee whose name appeared on the notice was referred to Harry Holmes, Jr., in Houston. Patterson’s investigation disclosed that the property at 8400 Research Boulevard was owned by Howard T. Cox and James P. Nash of Austin who a number of years earlier had caused to be constructed on the 6.10 acres an industrial building which they leased to W. M. Reese, who was engaged in manufacturing instruments. With the lease, Reese also acquired from Cox and Nash an option to purchase the property at a stated price within a stipulated term of years. Reese had pledged his option to purchase in connection with a loan in Houston, and Holmes had undertaken to guarantee Reese’s obligation. The Houston lender had transferred the Reese note to Holmes, who then was in position to direct foreclosure when the obligation became delinquent. As stated by Patterson in his deposition, the only way at that time for a purchaser to get clear title to the property was by foreclosure, since Reese was beset by “a good many judgments against him,” making it expensive and impractical to acquire the property through Reese. Within approximately two weeks after Grafton called Barnett about the property, Patterson learned that Holmes “had patched up the default” and worked out an extension with Reese and that Holmes had abandoned plans for a foreclosure sale. With this information, Grafton advised Matz and Barnett that the 6.10 acres were no longer available, and thereafter neither Matz nor Barnett made any further at tempt to acquire the property. In October of 1968 Matz entered into a limited partnership with Joe M. Teague, who had business interests in Austin and Houston, Matz becoming the general partner and Teague the limited partner. Earlier, in the summer of 1968, Matz and Teague had constructed an office building on Anderson Lane in Austin where Matz maintained an office, and this venture led to their formation later of Matz-Teague, Ltd. Early in April of 1969 Matz-Teague, Ltd. acquired an industrial site at 8409 Research Boulevard, in the same block with the 6.10 acres of land but on the opposite side of the boulevard. They purchased the property from W. M. Reese, the owner, who was also the lessee of the Cox-Nash 6.10 acres at 8400 Research Boulevard. In the course of closing the transaction with Reese on the site at 8409, Matz-Teague, Ltd. received a check from Reese for $5,646.52 which was returned by the bank. Matz and Teague went to see Reese in his office at the 8400 address to discuss the returned check. Both Teague and Reese testified that during that visit Reese made known that he planned to leave Austin and suggested to Teague that he buy the land and building at 8400 Research Boulevard. Upon asking the price and being told Reese would sell for $175,000, Teague at once said he would take the offer and buy the property. It is uncontradicted that the offer was made to Teague alone and that Teague alone accepted. Later Teague took title in his name, after arranging the financing alone, and after Reese had cleared the sale with Holmes in Houston and arranged to exercise his option with Cox and Nash. Teague suggested to Matz, after arranging interim financing to buy the property in his name, that the building and half the land should be transferred to Matz-Teague, Ltd. Matz and Teague together arranged permanent financing on the property, and the building and half the acreage were conveyed by Teague to the partnership. It is clear from the record that neither Teague nor Matz knew that Reese was willing to sell the property when they went to see him about the delinquent check. Reese told Teague about his plans to move from Austin, and stated that he did not want the property at 8400 to revert to Cox and Nash by reason of Reese’s failure to exercise his option to buy, which would expire within a few months. Reese also suggested to Teague that he buy Reese’s residence property in Austin, an offer Teague declined. Barnett alleged that he delivered “personal and confidential information” to Matz and that there was “created and established a fiduciary relationship” after which “Matz intentionally took the information conveyed to him” and without Barnett’s consent negotiated a conveyance of the property to Teague. We find no evidence in the record to support these allegations, and all of the evidence, viewed in the light most favorable to Barnett, demonstrates that there is no genuine issue as to any material fact. The business relationship between Barnett and Matz in 1968, when for some two weeks they were jointly planning to buy the 6.10 acres at foreclosure sale, terminated abruptly when Holmes decided to “patch up the default” with Reese and called off the foreclosure sale. Both Barnett and Matz, when advised through Grafton that the property could not be acquired because of Holmes’ action, ceased to pursue the matter further. It is undisputed that Matz did not know the property would be offered for sale until Matz heard Reese offer the site to Teague in April of the next year, some four to six months after the chance of bidding at foreclosure sale had been removed by Holmes. Neither Matz nor Barnett went away from their erstwhile plan for a joint venture carrying confidential or secret information acquired by reason of their relationship. The notice of impending foreclosure was a matter of public record, published on the courthouse door. Patterson found it and alerted Grafton who in turn advised Barnett who then called Matz. Other facts relating to the property, such as ownership, leases, options, judgments against individuals, also were matters of public record, available to any person who cared to investigate. Barnett and Matz as partners or joint venturers shared nothing in the way of information that could not have been shared by any other person who might become interested in the property and who was willing to examine the public records. Barnett and Matz had been acquainted for several years, but none of their previous business was related to or was carried over into the 1968 plan to bid in the 6.10 acres. The record shows that prior to their brief interest in the 6.10 acres on Research Boulevard in 1968 Matz over a period of several years as a salesman had shown Barnett several pieces of real estate, one of which Barnett bought, and that Matz had tried unsuccessfully to negotiate for Barnett the purchase of a tract adjoining the property Barnett had bought through Matz. While visiting socially, other persons being present, including an architect, Barnett on one occasion introduced the subject of investment in condominiums in Cuernavaca, Mexico, and after the persons present showed an interest, Barnett went to Mexico for a weekend and returned with a prospective investment at Acapulco in lieu of the Cuernavaca deal which was less attractive. As a result of a second visit to Mexico, made by Barnett, Matz and a third person, a condominium at Acapulco was finally purchased, with eighteen investors eventually participating, including Matz and Barnett. Matz and Barnett also worked out a separate agreement by which they would share commissions Matz might earn by selling other condominiums in Mexico to persons interested in them as an investment or vacation facility. Although brochures were printed and placed in the hands of prospects and with other salesmen, nothing came of the plan and Matz made no sales. Later Barnett invested in a second condominium in Mexico in which Matz did not share. Matz made no further investments in Mexico and also discontinued efforts to sell condominiums in Mexican resort cities. Barnett on appeal relies on decisions by the Supreme Court which we do not consider controlling under the facts of this case. In Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951), as Barnett states, the Court “found that when the Defendant took title in his own name in violation of the original agreement,” the grantee held title to an undivided one-half interest for the other party to the agreement. (Emphasis added). Matz and Barnett had no such agreement. They simply made a brief, fruitless sortie with the intention of bidding on property as partners at a public foreclosure sale. Their sally came to a halt when Holmes abandoned foreclosure steps. The record fails to disclose any agreement between Matz and Barnett that they would continue their efforts and that if either of them ever had a chance to buy the 6.10 acres, he would take title for both of them. Barnett insists that Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960) “. . . presents a fact situation similar to the case before this Court.” We fail to find the similarities upon which Barnett relies. In Omohundro the “confidential information” received by Omohun-dro from the geologists with whom he was associated consisted of technical studies, including a well-log, which Omohundro borrowed from one of his associates to use in negotiating for himself to the exclusion of his associates. The jury found in Omo-hundro that the agreement had not been terminated, and that Omohundro had purposely allowed an oil and gas lease to expire by nonpayment of rentals to further his negotiations with third parties without the knowledge of his associates. The so-called “confidential information” Barnett compares to that in Omohundro consists of information Barnett obtained and imparted to Matz “that land option may be on the market” and that Barnett’s lawyer by investigation “knew [the Reese option] to be a valid option.” The information that the option might be on the market came originally from the public notice posted on the courthouse door, first seen by Patterson, who after investigation, imparted the facts to Grafton who called Barnett. The lawyer’s opinion that the option was valid was based on examination of “run sheets” obtained from an abstract office or from the county clerk’s office. The same information was available to any person knowing how to find the courthouse or how to request title information from an abstractor. The record does not disclose that any information Barnett passed on to Matz was confidential, secret, or exclusive in nature. The arrangement between Barnett and Matz was confined to their fugacious plan to bid jointly in hopes of buying the 6.10 acres at a foreclosure sale that never took place. The agreement between Barnett and Matz did not require mutual agreement to effect its termination. Holmes took care of that when he called off the sale. The facts of this case are controlled by principles of law stated in Giddings Convalescent Home, Inc. v. Wilson, 473 S.W.2d 246, 249 (Tex.Civ.App. Austin 1971, writ ref. n. r. e.); Mathis v. Cactus Drilling Corporation, 430 S.W.2d 78, 83 (Tex.Civ.App. Austin 1968, writ ref. n. r. e.); and Collins v. Gee, 107 S.W.2d 754, 755 (Tex.Civ.App. San Antonio 1937, writ ref.). The information Barnett passed on to Matz was not confidential, but was a matter of public record, and certainly cannot be compared to private studies and well-logs made by geologists in an oil field. The fleeting joint venture between Barnett and Matz was without meaning or purpose, and did not survive, after Holmes dropped his plans to foreclose on Reese’s option to buy the 6.10 acres. Whatever duties of good faith or fiduciary ties existed between Barnett and Matz during their brief venture also came to an end when Holmes made it impossible for them to bid on the 6.10 acres as they had planned. The ven-turers were free thereafter to act separately and each for himself without violating any trust or confidence. The fact that Barnett and Matz had dealings with each other prior to their joint interest in 1968 in bidding on the Reese option did not establish a confidential relationship upon which1 to create a constructive trust in the property for the benefit of Barnett. Consolidated Gas and Equipment Co. of America v. Thompson, 405 S.W.2d 333, 336 (Tex.Sup.1966). We hold that there is no genuine issue as to any material fact and that Matz is entitled to judgment as a matter of law. The judgment of the trial court is affirmed. Affirmed.

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MORGAN DRIVE AWAY, INC., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees. No. 11913. Court of Civil Appeals of Texas, Austin. July 12, 1972. Rehearing Denied Aug. 2, 1972. Robinson, Felts, Starnes & Nations, Mert Starnes, Austin, for appellants. Crawford C. Martin, Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., James H. Cowden, Rex H. White, Jr., Asst. At-tys. Gen., Lanham, Hatchell & Sedberry, Thomas F. Sedberry, Austin, for appellees. O’QUINN, Justice. Two protesting carriers have brought this appeal from judgment of the district court denying them relief from an order of the Railroad Commission which granted a certificate to Warfield Walker authorizing him to transport mobile homes and campers from all points within one hundred miles of Huntsville, Texas, to all points in Texas, excepting shipments originating in Harris County. Appellants are Morgan Drive Away, Inc., and National Trailer Convoy, Inc., holders of specialized motor carrier certificates which authorize them to operate throughout the state. Appellee Warfield Walker, doing business as Mobile Home Transports, proposed to station his equipment at Huntsville and operate with points of origin within a one hundred mile radius of Huntsville. The Railroad Commission’s order authorized Walker to operate in accordance with these proposals, except as to shipments originating in Harris County. After hearing before the trial court without intervention of a jury, the court entered an order vacating a temporary restraining order previously issued by the court in May of 1971, and continued in force by agreement of the parties, which order enjoined Walker from operating pending final hearing. The trial court found the law and facts to be with appel-lees, who were defendants below, and found a public need for the proposed service and substantial evidence to sustain the order of the Railroad Commission. Validity of the Railroad Commission’s order, issued April 23, 1971, is attacked by appellants under four points of error. We will overrule all points of error and affirm the judgment of the trial court. At the outset appellants insist that there is no substantial evidence reasonably supporting the order of the Commission granting Walker’s application. Appellants are the only two carriers in the state authorized to operate throughout Texas in the specialized field of handling transport of mobile homes and trailers, and under the Commission order attacked in this case Walker is their only competitor in the disputed area surrounding Huntsville for a radius of one hundred miles. Neither of the appellants owns its equipment, and both depend upon contractors who supply equipment and drivers in furnishing the services authorized to be performed. National Trailer Convoy has fourteen terminals in Texas, all of which are operated by women who in some instances are the wives of drivers contracting with National to perform the transportation services. The company has no full-time employees in Texas except these agents. National was operating sixty leased vehicles in the state at the end of 1970 and at the time of the Commission’s order in April of 1971 the company operated ninety-three trucks in Texas. National advertises in trade journals and in telephone directories. Within the disputed territory around Huntsville, National advertises only in Bryan, Jacksonville, Houston, Lufkin and La Porte. A witness for National estimated that sixty percent of the company’s operation is devoted to movement of new trailers from manufacturers. Within one hundred miles of Huntsville the company operates only one terminal, located at Pasadena in Harris County. Morgan Drive Away, the other statewide carrier of mobile homes, operates sixteen terminals in Texas and a district office in San Antonio from which agents are reached by telephone or TWX. Advertising in telephone directories is published in Bryan and Houston. About forty-five percent of the company’s traffic originates at manufacturing plants. A witness who operates a mobile home sales business in Lufkin and another in Livingston testified that the existence of Sam Rayburn Reservoir, Lake Livingston, and other recreational areas accounted for “roughly a third of our economy.” The witness related increased sales of mobile homes and trailers to faculty and students in colleges and universities in the area to greater demand for movement of mobile homes and trailers. At least ten cities and towns with colleges or universities are located within the Huntsville territory in which Walker was authorized to operate. Witnesses for National and for Morgan Drive Away testified they were not aware of any increase in trailer movements in relation to the location of recreational areas and colleges in the disputed territory. Three witnesses testified to complaints they had concerning services as rendered by both National and Morgan Drive Away. Appellants urge that such testimony lacks weight because all complaints registered relate to incidents occurring fifteen months or more prior to the Commission’s order approving Walker’s application. We have not attempted here to set out in complete detail all the evidence, but we find in brief that appellants operate only two terminals within the disputed area; that the two terminals conveniently adjacent to the Huntsville circle in which Walker may operate have been reduced, in one instance, or abandoned, in the other; that appellants, together with Walker, are the only carriers authorized to service the designated area; that the forty-five counties surrounding Huntsville, in Walker County, have experienced a substantial increase in extensive recreational lakes and similar projects and include a large number of colleges and universities; and that public witnesses testifying clearly enumerated service complaints against the appellants. We conclude that the order of the Commission is supported by substantial evidence and that in granting authority to Walker the Commission’s action was not arbitrary or capricious and was not taken in disregard of the facts. Appellants contend that evidence of prior unlawful operations by Walker disqualify the applicant from receiving authority from the Commission. The protesting companies insist that “Walker failed to establish his fitness to conduct the operations for which a certificate was issued” in view of a history of illegal conduct beginning in 1969. Witnesses in behalf of Walker testified that on occasions they had called on Walker for services, some being when National or Morgan Drive Away failed or was slow to perform. Walker admitted that he had been performing services the Commission authorized by its order. Appellants rely on decisions involving the Interstate Commerce Commission and its policy not to “reward an applicant who has flouted the regulatory authority by extending its activities . . . into an area for which no authority had yet been obtained.” A B C Freight Forwarding Corporation v. United States, 125 F.Supp. 926 (S.D.N.Y.1954), affirmed 348 U.S. 967, 75 S.Ct. 531, 99 L.Ed. 753. Appellants argue that in view of the evidence, the cited decisions, and Article 911b, Vernon’s Anno.Tex.Civ.Sts., Walker failed to establish his fitness for the certificate. Appellees argue that the proceedings in this case did not involve the nature or extent of Walker’s alleged illegal operations, such being a subject outside the jurisdiction of the Commission. Powers of arrest and prosecution, appellees point out, are expressly delegated to the Department of Public Safety under Article 1690b, Vernon’s Anno.Tex. Penal Code, originally section 16 of the Motor Carrier Act (Art. 911b), but codified in the Penal Code. The Railroad Commission’s authority is over rate regulation, and we are not advised of any policy established by the Commission to declare prior illegal operations a part of the criteria for determining fitness. We agree with the Commission that this proceeding is not concerned with Walker’s past operations, since no policy exists making such operations a subject of consideration in determining fitness of an applicant. Moreover, the record is lacking in a clear showing of the manner and circumstances by which Walker’s prior activities were in violation of Article 911b. In the absence of some established policy and a clear showing of the violations involved, we decline to consider further the question of declaring Walker ineligible for the certificate granted by the Commission. Fitness of the applicant was found by the Commission to include Walker’s “financial responsibility” and the fact that “equipment proposed to be used” met requirements of the law “in regard to safety devices, dimensions, etc.” Under their third point of error appellants attack the Commission’s order as failing to set forth full and complete fact findings on the statutory issues of inadequacy of existing competitive services or public need for the proposed new service. In their contention appellants rely in the main on the rule of Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.Sup.1963). The findings in Miller, being in the main recitations in a form printed in advance for general use, clearly did “not provide sufficient findings of basic facts from which the courts can determine if reasonable grounds existed for issuance of the order.” (363 S.W.2d 246, 247) We have examined the order of the Commission in this case, consisting of nearly seven typed pages, and have reviewed the summary of testimony, as well as the detailed findings, and conclude that the findings are thorough and complete. The findings adequately meet the test “that a court upon reading them can fairly and reasonably say that they either do or do not support the required ultimate statutory findings of inadequacy of the services and facilities of existing carriers and a genuine public need for the proposed service.” Miller v. Railroad Commission, supra, 363 S.W.2d 246. Under their fourth and final point appellants contend that they were denied due process of law through the Commission’s failure to abide by its rules of practice and procedure. The specific rules appellants insist were violated are Rule 25 dealing with postponements, Rule 29B concerning order of procedure, and Rule 48 with respect to service of orders. Appellants complain that after Walker’s oral motion for continuance of the hearing in progress at Austin and for further hearing in Huntsville, the Commission overruled the motion but suggested it “would accept properly taken depositions in lieu of further hearing,” and that thereafter oral depositions were taken in Huntsville, followed by further hearing in Austin. Appellants also complain that after the Commission’s order was issued April 23, 1971, the appellants were not served with notice required by Rule 48 and first learned that the order had been issued upon making independent inquiry at the Commission offices on April 29. We have examined the record for showing by appellants that they suffered loss of or damage to their substantive rights by reason of deviations by the Commission from the Rules of procedure and notice and we find no such proof. The record does not reveal that appellants were denied the right to present evidence or that the Commission issued its certificate without benefit of a hearing. We find no prohibition in Rules 25 and 29 against continuation of hearings or the holding of multiple hearings in any single proceeding. On the contrary, it appears that these Rules under their broad language accommodate instances similar to the proceeding of which appellants complain. We are unable to discover any abuse of the Commission’s administrative discretion in such matters, and hold that the hearing procedures appellants object to were permissible under the facts of the case. Under Rule 48 a copy of the Commission’s order is required to “be served forthwith upon all parties.” It is true, as appellants point out, that notice to appellants was not given by the Commission advising that its order had been issued, and appellants learned of the order about a week later. Upon learning of the order, appellants filed suit, and on May 1, 1971, succeeded in temporarily restraining Walker’s use of the certificate. Thereafter Walker agreed to two continuances of the restraining order which extended the hearing on appellants’ application for temporary and permanent injunction until September 8, 1971. For the period of restraint Walker did not operate, and the parties were in the same positions they would have held if no certificate had been authorized. Walker did not begin operation until the trial court set aside the restraining order by judgment entered September 21, 1971. Procedural steps required of the Commission by statute, related to hearing, considering and determining applications, are held to be jurisdictional, and breach of these requirements will render void the order of the Commission. (Art. 911b, sec. 5a (d) ; Kerrville Bus Co. v. Continental Bus System, 208 S.W.2d 586, 589 (Tex.Civ.App.Austin 1947, writ ref. n.r.e., and cases there cited). Appellants argue they were injured as a matter of law when Walker “conducted operations directly competitive with protestants for approximately one week.” We do not regard the failure of the Commission to give notice to appellants that Walker’s certificate was effective as an irregularity extending to or affecting the Commission’s jurisdiction. The federal cases relied on by appellants involve substantive rights of the complaining party affecting the opportunity fairly to prepare cross examination, denial of decision by a fully participating board, or violation of rights against self incrimination. Appellants have not shown that neglect or failure of the Commission to advise them of the Commission’s decision, after due notice, hearing, and decision, was in any way reasonably calculated to cause and probably did cause the rendition of an improper order. A burden of the same gravity is placed on parties complaining of action by' a trial court, and to require the burden of appellants under the circumstances of this case does not to us appear unfair or unreasonable. The judgment of the trial court is affirmed.

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Jeannine Chapman SHRINER et vir, Appellants, v. Margaret SIMMONS, Representative, Texas State Department of Public Welfare et al., Appellees. No. 15073. Court of Civil Appeals of Texas, San Antonio. June 28, 1972. Rehearing Denied July 26, 1972. William M. Porter, Walter J. Madalin-ski, San Antonio, Lawrence Harrison, Junction, for appellants. Crawford C. Martin, Atty. Gen., of Texas, Nola White, First Asst. Atty. Gen., Alfred Walker, Samuel D. McDaniel, J. C. Davis, Bill Campbell, Asst. Attys. Gen., Robert R. Barton, Dist. Atty., Kerrville, for appellees. BARROW, Chief Justice. This is an appeal from a judgment denying an application for writ of habeas corpus brought by Jeannine Chapman Shriner on November 5, 1970, subsequently joined by her husband, Glen Shriner, seeking to set aside a prior judgment of May 6, 1970, whereby two minor children who had been adopted by Jeannine Chapman and her deceased husband, Roy Chapman, were declared to be dependent, the parental rights of Jeannine Chapman were terminated, and the care and custody of said children were awarded to appellee, Margaret Simmons, as a representative of Child Welfare Unit 23 of the Texas Department of Public Welfare subject to the further orders of the court. Appellants also urged that there had been a change of conditions and sought custody of the two children. The Presbyterian Children’s Home and Service Agency was made a party defendant to the application for writ of habeas corpus, apparently under appellants’ belief that said home had the actual custody of said children. However, the record does not show that the home participated in any way in this controversy. Appellants urge seven assignments of error. They complain of the judgment of May 6, 1970, because the “waiver” of Jeannine Chapman was executed prior to the filing of the petition; evidence was heard before the petition was filed; and because no facts are alleged to support a finding of dependency. It is further asserted that the evidence does not support such judgment. Complaint is urged to the judgment of November 3, 1971, because of the denial of a trial by jury. It is also urged that the trial judge erred in failing to disqualify himself from said hearing. Finally, it is urged that the trial court erred in refusing to return the care and custody of the minor children to appellants. On May 5, 1970, a petition was filed in the District Court of Kimble County on behalf of the County Attorney wherein it was averred that the two girls, aged 9 and 10, were dependent or neglected children in that they had no proper parental care or guardianship. Attached to said petition was a waiver signed by Jeannine Chapman wherein she declared that she was the adoptive mother of said girls; the adoptive father was deceased; and she waived service of citation and requested that said children be declared dependent children without further notice to her. This instrument was signed and sworn to by her on May 1, 1970. The judgment recites that in such hearing Jeannine Chapman was represented by her attorney, Larry Harrison, Esq., and the children were represented by M. C. Blackburn, Jr., Esq., as guardian ad litem. Article 2332, Vernon’s Annotated Civil Statutes, requires citation to be issued to the parents or parent of the children, if residents of the county, provided however, that citation shall not be issued if the parent “. . . shall indorse on said petition a request that the child be declared a ‘dependent child,’ . . . .” Since the petition filed herein included an endorsement wherein Jeannine Chapman requested that said children be declared “dependent children,” it was not necessary that she be cited. The record before us conclusively demonstrates that Jeannine 0 Chapman had proper notice of the dependency proceeding. Under Article 2330, V.A.C.S., the term “dependent child” includes any child under 18 years of age who has not proper parental care or guardianship. The sworn petition filed herein by the County Attorney alleged this ground of dependency. Such allegation supports a finding that the two children were, in fact, dependent. Appellants also attack the May 6th judgment because it recites . . that upon this 4th day of May, 1970, in the above entitled and numbered cause, came on to be heard the petition filed herein whereas the clerk’s file mark on the petition is May 5, 1970. There is no explanation in the record and, therefore, we are unable to determine whether this is a judicial error or clerical mistake. See Finlay v. Jones, 435 S.W.2d 136 (Tex.1969). Undoubtedly, the reason for the lack of explanation is that such error or mistake was not raised by appellants in their pleading or in any other manner in the trial court. This variance is immaterial in this collateral attack on the May 6th judgment since it does not render the judgment void. Appellants’ final complaint regarding the May 6th judgment is directed towards the sufficiency of the evidence. Since Jeannine Chapman was given sufficient notice of the hearing and no appeal was perfected from such judgment, appellants were not entitled to a full hearing on the issue of dependency and may not now attack the sufficience of the evidence in-troducted at such hearing. Cf. De Witt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944); Aechternacht v. Page, 429 S.W.2d 597 (Tex.Civ.App. — Texarkana 1968, no writ); Harrell v. Harrell, 428 S.W.2d 370 [Tex.Civ.App. — Houston (14th Dist.) 1968, writ ref’d n. r. e.]. The trial court did not err in refusing to set aside the judgment of May 6, 1970. Nevertheless, appellants had the right to file a subsequent petition in the nature of a writ of habeas corpus and to urge therein that a material change in conditions had occurred whereby it was in the best interests of said children that custody and control be granted appellants. See Articles 2336-2337, V.A.C.S.; Hendricks v. Curry, 401 S.W.2d 796 (Tex.1966); Burson v. Montgomery, 386 S.W.2d 817 (Tex.Civ.App. — Houston 1965, no writ). Such hearing should be distinguished, however, from one based on a motion to reopen the case which is filed within 30 days. Cf. Pettit v. Engelking, 260 S.W.2d 613 (Tex.Civ.App. —San Antonio 1953, writ ref’d n. r. e.). Appellants urge that the trial judge erred in the 1971 hearing by refusing to grant a jury trial and in not disqualifying himself. We assume, without deciding, that a jury trial is authorized in this type of custody proceeding but error is not shown herein because the jury was not timely demanded. This case was specially set for October 19, 1971, by fiat signed on September 3, 1971. The demand for jury was filed on October 12, 1971. This was less than the ten days notice required by Rule 216, Texas Rules of Civil Procedure. The right to a jury trial in civil cases in Texas is not an absolute right but is subject to this procedural rule regarding time of demand. Gallagher v. Joyce, 459 S.W.2d 221 (Tex.Civ.App.— Corpus Christi 1970, writ ref’d n. r. e.) ; Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App. — Austin 1969, writ ref’d n. r. e.). Although mandatory language is used in Rule 216, supra, as to the necessity of making the demand for jury and paying the jury fee not less than ten days before the date set for trial, this provision has been construed to be directory only. Gallagher v. Joyce, supra; Jerrell v. Jerrell, 409 S.W.2d 885 (Tex.Civ.App. — San Antonio 1966, no writ). Accordingly, the granting of a trial by jury where the demand is filed less than ten days before the trial date is within the sound discretion of the trial judge. The Second 38th Judicial District Court is a multi-county district composed of five counties. The record establishes that no jury panel was available in Kimble County the week that this case was set and the granting of a jury trial would have delayed the trial and interfered with the orderly handling of the court’s docket. In this situation, the court did not abuse its discretion in refusing to grant appellants’ late request for a jury trial. Appellants filed a motion on the day of the hearing wherein the trial judge was respectfully requested to disqualify himself from sitting in the matter because he had a fixed opinion that the case should not be reopened. This was denied by the trial judge in open court although he had told the attorney for appellants that Mrs. Simmons had advised him the children had been placed in a foster home and were doing well. In this situation, he told appellants’ attorney that the court was reluctant to set a hearing unless it was absolutely necessary. The trial judge stated that his only consideration in the matter was the best interest and welfare of the children, and there is nothing in the record to demonstrate the contrary. This Court in Lombardino v. Firemen’s & Policemen’s Civil Service Commission, 310 S.W.2d 651, 654 (1958, writ ref’d n. r. e.), stated the applicable rule as follows: “The law is well settled that neither the constitution nor the statutes make the expression or holding of an opinion a ground for disqualifying a judge. On the contrary, it is settled by many decisions that a judge is not incompetent to try a case because of opinions formed, held or expressed by him, concerning the issues involved, nor because he has personal knowledge of the facts of the case. It is presumed that a judge can and will divest himself of any previous conceptions, and that he will base his judgment, not on what he originally supposed but rather upon the facts as they are developed at the trial.” See also: Article V, Section 11, Texas Constitution, Vernon’s Ann.St.; Article 15, V.A.C.S.; Quarles v. Smith, 379 S.W.2d 91 (Tex.Civ.App. — Houston 1964, writ ref’d n. r. e.). Error is not shown by the trial judge’s refusal to disqualify himself in this cause. The final point urges that the trial court erred in not returning the children to appellants. There is no doubt that Jeannine Chapman showed a material change of condition from that of May 6, 1970. The meager evidence as developed by her shows that in May 1970, she was literally at the bottom of her luck and this affected her ability to provide proper parental care to the children. She was on probation for an eight-year sentence given her in 1963 for shooting to death Mr. Chapman. Before May, 1970, she was en route to her parents’ home in Wyoming after living about a month or so in Louisiana and Mississippi when her car needed repairs. She was stranded in Junction for several months while the car was being repaired. In the meantime, she took work as a waitress in a tavern and placed the children in school. She was admittedly unable to give them proper supervision, and a man moved onto the premises to help her. The entire situation was unsatisfactory and resulted in the young girls running away on two occasions. Mrs. Jeannine Chapman Shriner admitted that she beat them repeatedly with a western belt after the second occasion. The extent of this beating was not fully shown at the habeas corpus hearing although the girls were in a sad condition at the time Jeannine Chapman was arrested and placed in jail for child beating. Mrs. Jeannine Chapman Shriner further testified that the girls had received most of the bruises and abrasions as a result of the run-away, but the court saw photographs and had the right to believe that the children’s condition was caused by the beating at the hands of Jeannine Chapman. She voluntarily signed the “waiver” after consultation and in the presence of her attorney and then left for Wyoming with the man who had been living on the premises. By November, 1971, things were definitely looking up for her. She married Glen Shriner on February 3, 1971, and since June 1, 1971, she and her husband have operated a hotel in Worland, Wyoming, where her husband is also employed by an oil company. The couple both testified that they had suitable living quarters in the hotel to make a good home for the girls and wanted to do so. She testified that she never had any intention of permanently giving up the children, but thought the dependency would only be a temporary arrangement to enable the children to live at a church school until she got settled. Also, she signed the waiver to avoid the possibility of violating the terms of her probation. In De Witt v. Brooks, supra, the Supreme Court considered the effect of an adjudication of “dependent child” upon the natural parents’ subsequent right to custody. The Court held: “Under the above statutes, we think it is clear that it was the intention of the Legislature of this State that when the natural parents of a child abandon or so neglect the child as to cause it to become a dependent or neglected child within the meaning of the statute, the natural parents thereby forfeit their superior right to the custody of the child, and when a judgment is entered adjudging the child to be a dependent child, and the child is adopted by some other person in the manner provided by law, the adopting parents acquire the superior right to the custody of the child and are entitled to retain the custody thereof so long as the evidence shows that they are suitable persons to have such custody.” 182 S.W.2d at 694. See also: Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Grider v. Noonan, 438 S.W.2d 631 (Tex.Civ.App. — Corpus Christi 1969, no writ). The judgment of May 6, 1970, terminated the superior right of Jeannine Chapman as the adoptive mother of the two girls to their custody and control. Nevertheless, under Articles 2336-2337, supra, she had the right to show in the subsequent proceeding that the best interest of the children would be served by restoring the custody and control to her and Mr. Shriner. This was a decision largely in the sound discretion of the trial court in that the rule is now established that the trial court’s judgment in determining the best interests of the child and in awarding its custody in accordance with this determination should be reversed only when it appears from the record as a whole that it has abused the discretion entrusted to it. Herrera v. Herrera, supra; Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Few decisions are more uncertain than that of weighing the conflicting claims as to the best interests and welfare of minor children. Appellants made no complaint that the children are not being properly cared for and, therefore, the present custodians were not brought into court. See Luthern Social Service, Inc. v. Meyers, 460 S.W.2d 887 (Tex.1970). However, the two girls, after a very unsettled early life, appear to have become settled and adjusted in a good foster home. The emotional effect of another change could be harmful. Nevertheless, the claim of appellants is very strong in that Jeannine Chapman had taken these children as her own and cared for them for about six or seven years before May 1, 1970. Glen Shriner had never seen the children, .but expressed a willingness to provide for them as a father. The trial judge knew the condition of the girls in May of 1970, and in November, 1971. We cannot say that he abused his discretion in refusing to return the girls to the custody and control of appellants. The judgment of the trial court is affirmed. . In the application for habeas corpus filed November 5, 1970, and as amended on October 8, 1971, appellants did not allege any defects in the May 6, 1970, judgment, but alleged only that Jeannine Chapman withdrew and repudiated any written agreement signed by her that the children could be adjudged dependent and neglected or that they could be adopted.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Elbert A. TAYLOR, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Appellee. No. 6240. Court of Civil Appeals of Texas, El Paso. June 28, 1972. H. S. Harris, Jr., Midland, for appellant. Stubbeman, McRae, Sealy, Laughlin & Browder, Charles L. Tighe, Alvin Wal-voord, Jr., Midland, Marlin L. Gilbert and Leo E. Eickhoff, Jr., San Antonio, for ap-pellee. OPINION WARD, Justice. This is an appeal from summary judgment that the plaintiff below take nothing from his personal injury suit against Southwestern Bell Telephone Company. The summary judgment was grounded on the assertion made by the motion that defendant’s alleged negligence in placing its telephone wire across the surface of the plaintiff’s yard was superseded by a new and independent cause when two boys later hung the wire from a tree so that it was above the plaintiff’s driveway and in a position where it was struck by a car driven by the plaintiff’s wife. The wire then struck the plaintiff and propelled him through the air “like an arrow from a bowstring.’’ We affirm the judgment of the trial Court. With candor, the plaintiff in this action for negligence agreed to stipulate as to the facts controlling the dispute insofar as they concern the summary judgment. The stipulation reveals a unique yet unfortunate set of circumstances in the causal connection. The agreed statement follows: “On or about April 29, 1967, employees of Southwestern Bell Telephone Company, the Defendant, placed a telephone wire on the ground, across the driveway and front yard of Plaintiff’s residence, which is located about twelve miles from Midland on the Andrews Highway. The wire was to provide phone service to the Plaintiff’s brother-in-law who lived in a house trailer next door to the Plaintiff. Defendant telephone company did not ask or obtain authority or permission from Plaintiff to lay this telephone line on the ground or across his driveway and yard in any manner before doing so. Several days after the line was placed on the ground, the Plaintiff claims that he asked his brother-in-law to call the company and ask that the line be moved. The line was to be buried or placed on poles, but nothing was done to alter the location of the line prior to the incident described below. “On or about May 9, 1967, the Plaintiff’s son, Ricky, 17 years of age, and his brother-in-law’s son, Elton, were mowing the Plaintiff’s lawn. Earlier in the day the Plaintiff’s wife had left their house in the car and gone to work. While mowing the yard, the two boys lifted the wire from the ground and placed part of it over the limb of a tree so that it was suspended about two to three feet above the driveway and (over) it. About thirty minutes after this occurred, and between 6:00 and 7:00 P.M., the Plaintiff’s wife was returning home. The Plaintiff who had been in the backyard came into the front yard and saw his wife approaching and also saw the line hanging from the tree. He ran to pull the line down and at about the same time that he grabbed the line the car driven by his wife hit the line. The Plaintiff alleges that he was thrown against the house and that he was injured as a result. During the time the line was on the ground, prior to the alleged accident, the plaintiff and his wife had had no difficulty in driving into and out of their driveway. The Plaintiff had no prior knowledge that the line had been raised off the ground until he saw it as his wife approached, and the Defendant had no knowledge that the line had been raised off the ground at any time prior to the alleged accident.” We emphasize that the only cause of action alleged against the defendant is one based on negligence as it is in that field that precedent allows full play to the use of proximate cause in restricting liability. The defendant’s employees are alleged to have been negligent in these respects: “1. In leaving the telephone cable in question upon the surface of plaintiff’s yard and driveway area for a period of approximately eleven (11) days; 2. In failing to raise the telephone cable in question on poles and a reasonable and safe distance above plaintiff’s yard and driveway area; 3. In failing to bury the telephone cable in question below the surface of plaintiff’s said yard and driveway area.” As to the plaintiff’s own action after he observed the car approaching, he alleged that he was justified in acting as he did as he was acting in the capacity of a rescuer and attempted to save the two boys and his wife from a position of peril from being struck by the telephone wire; that he was not contributorily negligent and did not assume the risk incident to his act as he only acted in a reasonable and prudent manner considering the circumstances and the time available to him for deliberation. At the outset, we are confronted with the availability of the summary judgment procedure where proximate cause is the issue. An abundance of obstacles are apparent. Some of these consist of the movant’s usual burden to establish 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, Gibbs et al. v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); the granting of every possible inference arising from the facts to the non-movant, Layne et al. v. Darnell, 454 S.W.2d 474 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.); even statements as to the futility of moving for summary judgment in a negligence case as proximate cause is inherently a matter to be left to the fact finder. 4 McDonald, Texas Civil Practice, Sec. 17.26.12, at p. 177. Regardless of these perils, the parties have stipulated to the facts believing that the summary procedure would be of benefit. The facts being stipulated before us we feel we are bound to accept them as the only facts available in the case. The plaintiff’s complaint is that proximate cause exists and there is no new and independent cause of such a nature as to cut short liability. In considering the matter, the parties are in agreement as to the principles involved. In this light, the theory of new and independent cause is not an affirmative defense; it is but an element to be considered normally by the finder of the facts in determining the existence or non-existence of proximate cause. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952). The generally approved submission is at Vol. 1, Texas Pattern Jury Charges, Sec. 2.03, and is to the effect that “ ‘New and Independent Cause’ means the act or omission of a separate and independent agency, not reasonably foreseeable, which destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question, and thereby becomes the immediate cause of such occurrence.” Regardless of many authorities to the contrary and criticism, the Texas Courts are firmly committed to the proposition that the issue of foreseeability is related to the issue of proximate cause. Green, Proximate Cause in Texas Negligence Law, 28 Texas L.Rev. 471, 621, 755. Teer et ux. v. J. Weingarten, Inc., 426 S.W.2d 610 (Tex.Civ.App. — Houston 1968, writ ref’d n. r. e.). The last authority points out that though the main inquiry is as to whether the intervening conduct was reasonably foreseeable or not, we still have the following three possibilities: (1) The new and independent cause, within the terms of the definition, not reasonably foreseeable, which destroys the causal connection; (2) The intervening cause which was reasonably foreseeable, which does not destroy the causal connection; and (3) The intervening cause, though unforeseeable, which is a concurring cause and which does not destroy the causal connection. In this regard, the following is quoted from the Teer case: “The intervening cause of the plaintiff’s injury, even if unforeseeable, may be a concurring cause if the chain of causation flowing from the defendant’s original negligence is continuous and unbroken. The intervening cause, if it is a concurring cause, does not break the chain of causation between the defendant’s negligence and the plaintiff’s injury simply because the intervening cause was unforeseeable.” As to whether or not the intervening conduct of the two boys in placing the telephone wire in the tree and over the driveway was reasonably foreseeable or not, we feel we are governed by such cases as Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896) and Southwestern Bell Telephone Co. v. Hardy, 131 Tex. 573, 117 S.W.2d 418 (1938). These cases have been cited as authority by our Supreme Court as late as Humble Oil & Refining Company v. Whitten, 427 S.W.2d 313 (Tex.1968); and Robert R. Walker, Inc. v. Burgdorf et al., 150 Tex. 603, 244 S.W.2d 506 (1952). The Hardy case closely resembles the instant case in that there the telephone company was advised to remove a telephone wire from a house that was going to be wrecked. After the telephone company had failed to remove the wire, a member of the wrecking crew disconnected the wire from the house and tied the loose end to a porch post. The wire was then so low over the street that it caught the plaintiff under his chin and dragged him off of the truck in which he was riding. The Supreme Court held as a matter of law that a new and independent cause was present. We therefore hold that the act of the boys was not reasonably foreseeable. There still remains the problem of whether or not the intervening cause is a concurring cause even if unforeseeable. Recently, our Supreme Court, in the case of Humble Oil & Refining Company v. Whitten, supra, approved the principles formulated by the Restatement of Torts. The principles stress the point as to whether the intervening cause was a “normal response” to a situation created by the defendant’s negligent conduct, or whether it was an “extraordinary” occurrence. See annotation 100 A.L.R.2d 942, at p. 992. In the Whitten case, supra, the following is stated: “In deciding whether an act is a concurring or a new and independent cause we confront the difficulty of applying familiar principles to specific facts. Some of the criteria which aid decisions such as this, are found in section 442, Restatement, Second, Law of Torts: The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation; (d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him ; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.” A consideration of a majority of the criteria leads us to believe that the accident in the instant case was a result of a new and independent intervening cause. The act of the boys in elevating the wire from the ground to the raised position in the tree created a danger to the use of the automobile on the driveway; it seems indeed extraordinary to find that the flinging of the plaintiff through the air “like an arrow from a bowstring” was an expected consequence of leaving the wire flat on the ground; it seems somewhat abnormal that the wire would be raised over the driveway even though the defendant should be charged with knowledge that the wire would have to be moved to mow the grass; no doubt the operation of the intervening force was due to the boys’ act and finally it was the boys’ act that created the condition that gave rise to the accident. We conclude that the flinging of the plaintiff through the air “like an arrow from a bowstring” was caused by the new and independent act of the boys. The judgment of the trial Court is therefore, in all things, affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Mrs. Mattie McDONALD, d/b/a Broadway’s S & S Flower & Gift Shop, Appellant, v. NEWLYWED’S, INC., Appellee. No. 8112. Court of Civil Appeals of Texas, Texarkana. June 20, 1972. Rehearing Denied July 25, 1972. J. R. Cornelius, Cornelius & Cornelius, Jefferson, for appellant. Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellee. RAY, Justice. This was a summary judgment proceeding in the trial court in which that court entered judgment for the plaintiff pursuant to Rules 185 and 166-A(e) upon an alleged sworn account. Appellee Newlyweds, Inc., (plaintiff) brought suit against Mrs. Mattie McDonald, d/b/a Broadway’s S & S Flower and Gift Shop (appellant-defendant), to recover the sum of $248.00, interest, attorney’s fees of $60.00, and all costs. Appellee alleged that it had delivered to appellant the merchandise requested and had made demand for payment more than thirty days prior to filing suit. Appellee further stated in its petition that by reason of the failure of appellant to pay the account after demand, it became necessary for appellee to employ attorneys to represent it in the prosecution of its suit and had agreed to pay the attorneys “the sum of $60.00, as their attorney’s fees, which amount is customary, necessary, reasonable and just.” Appellee’s petition was accompanied with an affidavit which stated: “That the foregoing and annexed account, claim, and cause of action in favor of Newlyweds, Inc., P. O. Box 17,221, Memphis, Tennessee, and against Mattie McDonald of Broadway’s S & S Flower and Gift Shop, 605 Broadway Street, Jefferson, Texas, 75657, in the sum of Two Hundred Forty-eight and No/100 Dollars, plus collection and reasonable attorney’s fees is within the knowledge of affiant just and true, and that it is due and that all just and lawful offsets, payments and credits have been allowed.” Appellant filed her unsworn general denial. Thereafter, appellee filed its motion for summary judgment and appellant filed her answer to the motion for summary judgment, but still did not include a denial of the account in the terms provided by Rule 185, Tex.R.Civ.P. The pertinent parts of the answer to the motion for summary judgment filed by appellant are as follows: “II. This defendant would further show the Court that this defendant has paid each and every statement rendered for the books which Plaintiff states it had delivered, but that it did not agree to pay the lump sum as sued on herein until and unless a sufficient number of Wedding Books had been delivered to married couples in this vicinity. “III.' This defendant is willing and hereby agreed to pay for each book which the Plaintiff has delivered to newlyweds within this vicinity that she has not paid, upon receipt of a statement showing the names and addresses of the parties to whom Plaintiff has delivered such books.” We do not believe that the foregoing answer meets the test of Rule 185 which requires the following: “When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; provided, that when such counter-affidavit shall be filed on the day of the trial the party asserting such verified claim shall have the right to postpone such cause for a reasonable time. When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.” (1971). Under Article 1970-306, Vernon’s Anno. Tex.Stats., the jurisdiction of the County Court of Bowie County in civil and criminal matters has been transferred to the district courts of that county. Pursuant to such authority, the District Court of Bowie County entered its summary judgment in favor of appellee for the sum of $248.00, interest from date of the judgment and attorney’s fees in the sum of $60.00, together with all costs. Appellant’s first point of error states that: “The cause of action sued upon by Ap-pellee is not an open account, which required a denial under oath, but was a suit for breach of contract.” We find no merit in appellant’s first point of error since the pleadings of appellee are absolutely clear that it is a suit upon a sworn account. It may be that the indebtedness originally grew out of a contractual relationship between the parties, but in order for appellant to have asserted that the amount sued for under the sworn account allegations was not in fact due because of some breach of contract by appellee, it was necessary for appellant McDonald to file more than an unsworn general denial. It was necessary for appellant to first deny the justness of appel-lee’s claim in the terms specified by Rule 185. It is important to note that appellant’s answer not only failed to set out in specific terms the unjustness of the account, but it also failed to state there was a breach of contract. Appellant’s first point of error is overruled. The second point of error urged by appellant is that the sworn answer in response to the motion for summary judgment complied with the requirements of Rule 185, Tex.R.Civ.P. We have examined the answer filed by appellant and find that it does not meet the test of Rule 185. The contents of the answer as set out above make it clear that the appellant failed to state “that each and every item is not just or true, or that some specified item or items are not just and true.” As we interpret Rule 185, Tex.R. Civ.P., the defendant must file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true, and that this written denial must be the formal answer to the plaintiff’s allegations based upon a sworn account. The failure to file such an answer is fatal, no matter what course the proceedings thereafter take, that is, whether the case proceeds by way of summary judgment, or trial before the court, or jury trial. In Akins v. Coffee, 376 S.W.2d 953 (Tex.Civ.App. Dallas 1964 writ dism’d), the court stated that: “ • it has been held that failure to file a sworn denial of a verified account amounts to an admission that the account is correct. Walker-Neer Machine Co. v. Acmeline Mfg. Co., Tex.Civ.App., 279 S.W.2d 156, wr. ref. n. r. e. Appellee, by countervailing point, contends that since appellants did not substantially comply with Rule 185, T.R. C.P., in making verified answer to its petition, that same fails to deny the correctness of same and amounts to an admission that the account is correct. We agree with this contention. While it is true that no particular form of affidavit is required by Rule 185, T.R.C.P., yet there must be a denial of the account in the language stated in the rule. Glaseo v. Frazer, Tex.Civ.App., 225 S.W.2d 633; Kost Furniture Co. v. Radio Equipment Co., Tex.Civ.App., 100 S.W.2d 162; Stephens v. Lott, Tex.Civ.App., 339 S.W.2d 405.” We hold that appellant failed to comply with both Rule 185 and Rule 166-A(e). The affidavit signed by Mrs. McDonald in connection with the answer to the Motion for Summary Judgment is defective for several reasons, the principal one being that it does not show that the matters to which she had sworn were within her personal knowledge. Akins v. Coffee, supra. Since the appellant’s unverified answer fails to meet the requirements of both Rule 185 and Rule 166-A(e), Tex.R.Civ.P., it follows that the validity of the account sued upon remains unchallenged and no issue of fact is presented. Appellant’s point of error No. 2 is overruled. Appellant’s third point of error states: “There is a genuine issue of fact as to the reasonableness of the attorney fee stated in the Motion for Summary Judgment.” Since Art. 2226, Tex.Rev.Civ.Stats., as amended, expressly provides for the recovery of attorney’s fees in a suit on sworn accounts, and appellee’s petition seeks recovery of $60.00 after having made demand for payment of the account, we see no error in the court’s awarding such amount because there was no verified answer filed by appellant denying the sworn account. Since the amount awarded for attorney’s fees by the trial court is not unreasonable and is within the limits recommended by the State Bar minimum fee schedule, we hold there was no abuse of discretion on the part of the trial court in awarding such amount. In the absence of an abuse of discretion, we uphold the award of the District Court of Bowie County. Akins v. Coffee, supra; Hilliard v. Home Builders Supply Co., 399 S.W.2d 198 (Tex.Civ.App. Fort Worth 1966); Art. 2226, Tex.Rev.Civ.Stats. Appellant’s third point of error is overruled. The fourth point of error presented by appellant is as follows: “Appellee’s exhibit to its statement of the account showing that $242.00 of the material had not been delivered precludes its recovery.” We find no merit in appellant’s fourth point of error, primarily because she has misstated what the exhibit actually shows. The exhibit in question is a “Statement” from Newlyweds, Inc., addressed to Mattie McDonald which is undated, showing the “amount to be billed” is the sum of $242.00, but shows the account balance to be $248.00. Since the statement is undated and the affidavit attached to ap-pellee’s petition states that the sum of $248.00 is due and the petition states that demand has been made for such sum, we must presume, in the absence of a verified denial, that the merchandise has been delivered as alleged, and that the sum of $248.00 has subsequently been billed, demanded, and is currently due. Appellant’s fourth point of error is overruled. We find no error committed by the trial court in granting the motion for summary judgment and accordingly entering judgment in favor of appellee Newlyweds, Inc. The judgment of the trial court is affirmed. DAVIS, J., not participating. ON MOTION FOR REHEARING We have carefully reviewed the Motion for Rehearing submitted to us by Appellant, Mattie McDonald, dba Broadway’s S & S Flower & Gift Shop, and have determined that the motion should be overruled. However, we think it necessary to point out that our decision is not in conflict with Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App. Houston, 14th District, 1971 no writ). The conclusion reached by the Houston Court of Civil Appeals (14th District) relative to sustaining the summary judgment on a sworn account for failure to deny the account in the terms required by Rule 185 Tex.R.Civ.P., is consistent with the conclusion we have reached involving similar facts. On the surface, it would appear that we have reached opposite results concerning the matter of whether the trial court had the authority to award reasonable attorney’s fees, but on close examination, it will be seen that the amount awarded for attorney’s fees in the Duncan case exceeded the amount prescribed by the current standard Bar Minimum Fee Schedule. Thus, the Houston Court concluded that the amount awarded as attorney’s fees could not be said to have been reasonable as a matter of law. The State Bar Minimum Fee Schedule suggests that, in the collection of commercial accounts, a minimum fee of 33)4 per cent of the amount collected is reasonable “with or without the filing of a suit and irrespective of whether there is a trial.” In the Duncan case, Butterowe, Inc., sued for $1,491.-65, plus an additional sum of $500.00 as attorney fees. It is obvious that the $500.00 awarded by the trial court was in excess of 33)4 per cent of $1,491.65, and therefore could not be prima facie evidence of a reasonable attorney’s fee prescribed by the current State Bar Minimum Fee Schedule. Since the $500.00 fee exceeded the State Bar Minimum Fee Schedule, it became a fact issue as to whether or not such amount was reasonable, to be determined on remand of the case, because the Court of Civil Appeals pointed out that it could not say that “the right to a $500.00 attorney’s fee was established as a matter of law.” In the case before this Court, the amount sued for was $248.00, plus interest, attorney’s fees of $60.00, and all costs. The attorney’s fee of $60.00 falls within the suggested minimum fee of 33)4 per cent and would therefore be prima facie evidence that such fee was reasonable as provided by the express language of amended Tex.Rev.Civ.Stat., art. 2226, (1971). While prima facie evidence of reasonableness may be rebutted, Appellant made no attempt to do so in this case. Appellant’s Motion for Rehearing is overruled.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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Harold B. MILLS, Appellant, v. Philip A. WITHERS, Appellee. No. 15927. Court of Civil Appeals of Texas, Houston (1st Dist.). June 22, 1972. William A. Petersen, Jr., Houston, Bur-ford, Ryburn & Ford, Logan Ford and Spencer C. Relyea, III, Dallas, for appellant. Malone, Murphy & Fenley and Paul C. Murphy, III, Houston, for appellee. COLEMAN, Justice. This is a stockholder’s derivative action brought by appellee for the benefit of Builders Equity Corporation, a Texas corporation. After a jury trial judgment was entered against appellant in the amount of $1,859.24 as damages plus $2500.00 for attorney’s fees. A motion for new trial was overruled after a remittitur in the sum of $1,150.00 was filed. Plaintiff’s Second Amended Petition alleged that appellant as an officer, director and/or agent and stockholder of the corporation was the principal co-signer of corporation checks and that he individually or in concert with other directors, officers or agents of the corporation fraudulently and negligently mismanaged and misappropriated the assets of the corporation by paying with corporate funds obligations for which appellant was personally and/or jointly and severally liable, and by paying with corporate funds obligations for which S. M. Roycroft and/or Builders’ Contract Corporation were liable. The petition alleged in the alternative that the corporation existed only “as a shadow of the personality of Harold B. Mills” and that the court should ignore the “corporate framework of Builders’ Equity Corporation and find the Defendant, Harold B. Mills, individually liable to Plaintiff for Plaintiff’s damages in the sum of $3,000.00,” plus interest, exemplary damages and reasonable attorney’s fees. The jury found: 1) that corporate funds were disbursed between June 9, 1967 and November 1, 1967, in payment of obligations owing by Harold B. Mills; 2) that the sum of $1,125.00 was so paid; 3) that corporate funds “were used to make payments to Stanley Development Company on property in which Builders Contract Corporation had a proprietary interest 4) that Harold B. Mills had personal knowledge of that fact; 5) that $734.24 in corporate funds were so used; 9) that $2,500.00 would fairly and reasonably compensate Philip Withers for reasonable and necessary attorney’s fees incurred in connection with the filing, preparation, and trial of this cause of action in the trial court. After entry of judgment and the filing of appellant’s motion for new trial, the trial court entered an order finding that the motion “is not well taken except as to the inclusion of $1,125.00 for money found by the jury to have been paid out of corporate funds for the individual benefit of Mr. Harold B. Mills.” Appellee was directed to file a remittitur in that amount as a condition to the court’s overruling the motion. Appellee filed the remittitur, stating therein that the court had found that there was no evidence to support the jury’s answer to Special Issue No. 2. Appellant contends that the trial court erred in failing to disregard the jury’s answers to Issues 3, 4, 5 and 6 and in failing to enter judgment for appellant because the findings alone or in combination with other issues do not constitute ultimate issues of fact upon which a judgment can be rendered; that the court erred in entering the judgment on these issues in the absence of evidence that the appellant’s conduct in relation to the payments found by the jury was such as to constitute fraud or negligence; and that the court erred in entering the judgment in the absence of a jury finding that Mills’ conduct with respect to the payments found by the jury constituted either fraud or negligence. Other points of error asserted that the trial court erred in entering a judgment for Withers for attorney’s fees. Appellee has assigned cross-points complaining of the action of the trial court in requiring the remittitur and in failing to submit requested special issues on exemplary damages. Harold B. Mills at all times material to this case was a member of a small law firm with offices in the Bettes Building. S. M. Roycroft was an accountant, who performed accounting services for the law firm on a contract basis. For a time he officed with the firm. In 1967 his office was Room 619 in the Bettes Building. The building records show this office in the name “Harold Mills — Houston-Gulf Corporation,” and that the bill for the rent was rendered to Harold Mills. Gerald Beck-man was a lawyer employed by the law firm on a monthly salary plus a small percentage of the net profit. M. A. Baker is a court reporter, who had an office on the sixth floor of the Bettes Building. R. M. Hay was a friend of Roycroft and Mills. On April 20, 1967, a corporate charter was granted for Builders Equity Corporation. Gerald Beckman, M. A. Baker, and R. M. Hay were the incorporators and initial directors. The evidence indicates that M. A. Baker, Jr. was president, although there are no records of stockholders or directors meetings. The stock transfer book indicates that S. M. Roycroft was issued 5,800 shares of stock; Harold B. Mills 800 shares; M. A. Baker, Jr., 800 shares; Gerald H. Beckman 200 shares; Roy M. Hay 200 shares; and Philip A. Withers 3,000 shares. The business of the corporation was conducted by Roycroft prior to his death. The checks drawn on the corporate account were signed by Roycroft and Mills. Mills testified that after the checks were drawn by Roycroft and signed, they were presented to him, together with substantiating vouchers, for counter signature. Two other corporations appear to have been managed by Roycroft. Builders Contract Corporation was chartered on August 11, 1965, and Houston-Gulf Corporation appears to have been chartered at an earlier date. Mills was president of these corporations. Roycroft appears to have been secretary of Houston-Gulf Corporation. This corporation had been in the business of financing the purchase of automobile liability insurance policies. Builders Contract Corporation and Builders Equity Corporation were formed as a part of a plan to build apartments and townhouses. On October 6, 1965, Houston-Gulf Corporation entered into a contract with R. C. Reagan to acquire for a corporation to be formed certain property in Yale Street Acres Subdivision in the City of Houston, in return for shares of stock in that corporation contingent on Houston-Gulf Corporation securing construction and permanent financing commitments within 90 days and beginning construction on townhouse units. Houston-Gulf Corporation, or its successor in interest, agreed to build or cause to be built upon the property townhouse-type dwellings to be sold as individual units unless Houston-Gulf Corporation elected to retain ownership of some of the units for lease or rental purposes. Houston-Gulf agreed to secure plans and specifications, contract for the construction and arrange for the mortgage money and financing of such units. There is no evidence of the activities of these corporations in the interim, but on May 5, 1967, an agreement was made by Builders Equity Corporation and Len Saunders whereby Mr. Saunders undertook to secure construction financing for townhouses to be built on the Yale Street Acres property. In May, 1967, Mr. Withers met with Roycroft and Beckman to discuss investing in the stock of Builders Equity Corporation and Mr. Roycroft explained the plan of operations of the company. The plans, specifications and appraisal reports for the proposed construction were exhibited to him. He invested $3,000.00 in stock of the company. Property in the Croyden Gardens Addition in the City of Houston was purchased by Roycroft as trustee from Stanley Development Co. on November 1, 1966. There was testimony that Mills, Roycroft, and Don White had agreed to make the monthly payments until one of the corporations was financially able to do so. Checks to-talling $734.24 were issued to Stanley Development Co. on the Builders Equity Company account. Mills countersigned these checks. After the death of Roycroft there was no activity in any of the corporations. On April 17, 1968, Builders Contract Corporation executed a special warranty deed signed by Mills as president conveying the property in Croyden Gardens Addition back to Stanley Development Co. in consideration of the cancellation of the purchase money note. He testified that he did not know that Roycroft as trustee had conveyed the property to the corporation, but that he had been advised by Stanley that title to the property was in the corporation and that the payments were delinquent. It is the duty of the trial court to submit to the jury the controlling issues made by the written pleadings and the evidence. Rule 279, Texas Rules Civil Procedure. Issues submitted to the jury that are not ultimate or controlling issues are characterized as evidentiary issues and may be disregarded as being immaterial. Southern Surety Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789 (1930); J. Weingarten, Inc. v. Carlisle, 172 S.W.2d 170 (Tex.Civ.App.— Galveston 1943, writ ref.); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. — San Antonio 1949, writ ref., n. r. e.); Smith v. Chase, 405 S.W.2d 450 (Tex.Civ.App. — Dallas 1966, writ ref., n. r. e.). It is obvious that if Builders Equity Corporation was liable for the obligations for the payment of which the corporation’s funds were used, there was no mismanagement or misappropriation of the corporation’s funds. It was conclusively established at the trial that checks were drawn on the account of Builders Equity Corporation payable to Stanley Development Company and that these checks were cosigned by Mills. It is also established without dispute that these checks were given in payment of installments and taxes due on the Croyden Gardens Addition property. There is no evidence that at the time the payments were made Builders Contract Corporation owned a proprietary interest in the property. The deed from Builders Contract Corporation to Stanley Development Company is circumstantial evidence that sometime prior to his death Mr. Roycroft conveyed an interest in the property to Builders Contract Corporation. All of the checks in question were signed by Mr. Roycroft. To support the cause of action alleged, findings were required determining whether the funds represented by the checks bearing the signature of Mr. Mills were used for purposes other than those promoting the business interests of Builders Equity Corporation, if so, whether Mr. Mills had knowledge of that fact, or was negligent in failing to acquaint himself with the use to which the funds were put. No ultimate issue was submitted to the jury concerning the payments to Stanley Development Company. The evidence was insufficient to support a finding that all of the money paid to Stanley Development Company served no useful business purpose of Builders Equity Corporation and constituted a misappropriation of the funds of that company. Appellant has presented no points complaining of Special Issues 1 and 2, or of the answers thereto made by the jury. The appellee contends that the trial court erred in requiring a remittitur in the sum of $1,125.00, the sum found by the jury as having been paid out of corporate funds to discharge obligations of Harold B. Mills. He asserts that this action was taken by the trial court because he found that there was no evidence to support the jury verdict. The trial court entered a judgment on the jury verdict. After a remittitur was filed, the motion for new trial was overruled. There was no motion to disregard the answers to Issues 1 and 2. The rule to be applied in determining whether there was error in requiring a remittitur is that announced by the Supreme Court of Texas in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959), where the court said: “. . . where the trial judge has ordered a party to remit a portion of the jury verdict as a condition to overruling a motion for new trial, the Court of Civil Appeals, in passing upon such action under Rule 328, supra, should allow the trial court’s action to stand unless it be of the opinion that the remittitur ordered by the trial court, when considered in the light of the whole record, would render the order of remittitur manifestly unjust . . .” It appears that payments were made to Houston-Gulf Corporation for rent and office expenses. The office was occupied by Mr. Roycroft, who was managing the affairs of Houston-Gulf Corporation, Builders Equity Corporation and Builders Contract Corporation. The files of these corporations were kept in this office, and their business was transacted from it. The office was also used by Mr. Roycroft in his business as an accountant. One exercising a fiduciary relationship to each of the corporations would have a duty to fairly allocate the expense of operating the office. The evidence would justify a finding that Builders Equity Corporation was paying more than its fair share of the expense. It would not support a finding that no expense should be allocated to that corporation. There is evidence that Builders Equity Corporation paid M. A. Baker $525.00. The evidence supports the conclusion that this was in payment of a loan made by him to Mills and Roycroft, the proceeds of which were deposited by them in the account of Builders Equity Corporation. After a consideration of the record we conclude that the trial court did not abuse his discretion in requiring a remittitur. Appellee complains that the trial court erred in refusing requested issues on exemplary damages. If on a new trial there is evidence that appellant profited personally by reason of misapplication of funds of the corporation, proper issues on exemplary damages should be submitted. International Bankers Life Insurance Company v. Holloway, 368 S.W.2d 567 (Tex.1963). Appellee asserts that by entering judgment against Mills personally, the trial court concluded as a matter of law that Builders Equity Corporation was his alter ego. The facts developed in this case do not support the conclusion of law that Builders Equity Corporation was merely the alter ego of Harold Mills. He was not an officer of the corporation. The record reflects that he was owner of seven per cent of the issued stock, while Mr. Roy-croft owned fifty-three per cent, and ap-pellee owned twenty-seven per cent. The business was conducted principally by Mr. Roycroft. The balance of the stock was owned by Mr. Mills’ friends and business associates, but there is no evidence that he dominated or controlled them. The facts do not bring this case within the rules followed in Murphy Bros. Chevrolet Co. v. East Oakland Auto Auction, 437 S.W.2d 272 (Tex.Civ.App.—El Paso 1969, writ ref., n. r. e., American Petroleum Exchange v. Lord, 399 S.W.2d 213 (Tex.Civ.App.—Ft. Worth 1966, writ ref., n. r. e.), or Houston-American Life Ins. Co. v. Tate, 358 S.W.2d 645 (Tex.Civ.App.— Waco 1968), cited by appellee. The action of the trial court in requiring a remittitur, assuming that it was based on his decision that there was no evidence to support the answers to Special Issues 1 and 2, does not eliminate those issues as a basis for the judgment rendered. A remittitur is intended to reduce an excessive, but valid, judgment. Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App.—El Passo 1961, writ ref., n. r. e.). This court cannot reverse the judgment of the trial court and render judgment that appellee take nothing. We are required to allow the trial court’s action in requiring a remittitur to stand unless we find that the remittitur ordered is manifestly unjust. In such event we are required to restore the remittitur or such part thereof as is necessary to prevent the order from being manifestly unjust and render such judgment as the trial court should have rendered. Flanigan v. Car-swell, 159 Tex. 598, 324 S.W.2d 835 (1959). In this case, however, two damage issues were submitted. We have determined that the trial court failed to submit issues which would support one of these damage issues, and the trial court was of the opinion that there was no evidence to support the other issue. This court is of the opinion that there is some evidence to support the answer to this issue, but that the award made thereby is excessive. Since reversible error is present, it is unnecessary to determine the amount by which the judgment is excessive. We consider it unnecessary to extend this opinion by considering the other points of error presented by appellant’s brief. Reversed and remanded.

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HUNTSVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellants and Cross-Appellees, v. Frank SCOTT et al., Appellees and Cross-Appellants. No. 651. Court of Civil Appeals of Texas, Houston (14th Dist.). June 21, 1972. Rehearing Denied July 12, 1972. W. T. Bennett, Kenneth H. Keeling, Jack Haney, Huntsville, for appellants. M. Jack Tabor, Tabor & Ray, Houston, for appellees. BARRON, Justice. This suit was filed by Huntsville Independent School District and its named trustees against Frank Scott, owner, and Laura R. Lively and Mary R. Saenger, holders of valid liens on the property involved, in eminent domain for condemnation of a tract of land in the City of Huntsville. Trial was had in County Court of Walker County, Texas, and the jury returned a verdict fixing the value of the land in question at $86,730.00, with which plaintiff condemnors were dissatisfied. Before judgment was rendered, the day after return of the verdict, on February 10, 1972, condemnors filed a motion of dissatisfaction and stated that they desired to dismiss the proceeding, but they advised the court that they desired to refile the cause within a reasonable time. The trial court required formal notice to defendant Scott, but upon default originally by the lienholders, dismissed them from the suit. After a hearing on February 25, 1972, the trial court ordered the cause of action dismissed as requested by plaintiffs, but refused and prohibited plaintiffs or their successors from refiling any condemnation action involving the property at issue in this suit so long as the same is owned in fee by defendant, Frank Scott, his heirs or legal representatives. Permanent order of possession was awarded defendant against plaintiff-condemnors. Judgment in the sum of $6,355.00 was awarded in favor of Frank Scott for all costs, fees and expenses paid and incurred and to be paid in defending his property rights in this cause. Scott excepted to that portion of the order wherein the trial court denied the defendant $23,167.69 as compensation for all costs, fees and expenses paid and incurred in defending the suit and awarding defendants only $6,355.00. Condemnors excepted to that portion of the order which denied condemnors the right to refile their suit and to fix a reasonable time for refiling, and also insofar as the court awarded Scott the sum of $6,355.00. Plaintiff-condemnors have perfected an appeal from the judgment below on grounds that the trial court was without power to prohibit appellants from refiling their cause of action and to grant Scott a permanent order of possession as above stated; and that the trial court was without power to grant Scott an award of $6,355.00 as above; that there is no evidence to support such award and that the evidence is insufficient to support it. The appellee, Scott, also appealed as “cross-appellant” claiming by appropriate points of error or cross-points that the court erred in refusing to award Scott $23,167.00 in lieu of the $6,355.00 awarded, under the terms of Scott’s attorney’s fee contract. The parties will be referred to as Huntsville Independent School District, et al., appellants, and Frank Scott, appellee. At the outset, the attorney’s fee contract is not in evidence and is not properly referred to and proven in the statement of facts. However, appellee contends that Scott entered into a contract with his attorneys providing for a contingent percentage of the amount of value assessed by the jury, over and above that amount of money offered to Scott by condemnors, with a provision that should condemnors dismiss their cause of action after the value had been established, counsel would receive an undivided interest in the fee title of the property involved proportionate to the percentage that the dollar amount of the contingent fee bore to the total value established upon the property. Such interest is claimed to be an undivided .2514 interest in Scott’s property, if the contract actually so provides, and if everything else were completed and in order. The final establishment of value seems to be the key to this contract if the above is true. It seems to be well established in this State that a condemnor may elect to dismiss its condemnation proceedings at any time prior to judgment in the suit. In the present case the jury had returned a verdict on February 9, 1972, and motion for dismissal was filed the next day, February 10, 1972, at which time no judgment had been announced in open court, and no judgment had been entered. In order that the above rule might apply, there must have been no taking of possession of the involved property under and by virtue of acquiring the right to possession under an order in a condemnation proceeding or under an agreement with the condemnee pending the proceedings. City of Houston v. Biggers, 380 S.W.2d 700, 704 (Tex.Civ.App. — Houston 1964, writ ref’d n. r. e.); Rayburn, Texas Law of Condemnation, Sec. 215, p. 568 (1960). And see the many cases cited at p. 704 of the opinion in Big-gers. There was no interference with the owner’s possession here. While the question of “good faith” was mentioned in the Biggers case (p. 705), we think the condemnor’s right to dismiss its suit after verdict and before judgment exists regardless of the amount of the award fixed by a jury or a court when such is the reason given for dismissal. See Leonard v. Small, 28 S.W.2d 826, 828-829 (Tex.Civ.App. — Fort Worth 1930, writ ref’d). And see Tex.Rev.Civ.St.Ann. art. 3265, sec. 6 (1969). A condemnation suit is not an ordinary action. A condemnor may abandon its condemnation suit where the damages are too high in its opinion, unless it has done something which would estop it from such abandonment. See Fort Worth Concrete Company v. State, 400 S.W.2d 314, 316 (Tex.Sup.1966). Damages found by the jury amount to nothing more than an offer to sell the property to the condemnor for that price, which the condemnor may refuse if it thinks it too high. See Armendaiz v. Ray, 215 S.W.2d 210, 212 (Tex.Civ.App. — San Antonio 1948, no writ), and cases cited. However, in all civil suits the plaintiff may take a non-suit prior to a court’s decision or the time the jury begins deliberations. In condemnation cases, the plaintiff-condemnor simply has such right, or the practical equivalent thereof, after verdict and before judgment. Moreover, the court was empowered to grant a new trial if he had chosen to do so. While these rules in a condemnation proceeding may seem unfair, the rules seem to be well established, and public necessity probably requires such rights in favor of the con-demnor. The 61st Legislature in 1969 added sec. 6 to Tex.Rev.Civ.Stat.Ann. art. 3265, effective September 1, 1969, as follows: “Sec. 6. Where a plaintiff after appeal from an award, or after said proceeding has become a case for trial in court, desires to dismiss, abandon the proceedings, or refuse the jury verdict returned by the jury or by a court prior to entry of judgment, said plaintiff shall by motion be heard thereon, and the court hearing the same may as part of the terms of granting such motion, make an allowance to the landowner for reimbursement of his reasonable attorneys’ and appraisers’ fees, shown to have been incurred, and reimbursement for all necessary expenses incurred by the filing and hearing of such condemnation case to date of such hearing on said motions ; provided, however, plaintiff shall not be liable for any such fees or expenses in any case which may be dismissed upon its motion where such case is subsequently refiled, and where the court is advised by plaintiff in connection with any such motion that it intends to refile such case, a reasonable time for such refiling shall be allowed. All orders entered hereunder are appealable.” (Emphasis added) We think Section 6 above means that no attorney’s fees, appraisers’ fees, costs, etc. are allowed when notice is given to the court of intention to refile the suit, and the refiling actually occurs, the trial court then being required to set a reasonable limit of time for such refiling. It is plain to us that all reasonable attorney’s fees, costs, etc. are recoverable by a defendant in a final suit by a condemnor when such action as taken by condemnors in this case occurs. In effect, the con-demnor has rejected the “offer” of sale of the property at the price fixed by the jury in the present proceeding. While there must be a reasonable limit upon the number of times a condemnor may be entitled to dismissal under these circumstances, so far we see no unnecessary harassment. See University of Texas v. Morris, 344 S.W.2d 426 (Tex.Sup.1961). Exactly how the above would affect ap-pellee’s attorney fee contract we cannot determine at this time, nor need we determine such question here now. The contract is not in evidence. For the reasons above discussed, this case is reversed and remanded. The original petition for condemnation was filed with the county judge on February 25, 1971, and notice was served on March 5, 1971. We note that the case was tried in county court, and we point out that in a county such as Walker, where no county court at law exists, the District Court of Walker County now has jurisdiction in condemnation suits. See Tex.Rev.Civ. Stat.Ann. art. 3266a, effective June 9, 1971. The above jurisdictional statute excludes condemnation proceedings pending on June 9, 1971. This cause is remanded to the trial court with directions to set aside its present orders complained of and to enter an order allowing the condemnors a reasonable time to refile their action in condemnation, the time to be within the sound discretion of the county court. In the event such action is not refiled in District Court within the time provided by the county court, the county court shall apply Section 6, Tex.Rev.Civ.Stat.Ann. art. 3265, as it deems just and proper under the evidence after another hearing with notice in accordance with this opinion. Costs are assessed against the parties equally, one-half against condemnors and one-half against Scott. Reversed and remanded with directions.

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L. C. FULLER, Appellant, v. WALTER E. HELLER & COMPANY and Republic Equipment Leasing Corporation, Appellees. No. 17903. Court of Civil Appeals of Texas, Dallas. June 22, 1972. Rehearing Denied July 20, 1972. Tom C. Fuller, Dallas, for appellant. Francis W. Thayer, Storey, Armstrong & Steger, Dallas, for appellees. CLAUDE WILLIAMS, Chief Justice. This action was originally instituted in 1967 by Walter E. Heller & Company and Republic Equipment Leasing Corporation against Dalworth Machinery Company, Texas Construction Rentals, Inc., and L. C. Fuller, in which plaintiffs alleged default on the part of defendants in the payment of rentals under certain equipment lease contracts. Plaintiffs also alleged that certain described machinery, being the equipment leased to defendants, had not been returned to plaintiffs as required by the terms of the lease but that defendants had wrongfully retained possession of the property. Plaintiffs prayed (1) that they have money judgment against defendants for the amount of rentals due and that (2) defendants be restrained from retaining possession of such equipment and ordered to return the same to plaintiffs. Plaintiffs in the original action also filed their application for injunction in a separate pleading in which they alleged that defendants had moved all of the items of equipment sued for to a foreign country, namely the Republic of Mexico, and were deliberately keeping the property in Mexico in fraud of the rights of plaintiffs. Alleging an inadequacy of remedy at law plaintiffs asked the court to grant a temporary injunction restraining the defendants from “further keeping the property out of the State of Texas, the County of Dallas, and the possession of the Plaintiffs, and ordering the Defendants to return Plaintiffs’ property to them in Dallas County, Texas, pending the final determination of said suit now before the Court.” The matter came on to he heard by the district court on October 8, 1968 and the defendant corporations appeared through their president and chief executive officer, L. C. Fuller, who, acting pro se, agreed with plaintiffs through their attorney, that the court might proceed to hear all issues on the trial of the merits, including the request for injunctive relief. The court proceeded to hear the testimony and, on October 11, 1968, entered and signed two forms of judgment. In the first judgment the court granted plaintiffs judgment against the defendants for the various sums of money representing default payments on the lease agreements. In the second form of judgment entitled “Mandatory Injunction,” the court found that L. C. Fuller had possession and control of all of the items of personal property (with two exceptions) and that, as executive officer and president of the two defendant corporations, had failed and refused to return said property to plaintiffs. The order concluded: “IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the Defendant, L. C. FULLER, Individually and as President and Chief Executive Officer of the corporate Defendants herein, is enjoined and restrained from further retaining the above-described property in his possession and is hereby ordered and directed to return all of such property to the possession and control of the Plaintiff, REPUBLIC EQUIPMENT LEASING CORPORATION, to the yard of DARR EQUIPMENT COMPANY on Highway 183, in Irving, Dallas County, Texas, on or before the 10th day of November, 1968. “To all of which order the Defendants then and there in open court excepted, and gave notice of appeal.” No appeal was perfected from the judgment. On August 27, 1971 L. C. Fuller filed in the district court his “Motion to Dismiss Injunction,” in which he alleged partial compliance with the court’s prior order to return the equipment to plaintiffs but alleged that he has been unable to locate all of the equipment covered by the injunction so that it is impossible for him to further comply with the terms of such order. He prayed that the injunction be dismissed. The trial court determined that it was without jurisdiction to hear the motion and therefore dismissed the same. From this order Fuller appeals. From a careful reading of this record it is quite apparent to us that whereas the trial court actually signed two forms of judgment on October 11, 1968 that there was really only one judgment rendered by the court. When the case came on to be heard there were presented two questions, (1) the amounts of money sought by plaintiffs for breach of the rental agreement, and (2) the application for injunctive relief. The record reveals that at the beginning of the trial plaintiffs’ attorney requested the court to rule whether or not the trial was concerned only with the request for mandatory injunction, or whether it was a full and complete hearing on all issues before the court. The court advised that all issues would be decided and this was agreed to by the plaintiffs through their attorney and L. C. Fuller representing himself. Under these conditions it was perfectly in order for the court to proceed to hear the application for injunctive relief on the merits of the case and to render final judgment concerning both issues. This he did on the same date but in two forms of orders. Rule 301, Vernon’s Texas Rules of Civil Procedure, is specific that, “Only one final judgment shall be rendered in any cause except where it is otherwise specifically provided by law.” We hold that only one judgment was rendered which disposed of all of the issues and subject matter of the litigation. Appellant seeks reversal of the trial court’s refusal to hear his motion to vacate the injunctive order primarily upon the contention that such order was of such a nature as to give to the trial court continuing jurisdiction to change, alter or modify the same upon a showing of change in circumstances. He relies upon City of Tyler et al. v. St. Louis Southwestern Ry. Co. of Texas, 405 S.W.2d 330 (Tex.Sup.1966); Carleton v. Dierks, 203 S.W.2d 552 (Tex.Civ.App., Austin 1947); and Uvalde Paving Company v. Kennedy, 22 S.W.2d 1091 (Tex.Civ.App., Waco 1929). A careful analysis of each of these cases reveals distinguishing facts which, in our opinion, render the rule announced in those decisions inapplicable to the case now under consideration. In City of Tyler, supra, several residents of the City of Tyler instituted suit in the district court in which they sought to enjoin the St. Louis Southwestern Railway Company of Texas from removing its general offices, machine shops and roundhouses from the City of Tyler. The trial court, in 1906, issued a permanent injunction ordering and directing the railway company to keep and maintain its offices and machine shops in Tyler. Many years later the railway company sought to vacate, modify and suspend the judgment on the grounds of change of conditions and circumstances. The Supreme Court held that it did not have jurisdiction to hear the application for modification of the injunction but that the trial court did have such jurisdiction to vacate its judgment because of changed conditions. In Carleton, supra, a permanent injunction had been obtained restraining the use of an easement or roadway. In Uvalde Paving Company, supra, a permanent injunction had been issued restraining the sale of certain real property “under any execution that might thereafter be issued on said judgment.” Each of these cases clearly involved a permanent injunction that dealt with a continuing situation. Under such facts it is undoubtedly the law that the court granting such permanent injunction may retain jurisdiction to change, alter or modify the same depending upon the facts and circumstances subsequently shown to change the reason for the granting of equitable relief. In the case before us, however, the injunction issued by the court on October 11, 1968 was clear and definite in its terms. The order directed Fuller to return the equipment to a definite place in Dallas County, Texas on a definite date, to-wit, November 10, 1968. This order, unlike those set forth in the cases discussed above, was not one dealing with a continuing situation that would carry with it the continuing right of the trial court to change, alter or modify the decree upon a showing of change of conditions or circumstances. The order of October 11, 1968 became final and was not appealed. We think it is also apparent from this record that the relief granted on October 11, 1968 in the form of a “Mandatory Injunction” was in reality the granting of appellees’ original prayer for specific performance of the lease contracts. It is settled law in Texas that performance of a contract may be specifically enforced by an injunction restraining acts in violation of the contract, such being, in effect, a negative decree of specific performance. 52 Tex.Jur.2d, “Specific Performance”, § 5, pp. 524-525, and 31 Tex.Jur.2d, “Injunctions”, § 67, p. 145. As stated in the last cited authority the remedy of injunction is an indirect specific performance of the contract and is governed by the same principles as specific performance. See also Beckham v. Munger Oil & Cotton Company, 185 S.W. 991 (Tex.Civ.App., Dallas 1916); Municipal Gas Company v. Lone Star Gas Company, 259 S.W. 684 (Tex.Civ.App., Dallas 1924); National Life Company v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (Comm’n App., opinion adopted 1943); Aldridge Seed Farms v. Texas Centennial Central Exposition, 95 S.W.2d 1051 (Tex.Civ.App., Dallas 1936); and Pullman Palace Car Co. v. Texas & Pacific R. Co., 5 Cir., 11 F. 625 (1882). We construe the judgment of October 11, 1968 to be one of specific performance which judgment became final thirty days after the judgment since there was no motion for a new trial filed or appeal taken. Rule 329b, T.R.C.P. We have carefully considered appellant s points of error and find the same to be without merit and they are therefore overruled. The order of the trial court dismissing appellant’s motion for want of jurisdiction is affirmed. Affirmed.

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Wesley W. WEST et al., Appellants, v. HOUSTON LIGHTING & POWER COMPANY, Appellee. No. 15884. Court of Civil Appeals of Texas, Houston (1st Dist.). July 13, 1972. Joseph F. Molloy, Dickinson, William E. Watson, Jr., Houston, for appellant. McLeod, Alexander, Powel & Apffel, Robert W. Alexander, James L. Anthony, Galveston, for appellee. PEDEN, Justice. Landowners appeal from judgment based on jury verdict in suit brought by utility company to condemn an electric transmission easement strip 200 feet wide and containing 36.774 acres across a 941.89 acre tract. The jury findings of market values on the date of taking, March 19, 1969, were: 1) 36.774 acre strip, just before it was subjected to easement: $ 29,419.20 2) same strip, just after the taking of easement over it: 18,387.00 3) 905.116 acre remainder, just before easement was taken: 753,512.00 4) same remainder, just after easement was taken 724,092.80 A number of the appellants’ points of error amount to assertions that 1) there was no evidence to support the jury verdict and 2) the evidence was insufficient to support the jury verdict and the verdict was so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Appellants direct most of their attention to the first two special issues, particularly to the jury finding in response to Special Issue No. 2. The parties stipulated that the only matter at issue between them was the market value of the easement taken and the damages, if any, to the remainder not taken, so the burden of proof was on the landowners. We summarize the conclusions of the expert witnesses and the jury findings as to the market value of the 36.774 acre easement area: George L. Reed (Appellants’ witness) $56,425.00 $2,822.00 $53,603.00 Hank J. Thomas (Appellants’ Witness) $1600.00 per acre of $58,838.40 $50.00 per acre or $1838.70 $56,999.70 T. A. Waterman (Appellee’s witness) $27,580.50 or $750.00 per acre $13,790.25 or $375.00 per acre ' $13,790.25 Ralph W. Stamps (Appellee’s witness) $22,064.00 $7,355.00 $14,709.00 Sid Holderidge (Appellee’s witness) $20,225.00 $100.00 per acre or $3,677.00 $16,548.00 Jury answers $29,419.20 $18,387.00 $11,032.20 The only other evidence of a valuation of the entire tract was that given on 1969 tax statements by an agent of the appellants. It will be discussed later. Appellants complain that none of the witnesses testified that the value of the easement tract after the taking was as great as the jury found it to be and that none of the witnesses testified that the taking of the easement damaged the 36.774 acre tract as little as the jury found that it did. The problem before us is similar to that we encountered in City of Houston v. Ready, 370 S.W.2d 210 (1963, no writ). In that case we noted that a jury may ignore opinion evidence and draw its own conclusion from other evidence as to the ultimate issue of market value, citing Harris County Flood Control District v. Hill, 348 S.W.2d 806 (Tex.Civ.App.1961, writ ref., n. r. e.); Lee v. Briscoe Irrigation Co., 350 S.W.2d 894 (Tex.Civ.App.1961, writ ref., n. r. e.) and Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332 (1936). The question is whether there is other evidence sufficient to support the jury’s finding as to the market value of the 36.774 acre tract after it was made subject to the easement. See also Cannon v. State, 473 S.W.2d 325 (Tex.Civ.App.1971, no writ). We have reviewed the entire record in this case. In addition to the conclusions of the expert witnesses, which we have recited, we will notice only a part of the other evidence on which the jury might have based its second finding. Although each of the real estate appraisers based his expert opinion as to the market value of the 36.774 acre tract subject to the easement on the market data approach, none of them testified as to the sale of any tracts completely subject to electric transmission easements. This is not surprising, since sales of strips of land subject to such easements seem to be infrequent, but it is significant that they based their testimony as to this valuation solely on their respective opinions. The '941.89 acre tract is located near the northwestern corner of Galveston County. It is less than four miles south of Friendswood and is within the western boundary of the city limits of League City. Like most- of the other land within a radius of a mile or two, it is flat and has been used principally for rice farming, cattle grazing and a little truck farming. There was a degree of agreement among the expert witnesses that it is potentially suitable for development as residential subdivisions if population growth in the area continues and that meanwhile its agricultural use is the best method to offset some of the expense of holding it. There was testimony that except for the small part of the easement tract occupied and to be occupied by the towers supporting the condemnor’s transmission lines, the easement tract could continue to be used for growing rice. There is evidence in the record that on March 19, 1969, the landowners’ tract was already being crossed by two pipelines, a ditch, an irrigation canal, and another light company easement. The jury came closest to agreeing with the valuations of the 36.774-acre strip given by Mr. T. A. Waterman, a real estate appraiser and broker, both before and after that strip was subjected to the easement, but in both instances the jury’s valuation was higher than his. Its findings were that the pre-condemnation market value of the strip was approximately $52. per acre higher than his appraisal and that its post-condemnation market value was approximately $124, higher than his appraisal. Mr. Waterman was called as a witness by the condemnor, but the general rule is that a party does not vouch for the accuracy of opinion testimony and is not bound by what an expert says. Gulf, Colorado & Santa Fe Ry. Co. v. Abbey, 313 S.W.2d 108 (Tex.Civ.App. 1958, no writ); Brumit v. Cokins, 281 S.W.2d 154 (Tex.Civ.App.1955, writ ref. n. r. e.); Starks v. City of Houston, 448 S.W.2d 698 (Tex.Civ.App.1969, writ ref. n. r. e.). As the Texas Supreme Court stated in Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (1950), all opinion is at best something of a speculation and the question of market value is peculiarly one for the fact finding body, subject to the control of the court in the manner indicated in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). Under the evidence in our case the jury was entitled to balance such factors as the greater diminution in market value of the strip in the light of the possible future development of the land as a residential subdivision against the strip’s lesser diminution in market value based on its continued use as rice farming and cattle grazing land. Potential future residential development, probably dependent on the housing supply and demand in the area, will be influenced by many factors which are difficult to evaluate. Population growth in the area, attraction of new industries, highway construction in the area and in other directions from Houston and Galveston, availability of money for housing and other developmental costs, and the future condition of the economy are just a few of the matters which may bear on how much the strip of land was damaged by the taking. We conclude that from this evidence the jury was entitled to consider too low the opinion evidence of the appraisers as to the market value of the 36.774 acre tract after it was taken for easement purposes; also that the jury finding in response to Special Issue No. 2 is supported by sufficient evidence and is not so contrary to the great weight of the evidence as to be clearly wrong. For the same reasons we find no error in the trial court’s having entered a judgment based in part on the difference between the jury’s answers to the first and second special issues, since the jury’s first finding is clearly supported by the evidence. Appellants admit that the jury’s answers to Special Issues 1, 3 and 4 are within the range of the evidence elicited in the trial. Appellants present other points of error asserting that the trial court erred 15) in not allowing a reading of plaintiff’s petition in condemnation to the jury, 16) in not allowing it to be introduced into evidence, 17) in defining “permanent easement” in the charge so that the rights and reservations specified were different from those set out in the condemnor’s petition, 18) in entering judgment granting the same easement sought in condemnor’s petition but different from that defined in the charge and 19) in refusing appellants’ requested definition of the rights and reservations contained in the easement, which definition was identical to the wording of the condemnor’s petition and the judgment of the court. We have been unable to find in the record that the trial court refused to permit the condemnor’s petition to be read to the jury. It seems that appellants’ counsel read parts of it to a witness. We think the trial court did not err in sustaining an objection to the admission in evidence of the petition. The trial court did have the duty, by way of instruction in the court’s charge, to explain the rights of the parties under the particular easement being sought. White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (Tex.1969); Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958). We overrule the appellants’ fifteenth and sixteenth points of error. Appellants’ points of error 17 through 19 show reversible error only if there is a difference in substance between the permanent easement as defined in the court’s charge and that awarded in the judgment. The appellants point out that the court’s charge defined permanent easement as “the right to use the land for the purpose of construction, operation, maintenance and servicing electrical transmission and distribution line or lines, together with structures, apparatus and appurtenances thereto for the purpose of supplying the public with electric current, power and energy, reserving to the owners in addition the rights reserved as a matter of law the following specific rights with reference to such property: “1. Any and (sic) oil, gas or other minerals in, on or under such land. “2. The right to fully enjoy said premises except as may be inconsistent with or interfere with the right and privileges necessary to Plaintiff in the construction, maintenance, replacing, removing and operation of said lines. “3. Plaintiff shall have no right to pass back and forth across Defendants land outside the 200 feet easement area and shall have only the limited right of ingress and egress through the 200 foot easement area, and no right of ingress or egress through the remaining lands of the Defendants without making just compensation for the use of Defendants remaining lands. “4. Plaintiff shall have no right to fence or enclose said land or to use it for any purpose other than as aforesaid, and the right of Defendants and subsequent owners of said land to pass back and forth across the easement area on foot or in vehicles, to cultivate or landscape the same, to raise crops or gardens thereon, or to use it for recreational or any other purposes not inconsistent with Plaintiff’s use of the land as aforementioned, shall not be obstructed or interfered with, except to the extent above stated. “5. The Defendants and all subsequent owners of the land shall have the right to lay out, dedicate, construct and maintain roads, streets, alleys, railroad tracks, underground communication conducts, and gas, water, and sewer pipelines across the easement area provided. “6. The Defendants and all subsequent owners of the land shall have the right to erect fences across and upon the easement area, provided all such fences have gates, openings, or removable sections which will permit reasonable access to all of said easement area, and further provided that such fences shall not be placed along, as distinguished from across the said easement.” Appellants complain in particular that they were prejudiced in that the court’s charge did not advise the jury that the landowner cannot erect buildings or other structures (except cross fences) on the easement but that the judgment did so provide. We think that under the trial court’s definition of “permanent easement” the rights of the condemnor in its use of the easement are shown to be such that it would be inconsistent with such rights for the landowner to be permitted to erect buildings or similar structures on the right-of-way. Further, the evidence introduced in the trial court was that “the landowner cannot build any buildings or structures on this easement,” but that he can build a fence. Appellants also point out that the court’s charge advised the jury that the condemnor cannot fence or enclose the land, while the judgment was silent as to this matter. In Aycock v. Houston Lighting & Power Co., 175 S.W.2d 710 (Tex.Civ.App.1943, writ ref. w. o. m.), we held that it was proper to so advise the jury; the owner of the easement has no statutory or common law right to build fences along the sides of the right-of-way unless it acquires that right in the condemnation proceedings. It is not necessary to spell this out in the judgment, but to do so would not be erroneous. There were other inconsistencies between the definition of the permanent easement in the court’s charge and the provisions concerning it in the judgment. We have examined each one. While it would have been better to have avoided those differences, they were minor ones, and we hold that the error, if any, was harmless. The appellants next assert that the trial court erred in allowing into evidence, over objection, testimony that the condemnor put the easement to a lesser use than that permitted under its petition, and in failing to charge the jury as requested by the appellants that “you are instructed to consider, in answers to the special issues, the fullest possible use of the ‘permanent easement,’ as defined in this charge by the condemning authority, Houston Lighting & Power Company.” On June 28, 1972, while this case was on appeal to this court, the Supreme Court of Texas in City of Pearland v. Alexander, 483 S.W.2d 244, held that a somewhat similar jury instruction was improper as a comment on the weight of the evidence. We have examined the testimony complained about in our case. Although a little of it was hearsay, and thus improper, we construe the bulk of it to constitute evidence of what the utility company’s reasonably foreseeable and probable uses of the condemned tract would be, and thus proper under City of Pearland v. Alexander, supra, rather than evidence of promises or representations that the physical structures erected on the condemned tract after the taking and before the trial would not be increased in the future. Testimony of the latter type is not permitted under the rule announced in Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App.1941, writ dism.). We have examined the entire record in this case and consider that even if the admission of such testimony was error, it was harmless. Rule 434, Texas Rules of Civil Procedure. The appellants’ next points of error are that the trial court erred in allowing 22) continued questioning of appellant Wesley W. West in regard to tax assessments and renditions by the Galveston County Tax Assessor and Collector as to the valuation of the property in question on the tax rolls of Galveston County and 23) in allowing, over objections, the testimony of a deputy tax assessor and collector as to the valuation put on the property by his superior. We overrule these points of error. Exhibits 38, 39 and 40 introduced by the con-demnor were the 1969 “Inventory of Property” of the three tracts which made up the subject property in this case, and they were the subject-matter of the testimony complained about in these two points of error. They were signed by William R. Crain; the parties stipulated that he was the duly authorized agent of Mr. Wesley West to sign and execute tax rendition forms for him. Appellants assert that these forms do not amount to renditions, but the exhibits and evidence at least show that Mr. West acquiesced in the placing of an assessed value on the land amounting to about $37. per acre. There was evidence that property in Galveston County is placed on the tax rolls at 25% of its value. We find no error in the questioning of Mr. West as to whether he knew the assessment ratio employed in taxing land in Galveston County, and as to the value it was rendered for. He testified that he did not know the answer to either inquiry. Questions do not constitute evidence, and the ones asked were not prejudicial. It would have been hearsay and improper to have shown by the deputy tax collector the valuation placed on the property by the tax collector, had no other evidence been offered on the subject. However, when Mr. West, through his agent, left these figures unchanged instead of substituting others for them when he caused the inventory to be filed, this was a rendition and amounted to an adoption of the tax collector’s valuation or an acquiescence in it. McFaddin v. State, 373 S.W.2d 259 (Tex.Civ.App.1963, writ ref., n. r. e.). It is settled that renditions for taxation are admissible as declarations and admissions against interest for the purpose of showing value. 22 Tex.Jur.2d 416, Eminent Domain § 295; State v. Stiefer, 443 S.W.2d 275 (Tex.Civ.App.1969, writ ref. n. r. e.) ; Medrano v. City of El Paso, 231 S.W.2d 514 (Tex.Civ.App.1950, no writ) and cases cited. “In general it may be said that any statement made by a party or on his behalf which is inconsistent with his present position is receivable as an admission.” 2 McCormick & Ray, Texas Law of Evidence 29 (2nd ed.), § 1141; Culver v. State, 324 S.W.2d 921 (Tex.Civ.App.1959, no writ). Appellants’ last point of error is that the trial court erred in refusing Wesley W. West’s application to represent himself in the trial. This point is based on Rule 7, Texas Rules of Civil Procedure, which provides: “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” We overrule this point. Mr. West was represented by competent counsel. The rule does not require that he be permitted to prosecute his rights both in person and by an attorney of the court. The record does not disclose that he was restricted in communicating with his attorney. Instead, it shows that he voluntarily absented himself from the court as soon as he left the witness stand early in the trial. 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

CITIZENS OF TEXAS SAVINGS & LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner et al., Appellees. No. 11908. Court of Civil Appeals of Texas, Austin. July 5, 1972. Rehearing Denied July 26, 1972. Heath, Davis & McCalla, Dudley D. McCalla, Austin, for appellants. Crawford C. Martin, Atty. Gen., Ralph R. Rash, Bill Flanary, Asst. Attys. Gen., Jacobsen & Long, Joe R. Long, Gary Evatt, Austin, for appellees. PHILLIPS, Chief Justice. This suit was filed in the District Court of Travis County to set aside an order of the Savings and Loan Commissioner, granting a charter for a savings and loan association to be located in Baytown, Harris County, and to be named Baytown Savings Association. The District Court overruled Appellants’ procedural objections and entered judgment sustaining the Commissioner’s order. Hence this appeal. We affirm. Appellants first complain that the trial court erred in failing to hold the Commissioner’s decision -and order invalid for his failure to set out a concise and explicit statement of underlying facts alleged to support the findings of “public need,” volume of business in the community such as to indicate profitable operation, and that operation of the proposed association will not “unduly harm” any existing association. We overrule this point. Section 11.11(4) of the Texas Savings and Loan Act, Art. 852a, Tex.Rev.Civ. Stat.Ann. provides as follows: “A decision or order adverse to a party who has appeared and participated in a hearing shall be in writing and shall include findings of fact and conclusions of law, separately stated, on all issues material to the decision reached. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.” Under the Texas Savings and Loan Act the Commissioner must make findings relative to public need, volume of business in the community such as to indicate profitable operation and that the proposed operation will not “unduly harm” any existing association. Section 11.11(4) of the Act requires “a concise and explicit statement” of the underlying facts supporting the findings. The Commissioner’s order contains affirmative findings on the standards of “public need,” “volume of business” and that existing institutions would not be unduly harmed. The part of the Commissioner’s order which purports to set out the underlying facts reads as follows: “The service area of the proposed association is the city of Baytown and the surrounding areas in Liberty, Chambers, and eastern Harris Counties. The city of Baytown has traditionally been a trading center for this area. Baytown has had a substantial increase in population since the 1960 census. The Commissioner is of the opinion and finds that the current population of the service area is at least 60,000 persons. The economy of Baytown is industrially based with the petrochemical industry being of major importance. The prospects of industrial growth and expansion in the Baytown area are excellent. The United States Steel Company recently acquired a 14,000 to 16,000 acre tract near Baytown. The company is currently constructing a large new steel mill on this site. The facility is expected to begin production this year. Within one year after this plant begins production, it will employ an estimated 1,000 to 1,200 persons. In addition to providing increased employment opportunities, the plant is very likely to attract substantial satellite industries and businesses. Houston Light and Power Company is constructing a new generating plant in the area, and the telephone company in Baytown has recently expanded its facilities. Two new commercial banks have opened for business in Baytown since the first of the year. The city now has five commercial banks and two savings and loan associations. The city of Baytown has responded progressively to the growth of the community and is preparing for anticipated future growth. In 1965 the voters of Baytown approved a $5 million bond issue for public improvements. Several citizens committees have recently conducted a study of the present and future needs of the city and have recommended the submission of several large new bond issues to the voters of the city. The economic data presented at the hearing demonstrates the pattern of growth in the community. Population levels, bank and savings and loan deposits, and utilities connections have increased substantially in recent years, and income levels in the area are high. Savings adequate to support a new association in the community are available. Residential construction activity is, and has been for several years, at high levels in the Baytown area. Both single and multi-family residential development are occurring. The testimony of various witnesses and the building permit data indicate a large and increasing demand for residential mortgage lending funds. The already large demand for such funds is very likely to be accelerated by the growth of the area. The two existing associations in Bay-town are strong, profitable, growing institutions. At the time of the hearing, one of these associations had total assets of approximately $20 million and the other, total assets in excess of $30 million. The new association will provide a needed competitive alternative to serve the public in the area without unduly harming either of these, or any other existing associations.” After the Commissioner's order was entered, Appellants filed a Motion for Rehearing with the Commissioner who entered the following order overruling the motion: “With regard to Ground 11, the Commissioner is convinced that the original order herein contains a sufficient statement of the underlying facts supporting the findings as to public need, profitable operation, and no undue harm to other associations. However, the Commissioner notes and finds that the statistical data before him indicating growth and prosperity were impressive. From year-end 1965 to year-end 1968 total savings in the two existing associations located in Baytown increased $9.5 million — from $35.5 million on the former date to $45.0 million on the latter date. During the same period total deposits in the commercial banks located in Baytown increased by $28 million — from $43.8 million at year-end 1965 to $71.8 million at year-end 1968. The population of the city of Baytown increased from approximately 29,000 in 1960 to approximately 50,000 in 1969. An estimated 40 percent of the households in the trade area have an annual income of $10,000 or more. Building permit data for the city of Baytown indicates the high level of residential construction activity: Dollar Value Year Number $1,000⅛ 1965 123 $ 1,900 1966 154 2,400 1967 269 4,400 1968 226 4,100 1969 (3 mos.) 84 1,300 Ground 11 is overruled." Appellants complain that both orders set out above, when touching upon the relevant issues to be determined, resort to vague and “general conclusionary language” rather than underlying facts. In this respect Appellants point to the conflicting testimony on the availability of savings and contend that neither order tells “why” the order contains the conclusion that “savings adequate to support a new association” are available. The mere presence of a generalization in the order does not render it invalid. Basic facts by their very nature are often in the form of “generalizations” or “conclusions.” Professor Davis describes findings of “basic” or “underlying” facts as: “The basic findings are those on which the ultimate finding rests; the basic findings are more detailed than the ultimate finding but less detailed than a summary of the evidence” Davis, Administrative Law Treatise, Sec. 16.06, p. 451 (1958). In Nixon v. Gerst, 412 S.W.2d 701 (Tex.Civ.App.1967, writ ref’d n. r. e.) this Court considered the underlying facts in the Commissioner’s order necessary to support the ultimate findings of public need, profitable operation and absence of undue harm. The order in Nixon, supra, was less detailed, and the conclusions were as general in nature as the ones here, however, we sustained the “order. As was stated by the Supreme Court of the United States in Colorado Interstate Gas Co. v. F. P. C., 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945): “The findings of the Commission in this regard leave much to be desired since they are quite summary and incorporate by reference the Commission’s staff’s exhibits on allocation of cost. But the path which it followed can be discerned. And we do not believe its findings are so vague and obscure as to make the judicial review contemplated by the Act a perfunctory process.” (Emphasis added) It is difficult under the administrative practice of this State as developed by the various agencies, by the Courts, and by reference to the pertinent statutes to neatly bundle evidence in separate categories labeled “basic or underlying facts” or “ultimate findings.” In Gerst v. Nixon, 411 S.W.2d 350, at 358 (Tex. 1966) the Court defined “public need” in the following manner: “ . . .a substantial or obvious community need for the proposed association in the light of attendant circumstances, as distinguished from a mere convenience on the one hand and an absolute or indispensable need on the other.” In Gerst v. Goldsbury, 434 S.W.2d 665 (Tex.1968) in speaking to — “public need,” the Court held: “The resolution of this question necessarily encompasses all the relevant circumstances disclosed by the evidence presented to the Commissioner, including, but not limited to, the adequacy of the services of the existing institutions whose facilities are available to the residents of the community area proposed to be served.” The Commissioner’s finding that “Savings adequate to support a new association in the community are available” is not the only finding in the order relating to savings availability. Savings is in the most basic sense a function of people and money. The basic findings of the Commissioner relating to savings availability include at least the following: the number of people in the community to be served; the growth in population in the community in the past and the outlook for future growth in population; the percentage of households in the community with annual income of $10,000 or more; the assets and general operating condition of existing savings and loan associations; and, the basis of the economy and the outlook for future economic growth and development. The order before us has findings with respect to each of these matters which may well be considered basic or underlying to the general conclusion reached with respect to adequacy of savings. The order comports with the following statement of the law found in Cooper, State Administrative Law, p. 472: “The general test imposed by the state courts as a basis for judging the adequacy of the findings of fact reflects the purposes underlying the requirement that there be such findings: viz., to apprise the parties of the reason for the decision, and to enable the reviewing court to determine whether the evidence supports the findings of basic fact and whether they in turn reasonably support the inferences of ultimate fact and the conclusions of law derived therefrom.” In this connection see Alamo Express, Inc. v. Railroad Commission, 407 S.W.2d 479 (Tex.1966). The record reflects conflicting testimony on the availability of savings in the area to be served and often the basis used by the witnesses to arrive at specific amounts of savings available are sometimes nebulous and inconclusive. The Legislature has designated the office of Commissioner as possessing a certain expertise in these matters. He is not required to accept the conclusions of any witness, and is entitled to hear and analyze the underlying data and form his own conclusions. See Gerst v. Gibraltar Savings Association, 413 S.W.2d 718 (Tex.Civ.App. 1967, ref. n. r. e. 417 S.W.2d 584); Gerst v. Adam, 403 S.W.2d 832 (Tex.Civ.App. 1966, no writ); Strain v. Lewis, 461 S.W.2d 498 (Tex.Civ.App.1971, writ ref’d n. r. e.). The other findings of the Commissioner about which Appellants complain is: “The new association will provide a needed competitive alternative to serve the public in the area without unduly harming either of these [the two existing associations in Baytown], or any other, existing associations.” Appellants’ contention is that this statement infers a lack of service by existing associations or a lack of competition among them. In his order, the Commissioner characterizes these two associations as “strong, profitable, growing institutions.” The statement about the need for an additional association relates purely to public policy. The determination of how many differing competitive alternatives an industrial community of 60,000 needs is manifestly a matter of policy and judgment which lies in the discretion of the Commissioner. Benson v. San Antonio Savings Association, 374 S.W.2d 423 (Tex.1963). In State Banking Board v. Airline National Bank, 398 S.W.2d 805 (Tex.Civ.App.1966, writ ref’d n. r. e.) this Court recognized the desirability of competition. The law does not require that applicants for a charter establish that existing associations are not adequately serving the public in the community. Gerst v. Houston First Savings Association, 422 S.W.2d 514 (Tex.Civ.App.1967, no writ), Spring Branch Savings & Loan Association v. Gerst, 420 S.W.2d 618 (Tex.Civ.App.1967, writ ref’d n. r. e.). The finding that an additional competitive alternative is needed or desirable carries with it no inference of “inadequate” service. There is no requirement as Appellants suggest, that the Commissioner make a basic finding on “adequate” or “inadequate” service. Appellants next complain of the action of the Commissioner in entering his order and in overruling Appellants’ motion for rehearing without ruling on Appellants’ objections to the admission of certain evidence, and the error of the trial court in admitting the evidence not ruled on by the Commissioner. We overrule this contention. The evidence objected to consisted of a recitation by a proposed director of the proposed association of statements of other persons about stock sales of, and their feelings toward, the proposed association. Appellants also objected to statements read from a newspaper by opposing counsel. Counsel for appellants further objected to portions of an economic report of an expert witness being read into the record, not by the expert, but rather by counsel. At the time of Appellants’ objections, the Commissioner was not presiding, and the hearing officer deferred ruling on the objections, advising that the Commissioner would rule at a later time. The Commissioner never ruled on Appellants’ objections, prior to the entry of his order. He did overrule Appellants’ motion for rehearing which contained Appellants’ complaint about his failure to rule. In a conventional trial, one who objects to evidence must secure a ruling from the court on his objection in order to preserve the point for appellate review. See Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App.1963, no writ). In that connection one making an objection is entitled to an immediate ruling admitting or excluding the evidence either absolutely or conditionally so that he may know what evidence on his part will be needed in explanation or rebuttal. McCormick and Ray, Texas Law of Evidence, Vol. I, p. 29. We are of the opinion that the same rules should be applicable in a charter hearing before the Savings and Loan Commissioner. This is especially true since under the present statute the record made before the Commissioner is conclusive. As Appellants never obtained a ruling their complaint is not before this Court. Appellants by a group of points next claim that the Commissioner and the trial court erred in admitting certain evidence characterized by them as hearsay. The testimony complained of was given by Mary A. Grigsby, John W. Beck, Eldon Berry, and E. V. Muller. While Appellants claim error with respect to the admission of the objectionable testimony of each person, they seem to emphasize their objections to certain testimony of Mary A. Grigsby and John W. Beck. Mary A. Grigsby was permitted to testify over objection that several persons just passing by had come into the office and stated that they were not able to secure loans “over eighty percent.” The Commissioner permitted John W. Beck to testify from a newspaper story in The Bay-town Sun, and from what he had been told by persons employed by U. S. Steel that the company had spent approximately 150 million dollars for the “Texas works.” The testimony of Mary A. Grigsby and John W. Beck alluded to above was hearsay, and Appellants’ objections to that testimony should have been sustained. However, from an examination of the record as a whole, we are unable to say that the admission of the hearsay testimony was harmful because, disregarding the hearsay evidence, we are of the opinion that the Commissioner’s order was still supported by substantial evidence. Appellants further complain that the Commissioner’s order reveals that in addition to the “evidence and statements of counsel” the Commissioner “heard” and considered the applications of Houston First and the Charter Applicants, as well as some “official records,” presumably of the Savings & Loan Department. But that at no point during the hearing were the applications themselves or any “official records” of the Department introduced in the record so that Appellants could test, challenge, or rebut the information contained therein. Appellants contend, and we would have agreed with this contention had we found it to have had merit under the facts before us, that the Commissioner “Can’t go to his own sources and base his decision on that information unless in some manner he makes it a matter of record so that it may be tested by cross-examination or other methods of testing the evidence.” But such is not the case before us. At the outset of the administrative hearing, the Commissioner, as is customary in such proceedings, officially noticed that the proceeding was a consolidated hearing on the application for a branch office of Houston First Savings and in the application for a charter for the proposed Baytown Savings Association. The Commissioner also took official notice of the “proper filing” of the plications, the conformity of the applications to the applicable provisions of statute and rule, publication of notice of hearing, the mailing of notice of hearing, the mailing of notice of hearing to area associations, and the receipt of protest. By statutory definition, the articles of incorporation and the by-laws are part of the “Application,” Tex.Rev.Civ.Stat.Ann. art. 852a, Section 2.01, and the charter application form prescribed by the Savings and Loan Department requires those documents to be attached to the application as a part of it. The Commissioner also took official notice of his other official records relating to the application — the articles of incorporation and by-laws. Through the process of official notice, the applications and official records of the Commissioner became a part of the record in this matter. The Court stated in Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966) that, absent the unconstitutional portion, the effect of the statute is “to adopt the rule that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing.” An application is required to invoke the jurisdiction of the Commissioner, and he cannot any more render a decision without considering the application, a part of his “official records,” than a trial judge can render a judgment without considering the pleadings. Tex.Rev.Civ.Stat.Ann. art. 852a, Sections 2.07, 2.08. Given that the Commissioner could properly consider the application and his official records, mentioned above, for the purpose of determining that his jurisdiction to decide the issues of public need, profitable operation, and undue harm had been properly invoked, the Courts presume that the Commissioner performed his duties in compliance with the law, and the burden is upon Appellants to establish that he did not. Gulf Land Company v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Kavanaugh v. Underwriters Life Ins. Co., 231 S.W.2d 753 (Tex.Civ.App.1950, writ ref’d). The existence of the official records in question was made known to Appellants by official notice at the hearing, and the Appellants had the opportunity, of which they availed themselves, to examine, test and challenge those materials. These records were officially noticed and presumably considered only for a proper purpose. In their final point Appellants complain that the trial court erred in holding the order and decision, the findings of public need sufficient volume of business, and the absence of undue harm, were reasonably supported by substantial evidence. We overrule this point. Under this point Appellants have called this Court’s attention to a single discrepancy in one of the basic findings made by the Commissioner. This finding states: “from year-end 1965 to year-end 1968 total savings in the two existing associations located in Baytown increased $9.5 million from $35.5 million on the former date to $45.0 million on the latter date.” Appellants maintain that the report from which these figures were taken actually stated that the 1965 year-end savings were $33.5 million and not $35.5 million. That the order cannot stand inasmuch as one of the basic findings made by the Commissioner is patently erroneous. Section 2.08 of the Texas Savings and Loan Act, prescribes the standards which applicants must satisfy before the Commissioner grants a charter to establish a savings and loan association. The pertinent standards are: the existence of a public need for the proposed association; the existence of a sufficient volume of business in the community in which the proposed association will operate to indicate a profitable operation for the association; and the negation of undue harm resulting to existing associations from operation of the proposed association. We cannot agree with Appellants’ position that a probable error in the Commissioner’s finding, such as the one before us, renders the order and decision invalid. Under Section 11.11(4) of the Act the ultimate findings of the Commissioner must have support from a review of the entire record. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1962). Thus, considering the record as a whole, we are of the opinion that the Commissioner’s finding on the necessary savings available is reasonably supported by substantial evidence. Texas Aeronautics Commission v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex.1970). The Supreme Court has held that absolute accuracy is not necessary where an order is supported by a reasonable basis in fact and a pattern is furnished by which rights can be determined. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). The order is presumptively supported by substantial evidence. Appellants have not undertaken to point out to us where it otherwise lacked the required evi-dentiary support. The substantial growth of Baytown and its prospects for future growth are not matters of serious dispute. From 1960 to 1968 population increased by 60'%. During the same period, savings shares in savings and loan associations increased by more than 320%, and commercial bank deposits increased by approximately 150%. U. S. Steel’s new plant being built at the time of the hearing was huge and had already attracted a number of service industries. The realities of the mortgage lending market in Harris County and Bay-town are well known. Harris County is an importer of mortgage funds. Borrowers must go outside the area to obtain funds because the area is growing so rapidly. The need for such funds in the Baytown area is immediate and is likely to increase. There are very few houses either to rent or buy at the present time. With the increase in population likely to be generated by new basic employment possibilities, the shortage will become more acute. We affirm the judgment of the trial court. Affirmed. . This case originally involved an application by Houston Hirst Savings Association of Houston for a branch office in Bay-town, which application was consolidated with the hearing on the charter application. After the hearing but prior to the Commissioner’s decision, Houston First withdrew its application, and the Commissioner thereafter entered his orders of October 7, 1969, approving the charter application, and November 6, 1969 overruling Appellants’ Motion for Rehearing. . Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966); Substantial Evidence and Insubstantial Review in Texas, 23 SWLJ 239, Justice Tom Reavley; Administrative Law Treatise, Davis, Section 15:10; Elizabeth Federal Savings and Loan Association v. Howell, 24 N.J. 488, 132 A.2d 799 (1957).

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John Garland TUCKER et al., Appellants, v. Fred SOLIZ et ux., Appellees. No. 15934. Court of Civil Appeals of Texas, Houston (1st Dist.). June 22, 1972. Rehearing Denied July 20, 1972. Urban, Coolidge, Pennington & Scott, Bryan W. Scott, Carlyle W. Urban, Houston, for appellants. Burke Martin, Bruce L. James, Houston, (Saccomanno, Clegg, Martin & Kipple, Houston, of counsel), for appellees. COLEMAN, Justice. This is a suit to enjoin an alleged violation of the deed restriction against multiple housing in Southampton Place Addition, Houston, Texas. Mr. and Mrs. Soliz purchased a lot in said Addition which was improved with a main residence to which there was attached by a breezeway a garage apartment. Sometime thereafter the garage apartment was torn down and rebuilt. The new improvements were larger, but were built at the same place and according to the same general plan. This structure contained complete facilities for living quarters and a garage. It was connected with the main house by a breezeway. At the time of the trial it was occupied by the parents of Mrs. Soliz, Mr. and Mrs. Wilfred Navarro. The utilities and telephone for Mr. and Mrs. Navarro are separate installations from those for Mr. and Mrs. Soliz. There are also separate mail boxes. The lot in question is located at the corner of Wrox-ton and Wilton Streets. Prior to the trial Mr. Navarro had used a Wilton Street address, while Mr. Soliz used a Wroxton address. Mr. and Mrs. Soliz have two children. In addition to Mr. and Mrs. Navarro, Demetrius Navarro, the fifteen year old brother of Mrs. Soliz, lives on the property. At the time of the trial he was in the main residence. Another of Mr. and Mrs. Navarro’s children lived on the premises at the time suit was filed, but she had moved at the time of the trial. Mr. Navarro is a retired business man, and has no retirement income. There is no evidence that his daughter and son in law charge him rent. Mr. and Mrs. Soliz pay all the utility bills. Mr. and Mrs. Navarro, their minor son and daughter all lived on the premises prior to the reconstruction of the garage apartment. The son and daughter sometimes would sleep in the main house and sometimes in the quarters occupied by their mother and father. Mrs. Soliz testified that she and her children were in the garage quarters daily. On the second level there was one big room, which she called the den. It also contained kitchen and dining facilities, a bar, closets and cabinets. A large dining table was located in the middle of the room, which, according to Mrs. Soliz, “takes care of all of us.” On being questioned as to whether her father was a man of independent nature, Mrs. Soliz stated: “My dad lived with me.” Appellants contend that the only question presented in this case is whether there are two families living in two separate households or only ⅝ single family living as a single household. They state that they do not complain of the failure of the trial court to require appellees to remove the garage building “but only seek an injunction to prohibit use of the garage building for a second family.” In Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958), the Supreme Court reviewed previous cases construing the restriction against multiple housing here involved and approved the provisions holding that the lots in the addition were “restricted to the exclusive use of a residence of a single family.” The court then considered the meaning of the term “single family” and, referring to Rudy v. Southampton Civic Club, 271 S.W.2d 431 (Tex.Civ.App. — Waco 1954, writ ref., n. r. e.), stated: “In the Rudy case . . . the opinion approved the instruction of the trial court that the word family includes ‘parents, children and domestic servants.’ That definition is entirely too restrictive, and we do not approve it. It would exclude a dependent mother or an invalid brother or sister.” The court then considered what should be included in a family and said: “Webster’s New International Dictionary, 2d Edition, 1935, has this definition of the word family: ‘a household, including parents, children, and servants, and as the case may be, lodgers or boarders.’ ” The evidence shows only that Mr. and Mrs. Soliz have included within their “household” the mother, father and brother of Mrs. Soliz. Appellants did not produce evidence to establish a violation of the restriction against multiple housing. The judgment of the trial court is affirmed.

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Ramon LOZANO et al., Appallants, v. The PATRICIAN MOVEMENT et al., Appellees. No. 15068. Court of Civil Appeals of Texas, San Antonio. June 21, 1972. Rehearing Denied July 26, 1972. Tracy & Cook, John D. Wennermark, San Antonio, for appellants. Patrick J. Kennedy, San Antonio, for appellees. BARROWS, Chief Justice. This is an appeal by Ramon Lozano and ten other individuals, hereinafter sometimes referred to as appellants, from an order of dismissal of their suit upon a plea of res judicata or moot controversy filed by The Patrician Movement and Father Dermot N. Brosnan, hereinafter sometimes referred to as appellees. In 1970, The Patrician Movement, a non-profit corporation, was conveyed an 11-acre campus, formerly known as St. John’s Seminary, where Father Dermot N. Brosnan proposed to operate a narcotics rehabilitation program. On September 14, 1970, Lozano et al filed their petition in Cause No. F-227,864 seeking a temporary and permanent injunction against such proposed use as well as a declaratory judgment that such use was in violation of City of San Antonio Zoning Ordinance, Section 42-48, and further no Certificate of Occupancy had been issued by the City. On October 8, 1970, the trial court dismissed Lozano’s application for injunctive relief. Such order of dismissal was appealed and transferred by the Supreme Court to the Court of Civil Appeals for the Ninth Supreme Judicial District under an equalization order. On May 6, 1971, the Ninth Court of Civil Appeals affirmed the trial court’s order of dismissal of the application for injunctive relief. This left pending in Cause No. F-227,864 only the Lozano et al claim for declaratory relief. In the meantime, on October 8, 1970, The Patrician Movement was granted a Certificate of Occupancy by the City for the use of such premises “for the continuing operation of a school” to be known as La Villita de San Patricio as authorized by the zoning ordinance. On October 30, 1970, the Board of Adjustment set aside the Certificate of Occupancy because the plan of use was not compatible with the definition of “school” contained in the city ordinance. The Patrician Movement filed a petition in the nature of a writ of certio-rari to set aside the order of the Board of Adjustment and for issuance of a Certificate of Occupancy which petition was docketed as Cause No. F-229,901. On November 30, 1970, Lozano et al intervened in Cause No. F-229,901 and sought to uphold the order of the Board of Adjustment. Lozano et al alleged in such petition in intervention that intervenors were property owners in the neighborhood and would be adversely affected by operation of La Vil-lita de San Patricio. On June 29, 1971, The Patrician Movement filed a motion to strike said intervention wherein it was urged that intervenors were not proper or necessary parties and their presence would complicate the issues. On July 8, 1971, such motion was granted, and the petition in intervention was stricken from Cause No. F-229,901. On the same date, judgment was entered in said cause whereby the trial court decreed that the order of the Board of Adjustment was illegal and void and further ordered that the Certificate of Occupancy of October 8, 1970, be reinstated and declared to be valid and effective. The Board of Adjustment did not appeal from this judgment of July 8, 1971, in Cause No. F-229,901, and it is now a final judgment. On October 29, 1971, The Patrician Movement and Father Brosnan filed a motion to dismiss Cause No. F-227,864, wherein it was urged that since the final judgment of July 8, 1971, in No. F-229,901 had determined that the property was being occupied under a valid Certificate of Occupancy, the question of a declaratory judgment was moot, and further the question regarding declaratory relief had been settled by prior judgment and is therefore barred by res judicata. Lozano et al filed a verified answer to this motion to dismiss wherein it was averred that these parties had suffered special damages peculiar to themselves and would suffer irreparable injuries, damages and losses by reason of the manner of use of the property by ap-pellees. On November 12, 1971, the trial court, after consideration of the records in Causes No. F-229,901 and No. F-227,864, entered an order of dismissal of Cause No. F-227,864, and Lozano et al have timely perfected this appeal. We first consider whether appellants’ cause of action in No. F-227,864 is barred by the doctrine of res judicata. In order for a judgment in one suit to bar the bringing of a subsequent suit, there must be: identity in the thing sued for; identity of the cause of action; identity of persons and parties to the action; and identity of quality in the persons or parties. Owsley v. Mixon, 382 S.W.2d 354 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.) ; Agey v. Barnard, 123 S.W.2d 484 (Tex.Civ.App.— Amarillo 1939, writ dism’d, judgm. cor.) ; 34 Tex.Jur.2d, Judgments, Section 492. In Owsley v. Mixon, supra, it was held that the doctrine of res judicata did not bar a suit by neighbors for damages allegedly caused by violation of the city zoning ordinance although relief had been denied in a prior suit brought by neighboring property owners (including plaintiffs in second suit), to set aside a decision of the Board of Adjustment granting a variance permitting the erection of the very buildings complained of in the second suit. It was held that there was not that identity of parties or identity of causes of action required for operation of the doctrine of res judicata. Furthermore, the standards and rules governing the proof of the two causes of action were entirely different since the substantial evidence rule prevailed in the appeal from the administrative order while plaintiffs must prove their case by the preponderance of the evidence in their common-law action. Here, as in Owsley, there is not the identity of parties or identity of causes of action required for operation of the doctrine of res judicata. The trial court, upon motion of The Patrician Movement, ordered appellants stricken from Cause No. F-229,901. The only question in that suit was the legality of the administrative order of the Board of Adjustment of the City of San Antonio. The doctrine of res judicata does not bar appellants from prosecuting their common-law claim in Cause No. F— 227,864. Furthermore, the order of dismissal in Cause No. F-229,901 did not render moot all justiciable controversy between appellants and appellees. The rule is well settled that a private individual cannot maintain a suit to enjoin the alleged violation of a penal ordinance, unless the activity complained of results in damages to such person, peculiar to him, and not common to the public in general. Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962); Woods v. Kiersky, 14 S.W.2d 825 (Tex.Com.App.1929). See also: Scott v. Board of Adjustment, 405 S.W.2d 55 (Tex.1966). It necessarily follows that an individual can maintain such a suit where he complains of damages peculiar to him which are not common to the public in general. Owsley v. Mixon, supra. Here, appellants assert such a claim, and the trial court erroneously sustained appellees’ motion to dismiss the cause of action. It necessarily follows that we express no opinion regarding the validity of appellants’ cause of action or the merits of same. Our holding is that appellants are entitled to their day in court to attempt to show that they have been injured or damaged by appellees other than as a member of the general public. The order of dismissal is reversed, and the cause remanded for trial on the merits. . The opinion was not published. . The property is in a “B Residence District” and under Section 42-48 of the City Zoning Ordinance may be used for one or more of the following uses: (8) Churches or schools. . The term “school” is defined by Section 42-7 “ . . . as such institutions of learning (elementary, high school and college or university), not operated for profit, which offer and maintain a course or courses of instruction leading to degrees or certificates of graduation recognized by the Texas Education Agency.”

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John W. GIBSON, Sr., Indv. and as Next Friend of John W. Gibson, Jr., Relator, v. Hon. William N. BLANTON, Jr., District Judge, Respondent. No. 15964. Court of Civil Appeals of Texas, Houston (1st Dist.). June 22, 1972. Eddington & Friloux, Houston, Warren L. Eddington, Houston, of counsel, for relator. James G. Sargent, Houston, for respondent. An Original Proceeding COLEMAN, Justice. This is an application for a writ of mandamus to require the Honorable William Blanton, Jr., District Judge, to grant a motion for non-suit filed by Petitioner in the capacity of next friend for a minor plaintiff. Cause No. 868,973, pending in the 11th District Court of Harris County, Texas, is a suit for damages arising out of an automobile collision filed by petitioner individually and as next friend for his minor son. After reaching a settlement with the defendant, petitioner filed a motion for non-suit in both capacities. This motion was brought to the attention of the trial court, who thereupon examined the pleadings, heard testimony, and the argument of counsel. The court determined that there was a conflict between the interests of petitioner and those of his minor son. An order was entered granting the motion as to the adult plaintiff. The order recites that because of the existing conflict of interest petitioner is not competent in law to represent the minor, and that in accordance with Rule 173, Texas Rules of Civil Procedure, the court appoints James G. Sargent as Attorney and Guardian Ad Litem for the minor plaintiff. No ruling was made on the motion for non-suit filed by petitioner as next friend. Rule 173, T.R.C.P., provides that where a minor is a party to a suit either as plaintiff, defendant or intervenor and is represented by a next friend who appears to the court to have an interest adverse to such minor, the court “shall” appoint a guardian ad litem for such person and allow him a reasonable fee for his services to be taxed as part of the costs of court. In Newman v. King, 433 S.W.2d 420 (Tex.1968), the court said: “Under the quoted provisions of Art. 5929 and Rules 44 and 173, a change of name application may be filed on behalf of a minor by ‘next friend/ who has all the rights concerning the proceeding that a guardian would have; and displacement of the next friend with a court appointed guardian ad litem, although mandatory when authorized, is authorized only when it ‘appears to the court’ that the next friend has an interest ‘adverse to the minor.’ While caution would dictate the displacement in every legal proceeding in which the pleadings or the evidence indicate a reasonable possibility of adverse interest, an error in judgment by the trial judge in deciding the preliminary issue of adverse interest and in failing or refusing to make the displacement does not differ in ultimate effect from errors in judgment which a trial judge may make in deciding many other questions during the course of a trial. . . ." Rule 164, T.R.C.P., provides that where a case is tried by the judge, a non-suit may be taken at any time before the decision is announced. The failure to grant a non-suit timely filed is reversible error. Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947). The Supreme Court of Texas has stated that the statute from which this rule was taken gives a plaintiff an “absolute right” to take a non-suit under the conditions stated therein. Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600 (1944). In the same case, however, the court approved the statement that “the privilege given by the statute is not entirely without limitation.” Ibid at p. 602. In Eckert v. Stewart, 207 S.W. 317 (Tex.Civ.App. — Amarillo 1918, writ ref.), the court said: “ . . . . The case will be reversed, with direction that the trial court enter up a judgment, decreeing to the appellants herein and plaintiffs below the interests to which they are entitled under the wills of their grandparents, and a judgment for such interest as the minors, represented by the guardian ad litem, are entitled to under the wills, and the court will decree a partition of the land to be made in accordance with law. The minors are not appealing, and have not cross-assigned on this appeal; but they are by law wards of the court, and it is the duty of the court, as we conceive it, to see that their interests are protected. Their interests, under the pleadings and evidence in the case, are in common with the plaintiffs and under the same right. As to the adults who permitted judgment by default, the judgment will be affirmed.” In Ex Parte Taylor, 322 S.W.2d 309 (Tex.Civ.App. — El Paso 1959), the court said: “ . . . it [is] well settled that when a suit is instituted in behalf of minors by next friend, the minors, and not the next friend, are the real plaintiffs. McDonna v. Wells, 1 Posey, Unrep.Cas. 35; Long v. Behan, 19 Tex.Civ.App, 325, 48 S.W. 555; Gulf, C. & S. F. Ry. Co. v. Styron, 66 Tex. 421, 1 S.W. 161 .. . ” When it “appears to the court” that there is a conflict between the interests of the minor and those of his next friend, it is the duty of the court to appoint a guardian ad litem. It is his duty to make the appointment before he acts on a motion for non-suit filed on behalf of the minor by the next friend. If there is a conflict of interest between the minor and his next friend, a non-suit of the personal cause of action of the next friend will not resolve the conflict. The procedure followed by the trial court was within his discretionary powers. In a proper case mandamus will issue to require the performance of a ministerial act, or to require the exercise of judicial discretion, without any direction as to the manner in which it shall be done. It may be issued to require a judge to enter or set aside a particular order where the directed course of action is the only proper course and the petitioner has no other adequate remedy. Pope v. Ferguson, 445 S.W.2d 950 (Tex.1969). The determination of the existence of a conflict of interest requires the exercise of judicial discretion. While it may be that the petitioner has no other adequate remedy, it does not appear that an order directing the trial judge to enter a non-suit is the only proper course of action. The application for mandamus is denied.

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Elzie WILLIS, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee. No. 11946. Court of Civil Appeals of Texas, Austin. July 12, 1972. Purnell, Gillis & Rogers, Tom Purnell, Dallas, for appellant. Clark, Thomas, Harris, Denius & Winters, E. Barham Bratton, Barry Bishop, Austin, for appellee. SHANNON, Justice. Appellant, Elzie Willis, appeals from a take nothing judgment entered in a workman’s compensation case by the district court of Travis County. We will affirm that judgment. In response to special issues the jury failed to find that appellant’s injury of August 17, 1970 was a producing cause of any total or partial incapacity to plaintiff. Appellant’s two points of error complain that these findings were contrary to the great weight and preponderance of the evidence. Appellant was working as a laborer for Eversole Company on August 17, 1970 in Austin on a roofing job at the L.B.J. Library. While unloading insulation from a trailer truck he fell backward and struck the back of his head. His foreman, Johnny Lee Hill, took him to the offices of Dr. S. H. Dryden who sutured the “small” laceration with two to four stitches. The next day appellant returned to his job and worked in Austin for the balance of the week. Appellant returned home to Dallas for the weekend, and there was testimony that he reported for work the following Monday at one of the Eversole Company’s jobs in Houston. He worked on that job for three days until the rains forced the company to take the work crew off the job. Appellant then returned to Dallas and consulted Dr. Craig Boyd. As a result of his fall appellant testified that he suffered from headaches which got “worser and worser” with the passage of time. He described that the pain in his head radiated into his neck and caused a certain stiffness in his neck. He also attributed a blurring of vision, loss of memory, and a speech defect to the fall. He said that he reported all of these complaints to Drs. Dryden and Boyd. According to appellant he also complained of his pains to his foreman. Witness Virginia Titus, a family friend, testified that appellant never stuttered before the fall and now commonly does. She also observed that his manner of walking before the fall was “perfect,” but that now he walks like a “zombie or something.” Barbara Jean Willis, appellant’s wife, said appellant complained of stiffness in his neck, of dizziness and headaches. She also reported that after the fall appellant seems to have lost interest in sex and that all of this had put a strain on their marriage. After being released by Dr. Boyd appellant worked one day at a nuts and bolts business and one day as a bricklayer’s helper. He could not do the work, he testified, so he quit. Other than applying for a job carrying out groceries at a welfare agency, he made no more attempts to find work, although he testified that provided he could find work within his capacity, he would take a job. Dr. Dryden characterized appellant’s problem as a “small laceration” on the back of his scalp. He saw appellant only one time after the initial visit. Dr. Dryden testified that his examinations of appellant presented no neurological signs or symptoms. Appellant saw Dr. Boyd on August 22, 1970 followed by three office visits, the final one being September 8, 1970. Appellant did complain of headaches on his visits to Dr. Boyd. The X-rays of appellant’s skull ordered by Dr. Boyd revealed no abnormality in the bone in the area of the laceration. The sum of his examinations of appellant was a “small cut with some stitches in it.” On the visit of September 8, Dr. Boyd released appellant and recommended that he return to work. As of September 8, Dr. Boyd was of the opinion that appellant had completely recovered, and that appellant would have no further problems from the laceration. In addition, he testified that he would place no limitations on appellant’s ability to work. In his opinion appellant was able to perform those jobs which he had previously done. Contrary to appellant’s statement, Dr. Dryden and Dr. Boyd reported that appellant had not complained to them of blurred vision, stiffness in his neck, pressure in his head, loss of memory or change in his speech habits. Appellant’s foreman, Johnny Lee Hill, was not present when appellant fell, but upon his arrival, appellant was “up walking.” When appellant returned to the job the next day, and thereafterwards, he never complained to Hill of any pains, and in Hill’s opinion appellant appeared able to do his work as well as he did before the fall. From the preceding summary it is apparent that there is ample evidence to support the findings of the jury, and that those findings were not contrary to the great weight and preponderance of the evidence. The judgment is affirmed. Affirmed.

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George Ross O. BORRETT a/k/a Ross O. Borrett, Appellant, v. FRANK INVESTMENT COMPANY, a corporation, Appellee. No. 6246. Court of Civil Appeals of Texas, El Paso. July 5, 1972. Lloyd M. Borrett, Philip T. Cole, El Paso, for appellant. Scott, Hulse, Marshall & Feuille, James L. Gallagher, El Paso, for appellee. OPINION RAMSEY, Chief Justice. This is a suit on a promissory note. Frank Investment Company, Plaintiff-Ap-pellee, brought suit against George Ross O. Borrett, Defendant-Appellant, to recover on a promissory note. Trial was before the Court and judgment was entered for Plaintiff in the sum of $3,766.36, principal and interest, together with $564.95 attorney’s fees. We affirm. Plaintiff had operated a concern selling building supplies. Defendant was the majority stockholder, President and Director of Zuni, Inc., and, together with immediate members of his family, the owner of 95% of the stock. Zuni, Inc. had an unpaid delinquent balance on an open account with Plaintiff in the amount of $3,099.34. In an effort to effect collection of the amount, Defendant executed and Plaintiff accepted a promissory note in the amount of the account payable $100.00 per month. The note was signed “George Ross 'O. Borrett, Maker.” The note was accompanied by a letter signed by the Defendant individually, and not in any corporate capacity, stating: “This letter will confirm and acknowledge the execution by myself of a promissory note dated August 22, 1967, in the original principal amount of $3,099.34. It is further expressly understood and agreed that this note will be renewed at six month intervals should you so elect to to have this note renewed, and I hereby agree to execute any such notes in renewal or extension of this obligation at six month intervals should you so desire.” Thereafter, the Defendant made two monthly payments but no payment was made by Zuni, Inc. Defendant does not deny the execution of the note individually, he only denies personal liability due to lack of consideration. The trial Court filed findings of fact and conclusions of law, conclusion number three being that the Defendant received a valuable consideration for the execution of the note in that he protected his interest in the assets of Zuni, Inc. and obtained an extension of time and more liberal method of payment of the obligation. Three of Defendant’s four points of error complain that such conclusion was erroneous in that there was no evidence or insufficient evidence of any consideration and that as a matter of law there was no consideration. The indebtedness of Zuni, Inc. to the Plaintiff at the time of the execution of the note is not challenged and is admitted. Payment was due on purchases on the tenth day of the month following the purchase. The ledger sheet introduced in evidence showed the last items debited or credited to the account of Zuni, Inc. to have been in September, 1966. Obviously, the account was past-due. The note was executed on August 22, 1967, permitting payment under the terms of the note at $100.00 per month. Defendant in his brief admits that if there is a novation whereby the debt of the corporation is extinguished then there would have been consideration for the execution of the note. Defendant relies on Witt et al. v. Wilson, 160 S.W. 309 (Tex.Civ.App. n. w. h.) and Gauss-Langenberg Hat Co. v. Alley, 154 S.W. 1062 (Tex.Civ.App. n. w. h.). Consistent with Defendant’s contentions is the holding in Peter et al. v. First Nat. Bank of La Grange, 92 S.W.2d 1079 (n. w. h). Under the above case decisions, novation constitutes a sufficient consideration for the imposition of personal liability on an officer or stockholder. Other considerations have likewise been held to be sufficient. The Plaintiff testified and the note provides an extended time for payment of the indebtedness and grants more liberal terms for its discharge. Such has been held to suffice as consideration. Black v. Frank Paxton Lumber Company, 405 S.W.2d 412 (Tex.Civ.App. ref. n. r. e.). As for the Defendant, having executed the note individually rather than in his corporate officer capacity, the decisions in this State support the trial Court’s conclusion and judgment. By the execution of the note, the Defendant lends his name to the corporation and derives a benefit and consideration. Black v. Frank Paxton Lumber Company, supra; Wortham v. Lake Jackson State Bank, 435 S.W.2d 612 (Tex.Civ.App., ref. n. r. e.); 14 Texjur. 2d, Sec. 366, p. 469. We therefore overrule Defendant’s first three points of error. Point of error number four complains of interest and attorney’s fees included in the judgment solely on the basis that such is dependent on the Defendant’s liability on the note. No complaint is made as to the amount. Having determined Defendant’s liability dispenses with the necessity of further consideration of this point and it is overruled. We affirm the judgment of the trial Court.

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Mary Alice WHITEHEAD, Appellant, v. D. M. TEAGUE, Administrator of the Estate of S. L. Perkins, Deceased, Appellee. No. 625. Court of Civil Appeals of Texas, Tyler. July 13, 1972. Rehearing Denied Aug. 3, 1972. Donald W. Keck, Keck & Barnes, E. F. Kucera, Dallas, for appellant. Eric Eades, Jr., Eades & Eades, Dallas, for appellee. DUNAGAN, Chief Justice. Mary Alice Whitehead, the appellant, brought this suit against D. M. Teague, Administrator of the Estate of S. L. Perkins, when her claim for $3,000.00 against the estate of S. L. Perkins was rejected by the Administrator, D. M. Teague. On April 14, 1970, S. L. Perkins purchased by a warranty deed the property located at 3923 Lancaster, Dallas, Texas, which is the property that is the basis of this lawsuit. The purchase price was $20,000.00 and he (Perkins) paid the sum of $3,000.00 as the down payment. The undisputed testimony shows that the entire $3,000.00 cash payment made by Perkins was furnished by the appellant Mary Alice Whitehead. Appellant’s claim is based on the fact that she furnished the entire $3,000.00 down payment for the purchase of the realty but the deed was taken in the name of S. L. Perkins. The claim was denied by the administrator, appellee herein, and appellant filed this suit in the District Court under Sec. 313 of the Probate Code of the State of Texas, V.A.T.S. The trial was before the court who rendered a take nothing judgment against the appellant. She timely perfected her appeal. We are confronted at the outset with ap-pellee’s contention that this appeal should be dismissed, because the District Court which rendered the judgment appealed from was without jurisdiction since the purported claim that was rejected was not a claim for money within the provisions of the Probate Code and could not be fixed, established, or classified as a claim in Probate and therefore could not be the subject of a suit on a rejected claim under Sec. 313 of the Probate Code of Texas. We sustain this contention. S. L. Perkins died intestate and D. M. Teague, appellee, was appointed administrator of his estate and was the qualified and acting administrator of said estate at all times material herein. On March 19, 1971, the appellant presented a claim against said estate to ap-pellee administrator. The basis of appellant’s claim was to assert a resulting trust interest in the real property at 3923 Lancaster, Dallas, Texas, by virtue of her furnishing $3,000.00 down payment of the $20,000.00 purchase price of said property, said claim recited that the $3,000.00 was furnished as the down payment for the purchase of the property and “ * * * it was agreed that the property should be taken in the name of S. L. Perkins. Therefore, there is a resulting trust impressed on the property hereinbefore described * * On the same day of the presentation of this claim to the administrator, appellant filed in the Deed Records of Dallas County, Texas, an “Affidavit of Resulting Trust on Real Property,” such affidavit reciting that appellant had furnished $3,000.-00 of the purchase money for the purchase of the land locally known as 3923 Lancaster, Dallas, Texas, and declaring that appellant claimed a trust in her favor on said land. The purported claim was denied and disallowed by appellee on March 22, 1971. The only provision for making claim against the estate of a decedent is that contained in Sec. 298(a) of the Probate Code of Texas, as follows: “All claims for money against a testator or intestate shall be presented to the executor or administrator * * (Emphasis ours.) It is clear that the claim of appellant which was presented to the administrator, the appellee, and rejected and made the basis of this suit under Sec. 313 of the Probate Code, was not a claim for money, but was a claim to an interest in the real property described by virtue of a resulting trust. Throughout the trial appellant asserted she had a resulting trust interest in the real estate here involved. This was clearly and specifically asserted by appellant by her own testimony, exhibits, pleadings, and brief. In her first two points of error appellant asserts that she had a trust “against the property the subject of the suit” and an “interest in the property as a result of the $3,000 down payment” made by her. Appellant in her brief states “(s)ince there is absolutely no evidence, direct or circumstantial that there was a relationship of creditor and debtor between Perkins and Whitehead, the presumption of a resulting trust continues. In fact, the trial court found there was no loan.” A claim for money cannot exist absent the existence of a debt or the relationship of debtor and creditor. Where the facts show a resulting trust, the beneficiary has an equitable title superior to the legal title held by the trust, and not just a claim or equitable right. Cadmus v. Evans, 320 S.W.2d 176 (Tex.Civ.App., Dallas, 1958, writ ref., n. r. e.). Where the trust exists, the beneficiary has the vested interest in specific profit. 57 Tex.Jur.2d, p. 378, sec. 1. It is thus very clear that appellant is really claiming an equitable title to the real property she says is the “subject of the suit.” Such a claim is not a “claim for money against an intestate” under Sec. 298(a) of the Probate Code of Texas and could not be fixed by a suit on a “rejected claim” under Sec. 313 of the Texas Probate Code. Therefore, the trial court had no jurisdiction of this suit. Cook v. Hunter, 389 S.W.2d 94 (Tex.Civ.App., Waco, 1965, n. w. h.). Since the trial court had no jurisdiction, this court has none. The judgment of the trial court is reversed and the case is dismissed. Leslie v. Griffin, 25 S.W.2d 820 (Tex.Com.App., 1930) and Fraley v. County of Hutchinson, 278 S.W.2d 462 (Tex.Civ.App., Amarillo, 1954, n. w. h.).

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S. Mort ZIMMERMAN et al., Appellants, v. Kenneth FRANZHEIM, II, Appellee. No. 15923. Court of Civil Appeals of Texas, Houston (1st Dist.). June 22, 1972. Zimmerman & Zimmerman, Warren E. Zimmerman, Dallas, for appellants. Vinson, Elkins, Searls & Smith, John B. Holstead, III, Houston, for appellee. BELL, Chief Justice. Appellee recovered a summary judgment against S. Mort Zimmerman, Capital Exchange Corporation and several other makers of two promissory notes. Only Zimmerman and Capital Exchange have appealed. March 23, 1971, appellee filed suit on two notes. One note was for the principal sum of $325,000, bore interest at the rate of 9% percent per annum and provided for 10% attorney’s fees. It was to become due on demand and if no demand was made, on March 15, 1970. It was dated October 15, 1969. The other note bore the same date and was identical in terms except the principal sum was $225,000. Appellee’s petition was in proper form for recovery on both notes. Unsworn copies of the notes were attached to the petition. Appellants filed a joint answer consisting of a general denial. April 23, 1971, appellee filed his un-sworn motion for summary judgment supported by the affidavit of Mr. Franzheim. The affidavit complies with the requirements of Rule 166-A, Texas Rules of Civil Procedure, and asserts the execution and delivery of each note. It further recited that a “full, true and correct copy of each note is attached to ‘Plaintiff’s Original Petition’ . . . and is incorporated herein for all purposes.” It is also stated as to each note that plaintiff contends to be the owner and holder and the defendants are entitled to no credits, offsets or rights of recoupment. The affidavit shows by factual recital that each note became past due March 15, 1970, and remained past due. The motion is also supported by a sufficient affidavit of Harry Weeks swearing to correctness of the copies of the notes which are attached to his affidavit. May 13, 1971, appellants filed what is denominated “Answer to Motion for Summary Judgment.” This answer consisted in substance of the following: 1. A special exception to paragraph III, Subparagraph (B) and paragraph IV, Sub-paragraph (B) “for the reason that same constitute a conclusion of the affiants and is not competent evidence, as a matter of law, to support the allegations therein made.” Paragraph III, Subparagraph (B) asserted that appellee “continued to be the owner and holder” of the $325,000 note, and the defendants were “entitled to no credits, offsets or rights of recoupment.” This subparagraph also asserted “the principal sum of $325,000 plus accrued interest became past due on March 15, 1970, and remains past due.” Paragraph IV, Sub-paragraph (b) of the affidavit contained precisely the same statements with regard to the $225,000 note. 2. By way of an affirmative defense appellants asserted there had been a compromise and settlement “after the due date in 1970 upon the basis that each maker thereof would be severally liable for his prorata share of the indebtedness, if any. Said agreement was entered into between these defendants and Mr. Richard Randall, attorney for the Plaintiff.” Appellants further alleged that as a part of the agreement, it was agreed that no action would be taken on the debts “until such time as the collateral placed by these defendants had risen in value sufficiently to cover any balance owing.” It is asserted that by entering into the agreement appellee had waived its right to proceed to judgment at the present time. 3. There was a special denial that plaintiff was the owner of the notes or that they were due. 4. There is a special denial that $550,-000 was due and an assertion that “these defendants are entitled to offsets and credits among others, of a minimum of approximately $120,000; which amounts represent notes held by these defendants and payable by Plaintiff.” 5. Recovery of attorney’s fees cannot, as a matter of law, be the subject of a summary judgment. The above answer is sworn to by Zimmerman for himself and Capital Exchange by separate oaths. Each oath states that Zimmerman was duly sworn and “says he has read the foregoing instrument and that all facts and allegations contained therein are true within his personal knowledge.” On May 14, 1971, plaintiff filed “Objections to Answer to Motion for Summary Judgment Filed by Co-Defendants Capital Exchange Corporation and S. Mort Zimmerman.” This instrument in substance asserted the following: 1. The answer does not affirmatively show that Zimmerman is competent to testify to the matters stated or that he swore to or has personal knowledge of the matters stated therein. 2. The answer is a mere pleading and not independent proof of facts. 3. The allegations in the answer do not set forth facts “but rather contain mere denials and conclusions.” 4. It contains no facts that would be admissible in evidence on trial. 5. Original answer of defendants does not support allegations. The motion for summary judgment was granted May 17, 1971, though it was signed October 18, 1971. It was interlocutory in that it disposed only of the appellants. The original notes were presented to the trial court at the hearing on May 17, 1971. Such originals have, on order of the trial court, been transmitted to this court. They are identical with the copies attached to the affidavit of Weeks. While appellants’ brief asserts failure to produce the original notes, it was conceded by appellants’ counsel on submission of the case that the originals were before the court when summary judgment was rendered. As earlier noted, there were a number of other defendants. At various times interlocutory summary judgments or default judgments were rendered against all except Ross Brunner. He was dismissed with prejudice upon his paying $105,000, which payment was credited on the final judgment rendered against the other defendants. November 11, 1971, appellee filed a motion to make the interlocutory judgments final. November 19, 1971, appellants filed their “Motion to Vacate Interlocutory Summary Judgment.” In it they assert an accord and satisfaction allegedly reached after the rendition of the interlocutory judgment. The substance of the alleged agreement was that Zimmerman was instrumental in bringing about a settlement of other litigation in which appellee had potential liability ahd appellee represented if this were done he would release the appellants. Prayer was that the interlocutory order be vacated and upon hearing final judgment be denied “until . . . defendants have been able to produce . . . full and convincing evidence of the merit of the facts and evidence . . .” Zimmerman swore that all facts and allegations contained therein are true and correct to the “best of his knowledge and belief.” Final judgment was rendered November 22, 1971. It recites that “Capital Exchange Corporation and S. Mort Zimmerman although duly notified of said hearing came not.” To entitle a movant to a summary judgment the summary judgment evidence must show the absence of any dispute as to the existence of any material fact. Such evidence must show the movant is entitled to judgment as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.); Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.); Gulf, Colorado and Santa Fe Railway v. McBride, 159 Tex. 442, 322 S.W.2d 492. We conclude that the trial court correctly rendered judgment for appellee. The summary judgment evidence of ap-pellee consisted, as detailed above, of his original petition to which unsworn copies of the notes were attached, the unsworn motion for summary judgment, a supporting affidavit of appellee incorporating by reference the copies of the notes and swearing they are true and correct copies, the affidavit of Weeks swearing the copies of the notes attached to the affidavit are true and correct copies of the notes, and the originals of the notes. An examination of the instruments shows the notes to be due. Appellee was the payee in the notes and an examination of the originals produced by appellee does not show any transfer, nor does there appear that any payment has been made. Appellee’s affidavit states he “continues” to be the owner and holder and the notes became due March 15, 1970. This was the due date as shown by the original notes. The original notes were before the trial court. This summary judgment evidence, standing alone, in the light of an answer setting up only a general denial, would entitle ap-pellee to judgment as a matter of law. Appellants assert, however, that their answer to the motion for summary judgment and their motion to vacate the interlocutory summary judgment raised the following fact issues: 1. Whether appellee by his prior conduct waived the right to proceed against appellants. 2. Whether appellee was owner of the notes. 3. Whether the notes were due at the time of suit. 4. Whether there was an accord and satisfaction of the debts after rendition of the interlocutory summary judgment. We suppose, in the light of their brief, appellants contend that their answer to the motion for summary judgment setting up that after the notes were due appellee agreed that no action would be taken until such time as the collateral had risen in value sufficiently to liquidate the notes raised a fact issue. We are unable to agree. The alleged agreement shows no consideration. It amounts to no more than agreement to postpone action to some indefinite date. It fails to show that appellants in any way obligated themselves not to pay the notes at any time. Tsesmelis v. Sinton State Bank, 53 S.W.2d 461 (Tex.Com.App.). There was no fact issue as to the appel-lee being the owner and holder of the notes or as to the notes being due. Appellants merely filed a sworn special denial. They did not allege and swear to facts which if true would show appellee was not the owner and holder of the notes and the notes were not due. The denials merely initially would require production of the originals and proof that they were due. Appellee did this. The denial was a pure conclusion. The cases on which appellants rely merely hold a general denial puts a plaintiff on proof of these facts. Here appellee proved them as a matter of law. Finally, appellants urge a fact issue was raised by their motion to vacate the interlocutory summary judgment. The motion purports to set up accord and satisfaction. This is an affirmative defense and the burden of proving accord and satisfaction was on appellants. 1 Tex.Jur.2d, Accord and Satisfaction, Section 45. The allegations are not sworn to except by Zimmerman “to the best of his knowledge and belief.” The burden was not on appellee to negative this affirmative defense. Appellants needed to come forward with sworn allegations of fact which if true would raise an issue of fact. Gulf, Colorado & Santa Fe Railway v. McBride, supra; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (Tex.Sup.). Affirmed.

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Della A. COMPTON, Administratrix of the Estate of Frank B. Compton, Deceased, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. No. 6242. Court of Civil Appeals of Texas, El Paso. July 5, 1972. Pearson & Speer, Thomas H. Nation, El Paso, for appellant. Kemp, Smith, White, Duncan & Hammond, Wyndham K. White, Joe Lea, Jr., El Paso, for appellee. ' OPINION PRESLAR, Justice. This is an appeal from a suit by plaintiff-appellant, Della A. Compton, Adminis-tratrix of the Estate of Frank B. Compton, Deceased, against defendant-appellee, The Travelers Insurance Company, to recover 12% damages and reasonable attorney’s fees in accordance with Article 3.62 of the Insurance Code. The trial Court granted summary judgment in favor of appellee, holding, as a matter of law, that appellant did not make the required demand for payment from appellee within the contemplation of Article 3.62, V.A.T.S. We affirm. An examination of the record reflects that appellant, after qualifying as adminis-tratrix of the Estate of Frank B. Compton, sent, through her attorney, a proof of death form, certified copy of the death certificate, and a letter of administration which were requested by appellee. In a letter, dated July 6, 1970, appellant’s attorneys stated: “Should you need any additional information, we would greatly appreciate your contacting this office.” In a reply letter, dated July 13, 1970, sent to appellant’s attorneys, appellee stated: “This letter will acknowledge receipt of the death certificate our Travelers Form Proof of Death-Statement of Claim and copies of administration in connection with the above-captioned matter. Please be advised that as of this time, our investigation is still continuing. Upon completion of our investigation we will be in touch with you further.” On September 4, 1970, appellant’s attorneys sent a letter to appellee, stating in part: “We are in receipt of your letter of July 13, 1970, acknowledging receipt of the death certificate, the Travelers form proof of death, statement of claim, and copies of Mrs. Compton’s letters of administration. In that letter of July 13, 1970, the Travelers Insurance Company indicated that it was investigating the claim and would be in touch with us further. We have heard nothing from the Travelers Insurance Company since that time. Since more than thirty days have elapsed since our demand for payment under the above referenced claim and policy, we are making demand, as attorneys for Mrs. Della Compton, Adminis-tratrix of the Estate of Frank Compton, deceased, on behalf of that estate, in addition to the payment of the $20,000.00 face amount of the policy for the payment of an additional twelve per cent (12%) damages pursuant to Article 3.62 of the Texas Insurance Code . . . ” In a letter, dated September 30, 1970, appellee sent a draft for $20,000.00, the entire amount of the proceeds due under the face amount of the policy. Appellant contends, by four points of error, that the claim forms submitted constituted a “demand,” that appellee treated appellant’s claim as a demand, and that there is an issue of fact as to whether or not appellant made a demand. Article 3.62 provides in part that: “ . . . . and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.” We think it clear that the language contained in appellant’s letter of July 6, 1970, did not constitute a “demand” within the purview of Article 3.62. While it is true that no particular form of demand is necessary to invoke the provisions of Article 3.62, Continental American Life Insurance Company v. McCain, Tex.Civ.App., 412 S.W.2d 666, reversed on other grounds, Tex., 416 S.W.2d 796, it is equally clear that “Article 3.62 is penal in nature and must be strictly construed.” McFarland v. Franklin Life Insurance Company, 416 S.W.2d 378 (Tex.1967) and cases cited therein. Further, in the present case, there was no denial of liability by appellee, in which case filing of proofs of loss could be construed as a demand. International Security Life Insurance Company v. Bryant, 453 S.W.2d 869 (CCA — Amarillo 1970, ref. n.r.e.). Appellant cites National Life & Accident Ins. Co. v. Dove, 174 S.W.2d 245 (Tex.1943), as authority for the proposition that filing of a claim constitutes a demand. In Dove (supra), after filing of the claim, the insurance company replied, stating that “the Company has no liability for payment of the claims.” No such denial was made in the case at bar. Key Life Insurance Company of South Carolina v. Taylor, 456 S.W.2d 707 (CCA— Beaumont 1970, ref. n. r. e.), contains a most comprehensive discussion and citation of authorities on the questions presented here. There is no need to repeat those authorities here, but we do take note of a portion of a quotation as to the legislative intent or purpose: “ . . . . We think it was the intention of the legislature to require a demand to be made after the policy became due, and before a suit, in order to satisfy the valid demand, without putting the policy holder to the necessity of suing therefor. The demand was the significant act, intended to put the company upon election whether it would pay the sum demanded, or require the policy holder to sue therefor, and subject itself to those penalties if the plaintiff recovered judgment for such sum.” We have no difficulty with this case, if we keep in mind that it is not a suit on the policy, rather it is on a cause of action created by statute. Naturally, one seeking to recover must plead and prove all elements of the statutory cause. In this case, plaintiff’s cause of action is lacking of the element of demand made more than thirty days prior to payment. All points of error have been considered, and all are overruled. The judgment of the trial Court is affirmed.

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PERRYTON FEEDERS, INC., Appellant, v. Glenn FELDMANN, et ux., Appellees. No. 8313. Court of Civil Appeals of Texas, Amarillo. June 30, 1972. Rehearing Denied July 31, 1972. Lemon, Close, Atkinson & Shearer, R. D. Lemon, Perryton, for appellant. Lumpkin, Watson, Smith & Barras, Don H. Reavis, Amarillo, for appellees. REYNOLDS, Justice. Denial of a temporary injunction motivated this appeal. Affirmed. Appellant Perryton Feeders, Inc., instituted suit against appellees Glenn Feld-mann and his wife by the asserted conclusion of, without recitation of facts giving rise to, unliquidated claims in excess of $10,000.00 against appellees and the legal entities in which they were alleged to be involved. Shortly thereafter, an application, alleging the unliquidated claims would be in excess of $100,000.00 on claims to be asserted, was made for a temporary restraining order and a temporary injunction to compel appellees to deliver certain funds aggregating some $40,000.00 they were to obtain from the dissolution of a Kansas corporation to the registry of the court, and to restrain disposition of any of the Feldmann’s property, so that the property would be amenable to the process of the court to satisfy any judgment ultimately secured by appellant. A temporary restraining order was issued without notice, enjoining and restraining Feldman, his wife and any others acting in concert with them from placing their property beyond the process of the court and effectively causing three checks totalling $40,237.80 coming into appellees’ possession from the Kansas corporation to be placed in the registry of the court. Appellees specifically denied appellant had pleaded a right to either a temporary restraining order or a temporary injunction and generally denied liability on the suit. With the pleadings cast in these molds, the court held a hearing, in two sessions some ten days apart, on the issue of appellant’s entitlement to the temporary injunction sought. At the hearing, appellant proceeded upon the testimony of Feldmann and two other witnesses and the introduction of exhibits. Feldmann admitted an unpaid judgment secured against him in Colorado for approximately $90,000.00 and that he had no credit so the family assets were in his wife’s name, but except for some few admissions bearing upon, but not establishing as a matter of -law, the anticipated cause of action indicated by appellant’s inquiries to arise from Feldmann’s conduct while he was co-manager of appellant’s feedlot, Feldmann’s testimony was contrary to appellant’s expectations of admissions. Feldmann also gave testimony diametrically opposed to that elicited from the other two witnesses on the matter about which each testified.' It was Feldmann’s testimony that the money impounded under the temporary restraining order was the separate property of his wife accumulated in Kansas and that it was required to pay named creditors for established claims. At appellees’ request, the trial court judicially noticed that Kansas is not a community property state. At the conclusion of the hearing, the trial judge communicated to counsel in writing his view that he found no authority that would authorize the issuance of a temporary injunction upon the allegations then made by appellant; counsel for appel-lees was requested to prepare an appropriate order; the temporary restraining order was altered to permit Feldmann to pursue his ordinary legitimate business practice; counsel for appellant was given the right to file a motion, supported by authorities, for a review of the court’s holding; and the court fixed a time in which a determination would be made whether or not to enter the order requested to be prepared. Appellant then filed its first amended original petition, alleging specific acts of misconduct and mismanagement by Feldmann while employed as co-manager of appellant’s feedlot, and seeking recovery of $206,000.00 damages from appellees, the establishing of an equitable lien on all of ap-pellees’ property, the voiding of any transfers of property made by appellees since the date of Feldmann’s employment by appellant, the restraint from transfer or disposition of any property, including the money held in the registry of the court, and to compel delivery of certain designated personal property to the registry of the court. The record does not reflect that this pleading or a motion to reopen was presented to the trial judge. At the appointed time, the trial court entered the challenged order which dissolved the temporary restraining order and denied the temporary injunction, decreeing that the funds held in the registry of the court were to be paid to appellees. Upon being notified of this appeal, the trial judge ordered distribution of the funds suspended during the appeal. This appeal was advanced for submission on motion. Vernon’s Ann.Civ.St. art. 4662. Appellees submit that the refusal of the temporary injunction is affirmable at least under the invariable rule in Texas and elsewhere that injunction will not lie — and, indeed, in the absence of a statutory sanction, the court is without authority — to impound assets for contingent application to an unsecured, unliquidated claim not yet reduced to judgment. See Garland v. Shepherd, 445 S.W.2d 602 (Tex.Civ.App.— Dallas 1969, no writ), and the plethora of precedential pronouncements cited therein. Appellant insists that this general rule has been abrogated by Vernon’s Annotated Texas Business and Commerce Code, and particularly § 24.02 thereof, as construed by our Supreme Court in Hollins v. Rapid Transit Lines, Inc., 440 S.W.2d 57 (Tex.Sup.1969), which establishes its right to the temporary injunction. We do not ascribe to that decision the determinative applicability appellant would attach to the facts of the matter at bar. There, in addition to the unliquidated claim for personal injuries, the plaintiffs sought to set aside an alleged fraudulent conveyance of substantially all of one of the defendant’s assets. The decision was that § 24.02 of the statutory authority allows a tort claimant to maintain an action to set aside an alleged fraudulent conveyance although the claim asserted had not been reduced by judgment to a definite amount. The decision was addressed to the right to maintain an action to void transfers allegedly made with the intent to delay, hinder or defraud any person with an unliquidated claim and not to the right to impound by injunction assets for speculative application to an un-liquidated claim. Noteworthy is this language from the opinion: “. . . Obviously, a suit to enjoin the sale of property involves a multitude of problems which do not have to be considered in a suit to have a conveyance declared void only as to a creditor.” Hollins referred to the rule relied upon by appellees, but did not overrule it and held only that the case that applied the rule did not pass on the question then before the Supreme Court. We have found no case that departs from or changes the rule with respect to injunctions as announced in Garland v. Shepherd, supra. Be that as it may, the order of the trial court did not restrict appellant’s right to maintain its action to set aside any transfers made by ap-pellees that are alleged to be fraudulent, and that action is now pending in the trial court, but the order only denied appellant’s entitlement to impound all of appellees’ assets, and it is the propriety of this ruling that is before us. Well established legal guidelines inhibit the range of appellate examination of the record before us. In determining whether to grant or deny a temporary injunction, the trial judge is endowed with broad discretion, Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947), among which is a consideration of balancing the equities between the parties. See 31 Tex.Jur.2d Injunctions § 41. Accordingly, the scope of appellate review of the trial judge’s determination is limited to the narrow question of whether the action of the trial judge constitutes a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952). Irrespective of the appellate court’s perception, the review of the discretion exercised does not authorize the appellate court to substitute its own determination, and the order of the trial court will be reversed only when a clear abuse of discretion is shown. Repka v. American Nat. Ins. Co., 143 Tex. 542, 186 S.W.2d 977 (1945). Where the evidence upon which the trial judge acted is conflicting, the order will not be reversed if it has support in the evidence. 31 Tex.Jr.2d Injunctions § 224. Without further particularizing the evidence, all of which has been read and considered with care, we find the evidence, albeit conflicting, to fully support the trial court’s denial of the temporary injunction, the asserted right to which was positioned only on conclusional pleadings then before the court. Under the legal principles announced above and binding on this court, the order of denial will not be disturbed, particularly so since there is no demonstration that the trial judge clearly abused his discretion in denying the temporary injunction. See Corbett v. Sweeney, 151 S.W. 858 (Tex.Civ.App.- — Galveston 1912, writ ref’d); 31 Tex.Jur.2d Injunctions § 224. The order 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

SOUTH COAST LIFE INSURANCE COMPANY, Appellant, v. Wade Earl ROBERTSON, Appellee. No. 628. Court of Civil Appeals of Texas, Tyler. July 6, 1972. Rehearing Denied July 27, 1972. Atwell, Malouf, Musslewhite & Bynum, R. Jack Ayres, Jr., Dallas, for appellant. Thomas A. Sneed, Odessa, for appellee. DUNAGAN, Chief Justice. This is an appeal from a suit brought to recover life insurance benefits under a conditional receipt. Judgment, awarding life insurance benefits, was rendered for plaintiff, appellee, on favorable jury findings that appellee’s wife was insurable and therefore insurance was effective upon the date of application and that appellee did not willfully bring about the death of his wife. It is from this verdict and resulting judgment that appellant has timely brought this appeal. Appellant brings thirteen points of error complaining of the action of the trial court in awarding appellee his judgment. By these thirteen points, appellant in general, complains of the action of the trial court in (1) refusing to grant a directed verdict, (2) the submission of certain issues and instructions, and (3) the sufficiency of the evidence to support certain jury findings. In passing on appellant’s point of error that there is no evidence to support the submission of Special Issue Number 1 or the jury’s answer thereto, we may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury finding, and we must disregard all evidence which would lead to a contrary result. The relevant facts are these. On January 28, 1969, the appellee Robertson, unaccompanied by his wife, went to the office of the appellant located in Tyler, Texas. His presence at the office was wholly unsolicited. At this time he requested of Mrs. Winn Cardwell, an agent of appellant, information regarding- a policy of life insurance on the life of his wife. Appellee was informed by Mrs. Cardwell that she could not write such a policy without having first seen the individual to be insured, to ask him certain questions. Thereafter on the same day, appellee returned to the office accompanied by his wife, Teresia Ann Robertson. After supplying the required information, Teresia Robertson signed the application for insurance benefits in the sum of $25,000.00. On the next day the first premium payment of $10.84 was paid in cash by appellee, for which payment he received a receipt. At the time of the application for insurance on the life of Teresia Robertson, ap-pellee’s sole occupation was that of hairdresser for which he earned approximately $4,000 a year; Teresia Robertson was unemployed. Mrs. Robertson at the time of the application for insurance was seven months pregnant and had not been examined by a doctor since October, 1968. Appellee, the sole wage earner, did not have any insurance covering his life. The plan of insurance applied for was not a permanent plan and the mode of premium payment was monthly. On February 6, 1969, the insured, Teresia Ann Robertson, died in Tyler, Texas, as a result of a gunshot wound of the skull. Appellant, South Coast, declined coverage under the application by a letter of February 10, 1969, denying liability on the policy. Appellee by his suit sought recovery of insurance benefits not on the policy of insurance itself, but on the “conditional receipt.” As noted before, appellee upon paying the first month’s premium received a numbered receipt. The receipt read in part: “TERMS AND CONDITIONS OF CONDITIONAL COVERAGE — Coverage under any policy or rider issued from the Application bearing the same number as this receipt will take effect on the latest of: (a) The date of the application or (b) the date of the last of any medical examination or other test required under the rules and practices of the Company as published in the Company’s Rate Book; provided the following conditions precedent to coverage are met: (1) That on such date each person proposed for insurance is insurable and acceptable for the plan and amount of the insurance applied for, at the published premium rate and the plan and classification of risk without limitation or exclusion, and in accordance with the Company’s underwriting standards and practices as published in the Company’s Rate Book, and (2) That the sum receipted for is at least equal to the first full premium for any policy or rider applied for. “Except as provided above, no coverage will take effect and the liability of the Company is limited to a refund of any sum receipted for. Any application not previously accepted or declined will be deemed declined on the 60th. day after its date.” It is upon this “conditional receipt” and its conditions of coverage that appellee must predicate his recovery. It has been held by our Supreme Court that “conditional receipts” such as the one presently before us provide for temporary life insurance. National Life and Accident Insurance Company v. Blagg, 438 S.W.2d 905 (Tex.Sup., 1969) and United Founders Life Insurance Company v. Carey, 363 S.W.2d 236 (Tex.Sup., 1962). Under the terms of the “conditional receipt” here the temporary insurance will become effective on “ * * * (a) The date of the application or (b) the date of the last of any medical examination or other test required under the rules and practices of the Company as published in the Company’s Rate Book; provided * * (1) That on such date each person proposed for insurance is insurable and acceptable for the plan and amount of the insurance applied for, * * * in accordance with the Company’s underwriting standards and practices * * * and (2) That the sum receipted for is at least equal to the first full premium for any policy or rider applied for.” (Emphasis ours). How then may appellee show this temporary coverage? We quote from Blagg, supra, “Thus, a beneficiary can prove that the temporary insurance provided by the receipt was in force when the applicant died by obtaining a fact finding that in the opinion of the officers of the insurance company the applicant was insurable and acceptable on the date of the completion of his medical examination. Even if the opposite finding is made by the jury, i. e., the opinion was formed that the applicant was not insurable and acceptable on the date of the completion of his medical examination, the beneficiary can still prevail by obtaining a fact finding that the determination of uninsurability was not made in good faith. As a part of this second basis of recovery, it would also be necessary to obtain a finding that a reasonably prudent authorized officer of the insurance company, acting in good faith, would, on the evidence available, find that the applicant was on the date of the completion of his medical examination insurable and acceptable for insurance under the company’s rules and practices for the amount, premium, and rating class set in his application for insurance.” In the trial of the case at bar, the first and second basis of recovery as set out in Blagg and Carey, supra, were submitted to the jury in Special Issues Numbers 1 through 3. Special Issues Numbers 2 and 3 submitted conditionally were not answered by the jury., the jury answering Special Issue Number 1 in the affirmative. It should be noted here that the burden rests upon the appellee-beneficiary to establish insurability and/or in the alternative a lack of good faith and further that a reasonably prudent underwriter acting in good faith would find that the applicant was insurable and acceptable on the date in question. See Blagg, supra. The determinative issue, therefore, before this court is whether appellee met this burden, or stated another way, is there any evidence to support the jury’s affirmative answer to Special Issue Number 1? After a careful and complete review of the record, we think not and that the case should be reversed. A search of the record discloses that appellee wholly failed in his burden, that is, that the evidence is wholly lacking to support the affirmative answer to Special Issue Number 1 and also the alternative means of recovery. Appellee produced no affirmative evidence that Teresia Robertson, on the date in question, was insurable under the appellant’s underwriting standards and practices. On the contrary, Lloyd Posey, vice president and chief underwriter for appellant at the time of appellee’s application, called by appellee’s counsel, testified that in his opinion as chief underwriter, Mrs. Robertson was not insurable on the date in question when applying the company’s underwriting standards and practices. He further testified that the company’s underwriting standards and practices as published in their Rate Book contemplated such a subjective decision by the underwriter. Likewise a review of the record discloses no affirmative evidence to support the submission of the alternative means of recovery, i. e., Special Issues Numbers 2 and 3. Nowhere does the record reveal any evidence of bad faith. We therefore reverse the judgment of the trial court and herein render judgment for the appellant. . “SPECIAL ISSUE NO. 1 “Do you find from a preponderance of the evidence that on the date of Teresia Robertson’s application to Defendant Insurance Company for insurance, that she was insurable and acceptable for the plan and amount of the insurance applied for at the published premium rate and the plan and classification of risk without limitation or exclusion, and in accordance with the Company’s underwriting standards and practices as published in the Company’s Rate Book? “If you have answered the preceding Special Issue ‘No,’ then you will answer Special Issue No. 2; otherwise, do not answer it. “SPECIAL ISSUE NO. 2 “Do you find from a preponderance of the evidence that the authorized officer of Defendant Insurance Company, Lloyd Posey, did not act in good faith in declining such application? “If you have answered the preceding Special Issue ‘He did not,’ then answer the following Special Issue; otherwise, do not answer it. “SPECIAL ISSUE NO. 3 “Do you find from a preponderance of the evidence that a reasonably prudent and careful authorized officer of the Defendant Insurance Company acting on good faith would, on the evidence available, find that Teresia Robertson was insurable and acceptable for the plan and amount of the insurance applied for, at the published premium rate and plan and classification of risk without limitation or exclusion, and in accordance with the Company’s underwriting standards and practices as published in the Company’s Rate Book?

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Albert William SCHLEICHER, Movant-Appellant, v. STATE of Missouri, Respondent. No. 56508. Supreme Court of Missouri, En Banc. July 17, 1972. Earl Susman, Leonard Komen, Susman, Wilier, Rimmel & Elbert, St. Louis, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent. HOLMAN, Presiding Judge. Movant (hereinafter referred to as defendant) has appealed from an order of the circuit court, made after an evidentiary hearing, overruling his motion to vacate filed pursuant to S.Ct. Rule 27.26, V.A.M. R. At a trial by jury defendant was convicted of burglary, second degree, and stealing and was sentenced by the court (under § 556.280, V.A.M.S.) to four years’ imprisonment for the burglary and four years for the stealing, the sentences to run consecutively. He appealed and this court affirmed. State v. Schleicher, Mo.Sup., 442 S.W.2d 19. The motion to vacate alleges as its sole ground that “illegal and inadmissible evidence (fingerprints) were introduced into evidence at trial in violation of Article I, § 15, Missouri Constitution, and Fourth Amendment.” A brief statement of facts will suffice. On November 16, 1966, a burglary occurred at the residence of Joseph Stelman in St. Louis. The police lifted fingerprints from a plastic tray and they were placed in the latent fingerprint file. There is a conflict in the evidence concerning the exact time of defendant’s arrest. However, there is evidence to support the trial court’s finding that he was arrested on February 3, 1967, upon suspicion that he had burglarized Jack’s Lounge in St. Louis. On February 4, 1967, he was again arrested (while still in custody) upon a fugitive warrant for a burglary in St. Louis County. He was processed and fingerprinted. Later that day it was discovered that defendant’s prints matched those found at the Stelman home and he was charged with that burglary. At the trial the fingerprint evidence was the only evidence which connected defendant with the offense. No motion to suppress the fingerprint evidence was filed, no objection was made to it at the trial, and it was not mentioned in the motion for new trial or on appeal. As indicated, defendant seeks to vacate the judgment of conviction on the contention that his fingerprints were inadmissible and the admission thereof violated the constitutional provisions cited. Defendant says that his arrest was illegal because there was no warrant nor probable cause and hence his fingerprints should have been excluded. He cites Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, and Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465, which appear to support the view that the Fourth Amendment would preclude the admission of fingerprints which were the product of a defendant’s unlawful detention. We have the view that we need not determine the issue concerning the validity of defendant’s arrest. This for the reason that we agree with the finding of the trial court that “movant has waived the right to raise at this time any question pertaining to his arrest and ‘booking’ by failure to properly raise and preserve the point by pre-trial motion, trial objection, motion for new trial, or on original appeal. The case of Bynum v. United States, supra, was decided December 15, 1958, and the principle was not novel at the time of movant’s trial in September 1967. Unless raised by pretrial motion the same cannot be the subject of a collateral attack under Rule 27.26, State v. Caffey, Mo., 457 S.W.2d 657; Collins v. State, Mo., 454 S.W.2d 917.” In State v. Caffey, Mo.Sup., 457 S.W.2d 657, at 659, we stated that "a claim of illegal search and seizure is not such a matter as may be raised in a collateral attack upon a judgment of conviction. State v. Holland, Mo.Sup., 412 S.W.2d 184. * * * ‘Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions.’ * * He must also keep the question alive by timely objection, State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, and by preservation of the issue in a motion for new trial.” The issue relating to fingerprint evidence is analogous to search and seizure and the contention of its inadmissibility in this case is based on the constitutional provisions prohibiting unreasonable searches and seizures. Defendant seeks to avoid a ruling that he has waived the right to question the admissibility of the evidence by asserting that he was deprived of his constitutional right to effective assistance of counsel by failure of his trial counsel to object to its admission. This contention cannot be considered because it is mentioned for the first time on this appeal. There was no allegation relating to it in the motion, no evidence concerning it and, of course, no finding by the trial court upon that point. Finally, defendant requests that we review the question concerning the admissibility of his fingerprints under S.Ct. Rule 27.20(c). We reject that request because we are not convinced that this presents a question involving “plain error” which has resulted in “manifest injustice.” Judgment affirmed. PER CURIAM. The foregoing opinion by HOLMAN, J., is adopted as the opinion of the Court En Banc. DONNELLY, MORGAN, HOLMAN and HENLEY, JJ., concur; FINCH, C. J., concurs in separate concurring opinion filed; BARDGETT, J., concurs in result and concurs in separate, concurring opinion of FINCH, C. J.; SEILER, J., dissents in separate dissenting opinion filed. FINCH, Chief Justice (concurring). I concur in the affirmance of the judgment on the basis that the detailed findings of fact, conclusions of law and judgment of the trial court are not clearly erroneous. S.Ct. Rule 27.26(j), V.A.M.R. SEILER, Judge (dissenting). I respectfully dissent. I am unable to concur in the proposition that a claim of illegal search and seizure is not a matter which may be raised in a collateral attack upon a judgment of conviction. Despite the fact that rule 27.26 provides that a motion to vacate may be filed by a prisoner “. . . claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution ... of .. . the United States . . . and that “. . . trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal”, our divisional decisions have written Fourth Amendment claims out of rule 27.26. If the defendant does not file a motion to suppress and follow it with appropriate motions and objections, he is held to have waived the point. If he files the proper motions and objections but loses on appeal, he is foreclosed because he is then said to be using 27.26 as a second appeal. It is true many early Missouri decisions took the view the only way to reach an illegal search and seizure was by motion to suppress and this view has been carried forward into our application of rule 27.26, even after its revision in 1967, but I do not believe it is tenable in view of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. The basic question is, who is going to hear federal constitutional search and seizure questions arising from Missouri state convictions ? Our divisional position is that it is to be done by the federal courts, Fields v. State (Mo.Sup.) 468 S.W.2d 31. This leads to conflicts and does not promote finality. If there is a defect in our state proceedings, it seems to me we should handle it, rather than turning it over to the federal courts. A defendant cannot constitutionally be convicted on evidence obtained in violation of the Fourth Amendment, Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227; Townsend v. Sain, supra, and we accomplish little by declining to meet the issue, particularly in a case where there is no evidence of any abuse of process by the defendant. This is the view adopted in the Standards Relating to Post-Conviction Remedies of the American Bar Association Project on Minimum Standards for Criminal Justice. See 2.1(a) (ii), dealing with grounds for relief, and 6.1(b) dealing with waiver. I would reverse and remand this case for a full evidentiary hearing on the legality of the arrest which was made of defendant on what is stated in the record to be a request from a police department in a nearby municipality, but with no evidence as to the basis for the request. The legality of the arrest which produced the finger prints on which the conviction rests has not yet been gone into in any court.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE ex rel. Harry A. HALL, Relator, v. John C. VAUGHN, Comptroller and Director of Budget, Respondent. No. 57842. Supreme Court of Missouri, En Banc. July 19, 1972. Rehearing Denied Aug. 3, 1972. Shook, Hardy, Ottman, Mitchell & Bacon, by David R. Hardy, Charles L. Bacon, William G. Zimmerman, Kansas City, for plaintiff. John C. Danforth, Atty. Gen., John C. Klaffenbach, C. B. Burns, Jr., Asst. Attys. Gen., Jefferson City, for respondent. MORGAN, Judge. In this original proceeding, relator asserts that he is the Judge of Division Ten of the Sixteenth Judicial Circuit of Missouri; that respondent is Comptroller and Director of Budget for the State of Missouri with the duty of approving and issuing payroll drafts to pay the salary of judges of this state; that since the date of January 1, 1972, respondent has failed and refused to pay the compensation provided by law for a judge of said division on the premise that relator on said date ceased to be a judge of the Sixteenth Judicial Circuit by virtue of the provisions of Section 30, Article 5, of the 1945 Constitution of Missouri, V.A.M.S., as adopted at a special election on August 4, 1970, with an effective date of January 1, 1972; and, as a consequence thereof, relator seeks a peremptory writ of mandamus compelling the payment of such compensation. To sustain his position, relator submits: (1) that Section 30 of Article 5 is an entirely new constitutional provision which applies prospectively and therefore does not modify or curtail relator’s present term of office, and, (2) that said section constitutes an arbitrary, unreasonable and unconstitutional classification among circuit judges of this state in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Factually, the parties agree that in 1956 relator was appointed a judge of said circuit pursuant to the provisions of the constitution of this state (generally referred to as the non-partisan court plan) ; that he was retained in office in the general elections of 1958 and 1964 and served for successive terms of six (6) years each; that on May 15, 1970, in accordance with the provisions of Section 29(c) (1) of Article 5, relator filed the constitutional declaration of candidacy for re-election and was retained in office in the general election of November, 1970, for an additional term of six (6) years beginning January 1, 1971, and ending December 31, 1976; and, that relator became seventy (70) years of age on November 3, 1970. Further, it is agreed that during all of the time relator has served as a judge, including the first year of his present term, there was no constitutional maximum age limitation applicable to the office he held. However, Section 30 now provides, in part, that: “All judges appointed under the provisions of sections 29(a)-(g) of this article or appointed under the nonpartisan selection of judges in any circuit which adopts that method of selection, shall retire at the age of seventy years . . ..” From all of which, it becomes obvious that there is only one question to be answered — must relator, who was lawfully elected by the people to a six year term expiring December 31, 1976, in pursuance of the constitution and laws existing at the time of his selection, immediately “retire” and terminate his services as a judge because of the adoption of a new maximum age limitation for “all” judges? In seeking the answer, we first consider relator’s contention that Section 30 is to be given a prospective application and was not adopted with the design, purpose or intent to oust relator or others, who have or may reach the age of seventy during their present terms of office, prior to the end of the term to which they previously have been lawfully elected. First, it is of interest to consider what status, if any, a judge or the incumbent of any public office does have. Quite consistently, the courts of this country have declared that public offices are created solely to meet the needs of the public and that the incumbent thereof has no contractual or vested right to the particular office; and, on that premise, it has been concluded that: “The powc¥ to create an office generally includes the power to modify or abolish it.” 42 Am.Jur., Public Officers, Section 33; 16 C.J.S. Constitutional Law § 251. In fact, this court has so held from the early case of State v. McBride, 4 Mo. 303, 29 Am.Dec. 636 (1836) to the recent case of State v. Davis, 418 S.W.2d 163 (1967). In McBride approval was given to the abolishment of an office, while in Davis shortening the term of an office was approved. Other decisions of this court during the interim on related questions may be found in Primm v. Carondelet, 23 Mo. 22; State ex rel. Attorney-General v. Davis, 44 Mo. 129; State ex inf. Crow v. Evans, 166 Mo. 347, 66 S.W. 355; State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State ex rel. Rothrum v. Darby, 137 S.W.2d 532; Motley v. Callaway County, Mo., 347 Mo. 1018, 149 S.W.2d 875; Willens v. Personnel Bd. of Kansas City, 277 S.W.2d 665; and State v. Ludwig, 322 S.W.2d 841. As even a casual reading of such cases will reflect, the basic principle upon which the holdings therein were based was that public offices are created to meet the needs of the people; and, that when such need ceases to exist, there is no obligation or necessity to continue a useless office. From this premise, the courts have been able to rationalize the validity of making other structural changes in an office, such as shortening the term provided for the occupant of such an office. However, it is of interest as to whether or not the same rationale is truly applicable to the facts of this case. There has been no expression by the people that they no longer need a judge of Division Ten of the Sixteenth Judicial Circuit nor that there is a need to shorten the term of the occupant thereof. The question arises — even though the incumbent of an office has no vested right that the office continue, does he not have a right, by virtue of his selection by the people, to be the occupant of that office for the term for which he was selected if the need for such office still exists? Argument could be made that a change of qualification is directed more toward the incumbent than toward a structural change in the office. This court, after reviewing the historical and rather tenuous position of an office-holder in State ex rel. Henson v. Sheppard, supra, said, 91 S.W. at 1. c. 481: “ * * * Speaking to the point in hand, Judge Andrews, in Nichols v. MacLean, 101 N.Y. [526] loc. cit. 533, 5 N.E. 347, 54 Am.Rep. 730, aptly says: ‘But within these acknowledged limits the right to an office carries with it the right to the emoluments of the office. An office has a pecuniary value, although primarily it is an agency for public purposes.’ So that, given that one but ‘reads his title clear to’ a public office, he may not be rudely cast out from its solatium, its emoluments, except on due process and by the rigor of penalties denounced by positive law.” To those who would answer the question posed in the negative based on the general concept that the “will” of the people is supreme, it might be suggested that the same people also expressed their “will” when they selected relator for the office in question. Nevertheless, we depart from this rather extraneous and somewhat illusive area and return to the point at hand — did the people intend by the new maximum age limitation to oust that person (relator) whom they had selected to serve as Judge of Division Ten until December 31, 1976? In other words — was it intended that Section 30 be given a retrospective or prospective application ? The accepted answer to the latter question may be found in 16 Am.Jur.2d, Constitutional Law, Section 48, wherein it is said, in part: “The presumption that statutory enactments are not to be considered retrospective in their operation unless the intention to make them so is clearly apparent from their terms has application as well to constitutional provisions. Thus, the general rule is that prospective effect alone is given to provisions of state constitutions. The ultimate determinative factor is, however, the intent of the framers.” Consistent therewith is the law of Missouri. “The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only [citing cases].” (Emphasis added.) State ex rel. Scott v. Dircks, Mo., 111 S.W. 1; Mo.Dig., Constitutional Law, The only prior constitutional provision providing for mandatory retirement was a provision in Section 25 (now repealed) which established a seventy-five year age limit for Appellate Judges. Section 30 is an entirely new provision applicable to all court plan judges, including circuit court judges, and as such, must be considered as an expression of a new constitutional policy. Therefore, if we are to follow the law of this state, prospective application is to be given the new amendment in question, unless we can find a contrary intent that is spelled out in clear, explicit and unequivocal detail so that retrospective application is called for “beyond [a] reasonable question.” Respondent seeks to sustain his position, generally, with the argument that new Article Five does not have a saving provision or what is referred to as a “grandfather clause” (applicable to the office relator holds) retaining those presently in office. From this premise, it is submitted that the absence thereof is indicative of an intent to apply the new age limitation to those incumbents selected prior to January 1, 1972. We cannot accept the logic of such an argument. Obviously, if there is a saving provision, the rule of prospective application is not brought into the picture for the reason the provision itself answers the problem. Conversely, the rule is relevant only if there is no saving provision. Relator submits that not only does the rule of construction noted sustain his position, but that in addition thereto there are other provisions in said article which positively reflect that the framers thereof (as well as the people) presumed application of the rule to the new maximum age limitation. For instance, Article Five, as now amended, also contains the following provisions: (1) Section 29(c) (1) (in so far as it contemplates possible adoption of the non-partisan court plan in other circuits) provides, in part: “Any judge holding office, or elected thereto, at the time of the election by which the provisions of section 29(a)-(g) become applicable to his office, shall, unless removed for cause, remain in office for the term to which he would have been entitled had the provisions of sections 29(a)-(g) not become applicable to his office.”; (2) Section 31, paragraph 3, provides, in part: “The adoption of this amendment shall not affect the term or tenure of any right or duty of any judge of a court of appeals who is in office on the effective date of this amendment.”; and, (3) Section 31, paragraph 7, provides, in part: “The commissioners * * * holding office on the effective date of this amendment shall continue to hold office as commissioners of the court or court of appeals districts in which they serve until the end of their terms . . ..” (Emphasis added.) In response thereto, respondent suggests that such specific declarations have no relevant significance to the question at hand, for the reason that such “grandfather” clauses were required by virtue of the structural changes being made, i. e., three courts of appeal were being merged into one, commissioners were to be phased out and other circuits might adopt the non-partisan plan. Undoubtedly, the framers conceived of the possibility such structural changes might be construed as immediately affecting the terms of the occupants of the offices so changed, and as a precaution to protect such incumbents made the specific declarations noted. Regardless of the reason, such provisions in fact were adopted. Where no such structural changes were being made, it is-logical to conclude that the framers felt no necessity for spelling out a specific saving clause for the incumbents of offices not directly affected. To rule otherwise would be to destroy or at least ignore those words of Section 30 which declare that the provisions thereof apply to “[a] 11 judges,” and are obviously indicative of an intent that “all” of those serving within the non-partisan court plan were to be treated alike. Thus, all of the provisions herein quoted and considered fall into a harmonious whole, which, among others, is one of the hoped for objectives of judicial construction. Thus, the practical result is that one having been selected for a designated term prior to January 1, 1972, may serve out his full term regardless of the age attained during such term (except to the extent his term might have been limited by age at the time of his election); and, that one selected for a designated term after January 1, 1972, must retire upon reaching the age of seventy (70) years. As so applied, the words “[a]ll judges” used in Section 30 will be applicable alike to all serving under the non-partisan court plan, and will make effective what clearly was the intent of the people — which, in addition, suggests not only a conclusion that setting such a maximum age qualification in the long run was desirable, but also an appreciation that there is, generally, no discernible difference in the capacity of one to perform his duties on the day after attaining age seventy and the day before. As a precaution against the possibility such an assumption proves unfounded as to any one of the very limited number of persons who could be affected by such amendment, the people adopted Section 27 of said article providing removal from office for disability. It has been suggested that even though the rule of prospective application is called for by the law of this state, such rule attaches to the salary of the incumbent relator. In other words, that it would be a prospective implementation to terminate relator’s salary on January 1, 1972, so long as no effort was made to recover the compensation paid him between November 3, 1970, (the date he became seventy years of age) and January 1, 1972. Such an argument is not valid for several reasons. The right to receive a salary or compensation is merely an incident of the office and naturally flows to that person who might be the occupant thereof. The right to “. . . compensation is not the creature of contract. It exists, if it exists at all, as the creation of law, and, when it so exists, it belongs to him * * * because the law attaches it to the office.” Mechem, Public Officers, Section 855, page 577. The point at issue is whether or not relator is qualified to continue to serve as a judge, and not whether or not he is to be compensated for doing so. A contrary approach would create the possibility a person in office could continue to serve without compensation. In addition, such a construction would prevent a uniform application of the provisions of the new article to “[a]ll judges” alike and result in a very illogical irrl£lementation thereof and make impossible the harmonious blending of all sections of the article heretofore considered. Lastly, comment should be made that we have refrained from extending this opinion by detailed consideration of the many cases from foreign jurisdictions, cited by the parties and found by our own research, primarily, because of the fact this court has considered those issues relating to the question now submitted more often than most courts as shown by the cases heretofore cited. In addition, we have found none of the foreign cases to be factually similar, and where they are somewhat so, the conclusion reached therein has been based on the precise wording of the amendment being considered in a frame of reference to other constitutional provisions not identical to those of this state. For those interested in their limited preceden-tial value, however, such cases are considered under the titles “Public Officers,” “Constitutional Law” and “Judges” in all recognized digests and texts. In conclusion, we are convinced that the plan to be carried out, which is consistent with the rule of prospective application, allows every judicial officer, elected prior to January 1, 1972, to retain his office for the full term for which he had been selected unless removed for some reason other than age. We find nothing to indicate an intent to disrupt such tenure by adoption of new Article Five. We need not consider, in view of our ruling on point one, relator’s contention in point two that the amendment itself, in so far as it classifies circuit judges of this state, is in violation of the Fourteenth Amendment of the United States Constitution. A peremptory writ of mandamus calling for the payment of the compensation due relator for his services as the Judge of Division Ten of the Sixteenth Judicial Circuit is to issue. SMITH, WEIER and CLEMENS, Special Judges, concur. DONNELLY, Acting C. J., dissents. HENLEY, J., dissents in separate dissenting opinion filed. SEILER, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of HENLEY, J. FINCH, C. J., and HOLMAN and BARDGETT, JJ., not participating. HENLEY, Judge (dissenting). I respectfully dissent. I agree with relator’s contention that the general rule is that the provisions of a constitutional amendment are not to he applied retrospectively but are to be given prospective effect only. But I cannot agree that this rule prevents application to him of § 30 of Article V (adopted August, 1970), Constitution of Missouri, from and after January 1, 1972, its effective date. Relator contends that to apply the mandatory age 70 retirement provision to him is to give the amendment retroactive effect, contrary to the rule. In support of this contention he argues that in the election on November 3, 1970 he was retained in office for a full six-year term under a constitution the provisions of which did not require him to retire at any age; that to require him to retire on the effective date of the amendment because he had reached age 70, would be to deprive him of a full term guaranteed by the constitution under which he was elected and under which he thereafter accepted the new term; that to permit respondent to apply § 30 to him would be to apply a law not effective until January 1, 1972, retroactively (1) to a term of office which began before that date and (2) to a public officer who was not, when elected or when he accepted the new term, burdened with the requirement that he retire at age 70. His contention will not bear close examination in the light of his own argument. Exposed to this light, the unadorned truth underlying his contention is revealed to be: that he has a vested interest or right in the office and its term as it existed under the constitution when he was elected and sworn in. This contention flies squarely into the face of a recent decision of this court that a public officer has “ * * * no vested or private property right in a public office * * or its term. In the Davis case the court held that a constitutional provision that, except as provided in the constitution and subject to right of resignation, all officers shall hold office for the term thereof and until their successors are duly elected or appointed and qualified did not preclude shortening of terms of Kansas City officials from four to two years via charter amendment; that constitutional authority and power to amend the charter carried with it the right of the people to determine the length of term of their elected officials even though that incidentally would involve shortening the terms of incumbents. In Davis, supra, the court quoted with approval this statement from Sanders v. Kansas City, Mo.App., 175 Mo.App. 367, 162 S.W. 663, 1.c. 665: “ * * * [A]n officer elected or appointed even for a definite term takes office with the implied understanding that the power which created the office may abolish it before the expiration of his term, in which event he will find himself out of office * * It logically follows that the power of the people to abolish an office necessarily includes the power to do less, to fix an arbitrary age at which those elected or appointed thereto must retire, even though this would have the effect of compelling the retirement of an incumbent and thereby cut short his term. The customary method by which incumbent officers are exempted from the application of the above rules is the inclusion of a saving or “grandfather” clause in the amendment or its schedule. Neither this amendment nor its schedule contains a grandfather clause applicable to circuit judges appointed under the nonpartisan court plan. For the above reasons, I would hold that relator has no vested right in the office of circuit judge as it existed prior to the effective date of § 30; that § 30 is applicable to him, required his retirement, and that he is disqualified to serve as circuit judge as of January 1, 1972. Accordingly, I would quash our alternative writ of mandamus. The above reasons are sufficient to support the decision I believe the court should reach. However, there is another and very simple reason why the writ should be quashed which may be stated in very few words. Section 30 provides: “All judges appointed under the * * * [nonpartisan court plan] * * * shall retire at the age of seventy years * * (Emphasis supplied.) Relator was appointed under the nonpartisan court plan and he is over age seventy. The quoted words mean what they say, they exclude or exempt no one, and, since there is no clause elsewhere in the amendment saving circuit judges under the nonpartisan court plan from application of this section, they mandate his retirement. I refrain from discussing the Fourteenth Amendment question because it is not considered in the majority opinion. SEILER, Judge (dissenting). In addition to concurring in Judge HENLEY’s dissent, I wish to point out that as I understand the reasoning of the majority opinion, it goes like this: since section 30 says that all non-partisan court judges are to retire at age 70, the intent of the voters was to treat all non-partisan court judges alike. But since circuit court judges who come under the plan later are to hold office for the term to which they would have been entitled had the plan not been adopted in their circuit (this is Sec. 29(c) (1) and is a true grandfather clause) and since the change of nomenclature to judge of the court of appeals is not to work a wholesale removal from office of those who used to be known as judges of the St. Louis, Kansas City, or Springfield Court of Appeals (this is found in paragraph 3 of Sec. 31, the schedule, and in my opinion, is not a grandfather clause at all, but operates only to make it plain that those who were judges of the St. Louis, Kansas City and Springfield Courts of Appeal are to become the judges of the court of appeals in their respective districts), it follows there must also be a grandfather clause for every level of non-partisan court judge — circuit court, probate, appellate and supreme court — because, to quote the opinion, “To rule otherwise would be to destroy or at least ignore those words of Section 30 which declare that the provisions thereof apply to ‘[a]ll judges,’ and are obviously indicative of an interest that ‘all’ of those serving within the non-partisan court plan were to be treated alike.” Therefore, even though there is no grandfather clause applying to judges in relator’s class, relator can nevertheless continue to serve. This is like saying that if there is a general rule applying to all classes making up an aggregate, but it has one exception, then to achieve uniformity, there must be as many exceptions as there are classes, or to put it another way, if there is an exception as to one, there must be an exception for all. I do not believe the people had any such intention. . See: State ex rel. Scott v. Dircks, Mo., 111 S.W. 1, 3, and cases therein cited. See also: 16 Am.Jur.2d, Constitutional Law, p. 218, § 48, and cases there cited. . This date was, incidentally, his seventieth birthday. . State ex rel. Voss, et al. v. Davis, et al., 418 S.W.2d 163, 1. c. 167 and 1. c. 170-172. See also: 42 Am.Jur., Public Officers, p. 905, § 33. Closely allied to the proposition that an incumbent has no vested right in a public office or its term is the general rule that “[t]here can, in the nature of things, be no vested right in an existing law which precludes its change or repeal * * *.” See: 16 Am.Jur.2d, p. 763, § 423, and cases there cited. The people who created the office and retained him in it have the power, free of any right of relator, to change their basic law at any time, including the power to change it so as to disqualify their officers who reach a given age. . See, for example, § 3 of the Schedule to the 1945 Constitution of Missouri.

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Earl E. HOEHN, Plaintiff-Respondent, v. Henry Lee HAMPTON, Defendant-Appellant. No. 34211. Missouri Court of Appeals, St. Louis District, Division Two. July 11, 1972. Harlan & Harlan, John L. Harlan, Jr., Clayton, for defendant-appellant. Koenig, Dietz, Hermann & Abels, Thomas B. Maue, St. Louis, for plaintiff-respondent. SIMEONE, Judge. In this action for personal injuries occasioned by an automobile collision, the jury found in favor of the defendant, Henry Lee Hampton. The trial court thereafter sustained plaintiff Earl E. Hoehn’s motion for a new trial and ordered the cause reinstated upon the docket for further proceedings. From the order granting plaintiff Hoehn a new trial, defendant Hampton appeals. On November 12, 1965, Hoehn was involved in a collision at the intersection of Highway 54 and Old Highway 40, near Kingdom City, Missouri. He was a passenger in an automobile owned by Calgon Corporation and driven by William E. Pfeiffer. On November 30, 1967, Hoehn filed his petition against Hampton and Cal-gon Corporation, but subsequently dismissed the petition against Calgon. Trial was held in March, 1971. Pfeiffer was Hoehn’s “boss” and district sales manager of Calgon. They had left St. Louis on the morning of November 12, about seven a. m., drove to Mexico, Missouri where they visited two accounts and were on their way to Fulton when the collision occurred. It was a clear day, the weather was good, and the streets were dry. Hoehn and Pfeiffer were riding in a 1965 Ford station wagon. Hampton, a farmer, owned and drove a 1962 Ford pick-up one-half ton truck with a six foot bed. At or near the intersection of Highway 54 and Old Highway 40, Highway 54 runs north and south and consists of two lanes for northbound traffic and two lanes for southbound traffic. The concrete highway has pavement 25 feet wide. Highway 40 at the time of the collision, was a two lane highway running east and west. Highway 54 was separated by a grassy strip median 40 feet wide between the north and southbound lanes of the highway. The intersection is a four-way intersection. At that intersection there were business places, filling stations, a restaurant and a highway patrol weight station. There was a 15 foot shoulder on each side of the southbound lanes of Highway 54, and a “yield” sign on Highway 40 at a point immediately east of the southbound lanes of Highway 54. At the intersection the land is flat but Highway 54 rises to a crest some 600-700 feet north. At each of the north and southbound lanes of Highway 54 at the intersection, there is an overhanging flashing light for both directions. It was referred to as a “red flashing light.” The impact occurred in the outside southbound lane of Highway 54. Hampton had been driving north on the northbound lane of Highway 54 and had picked up a hitchhiker. He let him off at Old Highway 40, after pulling off on the shoulder and coming to a dead stop. He pulled back onto Highway 54 and turned left, or west, onto Highway 40. He proceeded west on 40, entered the median which was about 40 feet wide, and at a point about half way into the median, or 20 feet from the inside southbound lane, he looked to the right (north) and saw no traffic coming south on Highway 54. He could see to the crest of the hill about 600-700 feet but was not sure he looked that far. He proceeded into Highway 54 at about 10-15 miles per hour. When he looked again, the Pfeiffer vehicle was “right on me.” Pfeiffer’s automobile was proceeding south at about 60-70 miles per hour. Hoehn, the passenger in Pfeiffer’s car felt an application of the brakes at a point 50 feet from the intersection. Hoehn testified that Hampton was moving “very slow” about “5 to 10 miles an hour.” The first time Hoehn saw Hampton’s pick-up truck from the intersection was about 30 car lengths or approximately 500 feet. The crest of the hill was “high enough that it would cover an object, an automobile coming southbound.” Hoehn testified that Hampton traveled “30, 40, maybe 50 feet” before the impact occurred at a speed of “5 to 10 miles an hour,” and that their vehicle traveled 500 feet while Hampton’s vehicle went about 50 feet. As stated, the impact occurred in the outside southbound lane of Highway 54. Hampton’s truck completely crossed the inside southbound lane and the front wheels had completely crossed the curb lane of southbound Highway 54. The Hoehn station wagon hit the truck around the back wheels. The bed of the truck was in the outside southbound lane when it was hit. Hampton’s truck was damaged behind the passenger’s door and the back bed, most of the damage being over the right rear wheel. Hampton looked at the highway after the collision and saw no skid marks. The court instructed the jury on a failure to keep a careful lookout or failure to yield the right-of-way. Instruction No. 2 also read “When a vehicle is about to enter a through highway from an intersecting highway and another vehicle on the through highway is so close as to constitute an immediate hazard, the vehicle on the through highway has the right of way.” During the closing argument, counsel for defendant (Mr. Harlan) made a number of references to Mr. Pfeiffer’s conduct in driving the station wagon. Counsel’s comments during the argument included the following: “Now, let us look at the facts a little more clearly. The facts are that Mr. Hampton came up to that intersection and he looked all the way to the crest of that hill. He saw nothing. In accordance with this Instruction No. 2, when you get up there in the Jury Room, if you’ll read it, you’ll see where it says when a vehicle’s about to enter a through highway from an intersecting highway another vehicle on the through highway is so close as to constitute an immediate hazard, an immediate hazard. There was no immediate hazard when Mr. Hampton started his ’62 Ford pick-up truck across that highway. There was a flashing red light. This is very important. There was a flashing red light for Mr. Pfeiffer, and in spite of that red light he barrelled through that intersection at 60 to 70 miles an hour. “MR. MAUE: (counsel for plaintiff-Hoehn) Your Honor, I am going to object to that. There is no issue on Mr. Pfeif-fer’s negligence, if any, in this matter. “MR. HARLAN: I am not alleging any negligence. “MR. MAUE: Yes, you are. “THE COURT: Well, he’s trying to obviate the negligence of the Defendant by —in other words, he’s taken the position the Defendant wasn’t negligent. I’m not going to comment. I will overrule the objection. Go ahead. “MR. HARLAN: Thank you. Your Honor. Anyway, this is what happened. And where did he hit him? He hit him on the right rear. There’s no other southbound cars on that dual lane. There are no skid marks. There was no squalling (sic) of brakes. There was nothing. He just simply ran into the back end of this car when by a simple turn of the wheel the whole thing could have been avoided. “You also recall yesterday that we were talking about speeds and how far vehicles traveled. Mr. Hoehn admitted himself that he saw that car, that truck, 30 car lengths away, or approximately 500 feet, and he testified that Mr. Hampton drove his car approximately 50 feet from the time he saw him until the time it happened. In other words, the Pfeiffer car was driving ten times as fast as Mr. Hampton’s car but, see, the immediate hazard was not present as outlined in the Court’s instruction No. 2 because there was no immediate hazard when Mr. Hampton started across the road. After all, everybody has a right to use the road and it is plainly evident that we crossed that intersection and was into the intersection long before the Pfeif-fer car got there, but for some reason Mr. Pfeiffer just moved right on down the highway, didn’t apply his brakes, didn’t sound his horn, didn’t swerve, but just simply ran into the back end of our car, and as Mr. Hampton has testified, the front end of his car was already off the highway when the impact occurred. “Now what do we have around this intersection? You heard Mr. Hampton describe this morning, there’s seven filling stations, there is a Highway Patrol Weight Station. That’s what is there, plus a flashing red light for the car in which Mr. Hoehn was riding. Now, that flashing red light was there for a purpose. It was there for a reason, and the reason it was there is to avoid what happened that particular November 12, 1965. Ladies and gentlemen, I want you to carefully read when you get up to your room Instruction No. 3, ‘Your verdict must be for the Defendant on the Plaintiff’s claim for damages unless you believe the Defendant was negligent as submitted in Instruction No. 2’ and listen to this, ‘and that Plaintiff sustained damage as a direct result thereof.’ “Now, another interesting point, Mr. Hoehn testified that Mr. Pfeiffer never applied his brakes until he was 100 feet away. That was the first time he applied his brakes. He had at least five or 600 feet to observe that pick-up truck when they came over the crest of the hill. The reason that Mr. Hampton didn’t see that fast moving brand new ’65 Ford station wagon is because it was over the crest of the hill and at 60 miles an hour a car is moving 88 feet a second. You can figure it out, so you can figure he had plenty of time to just simply put on his brakes and slow down and hold and the whole thing could have been avoided. “But I think the most important thing of all is for you to remember that the Court does not instruct you for any money award for this Plaintiff in Instruction No. 2 unless you believe that the Defendant was negligent and that he was injured as a direct result. Unless you find those two things you should bring a verdict back in favor of the Defendant, and this is what we’re going to ask you to do. “Now, I want you to bear in mind the red light, the fact that he was under no obligation to yield unless there was immediate hazard which there wasn’t. . . . When you consider all of these facts and the fact that we were slammed into in the right rear end when part of the truck was off the highway, I don’t think you’ll have any difficulty in returning a verdict in favor of the Defendant ...” The jury subsequently found in favor of the defendant, Hampton. After Hoehn filed a motion for judgment notwithstanding the verdict or in the alternative a motion for new trial, the court granted a new trial on the ground that “The Court erred in permitting counsel for Defendant over Plaintiff’s objection to argue that the sole cause of the collision was the negligence of the driver of the automobile in which Plaintiff was riding.” The appellant-Hampton contends that the trial court erred in granting plaintiff a new trial, urging that the defendant’s argument was a legitimate comment on the evidence and that even if the argument was a sole cause argument there was no error in making the argument. The respondent-Hoehn, on the other hand, contends that the trial court properly granted a new trial because “sole” cause was not supported by the evidence and the trial court properly exercised its discretion in granting a new trial. When a motion for new trial is filed containing a number of grounds and the trial court sustains the motion on a specified ground, the presumption is that all the grounds not so specified are overruled. State ex rel. Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3 [2-3]; Civil Rule 78.01, V.A.M.R.; Williams v. Kaestner, Mo.App., 332 S.W.2d 21 [2, 4]; Porter v. Chicago, B. and Q. R. Co., 325 Mo. 381, 28 S.W.2d 1035; Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487. When an order for new trial is granted for a specific reason, the appellant need show only error in granting it for such reason, and if other grounds are relied on to sustain it, the respondent must call the court’s attention thereto, or they will not be considered. “The purpose of this rule is salutary. It sharpens the issues in enabling the appellant to directly combat the ruling of the trial court, and limits the review, upon appeal, to the reasons for such ruling instead of requiring a consideration of all the issues raised during the trial.” City of Kennett v. Katz Const. Co., 273 Mo. 279, 202 S.W. 558, 1. c. 560. We limit ourselves, therefore, to the point whether the trial court erred in granting a new trial on the ground referred to supra. In deciding the question we are to consider the evidence in the light most favorable to the prevailing party below and give him the benefit of all reasonable inferences to be drawn from the evidence disregarding the plaintiff’s evidence unless it tends to support defendant’s defense. Moore v. Parks, Mo.Sup., 458 S.W.2d 344; Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131; Wiseman v. Jackson, Mo.App., 309 S.W.2d 356. The evidence most favorable to the defendant shows that Highway 54 southbound was a two lane highway, 25 feet wide and that Hampton, when at a point approximately 20 feet from the inside southbound lane of Highway 54, and while traveling at a speed of 5-10 m. p. h. as testified to by the plaintiff, or 10-15 m. p. h. as testified to by Hampton, he (Hampton) looked to the north and could see to the crest of the hill approximately 600-700 feet north of the intersection, although he is not sure he looked that far. Hampton continued forward without ever looking again to his right for southbound traffic until immediately before the impact at which time the southbound station wagon was only 10 or 15 feet from him, or as he put it, “It was right on me.” There is evidence that the Pfeiffer automobile was traveling 60-70 m. p. h. The jury could reasonably believe that when Hampton looked to the north and proceeded into the southbound Highway 54 he saw no traffic and was not negligent in proceeding forward. Defendant’s counsel argued that at the time Hampton proceeded to cross the southbound lanes there was no immediate hazard and the jury could believe at that time there was none. He argued that Pfeiffer must have moved right down the highway and that the “flashing red light” was there for a purpose. He argued that the reason Mr. Hampton didn’t see the car was because it was over the crest of the hill. Counsel was commenting in argument on the evidence for the jury’s consideration. The permissible field of argument is a broad one, and as long as counsel confines himself to the evidence and does not go beyond the issues and urge prejudicial matters or urge a claim or defense which the evidence does not justify, he is to be given wide latitude in his comments. Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807; Robbins v. Brown-Strauss Corp., 363 Mo. 1157, 257 S.W.2d 643. Defendant’s counsel in argument has the right to argue his non-negligence and that the plaintiff’s injuries were not caused by the direct result of the alleged negligence of the defendant. Instruction No. 2 authorized a verdict for the plaintiff only if the defendant’s conduct directly caused the plaintiff’s injuries. The thrust of the argument was the non-negligence of the defendant although presented in an affirmative manner. The argument was supported by the evidence. Respondent-Hoehn urges, however, that the trial court did not err in granting a new trial because defendant’s counsel erroneously argued “sole cause.” Hoehn admits that under a general denial a defendant is entitled to adduce evidence to the effect that the collision was not the result of defendant’s negligence but resulted solely from the negligence of Pfeiffer. Respondent also agrees that with the advent of MAI the sole cause defense remains and is available to defendant even though a sole cause instruction can no longer be given. But respondent contends that “all of this” presupposes that there is substantial evidence showing a true sole cause situation, i. e., that the collision resulted solely from the negligence of Pfeiffer in the operation of the station wagon and if the defendant’s evidence shows that he is negligent, he is in no position to “urge or argue” that the collision occurred solely from someone else’s negligence. He contends, therefore, that before the defendant is entitled to argue that the collision resulted solely from Pfeiffer’s negligence there must be substantial evidence of a sole cause situation and if the defendant’s evidence shows that he is negligent an argument that the negligence of a third person directly caused the plaintiff’s injuries cannot be made. We believe that the defendant made a proper argument under the circumstances here. Prior to the adoption of MAI, the sole cause instruction had a steady demise. Semar v. Kelly, 352 Mo. 157, 176 S.W.2d 289; Wiseman v. Jackson, Mo.App., 309 S.W.2d 356. Sole cause instructions are now prohibited by MAI. Johnson v. Harrington, Mo.App., 443 S.W.2d 1. MAI 1.03 states that “No instruction shall be given on behalf of the defendant which hypothesizes that the conduct of one other than defendant was the sole cause of the occurrence.” The Committee’s comment states that there are three reasons for this restriction. Such instructions are confusing and misleading and the prescribed converse forms adequately present the same defense. Even though the instruction has been abolished, the defense remains and MAI has not changed the law on the admissibility of evidence tending to establish that one is not negligent. Birmingham v. Smith, Mo.Sup., 420 S.W.2d 514. Under Birmingham the defendant may introduce any evidence which tends to establish that the defendant is not guilty of the negligence charged. “This is true also where such evidence from a defendant may be in the nature of sole cause in which case he may, if he chooses, introduce evidence because ‘sole cause is not an affirmative defense and plaintiff has the burden of proof on the issue of defendant’s negligence. . . . ’ ” Birmingham v. Smith, supra, 1. c. 516. If the defense remains, if the defendant is permitted to introduce evidence which is inconsistent with the allegations of the petition, whether the evidence is negative or affirmative, he should be free to argue the evidence before the jury unless the defendant’s evidence shows that he is negligent as a matter of law. A party is entitled to argue all the evidence presented for the determination by the jury. The evidence of the defendant may be purely negative (non-negligence of the defendant) or affirmative (another’s negligence was the cause of the injury). All of the evidence is for the jury to determine, and unless the defendant’s evidence shows him to be negligent as a matter of law, the issues are for the jury. Here we cannot say that, as a matter of law, Hampton’s testimony showed him guilty of such negligence as in Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131; Roux v. Pettus, Mo.App., 293 S.W.2d 144; and Weis v. Melvin, Mo.Sup., 219 S.W.2d 310. It is true that where one is charged with the duty to look, a failure to observe what is plainly visible constitutes negligence as a matter of law. But under the evidence here, the jury could conclude that Pfeiffer’s automobile may not have been plainly visible at the time defendant proceeded into the intersection of Highway 54 and Old Highway 40 because of the crest of the hill. It is true that under the practice prior to MAI, before a defendant was entitled to a sole cause instruction, the defendant must present a statement of facts supported by the evidence which would absolve him of fault and which would show that the plaintiff or a third person was at fault. Wiseman v. Jackson, supra; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373; Semar v. Kelly, supra; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853. If the evidence of the defendant showed that the defendant was negligent as a matter of law such instructions were error. Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575; Wilkins v. Stuecken, supra. But these decisions dealt with instructions and the form of such instructions to guide the jury. With the demise of sole cause instructions, the defense is now presented by a converse instruction. Unless defendant’s evidence shows him to be negligent as a matter of law, the defendant ought to be given the latitude to argue all of the evidence and submit all factual questions to the jury so that they may determine the liability, if any, of the defendant. The thrust of the defendant’s argument (although the words “sole cause” were not used) was that not only was the defendant not negligent but the collision was the direct result of the conduct of Pfeiffer. This the defendant had the right to do even if the argument is denominated a sole cause argument. The argument was in effect that the defendant was not negligent and that the conduct of the defendant was not the effective, proximate cause of the collision. The jury has the right to cull and sift the evidence ac-ceptmg or rejecting any part or all of the testimony. While the sole cause instructions are no longer permissible under MAI, counsel “had the right to argue the facts which would demonstrate that the accident was caused solely by another’s negligence. Gathright v. Pendegraft, Mo.Sup., 433 S.W.2d 299, 308 [12].” Cook v. Cox, Mo.Sup., 478 S.W.2d 678, 682; see also Will v. Gilliam, Mo., 439 S.W.2d 498, 501. The granting of a new trial by the trial court on the ground specified was erroneous. The judgment is reversed and the jury verdict reinstated. DOWD, P. J., and SMITH, J., concur.

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2024-08-24T03:29:51.129683

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Randall M. HEIM et al., on Exceptions of Jack Byron Brous, Defendants-Respondents. No. 9153. Missouri Court of Appeals, Springfield District. July 13, 1972. Robert L. Hyder, Jefferson City, Thomas A. Johnson, Neosho, for plaintiff-appellant. E. J. Murphy, Butler, for defendants-respondents. TITUS, Chief Judge. In the third section of its brief, denominated “Points and Authorities,” condem-nor-appellant states: “I. The trial court erroneously overruled objections made by [appellant] to testimony by witnesses Earl Van Gilder and James K. Slinker [sic] as to value of respondents’ property, for the reason that neither of said persons qualified as an expert and it was an abuse of discretion to permit such evidence to go to the jury. II. The trial court erred in sustaining respondents’ objection to the argument of appellant’s counsel which said that after reaching the amount of difference between the value before and after the taking, any amount subsequently added amounts to double damages. Further error was made by the trial court in a subsequent ruling which referred the jury back to the earlier instruction to disregard said argument.” I. Respondents urge that appellant has failed to preserve the first point for appellate review, but, if it did, the court did not err in permitting the opinion testimony of Van Gilder and Slenker. Testifying for respondents, Van Gilder initially recounted, inter alia, that he was a 56-year-old farmer who had engaged in farming and lived in Barton County (where the condemned property was located) “all of my life.” Van Gilder stated that “down through the years” he had acquainted himself with the sale price of various Barton County farmlands, had bought land, and was familiar with respondents’ farm and its fair market value on the date of the taking. When invited to “tell the jury” his opinion of “what the value of the entire tract was worth” before the condemnation, appellant’s counsel objected “on the grounds that the witness is not qualified as an expert to give that opinion.” Although the trial court overruled the objection, Van Gilder did not answer the question. Thereafter, the witness responded affirmatively to additional questions propounded by respondents’ lawyer to show that Van Gilder had previous “occasion ... to appraise property” and “had occasion to appraise property for, say, a court.” He was then asked: “With that in the background, in your judgment, what was the value of [respondents’] property prior to the taking ? ” Van Gilder answered the question without objection. Appellant did not object when the witness was asked to state his opinion as to the value of the remaining property after the taking; neither did it move to strike any portion of Van Gilder’s testimony regarding values. We are cognizant of the general rule that when an objection to a question is “squarely made” and is overruled erroneously, it is unnecessary to repeat the objection in order to save the error for review when testimony of the same character is offered through the same or another witness; we are also aware that circumstances varying from the ordinary render this general rule inapplicable. The supporting facts and conditions upon which each expert witness bases his opinion will not be analogous to those related by another. Therefore, to save an objection as to the competency of an expert, it is necessary to object to the testimony of each witness called upon to give his opinion on a specified subject. Neal v. Caldwell, 326 Mo. 1146, 1159, 34 S.W.2d 104, 109-110(8). Also, if an objection to a question calling for an opinion be improperly overruled and the witness does not answer, any error in asking the question is harmless. Likewise, when a challenge to the competency of a witness to express an opinion is erroneously overruled and the witness does not answer the inquiry until it is later repeated after the witness has testified to additional qualifications to augment his competency, it is required that a further objection be made to the subsequent question if the objection to the witness’s qualifications is to be saved. In the instant case, Van Gilder had stated some of his qualifications as an expert when the trial court overruled appellant’s objection to the first call for the opinion of the witness. Even assuming that the ruling was then erroneous, the question was not prejudicial because it was not answered. Van Gilder then proceeded to augment his qualifications and later was asked for his opinion with the added testimony anent his competency “in the background.” He answered without objection. In such circumstances, it cannot be said there was a “squarely made” objection to Van Gilder’s opinion. If appellant’s counsel was dissatisfied with Van Gilder’s overall qualifications as first recited and later supplemented, he should have made a further objection to save the alleged error. The absence of an objection at this point made it appear that the added testimony had overcome counsel’s initial impression that the witness was not qualified to state an opinion. James K. Slenker, the second witness complained of by appellant, resided in Barton County, was occupied as a truck driver and had engaged in farming. When asked how long he had “lived in and around this area,” the witness replied, “Forty-one years, Kansas City, forty-seven all totaled.” Slenker stated that “as a truck driver around Barton County,” he heard of the sales of various farms, that he had bought and sold land in the county, was familiar with respondents’ real estate prior to the taking, and was basing his value of respondents’ farm upon his “experience in knowing of other sales and the sale of [his] own property.” At this point appellant objected to Slenker giving his opinion because “he’s not been qualified as an expert.” The objection was overruled and the witness answered. No exact formula exists for judging the competency of a witness to give an opinion on real estate values. To qualify as such an expert, it is not necessary that the witness be engaged in the real estate business. If the witness is capable of forming a better opinion on values than the jury or men in general because he is acquainted with the land in question, professes to know its value, has knowledge of and opportunity to learn the worth of similar property in the vicinity, and has participated in or has information concerning the sale of like real estate, he is usually considered competent to state an opinion. State ex rel. Burcham v. Drainage District No. 25, Mo.App., 272 S.W.2d 712, 715-716(5); 5 Nichols on Eminent Domain, 3d ed., § 23.31, pp. 23-31 to 23-33; 32 C.J.S. Evidence § 546(119), at pp. 460-469. Qualification of an expert, as appellant acknowledges, is a preliminary question largely, but not wholly, for determination by the trial court whose discretion ordinarily will not he overruled unless abused or exercised in clear error of law. St. Louis-San Francisco Railway Co. v. Morrison, Mo.App., 439 S.W.2d 27, 30(8). The rule of deference is not a mere device to gloss over prejudicial error committed by trial judges in discretionary matters (Missouri State Park Board v. McDaniel, Mo.App., 473 S.W.2d 774, 778), but if reasonable men can differ about the propriety of the action taken, we cannot say that the trial court’s discretion was abused. Kasper v. Helfrich, Mo.App., 421 S.W.2d 66, 69(4). It cannot properly be stated that reasonable men would not differ regarding the propriety of permitting Slenker to express an opinion at the time appellant’s lone objection was voiced. Cf. Newkirk v. City of Tipton, 234 Mo.App. 920, 930(5), 136 S.W.2d 147, 151(5). Ergo, we may not hold that the trial court abused its discretion or was guilty of a clear error of law by permitting Slenker to respond to the inquiry. However, from the record and brief, as we read them, appellant predicates its doubts of Slenker’s competency more upon the basis of the information elicited on cross-examination relative to his qualifications. We are inclined to agree that Slenker’s cross-examination testimony impoverished the qualifications to which he testified on direct examination. Nevertheless, after cross-examination tended to demonstrate that Slenker was not qualified to express an opinion, appellant did not renew its objection to his opinion testimony or move to strike it. “[T]he propriety of a trial judge’s ruling on the admissibility of evidence must be reviewed in the light of the circumstances existing at the time the ruling was made. If evidence is apparently competent and relevant on its face when offered, the trial judge . is not to be convicted of error in [admitting it] if a showing is afterwards made that, for some reason not previously disclosed or discernible, the evidence is actually improper. . . . And when such a showing is made and the objectionable aspect of the evidence is thereby brought to light, the party who originally objected to it has the . . . duty to renew his objection to it and move to strike it; and his failure to do so will constitute a waiver of his objection.” State ex rel. State Highway Commission v. Henderson, Mo.App., 381 S.W.2d 10, 12(4, 5). II. Respondents additionally asseverate that appellant’s second point has not been preserved for appellate review. Our authority to review claims of error is limited by Missouri Supreme Court Rules of Civil Procedure 79.03 and 84.13(a), V.A. M.R., which (with certain exceptions not applicable herein) require that allegations of error must be presented to the trial court in a motion for a new trial in form sufficiently definite to direct the court’s attention to the particular ruling asserted to be erroneous. Appellant stated in its motion for new trial that the trial court “erred in sustaining the objection by [respondents] to the argument of counsel for the [appellant] because the statement made by counsel for [appellant] was and is the law, and the instruction by the Court to the jury to disregard counsel’s remarks was an erroneous ruling and one which incorrectly permitted the jury to award double damages.” The statement made in the motion is not only lacking of any specific allegation of error sought to be presented, but it is also void of any general allegation sufficient to identify the particular argument made by appellant’s counsel or the specific ruling of the court that was the subject of appellant’s complaint. Sans aids extrinsic to the motion, there is no way to ascertain what statement made by appellant’s counsel “was and is the law” or what remarks the trial court instructed the jury to disregard. The averment of error in the motion for new trial preserved nothing for review. Pasley v. Newton, Mo.App., 455 S.W.2d 43, 47-48(3,4). Moreover, by comparing the allegation of trial court error as stated in the motion for new trial with appellant’s second point on appeal, supra, it becomes readily apparent that the averment of error enounced in the last sentence of the point is wholly missing from the motion and, hence, has not been preserved for review upon appeal. Dudeck v. Ellis, Mo., 399 S.W.2d 80, 97(18); Aiple v. South Side National Bank in St. Louis, Mo.App., 442 S.W.2d 145, 148(3). In addition to the foregoing, Civil Rule 84.04(d) requires that the points relied on must state “wherein and why” the rulings of the court sought to be reviewed are claimed to be erroneous. Appellant’s second point may or may not be sufficient to identify the precise errors complained of, but merely stating what the alleged errors are without also stating “why” they are errors, neither complies with the rule nor preserves anything for review. Chambers v. Kansas City, Mo., 446 S.W.2d 833, 841(14); Moll v. Springdale Park, Inc., Mo., 395 S.W.2d 126, 128 (1). The second point fails to state why it was error for the trial court to sustain respondents’ objection to the argument of appellant’s counsel or why it was error for the trial court to refer the jury back to an earlier instruction and tell the jury to disregard counsel’s argument. The point is, therefore, deficient in presenting anything for appellate consideration. For the reasons stated, the judgment is affirmed. STONE and HOGAN, JJ., concur. . Missouri Supreme Court Rules of Civil Procedure 84.04(a), (d) and (e), V.A. M.R., indicate this section of the brief should be labeled “Points Relied On.” . The transcript on appeal records the name of this witness to be James K. Slenker. . State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. (banc) 139, 154, 229 S.W. 1059, 1063(6) ; Kelley v. Hudson, Mo.App., 407 S.W.2d 553, 558 (14); Borgman v. Boten, Mo.App., 225 S.W.2d 360, 362(1). . Allen v. Gibbons, Mo.App., 425 S.W.2d 243, 247; Fletcher v. Kansas City Rys. Co., Mo.App., 221 S.W. 1070, 1072(6); Janes v. Levee Dist. No. 2 of Dunklin County, Mo.App., 183 S.W. 697, 700(5). .Cooper v. Chapman, 226 Ark. 331, 289 S.W.2d 686, 688(2) ; 88 C.J.S. Trial § 122, at p. 244; cf. Kwaiser v. Peters, 6 Mich.App. 153, 148 N.W.2d 547, 551 (7), aff’d 381 Mich. 73, 158 N.W.2d 877; Pardue v. Citizens Bank & Trust Company, Ala., 247 So.2d 368, 377(6, 7) ; Blount County v. Hollingsworth, 45 Ala. Civ.App. 401, 231 So.2d 324, 327(6). . State ex rel. State Highway Commission v. Rauscher Chevrolet Company, Mo., 291 S.W.2d 89, 92(2), 55 A.L.R.2d 773, 777 (2, 3) ; Kirst v. Clarkson Construction Company, Mo.App., 395 S.W.2d 487, 498-499; Malone v. Harlin, 220 Mo.App. 102, 107(3), 278 S.W. 806, 808(3). . Anderson v. Orseheln Bros. Truck Lines, Inc., Mo., 393 S.W.2d 452, 460(14); Haley v. Edwards, Mo., 276 S.W.2d 153, 162(15); Bremer v. Mohr, Mo.App., 478 S.W.2d 14, 18(8) ; Johnson v. Manwarren, Mo.App., 474 S.W.2d 342, 343(1); Bensinger v. California Life Insurance Company, Mo.App., 459 S.W.2d 511, 513 (1); DeCharia v. Fuhrmeister, Mo.App., 440 S.W.2d 182, 184(2); Hays v. Proctor, Mo.App., 404 S.W.2d 756, 763(16).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

HOUSEHOLD FINANCE CORPORATION, a Corporation, Plaintiff-Respondent, v. SESGEL-ROBERT PLATING COMPANY, Garnlshee of Ellen Tate, Defendant-Appellant. No. 34311. Missouri Court of Appeals, St. Louis District, Division Two. July 11, 1972. Robert E. Ahrens, Karl F. Lang, St. Louis, for defendant-appellant. Hall, Reaban, Seigel & Hyatt, Mark D. Seigel, St. Louis, for plaintiff-respondent. DOWD, Judge. This is an appeal from an order of the Circuit Court of St. Louis County entered on July 16, 1971, overruling the defendant-appellant’s motion to quash garnishment. The history of this litigation is as follows. On July 17, 1969, plaintiff-respondent Household Finance Corporation (hereinafter H.F.C.) filed suit against defendant-appellant Ellen Tate to recover the sum of $2,332.51 plus interest. On December 17, 1969, the defendant filed a petition in bankruptcy in the U.S. District Court for the Eastern District of Missouri, Eastern Division. She listed H.F.C. as an unsecured creditor. However, she did not file a suggestion of bankruptcy in the Circuit Court, nor did she request a stay of proceedings. On January 7, 1970, the plaintiff H.F.C. took a default judgment against the defendant. Subsequently, on January 22, 1970, the first meeting of defendant’s creditors was held. On March 2, 1970, defendant was discharged in bankruptcy. Thereafter, and on June 8, 1971, the defendant’s wages were garnished by H.F.C. She then moved to quash on the grounds of prior discharge in bankruptcy. The motion was overruled and this appeal taken therefrom. We find it unnecessary to go into the merits, for the reason that an order overruling a motion to quash execution of a garnishment is not appealable, Orf v. Computer Institute, Inc., Mo.App., 480 S.W.2d 73, and we must, therefore, dismiss this appeal. Section 512.020 RSMo 1969, V.A.M.S. provides: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause * * * may take his appeal to a court having appellate jurisdiction from * * * any final judgment in the case * * A final, appealable judgment is ordinarily one which disposes of all parties and all issues in the case. Since the right of appeal is purely statutory, appeals will not lie from rulings which do not constitute a final disposition of the case, in the absence of specific statutory authority. Morrison v. Estate of Martin, Mo.App., 427 S.W.2d 783. These principles are applicable to garnishment cases. Dyer v. Martin Loan and Finance Co., Mo.App., 281 S.W.2d 633. Garnishment is strictly a statutory action. Sanco Finance Co. v. Agnew, Mo.App., 462 S.W.2d 833[1]. An examination of the garnishment statutes clearly shows that there are definite proceedings to be followed before the final judgment is entered. See Sections 525.020 to 525.200 V.A.M.S. (1969). It is only after the final judgment is entered that an appeal from such judgment will lie. Barnes Hospital v. Quinlivan, Mo.App., 136 S.W.2d 332. If the order appealed from had quashed the garnishment, it would have constituted a final judgment, and would have been appealable. Flynn v. First Nat. Safe Deposit Co., Mo., 284 S.W.2d 593. However, the order herein appealed from overruled defendant’s motion to quash the garnishment and hence it does not constitute a final disposition of the case. Orf v. Computer Institute, Inc., supra. Since a final judgment has not been entered, the appeal is premature. We must therefore dismiss it at this time. It is so ordered. SMITH and SIMEONE, JJ., concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Marlene Jane TOTH, Plaintiff-Respondent, v. Alexander Charles TOTH, Jr., Defendant-Appellant. No. 34223. Missouri Court of Appeals, St. Louis District, Division One. July 11, 1972. Ludwig Mayer, Clayton, for defendant-appellant. James L. Sullivan, David E. Evans, St. Louis, for plaintiff-respondent. BRADY, Chief Judge. Defendant husband initiated this action to modify a decree of divorce previously awarded plaintiff wife. Plaintiff filed her motion to modify the decree seeking greater child support and attorney’s fees. The trial court denied both motions and awarded plaintiff $500.00 attorney’s fees. Defendant appeals. Initially we are confronted with a question of our jurisdiction. The defendant’s motion was captioned: “Defendant’s Motion to Modify Decree of Divorce and to Adjudge Credits Due Defendant on account of Judgment for Support of Children.” While not raised by either party (indeed we note plaintiff did not deem it necessary to favor us with a brief), defendant has charged error on the part of the trial court “ * * * by reason of its failure to adjudicate the credits due defendant on account of the judgment for alimony and support of children which accrued by reason of plaintiff’s admitted breach of the provisions of the court approved stipulation and agreement * * When read with the motion as captioned this allegation necessarily raises the question of whether we here have a “final judgment” within the meaning of § 512.020, RSMo., V.A.M.S. The ruling of the trial court stated: “Defendant’s Motion to Modify Decree of Divorce previously heard and submitted is now, after due deliberation, denied by the Court.” The law regarding the right of appeal is too well established to require extensive analysis. It is enough to say it is purely statutory and that a judgment is not final and appealable unless it disposes of all the issues as to all the parties. §§ 511.-020 and 512.020, RSMo., V.A.M.S. See also Notes 101-103, § 512.020, supra; Mo. Digest, Appeal & Error, [1]. A motion to adjudge credits as herein captioned by defendant is unknown to Missouri law. Defendant has not cited nor have we found any case where a motion so denominated has been ruled on appeal. But the character of a cause of action must be determined from the factual allegations of the pleading without regard to the caption or name assigned. State ex rel. Maddox v. Garner, Mo.App., 459 S.W.2d 40, 1. c. 44[3]. Paraphrased, the allegations of the motion pertaining to adjudication of credits are that since 1966 plaintiff claimed the two children of the parties as exemptions for tax purposes without the knowledge or consent of defendant and in violation of the agreement of the parties filed and approved with said decree of divorce; that, as a result, defendant’s claim of the children as exemptions was disallowed and he was assessed additional taxes in the approximate amount of $1,006.00 for the years 1966 through 1969; and that plaintiff has failed and refused to credit him for these amounts against the amounts he was paying for the support of said children pursuant to the decree of divorce. Defendant prayed the court order plaintiff to satisfy as much of any current or future installments the decree required him to pay for the support of children and/or alimony as was equal to the additional taxes he had to pay. It is therefore clear that regardless of how this motion is captioned defendant seeks modification of the decree so as to reflect the amounts he feels he lost as a result of plaintiff’s failure to comply with the provisions of the agreement of the parties. He was not asking the court to enter satisfaction of a prospective, indefinite and currently unknown judgment, assuming arguendo that such action would be possible. Our conclusion in this regard is supported by defendant’s actions at the hearing. At the outset of the trial, the court stated: " * * * we will proceed on the hearing to modify on Plaintiff’s Motion to Modify the Decree of Divorce, and Defendant’s Motion to Modify Decree of Divorce.” Defendant made no effort to correct the judge so as to indicate an additional motion. Defendant presented evidence on the issue of his loss due to plaintiff’s claiming of the children as exemptions but throughout the trial he gave no indication he sought anything other than modification of the decree. At the conclusion of the case he filed a motion to vacate, reopen, correct, amend or modify the order denying his motion or in the alternative for a new trial. The prayer of that motion did not ask the court to enter an order on his motion to adjudicate credits. Finally, he has alleged error not because the court failed to rule on a distinct motion but because the court failed to adjudicate credits in its order denying his motion to modify. The inescapable conclusion is that the only issue presented was the motion to modify and that when the trial court ruled that issue it disposed of all issues in the case. It follows its ruling thereon was final and appealable. We turn now to the allegations of error charged by defendant. Defendant alleges error by the trial court in awarding plaintiff attorney’s fees and costs; failing to adjudicate credits due defendant against child support caused by plaintiff taking tax deductions for children; denial of a fair hearing in that the trial court made a comment at a hearing in chambers clearly showing prejudice against defendant; and in refusing to lower child support despite evidence of changed circumstances. By the decree entered in the divorce proceeding in 1964 plaintiff was awarded custody of the two minor children and defendant was ordered to pay child support in the amount of $87.50 per child per month and $125.00 alimony per month. As part of the decree, the court also approved a stipulation entered by the parties. Paragraph 4 of the stipulation stated in part: “ * * * defendant shall have the sole and exclusive right to claim said children as exemptions for tax purposes * * To establish “changed circumstances” defendant introduced evidence to show that since the divorce he had remarried and was the father of two minor children from that marriage. At the time of the divorce in 1964 defendant was the owner and operator of a heating and air conditioning business with an income of approximately $15,200.00 for the year immediately preceding the divorce. From 1964 to 1970 the business began to experience considerable losses and his income diminished accordingly. During the years from 1965 to 1969 his income derived from the business fluctuated from a low of $10,046 to a high of $20,878, with the average being $14,578. He estimated an income of $8,000 in 1970. During those same years the corporation had a rather spotty record. There were three years when it lost money and two years when it made a profit. The average of the five-year period was a profit of $2,999. In July of 1970 defendant with his present family moved to Choctaw, Arkansas, where he purchased facilities and a license to operate a boat dock for the sum of $60,000.00. The financial arrangement consisted of a $5,000.00 cash down payment, a note for $30,000.00 made out to the previous owner requiring an annual payment of $1,914.35, a note for $7,100.00 payable at $596.00 per month, and another note for the balance which required a yearly payment of $1,416.00. The latter two notes were assumed by the defendant when he bought the boat dock. As to his current income, defendant had been receiving until December of the previous year $161.37 from a second deed of trust on his home in St. Louis and various checks totaling $70.00 per month in dividends from three separate stock holdings. The stock holdings are pledged as collateral on the notes for the purchase of the boat dock. In addition to this, defendant also receives whatever income is generated by the boat dock, but during the first eight months of his operation the boat dock has experienced an operation loss of about $7,714.02. Nevertheless, he gave his estimated income for 1970 as $8,000.00. He estimated he would receive $9,700.00 in boat dock rental for 1971. He gave no estimate as to the amount he could expect to receive from sales and service during that year. Defendant’s current living expenses were estimated at $60.00 per month for food, clothing and recreation, $295.00 per month for food, clothing and recreation for his wife and children, $100.00 child care expense for his two children when his wife is working with him at the boat dock, $100.00 per month rent, $45.00 per month utilities, $25.00 per month car expense, $50.00 per month insurance, for a total of $675.00. Defendant has no other assets. In violation of their agreement plaintiff claimed the children as exemptions in 1966. After an I.R.S. audit she was allowed to take the exemptions and defendant was forced to pay additional federal and state income taxes amounting to $248.00 for 1966, $292.00 for 1967, $248.00 for 1968, and $338.00 for 1969. Plaintiff acknowledged claiming the children as exemptions in violation of the stipulation but stated she had done so because “ * * * I was angry at the time, * * Finally, defendant stated that for the three months immediately preceding the trial he only paid plaintiff $70.00, $70.00 and $65.00 for alimony and child support. Plaintiff testified her income for the years after the divorce amounted to $6,645.88 for 1965, $5,224.21 for 1966, $3,711.97 for 1967, $7,301.55 for 1968, $8,230.70 for 1969, and $4,710.73 for 1970. The $1,500.00 alimony was included in the return for each year. Plaintiff acknowledged that pursuant to the stipulation and agreement she had received the residence of the parties. However, due to a bad business investment made by her, the facts of which are not necessary to this decision, she was forced to sell the home in July of 1970. The selling price was $52,500.00 out of which she received only approximately $21,000.00. The remainder of the selling price went to pay off preexistent mortgages. For the year 1970 her living expenses, together with those of the children, amounted to $16,837.61. All that remained of the $21,000.00 was two accounts in the names of the children in the amount of $1,936.78 each, the remainder having been used to pay off debts incurred in the business venture. Regarding living expenses, the plaintiff testified that of the $16,800.00 spent the previous year, $10,800.00 was attributable to the children alone. She estimated this expense would increase as the children grew. While both of her children are currently in good health their orthodontist has indicated the need in the near future for braces for their teeth. The estimated cost of this was $1,000.00 per child. Other than the bank accounts in the children’s names, plaintiff has no other assets except some furniture. All the stock holdings which she possessed at the time of the divorce had been converted to pay for debts arising out of the business. While she was currently engaged in selling insurance, business had fallen off significantly and she anticipated changing her occupation to selling educational materials in the near future. Plaintiff also testified that she had remarried just prior to the hearing. Plaintiff’s attorney took the stand in order to testify concerning attorney’s fees. It was his testimony that the plaintiff was not in a position to pay attorney’s fees and he estimated that he had expended effort and time amounting to $1,450.00 in fees. After hearing the evidence the trial court entered its order denying both motions and awarding plaintiff $500.00 attorney’s fees. Defendant filed a motion to modify, vacate, reopen, amend or correct the order or in the alternative for a new trial. Included in this motion was a request for a written opinion by the court containing grounds for its decision under Rule 73.01(b), V.A.M.R. Attached to the motion was an affidavit of defendant’s counsel stating that at a pre-trial conference plaintiff’s attorney made reference to the fact that defendant’s father-in-law was a prominent St. Louis businessman and the trial court after recommending disposition without a hearing stated: * * * defendant’s father-in-law could provide for the support of the two (2) children of defendant’s present marriage and defendant could then provide for the support of the two (2) children of his marriage to plaintiff.” The court overruled the post-trial motion and specifically denied the request for a written opinion stating grounds for its decision “ * * * as being presented to the Court at too late time; that there was no request at the time for the Court to give an opinion on findings of law or findings of fact prior to the decision that the Court rendered.” As to the matter contained in defendant’s attorney’s affidavit, the court dictated into the record that it did not remember making such a remark, and if it did do so, it did not take the fact into consideration when making its decision. Plaintiff’s attorney also stated for the record that he was present at the pre-trial conference and that he did not recall any such remark being made. The allowance of attorney’s fees and court costs is a matter largely discretionary with the trial court in view of the circumstances of both parties. The test in proceedings of this nature is whether the wife is possessed of sufficient means to prosecute the suit on her own, for if she has such means the husband is not required to meet those expenses. Engler v. Engler, Mo.App., 455 S.W.2d 36. There was sufficient evidence for the trial court to find that plaintiff had no available assets and her outlook for future income was very cloudy. On the other hand, while defendant also had experienced losses in his business he still had some remaining assets and from his own testimony a relatively predictable future income. On that basis we do not feel the award of $500.00 was an abuse of discretion. Defendant’s allegation of error regarding the failure of the court in its order to give him credit for loss of income tax exemptions is grounded on the fact that the stipulation and agreement were filed and approved by the court granting the divorce. We note, however, that while the terms of the divorce decree were consistent with the stipulation, the only reference to the stipulation was the last sentence of the decree which stated: “Stipulation filed and approved dated December 9, 1964.” It is well settled that parties to a divorce action may properly enter an agreement determining their property rights growing out of the marriage including the wife’s claim for alimony and/or support and maintenance of the children. North v. North, 339 Mo. 1226, 100 S.W.2d 582; Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513. It is equally well settled that the trial court can incorporate the stipulation and agreement into the divorce decree. Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675. If the decree incorporates the terms of the agreement, the agreement can only be changed by a modification action. If, on the other hand, the agreement is merely approved by the court and not incorporated into the decree, modification is not an appropriate remedy. Jenks v. Jenks, Mo.App., 385 S.W.2d 370. In the instant case the agreement was “filed and approved” by the trial court and therefore modification is not the proper remedy. Singer v. Singer, Mo.App., 390 S.W.2d 605. In other words, the agreement between the parties constituted a contractual obligation which while enforceable by an action for breach of contract is not subject to modification. Since the court was without jurisdiction to grant the relief sought by defendant, its failure to do so cannot constitute error. Defendant’s allegation the trial court was influenced by extraneous considerations and, therefore, did not afford defendant a fair trial rests upon an affidavit submitted by his attorney as part of his motion for a new trial. Contrary to this is the statement by the trial court and the statement and affidavit of plaintiff’s attorney. Even if we assume the remark was in fact made, when we read the entire record as we must (Crimi v. Crimi, Mo.App., 479 S.W.2d 195) we do not see any evidence of prejudice or a predetermination of the issues by the trial court. Indeed, the record speaks well of the trial court’s handling of the case. Both parties were given equal opportunity to present any and all evidence which they had. We do not find error on the part of the trial court. Finally, we consider the trial court’s decision refusing to lower child support. We review the case upon both the law and the evidence, determining the facts de novo with due deference to the trial court on issues of credibility. Bagley v. Bagley, Mo.App., 460 S.W.2d 736. Doing so we are confronted with a situation where both parties have undergone considerable change in circumstance. Apparently defendant recognizes this as his primary argument is directed toward plaintiff’s evidence being gross exaggerations and unsubstantiated by documentary evidence. We note however that defendant’s evidence is not immune to the same charges. There was considerable question concerning his method of accounting and the actual loss he incurred. The evidence shows that defendant did have a predictable income while plaintiff did not. Defendant still retained his stock holdings and other assets while plaintiff had been forced to liquidate hers. Finally we note that the total sum payable by defendant had been reduced by the amount of alimony due to plaintiff’s recent remarriage. Considering these factors and allowing such deference to the trial court’s assessment of credibility as necessary, we find no error in the trial court’s decision. For the foregoing reasons the decision of the trial court is affirmed. WEIER and CLEMENS, JJ„ concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Earl DUNNING and Peggy Dunning, Plaintiffs-Respondents, v. ALFRED H. MAYER COMPANY, a corporation, Defendant-Appellant. No. 34263. Missouri Court of Appeals, St. Louis District. May 23, 1972. Dempsey & Dempsey, Richard B. Dempsey, St. Louis, for defendant-appellant. London & Greenberg, Burton M. Green-berg, Lawrence J. Fleming, St. Louis, for plaintiffs-respondents. SIMEONE, Judge. This is an appeal from a judgment in favor of Earl and Peggy Dunning, plaintiffs-respondents (hereinafter Dunnings) against Alfred H. Mayer Co., defendant-appellant (hereinafter Mayer) for $13,900 damages for a breach of contract to convey certain real property and to construct a residence. On June 22, 1967, the parties entered into a written agreement whereby Mayer agreed to sell a certain lot in Wedgewood Green subdivision in St. Louis County and to erect thereon a dwelling according to certain specifications, and the Dunnings agreed to pay $23,525 for the purchase of the land and the erection of the dwelling. Dunnings paid to Mayer the sum of $1,500 as a part of the purchase price. The “sale contract” provided that “ . . . [I]n the event the dwelling being or to be erected on the property sold hereunder is not completed to Seller’s (sic) satisfaction within seven (7) months and Purchaser gives Seller written notice of his desire to withdraw from this agreement, this instrument shall be deemed cancelled . . . ” Mayer did not construct the dwelling and on November 30, 1967, Dunnings filed a petition for Specific Performance, which was amended on July 2, 1968. The amended petition entitled “Amended Petition for Specific Performance, or In the Alternative, Breach of Contract,” contained two counts. Count I prayed for a decree that “Defendant be directed to comply fully with the terms of the aforesaid contract, to construct the dwelling aforesaid, and to convey . . . said premises to the Plaintiffs, . . . and for such other and further relief, including costs, as to the Court may seem just and proper.” Count II prayed damages in the sum of $10,000 for breach of the agreement. Count II also prayed damages for rent since December of 1967, increased construction costs in the sum of $3,000 and increased interest costs on a loan, which would approximate $2,000 over and above the cost factor pertaining to interest available at the time of the execution of the agreement. On March 29, 1971, the cause was heard in the Circuit Court of St. Louis County. The pertinent evidence for the purposes of this appeal on behalf of the plaintiffs indicated that the Dunnings first contacted Mayer in 1966 and that in 1967 they entered into a sale contract with Mayer and gave Mayer two checks in June, 1967, one in the amount of $100.00 and the other in the sum of $1,400.00 representing an earnest money deposit. The Dunnings were interested in this particular piece of property and the dwelling to be constructed because they were expecting a child and this piece of property was level, on a dead-end street, and abutted a public park. By the terms of the contract, Mayer was to complete the dwelling within seven months following the date of the contract. The Equitable Life Assurance Society of the U. S. (hereinafter Equitable) made a loan commitment in writing on July 10, 1967, to the Dunnings to finance the purchase of the lot and dwelling in the amount of $17,600 for a term of thirty years. This commitment which was made in June of 1967 expired on January 16, 1968, after being extended from December 16, 1967. The evidence concerning the loan commitment was specifically objected to by counsel for Mayer. In August or September, 1967, Mr. Dunning contacted Mayer to “find out as to how the building was progressing”; and he was told by a representative of Mayer that “Well, there is a chance they won’t build on that property; we might use that for other purposes, such as small shops or something like this.” Mr. Dunning asked whether “you arbitrarily cancel out and I said what chances do I have, and he said, ‘If you are lucky they might build in ’68 or ’69,’ something to that effect . . ” Thereafter Mr. Dunning inspected two additional lots but he rejected them as inferior to the lot he had originally selected. On cross-examination, Mr. Dunning stated that he was not “definitely advised by a representative of the Mayer Company that a house would not be constructed on the lot . ” Mrs. Dunning, on cross-examination, said she knew that in August or September, 1967, that there would not be a house built on the lot. There was a great deal of testimony concerning the loan commitment of Equitable. Objection was made to the entire evidence dealing with the loan commitment as not tending to prove any issue of damages. The objections were overruled. The special agent for Equitable testified that the amount of the loan commitment was in the amount of $17,600 for a period of thirty years at the rate of six per cent interest. Equitable agreed to “accept the loan upon the conditions set forth here with completion date of the improvement to be on or before the 16th day of December ’67.” The loan commitment was extended to January 16, 1968, at which time it expired. The thrust of this evidence was to show that if the plaintiffs were to enter into a contract to build the home on a similar piece of land that the money could not be borrowed at six per cent and that the difference in interest rates should be included as an element of damage. The testimony showed that the interest rates had increased so that over a total period of thirty years the total difference between a loan of $17,-600 at six per cent and the same loan at seven and one-half per cent for the same period would be $6,336. The loan commitment was given with the express understanding and condition that the construction be started within three months, from July, 1967. When the loan commitment expired, Equitable charged no fee or penalty to the Dunnings for not utilizing the loan. The agent for Equitable indicated that Mr. Dunning related to him that “they [Dunnings] were having difficulty in seeing whether the house was going to be completed or not ...” He admitted that sometime in December, Mr. Dunning advised him that definitely the house would not be constructed. An appraiser for the plaintiff testified that using the “cost-approach” method of appraisal, it would require an expenditure of $28,600 to construct the house, and using the “market-data” approach he concluded that the value in 1971 would be $28,000. The evidence shows that for the year 1968, the value of the property and dwelling was $25,200; in 1969 the value was $26,800; in 1970 the value was approximately the same as in 1971. On cross-examination, the appraiser testified that the sale price of $23,525 was a fair price in June, 1967, and in December, 1967 or January, 1968 there would have been an increase in value of $1,250. The appraiser for Mayer placed the value of the house and lot in January, 1968 at $23,750. On cross-examination the defendant’s appraiser stated that construction costs had risen “twenty-eight to twenty-nine percent” since 1967 and that interest rates had risen from six per cent to “seven and three-quarters.” On April 29, 1971, Findings of Fact and Conclusions of Law were filed by the court, pursuant to Rule 73.01(b). The court found the plaintiffs paid to the defendant the sum of $1,500 as an advance partial payment; that the plaintiffs obtained a loan commitment from Equitable for a loan of $16,700 [$17,600-?] at six per cent, that the defendant “did not intend to carry out the terms of the contract” and erected a dwelling dissimilar to the one provided in the contract, which is being occupied as the office for Mayer. The court further found that between June, 1967 and March, 1971 the cost of constructing the dwelling increased approximately twenty-one to twenty-eight per cent and that between June, 1967, and March, 1971 the cost of borrowing money increased from six per cent to seven and three-fourths per cent. The court found that Mayer “has made no attempt to perform the contract.” Accordingly, the court ordered judgment in favor of the plaintiffs in the following amounts: (1) $1,500 for return of the advance deposit with interest in the sum of $400.00; (2) $5,000 difference between the cost of purchasing a house in June, 1967, and the cost of purchasing a similar home in March, 1971, and (3) $7,000 “for additional cost of financing the purchase of a similar dwelling in March, 1971, as that which could have been purchased in June, 1967,” for a total judgment of $13,900. After Mayer’s motion for new trial was overruled, it perfected its appeal to this court. The thrust of Mayer’s argument is that the court erred in awarding damages in excess of the amount prayed in the amended petition and erred in awarding damages to the Dunnings predicated upon the increased construction costs and the increased interest rates computed as of 1971, rather than 1967. Mayer strenuously urges that the contract was breached by December, 1967 or in January, 1968 and that the measure of damages should be computed as of those dates, rather than in 1971, the date of the trial, and hence the court erred in awarding damages based on the increased construction costs and interest rates. On the other hand, Dunnings urge that the trial court did not err in awarding the judgment of $13,900 even though it exceeded the prayer for relief in the petition since there was a general prayer for relief in the first count for specific performance and that the damages awarded were proper since the amount would restore the Dun-nings to the position they would have been had the contract been performed. Dunnings theory of the case is that because of the unique features of the property they have always been ready, willing and able to perform the contract as agreed to, that Mayer breached the agreement and that they should be entitled to specific performance; that in lieu of specific performance, they should be entitled to damages sustained. Mayer does not challenge that the Dunnings are entitled to their deposit plus interest; it does challenge that damages as to construction costs and increased interest rates should not be computed as of 1971, but rather as of the date it says the contract was breached — 1967 or early 1968. This is a case tried without a jury. In such cases it is our duty to review the case de novo, and in doing so weigh the competent evidence and reach our own conclusions and enter such judgment as the trial court should have entered, but in doing so due deference is to be given to the trial judge and his judgment is not to be set aside unless “clearly erroneous.” Rule 73.01 (d); Kelly v. Schmelz, Mo.App., 439 S.W.2d 211; Biggs v. Moll, Mo.Sup., 463 S.W.2d 881. This case began its history with a petition for specific performance on November 30, 1967 prior to the time performance by the defendant was to have completed the construction of the home. On July 2, 1968, the petition was amended to include Count II — damages for breach of contract. Therefore, this is a case in which the Dunnings sought specific performance of an admitted contract or in the alternative damages for breach of the agreement. Such alternative pleading is, of course, allowed under the Rules, Rule 55.12, § 509.110. When the essential provisions of the agreement are set forth specific performance is proper and possible. Wilkinson v. Vaughn, Mo.Sup., 419 S.W. 2d 1 [10, 11]; Ray v. Wooster, Mo.Sup., 270 S.W.2d 743. The general principle of awarding damages where there has been a breach of contract is that the person damaged is, as far as possible to do so by a monetary award, to be placed in the position he would have been had the contract been performed. He is entitled to recover the value of the contract at the time of its breach or the value of the promised performance, or the value of the benefit contracted for. Boten v. Brecklein, Mo.Sup., 452 S.W.2d 86 [4-8]; see also cases in 22 Am.Jur.2d, Damages, § 46. Here we have a situation where the plaintiffs had agreed to purchase a unique lot and to have constructed upon it a dwelling according to certain specifications. Plaintiffs filed suit for specific performance in November, 1967 and sought to compel Mayer to comply with the express terms of the agreement. In its discretion the court did not grant that remedy but instead granted damages in lieu thereof. At the time of instituting their action, at the time of the amendment of their petition and at the time of trial plaintiffs still sought to have the contract fulfilled according to the original agreement. The general rule which has long been recognized in equity is that if specific performance is originally possible but the vendor makes it impractical for specific performance to be granted, and if the vendee brings the suit in good faith, supposing himself to be entitled to specific performance and the court cannot grant specific performance, it will retain the case and grant damages. It logically follows that if the court of equity in its discretion does not grant specific performance but instead grants damages that these damages are to be assessed at the time of rendition of the judgment rather than at the time of an indication on the part of the vendor that the contract may not be fulfilled. This was not a simple cause of action for damages for breach of contract — the theory of the plaintiffs’ cause was one of specific performance, but in the event that specific performance was not granted, then damages were sought. Ordinarily, damages are to be awarded at the time of the breach but when the suit is brought for specific performance and that remedy is denied, then the plaintiffs are entitled to the equivalent of the performance as of the date when specific performance was given. Mayer urges that the rules relative to the measure of damages should be applied at the time of the breach of the contract which it contends occurred in 1967 or 1968. This would normally be true but in the posture of this case, Dunnings had an agreement to obtain a particular, unique lot and to have a dwelling constructed according to certain specifications. Dunnings sought to hold Mayer to its bargain by filing suit for specific performance in November, 1967, and as late as the trial still sought specific performance. The equity court once invested with jurisdiction will retain jurisdiction and do full and complete justice. Under the facts and the relief sought, the Dunnings are entitled to the damages as of the time that it was adjudicated that they not be granted the remedy of specific performance. What then were the damages plaintiffs were entitled to at the time specific performance could have been given? When a contract relating to the purchase of real estate has been breached, the rule in this and most states is that the vendee is entitled to damages in a sum equal to the difference between the unpaid part of the agreed purchase price and the market price of the land. “ ‘Under the rule generally prevailing in the United States, and the only rule defensible on principle, allowing the purchaser the difference between so much of the contract price as is unpaid and the market price of the land, is applied in every case where the vendor breaks his contract without legal excuse’. Williston, on Contracts, Vol. 5, page 3906, Section 1399.” Wilt v. Waterfield, Mo.Sup., 273 S.W.2d 290; Hartzell v. Crumb, 90 Mo. 629, 3 S.W. 59; Krepp v. St. Louis & S F R Co., 99 Mo.App. 94, 72 S.W. 479; Young v. Raupp Realty Co., Mo.App., 305 S.W.2d 731; Kirkpatrick v. Downing, 58 Mo. 32, 17 Am.Rep. 678 (reviewing the conflicting authorities and approving the rule); cases collected in Annot. 48 A.L.R. 12, and see discussion in McCormick, Damages, § 6, 177-185; 55 Am.Jur., Vendor and Purchaser, § 666; and 5 Corbin on Contracts, § 1098. Missouri law has not followed the English rule laid down in Flureau v. Thornhill, 2 W.B1. 1078, 96 Eng.Rep. 635. Here we are confronted with a determination of the measure of damages for a breach of a contract to construct a dwelling on the property. The measure of damages for a breach of such a contract has been held to be the difference between the price at which the contractor agreed to erect it and the reasonable cost of erection in accordance with the contract requirements. Samuels v. Illinois Fire Ins. Co., Mo.App., 354 S.W.2d 352; Simons v. Whittmann, 113 Mo.App. 357, 88 S.W. 791. The injured party is entitled to damages measured by the reasonable cost of reconstruction and completion in accordance with the contract, or the difference between the contract price and the cost of doing the work. Samuels v. Illinois Fire Ins. Co., supra, 354 S.W.2d at 357; Simons v. Whittmann, supra, see also 13 Am.Jur.2d, Building and Construction Contracts, § 77. Under either theory of the measure of damages — the difference between the market value of the property less the amount of the purchase price unpaid or the costs of construction — there was substantial evidence for the trial court to award damages in the sum of $5,000. There was evidence that the contract price was $23,525, that using the cost approach method of appraisal in 1971 it would require an expenditure of $28,600 to construct the house referred to in the contract, and using the market-data approach the value of the residence to have been constructed on the lot was $28,000. There was therefore sufficient evidence for the trial court to award damages in the sum of $5,000 on this item. But the award of damages by the trial court in the amount of $7,000 for the additional costs of financing because of the increase in interest rates due to economic conditions in the country raises a different question and presents an issue that apparently has not heretofore been decided. Counsel do not cite any specific authority and independent research has failed to disclose any authority directly governing the point. In cases involving breach of contract by a vendor, numerous specific special damages have been awarded but there is almost a vacuum on this particular point. See Annot., 48 A.L.R. 12, 59-70 ; 68 A.L.R. 137, 150-152. Due to economic conditions the interest rates rose from the time the parties entered into their agreement and the time that damages were awarded by the trial court. The loan commitment by Equitable expired in January, 1968 and, so far as the record shows, the Dunnings were not penalized nor charged a fee for not utilizing the loan. Nor does the record show that the Dun-nings actually took any steps to contract to purchase another home during the period 1967-1971 nor became obligated in any manner to pay any increased interest rates. The loss of the bargain relating to the property and dwelling was a real loss for which the Dunnings are entitled to damages as discussed supra, but there is no evidence to indicate that the Dunnings suffered any real loss as to the increased interest rates. There is no evidence that they had contracted for or committed themselves for a loan for any particular period of time. In West Hill Construction Corp. v. Horwath, Conn., 149 Conn. 608, 182 A.2d 919, the Supreme Court of Errors held that where the purchasers of a house had a loan commitment bearing interest at 5.5 per cent at the time transfer of title was to have taken place, but by the time of trial the interest rate had become six per cent, the evidence did not support the allowance of the amount representing the difference. We believe under the evidence presented, this item of alleged damages representing the additional costs of financing due to increased interest rates was remote and contingent and should not under the circumstances be awarded. Plaintiffs therefore are entitled to an award of damages as follows: $1,500 down payment with interest in the amount of $400, and $5,000 representing the difference between the cost of constructing the dwelling in June, 1967 and March, 1971 — a total of $6,900. On this record the plaintiffs did not appeal the ruling of the trial court denying specific performance of the land and have not sought specific performance on appeal. The trial court could have awarded specific performance compelling the transfer of the land and incidental damages sufficient to allow the home contracted for to be built. But, because plaintiffs have not appealed from the court’s failure to grant specific performance, we do- not reach the issue whether the court erred in failing to grant such relief. Inasmuch as the total awarded does not exceed the prayer for relief in the amended petition filed, we need not reach that issue which was raised by the appellant. The judgment of the trial court in awarding damages in the sum of $6,900 is affirmed. That part of the judgment of the court awarding damages in the sum of $7,000 for additional costs of financing is reversed. BRADY, C. J., and WEIER and CLEMENS, JJ., concur. . All references are to RSMo 1969, V.A.M.S. and Supreme Court Rules, V.A.M.R., unless otherwise indicated.

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E. L. KEITH and Ilda B. Keith, Plaintiffs-Appellants, v. Lola TUCKER and N. C. Carroll, Defendants-Respondents. No. 9166. Missouri Court of Appeals, Springfield District. July 17, 1972. Douglas, Douglas & Douglas, Neosho, Robert E. Yocum, Pineville, for plaintiffs-appellants. Ruyle & Henry, C. E. Ruyle, George A. Henry, Neosho, for defendants-respondents. STONE, Judge. The state of facts and circumstances, out of which this court-tried controversy eventually developed, had its genesis in a casual conversation late in October or early in November 1969 during a chance luncheon meeting between plaintiff E. L. Keith (hereinafter sometimes referred to as plaintiff) and defendants Lola Tucker and N. C. Carroll in a crowded cafeteria at Bentonville, Arkansas. Invited by plaintiff to sit at his table, defendant Tucker (hereinafter sometimes referred to as defendant) mentioned that she was selling her farm and “was looking for another place,” to which plaintiff responded “let me sell you mine.” This was a 395-acre tract, known as the “K-Bar Dude Ranch” and situate in McDonald County, Missouri, just north of the Missouri-Arkansas state line. Subsequent discussions between the parties culminated in the execution by plaintiffs E. L. Keith and Ilda B. Keith, husband and wife, and by defendant Lola Tucker of three instruments dated November 20, 1969, received in evidence and hereinafter referred to as (plaintiffs’) exhibits 2, 3 and 4; and on December 4, 1969, defendant Tucker accompanied by defendant Carroll, whose status appears to have been that of an employee, moved onto the ranch. On November 13, 1970, plaintiffs instituted this action in which they sought recovery of possession of the ranch, $5,000 for the alleged wrongful withholding of possession, and for “grants [sic] and profits . at the rate of $750 per month until possession is given.” The issues raised by defendant Tucker’s answer and three-count counterclaim, defendant Carroll’s general denial and plaintiffs’ reply were, following trial on June 22, 1971, determined and adjudicated by the conscientious trial judge in a carefully considered eleven-page written opinion which on July 9, 1971, restored possession of the ranch to plaintiffs and entered judgment in the net amount of $5,105.78 in favor of defendant Tucker and against plaintiffs, from which judgment they appeal. Determination of the single point in plaintiffs’-appellants’ brief depends primarily upon construction of the three aforementioned instruments dated November 20, 1969. Plaintiff, modestly conceding that he was “a man of considerable business dealings,” drew all of these instruments— “to save lawyers’ fees for them [defendants], I agreed to write it”; and, as becomes immediately apparent from examination thereof, these products of his draftsmanship manifest and exemplify the frailties and infirmities so frequently found in work of this character undertaken by one neither trained nor skilled therein. Exhibit 2, three 8½" x 14” pages in length with notarial acknowledgment on a fourth page, was entitled and characterized on the first page as “LEASE WITH OPTION TO BUY AGREEMENT,” the same caption followed by the page number was placed at the top of the second and third pages, and in the notarial acknowledgment on the fourth page the subscribed instrument was identified as “the foregoing Lease With Option To Buy Agreement.” (All emphasis herein is ours.) The first paragraph of exhibit 2 read: “This is a Lease, Contract and Agreement made and entered into by and between E. L. Keith and Ilda B. Keith, husband and wife; herein known as Lessor and Lola Tucker, a single woman; hereafter known as Lessee. (The terms Lessor and Lessee shall be construed in the singular or plural according as they respectively represent one or more than one person and shall be binding upon the heirs and successors of all parties in this lease.)” Throughout exhibit 2, the respective parties were referred to as Lessor and Lessee. The initial “covenant and agreement” of exhibit 2 was that “[t]he Lessor agrees to lease and the Lessee agrees to lease from the Lessor the following described real estate improvements thereon, and certain listed equipment.” This was followed by a purported legal description of the ranch (which, however, did not name the county in which it was located) and a list of the leased equipment. Exhibit 2 then stated “[t]here is to be built and paid for by Lessor, three (3) 32 ft. by 350 ft. brooder houses on the above property at a cost of approximately $41,000,” listed the buildings on the ranch, and obligated Lessee to pay Lessor “$500 on January 1, 1970, $500 on February 1, 1970, $500 on March 1, 1970, $500 on April 1, 1970 and $500 on May 1, 1970 as lease money only and is not considered as any part of the purchase price of the agreement hereafter mentioned.” The next paragraph of exhibit 2 provided that “[u]pon payment of the above $2,500 and on June 1, 1970 the second phase of this contract becomes effective.” This "second phase,” which dealt primarily with purchase of the ranch by Lessee and thus necessarily was predicated upon the prior and prerequisite exercise by Lessee of her option to buy, provided for payment by her of the sum of $166,000 in monthly installments of $1,043.41 each for twenty-three years, those installments including interest on the unpaid balances as computed by Lessor. Near the close of exhibit 2, it was recited that “Lessee has given to Lessor a certain obligation for $10,000 due her for property” she had sold to one Rader just prior to her chance luncheon meeting with plaintiff in Bentonville, and that “Lessor has accepted this $10,000 obligation as payment in guaranteeing Lessee will keep the above agreement and make the payments as stated.” Upon trial, plaintiff agreed that by taking this “obligation” he had received $10,000. Exhibit 3 was entitled “CONTRACT FOR THE LEASE OF REAL ESTATE AND EQUIPMENT.” It initially recited that “Lessor [again identified as both plaintiffs] has agreed to lease to the Lessee [defendant Tucker]” the ranch described as in exhibit 2, “plus all improvement [sic] thereon, plus 3-32 ft. by 350 ft. broiler houses to be built by [plaintiff] E. L. Keith, plus the following equipment” there listed. Another paragraph dealt with the taking of bids for, and the construction of, the three broiler houses. After expressly reciting that “this lease does not include . . . [a] 11 livestock, all saddles and gear and tools at the saddle barn, the mobil [sic] home that Red Dodson lives in at the saddle barn . . . and 700 bales of choice hay,” this instrument informally detailed the “saddle horse deal,” i. e., that plaintiff was “to keep 25 head of over two-year-old horses plus any colts on the farm” and was “to get the use of South pastures now used by the horses” and “to furnish necessary grain and hay for the horses”; that defendant was “to feed and take care of the horses and operate the saddle barn and she is to get 60% and [plaintiff] is to get 40% of all fees charged for trail rides and use of horses”; and that plaintiff “will be allowed to sell any and all horses any time but [defendant] will have the refusal to buy the horse [sic] at the price offered.” Finally, defendant was given “the refusal to buy or not to buy” all cattle on the ranch at a price to be determined as there detailed. Notwithstanding the melange of matters gathered into exhibit 3, plaintiff asserted that “the main purpose of this contract was for renting and leasing of the horses.” Exhibit 4 was entitled “LEASE AGREEMENT AND CONTRACT ON REAL ESTATE.” In the first paragraph, it was stated that “[t]his is a lease and agreement” between plaintiffs, jointly identified as Lessor, and defendant Tucker identified as Lessee. This instrument declared that “Lessor does by these presents lease and demise unto the said Lessee” the ranch again described as in exhibit 2 and the equipment listed in that exhibit. Exhibit 4 then recited that “[i]t is agreed and understood that the terms of this lease is stated and agreed upon in a lease sales agreement between Lessor and Lessee dated November 20, 1969 . . . .” According to plaintiff, this “contract was wrote for no other purpose except to record.” However, neither the transcript nor the exhibit itself indicates that exhibit 4 (or either of the other two exhibits) was recorded, and upon trial defendant insisted that “I didn’t know anything about recording one.” Defendant Carroll signed as a “witness” to the signatures of the parties on each instrument, but he was not a party to, and was not mentioned in, any of them. After defendant Tucker “got interested” in the ranch but before the foregoing instruments were prepared, she and defendant Carroll told plaintiff that “if we had the chicken houses, we felt we could make the payments”; and, as we have noted, plaintiffs contracted in exhibits 2 and 3 to build three “brooder houses” or “broiler houses.” However, no completion date was specified, construction of these chicken houses was delayed (because of bad weather, so plaintiff said), and defendant was unable to put chickens in them until about April 28, 1970. In the meantime, defendant had “told [plaintiff] that without the chicken houses I couldn’t meet his payments” and she "was very upset because they weren’t being built.” Hence, defendant made no payment until after the “first batch of chickens went out,” when she deposited the sum of $1,587 in the bank to plaintiff’s credit, that being the entire proceeds derived from sale of the chickens “plus a little extra.” This deposit of $1,587 was the only payment by defendant to plaintiffs prior to June 1, 1970. The sole point in plaintiffs’-appellants’ brief is that “[t]he court erred [a] in holding that plaintiffs exhibits 2, 3 and 4 were leases and not a combination lease and contract of sale and [b] in ordering the appellants to repay $10,000 received as down payment on a sale price of $166,000.” We observe initially, as we have had occasion to do so frequently, that the quoted point states and saves nothing for appellate review because V.A.M.R. Rule 84.04(d) [formerly Rule 83.05(e)] requires that each point relied on shall state not only “what" the alleged error was but also “why” the action, of which complaint is made, was erroneous. Chambers v. Kansas City, Mo., 446 S.W.2d 833, 841(14); Sharp v. Robberson, Mo.App., [No. 9164 not yet reported]; Herrick Motor Co. v. Fischer Oldsmobile Co., Mo.App., 421 S.W.2d 58, 63(4). Nevertheless, we have, ex gratia, considered the two complaints in this bifurcated point and here dispose of them on their merits. Of complaint (a). The trial court’s first finding was that the parties had “entered into a lease agreement with the option to purchase” the real estate thereafter described. Without prolonging this discussion to an utterly intolerable length by recording in extenso the inept, confused and confusing composition and language of exhibits 2, 3 and 4, suffice it to state our conclusion that each of those three instruments, viewed alone or as one of the triumvirate, was ambiguous in various respects and fairly open to and susceptible of more than one meaning. That being true, the construction should be adopted which operates most strongly against plaintiff, who prepared all of the instruments, and in favor of defendant who merely signed them. Engel v. Cord Moving & Storage Co., Mo.App., 313 S.W.2d 173, 176(3); Leathers v. Metalcraft Mfg. & Sales Corp., Mo.App., 240 S.W.2d 211, 213(3); John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 174, 91 S.W.2d 145, 148(2); 1 Restatement, Contracts § 236(d), p. 327; 17 Am.Jur.2d Contracts § 276, p. 689; 17A C.J.S. Contracts § 324, p. 217. Accordingly, we accept and approve the trial court’s finding that the parties “entered into a lease agreement with the option to purchase” — a finding which simply tracked and adopted the characterization of the principal instrument, exhibit 2, by plaintiff, the draftsman thereof, as re-fleeted by the caption at the beginning of the instrument and at the top of each succeeding page and by the identification of the instrument in the notarial acknowledgment, to wit, “LEASE WITH OPTION TO BUY AGREEMENT.” In fact, the pleadings, the evidence upon trial, and the presentation here leave plaintiffs in no position to maintain that exhibit 2 did not grant an option to buy. In the third count of her counterclaim, defendant pleaded affirmatively “that at no time did she exercise the option to purchase . and that at no time did the ‘second phase’ of said contract become effective.” In answer thereto, plaintiffs asserted “that defendant Lola Tucker did exercise the option to purchase.” It will be remembered that exhibit 2 provided that “upon payment of the above $2,500 [the five monthly payments of $500 each] and on June 1, 1970 the second phase of this contract becomes effective.” None of the stipulated monthly payments were made but, as we have noted, defendant did make a single deposit of $1,587 to plaintiff’s credit which the parties appear to have treated “as lease money.” In a self-serving effort to retroactively move defendant into the position of having timely paid $2,500 “as lease money” and thus having exercised her option to buy, plaintiff stated upon trial that he “voluntarily” credited defendant “for $1,000 on the first two [monthly] payments.” Defendant said that she had never heard of this “credit” prior to the taking of plaintiff’s deposition on February 10, 1971, some three months after this action was instituted. However, plaintiff could not effect an exercise of defendant’s option by any such pseudomagnanimous gesture. An option is but “ ‘a right of election to exercise a privilege’” [Sunray DX Oil Co. v. Lewis, Mo., 426 S.W.2d 44, 49(9); Thacker v. Flottmann, Mo., 244 S.W.2d 1020, 1022(3); Lively v. Tabor, 341 Mo. 352, 361, 107 S.W.2d 62, 66(6), 111 A.L.R. 976; Bradley v. Hill, Mo.App., 457 S.W.2d 212, 217 (note 11)] — “no more than a continuing offer on the part of the optionor to sell . . . and not binding upon or enforceable against the optionee unless and until he elects to exercise his option.” Mohawk Real Estate Sales, Inc. v. Crecelius, Mo.App., 424 S.W.2d 86, 90(2). See State ex rel. State Highway Com’n. v. Howald, Mo., 315 S.W.2d 786, 790-791(10); Ragan v. Schreffler, Mo., 306 S.W.2d 494, 498(7). For an option, a continuing offer, to bloom into a contract the option must be accepted [Wynn v. McMahon Ford Co., Mo.App., 414 S.W.2d 330, 335(1)], and the acceptance must be unequivocal. Cottonseed Delinting Corp. v. Roberts Bros., Mo., 218 S.W.2d 592, 594(1); Thacker v. Massman Const. Co., Mo., 247 S.W.2d 623, 629(8); Bennett v. Tower Grove Bank & Trust Co., Mo.App., 325 S.W.2d 42, 47(3); Ragsdale v. TomBoy, Inc., Mo.App., 317 S.W.2d 679, 685(1). Even as “no man can make himself the creditor of another by any act of his own unsolicited and purely officious” [Watkins, Adm’x. v. Richmond College Trustees, 41 Mo. 302, 309; Cook v. Branine, 341 Mo. 273, 280, 107 S.W.2d 28, 32; Meyer v. Schaub, 364 Mo. 711, 721, 266 S.W.2d 620, 625], instant plaintiffs could not bring into being a contract for sale of their ranch by substituting their gratuitous and then undisclosed entry of fictitious credits to defendant’s account for the essential prerequisite of her voluntary and unequivocal acceptance of the option in the manner provided by exhibit 2. We conclude that defendant did not exercise her option to buy plaintiffs’ ranch. Of complaint (b). The other alleged error is “in ordering the appellants [plaintiffs] to repay $10,000 received as down payment on a sale price of $166,000.” The short, simple and sufficient answer to this complaint is that since, as we have found, defendant did not exercise her option to buy and there was no sale, the $10,000 obligation transferred to plaintiffs, admittedly the equivalent of $10,000 in cash, was not “$10,000 received as down payment on a sale price of $166,000.” The principal instrument, exhibit 2, declared that “Lessor [plaintiffs] has accepted this $10,000 obligation as payment in guaranteeing Lessee [defendant] will keep the above agreement and make the payments as stated.” Defendant’s option to buy the ranch not having been exercised, she never activated and stepped onto the 23-year purchase treadmill of $1,043.41 monthly payments, and the only payments “guaranteed” by transfer of the $10,000 obligation to Lessor were rentals accruing under the lease. Although exhibit 2 specifically required five monthly payments of $500 each on stated dates, there was no provision thereafter terminating the lease or the lessor-lessee relationship of the parties in the event defendant lessee’s option to purchase the ranch was not exercised. However, upon trial plaintiff E. L. Keith testified that the “reasonable rental value” of the ranch was $750 per month and that he sought to recover rental on that basis in the aggregate sum of $9,000 for a period of twelve months from and after July 1, 1970; and, in the trial court’s judgment, defendant was charged accordingly. In the argument section of their reply brief, plaintiffs-appellants interpose for the first time an assortment of complaints concerning the allowance or amount of some of the items charged against plaintiffs. V.A.M.R. Rules 84.04(a) and (d) [formerly Rules 83.05(a) and (e)] plainly require that an appellant’s original brief “shall contain . . . [t]he points relied upon” which “shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder.” We have hereinbefore reviewed and ruled the two complaints which appellants undertook to present, albeit insufficiently, in the single bifurcated point in their original brief. Our appellate courts have held repeatedly that complaints first advanced either in the argument section of an original brief [Hastings v. Coppage, Mo., 411 S.W.2d 232, 235(4); Frager v. Glick, Mo., 347 S. W.2d 385, 391(5); Bishop v. Goldschmidt, Mo.App., 436 S.W.2d 47, 51(6); Haughton Elevator Co. v. C. Rallo Contracting Co., Mo.App., 395 S.W.2d 238, 246(13)] or in the reply brief [Page v. Metropolitan St. Louis Sewer District, Mo., 377 S.W.2d 348, 354(9); Edwards v. Durham, Mo., 346 S.W.2d 90, 98(3); Magenheim v. Board of Education of School Dist. of Riverview Gardens, Mo., 340 S.W.2d 619, 621(4); Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 405(6, 7); State ex rel. Joslin v. School Dist. No. 7 of Jasper County, Mo.App., 302 S.W.2d 497, 500-501(7, 8)] are not properly presented and will not be ruled. Instant plaintiffs-appellants have not invoked the exercise of our discretionary power under V.A.M.R. Rule 79.04 to review the complaints in their reply brief. And we need not rely upon or adopt the specific finding of the trial court that defendant Tucker “was a female person without knowledge, skill, or experience in the preparation of contracts and was overreached by the plaintiff E. L. Keith in her business dealings with him” to declare confidently and positively, as we do, that the record brought to us in no wise indicates or suggests that our failure, sua sponte, to review those complaints would work manifest injustice or a miscarriage of justice. In these circumstances, we do not review. The judgment nisi should be and is affirmed. TITUS, C. J., and HOGAN, J., concur.

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L. T. BURNETT et al., Appellees, v. Thomas D. BENSON, Commissioner, Department of Revenue, State of Tennessee, Appellant. Supreme Court of Tennessee. July 24, 1972. David M. Pack, Atty. Gen., Milton P. Rice, Deputy Atty. Gen., Nashville, for appellant. John F. Dugger, Morristown, for appel-lees. OPINION PER CURIAM. The record in the instant case involves a suit instituted by L. T. Burnett and others in the Chancery Court of Davidson County, Part II, against Thomas D. Benson, Commissioner of Revenue, to recover certain monies paid in satisfaction of a sales tax obligation assessed by the Commissioner. The payment was made under protest, and the present suit instituted to recover the same pursuant to T.C.A. § 67-2303 et seq. In the course of this opinion the parties will be designated as they appeared in the trial court; that is, L. T. Burnett, L. E. Burnett, R. G. Burnett, and J. W. Burnett, as complainants, and Thomas D. Benson, Commissioner, Department of Revenue, State of Tennessee, as defendant. Complainants seek to recover $10,190.77 which sum represents sales tax, penalty, and interest alleged to have been collected “illegally and unjustly” from complainants by defendant. Complainants aver that they were required to pay the sales tax for purchases from 1965 to 1967 of calcium carbonate, drugs, vitamins, and acids which were mixed with grains to produce poultry feed and that the feed so produced by complainants was used to feed broiler chickens owned by complainants. In the original bill complainants set forth two alternative theories to avoid taxation, which are: (1) that the “ingredients, when added and mixed with grains and concentrates, lost their original identities, and became a part of the poultry feed, and thus was exempt from taxation, under the provisions of Section 67-3012, T.C.A.” and (2) that the purchases of the ingredients are exempt from taxation under T.C.A. § 67-3002 (c), par. 2. Complainants’ second theory is bottomed on the premise that since they are engaged in the business of processing poultry for sale to wholesalers and retailers, they should be considered as a processor of tangible personal property for resale. Therefore, complainants allege that ingredients constitute industrial materials which are consumed in the course of processing the poultry. In his answer defendant denies that the calcium carbonate, drugs, vitamins and acids are poultry feed as that term is used in T.C.A. § 67-3012. Defendant further denies that complainants are entitled to a tax exemption under the provisions of T.C.A. § 67-3002 (c), par. 2 for the reason that the production of poultry feed and the subsequent consumption of this feed by chicks is not the “sale, use, storage or consumption of industrial materials for further processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product” but it is “simply a ‘growing’ of chicks.” The salient facts may be summarized as follows: Complainants are engaged in an integrated poultry operation with various part-nerhips used only for bookkeeping purposes and cost analysis. Complainants are partners doing business as Burnett Produce Company, Cosby Broilers, and City Milling Company. Cosby Broilers operates a hatchery in Cosby, Tennessee. Cosby Broilers maintains flocks of breeder hens from which baby chicks are produced. Burnett Produce Company purchases all of the chicks from Cosby Broilers. The chicks are then placed in growers’ houses until they reach broiler size. The growers are paid to feed and care for the chicks. However, the chicks are owned at all times by complainants, and they provide all feed and medication for the birds. Burnett Produce Company keeps approximately two million chickens in the field at all times. The length of time required to produce a broiler is approximately eight and one-half weeks. After the growth period the broilers are taken to Burnett Produce Company’s plant in Morristown, Tennessee, where the birds are killed, dressed, chilled, iced, packed and shipped to wholesalers and retailers for resale. The feed which was fed to the broilers while at the growers’ houses was produced by the partners in Newport, Tennessee, at City Milling Company. The record discloses that City Milling Company purchased feed concentrate, grains, vitamins, drugs, calcium carbonate and acids for the poultry feed. These items were mixed together to produce the feed. The calcuim carbonate, vitamins, drugs, and acids were added to the grains and feed concentrate in order to prevent disease and stimulate feed conversion and growth. Complainants did not pay any sales or use tax on the aforementioned additives during the years 1965-1967. As a result the Department of Revenue made a deficiency assessment against complainants in the amount of $10,190.77. This sum was paid to the Department of Revenue under protest on April 11, 1969. The Chancellor rejected complainants theory that the purchases of the ingredients were exempt under T.C.A. § 67-3002(c), par. 2. However, the trial court was of the opinion that the calcium carbonate, drugs, vitamins, and acids constituted poultry feed and were exempt from taxation pursuant to T.C.A. § 67-3012, which provides in part as follows: “The sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state of the following tangible personal property is specifically exempted from the tax imposed by this chapter: . . . livestock and poultry feeds . . . ” From the adverse judgment of the court below defendant has seasonably perfected an appeal to this Court. The sole issue presented in the case at bar is whether or not calcium carbonate, drugs, vitamins, and acids are poultry feed within the meaning and purview of T.C.A. § 67-3012 during the years 1965-1967 inclusive. At this juncture it is necessary to point out that by Chapter 95 of the Public Acts of 1969 the General Assembly has defined poultry feed to include “all grains, minerals, salts, proteins, fats, fibers and all vitamins, acids and drugs used and mixed with said ingredients as a growth stimulant, disease preventive, to stimulate feed conversion and make a complete feed.” Since poultry feed was not legislatively defined when the deficiency assessment was made in the instant case, we are required to give the term natural and ordinary meaning in order to effectuate the intent of the legislature. Phillips & Buttorff Mfg. Co. v. Carson (1949) 188 Tenn. 132, 217 S.W.2d 1. While the parties argue at great length in their briefs whether or not the calcium carbonate, vitamins, drugs, and acids are poultry feed, the real controversy centers around a dispute over what criterion is used to determine whether or not the ingredients are poultry feed. It is the position of complainants that the ingredients are categorized as poultry feed at the time of their purchase by the intended use of the ingredients after sale. Thus complainants assert that since the additives were purchased for the purpose of feeding poultry, the ingredients are poultry feed and exempt from taxation. On the other hand defendant insists that the potential use of the property purchased is immaterial. It is the contention of the Commissioner that the applicability of the exemption statute is determined by the nature of the property at the time of sale. Thus defendant urges that the ingredients at the time of sale were merely calcium carbonate, drugs, vitamins and acids and were not entitled to the tax exemption. We are of the opinion that defendant’s argument is not sound. As was stated above complainants also purchased grains to feed to their poultry. Applying defendant’s theory to the purchase of grains it could as easily be argued that grains purchased for the express purpose of feeding poultry is not poultry feed, hut is simply grain. It can hardly be doubted that to embrace defendant’s position would thwart the intent of our Legislature. In the case at bar the ingredients were purchased in order to feed poultry and they were in fact so used. It is our view that purchase of the additives for use as poultry feed entitled complainants to the tax exemption under T.C.A. § 67-3012. It results that defendant’s assignment of error is overruled and the decree of the trial court is affirmed. Costs of this appeal are taxed to defendant.

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KENTUCKY STATE BAR ASSOCIATION, Complainant, v. CREDITHRIFT OF AMERICA, INC., #10, a Corporation and Saundra Vaughn, Individually, Respondents. Court of Appeals of Kentucky. June 23, 1972. Henry H. Harned, Director, Leslie Whit-mer, Kentucky State Bar Association, Frankfort, for complainant. E. Robert Goebel, Sandidge, Holbrook, Craig & Hager, Owensboro, for respondents. PER CURIAM. Four days after the decision in Kentucky State Bar Association v. R. L. Tussey, Ky., 476 S.W.2d 177 (1972), the respondent, Saundra Vaughn, engaged in the unlawful practice of law by preparing a mortgage for her employer, the respondent, Credithrift of America, Inc. Upon motion of the Kentucky State Bar Association a rule was issued pursuant to RCA 3.460 against both respondents to show cause why they should not be held in contempt. The response admits the unlawful practice but urges in mitigation that the act complained of occurred at a time before respondents had knowledge of the Tussey decision. We think the matter follows Tussey so closely in point of time as to warrant absolution of contempt. Accordingly the respondents are not held in contempt but each of them is permanently enjoined from engaging in the unauthorized practice of law and the costs of this action are assessed against them. All concur.

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CITY OF FRANKFORT, Kentucky, Appellant, v. Mrs. R. A. (Pansy) THOMPSON, Appellee. Court of Appeals of Kentucky. June 9, 1972. Allen Prewitt, City Solicitor, Frankfort, for appellant. Max M. Smith, Chancellor, Darnell & Smith, Frankfort, for appellee. OSBORNE, Judge. This appeal is from a judgment of the Franklin Circuit Court in a proceeding commonly referred to as “reverse condemnation.” Appellee was awarded damages for a permanent taking in the amount of $4788 representing the difference between the before and after values of the land, and damages of $3150 for temporary injury to the enjoyment of her land not taken. The City of Frankfort has long operated a garbage and trash dump on property adjacent to appellee’s farm. There is a high, extremely steep hill, the crest of which is the dividing line between property owned by the city and appellee’s property. The dump is on the crest of the hill and as the city moves the debris toward appellee’s farm it rolls down the hill onto her property and practically into her front yard. Ap-pellee and her husband purchased the 100-acre farm in 1929. The City of Frankfort purchased its property in 1941. Due to the large quantity of material dumped and the nature of the terrain, trash and assorted debris have for many years swept down the hill onto appellee’s land destroying her fences and damaging other structures. There was proof of fires, which destroyed standing timber on appellee’s land, and, in general, the overall effect of the city’s practice of pushing the debris over the hill was to create an unsanitary, unscenic, unhealthful, smelly situation. The removal of the debris is rendered practically impossible due to the steepness of the slope and the fact that it is covered with timber. Appellant now argues before this court that the verdict for permanent damages of $4788 was excessive and the verdict of $3150 for temporary damage to the enjoyment of the remaining land was not supported by the evidence. It contends that since there was .77 of an acre of land taken the verdict of $4788 is excessive at first blush as the award represents 7% of the value of the total farm, when only 1% of the land was taken. We do not believe the so-called percentage rule should be applied in this situation. It was not applied in Commonwealth of Kentucky, Department of Highways v. Carlisle, Ky., 442 S.W.2d 294 (1969), wherein we sustained a jury verdict amounting to 64% of the value of the land where only 12% of the land was taken. Even though appellant argues that there is a percentage rule and that it should be applied in this case, we do not recognize the existence of such rule. The applying of percentages is something that has been done in certain cases merely to demonstrate the excessiveness or lack of excessiveness of a verdict. We are of the opinion the $3150 awarded for loss of enjoyment of the land remaining was reasonable under the facts of this case and adequately supported by the evidence. Judgment affirmed. All concur.

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Robert D. PRESTON, Commissioner of Insurance, Appellant, v. Hon. George F. WILLIAMSON, Judge Shelby Circuit Court and The Commonwealth of Kentucky, Appellees. Robert D. PRESTON, Commissioner of Insurance, Commonwealth of Kentucky, Appellant, v. Hon. George F. WILLIAMSON, Judge Shelby Circuit Court and the Commonwealth of Kentucky, Appellees. Court of Appeals of Kentucky. June 30, 1972. C. Thomas Easterly, Dept, of Ins., Robert D. Preston, Commissioner, Dept, of Ins., Frankfort, Ky., S. Roy Woodall, Wyatt, Grafton & Sloss, Louisville, for appellant-petitioner. John B. Breckinridge, Atty. Gen., Frankfort, Ky., Lucien Kinsolving, Commonwealth Atty., Shelbyville, Ky., Laura L. Murrell, Asst. Atty. Gen., Frankfort, Ky., for appellees-respondent. OSBORNE, Judge. This is a consolidated action wherein this court has upon its own motion consolidated an, appeal and a petition for writ of prohibition, as they involve the same subject matter. The question presented is one of procedure and complex. The pertinent proceedings as they transpired in the trial court are as follows: 1. On January 29, 1971, a mandate was issued from this court affirming judgment against the United Bonding Company forfeiting bail bonds in the amount of $20,000, plus interest, 10% penalty, and cost. Maryland National Insurance Company was surety on that appeal. 2. On April 10, 1971, an order was entered against Maryland National for the full amount of the judgment against United Bonding. 3. Maryland National is an out-of-state insurance company required by KRS 304.8-020 to file a deposit with the Commissioner of Insurance. Two writs of execution were issued against the deposits of Maryland National on April 15, 1971. These were served on the Department of Insurance. 4. On April 21, 1971, counsel for Maryland National moved to set aside the execution and set May 4, 1971, for a hearing date. The certificate of service on this motion shows that it was served on the general counsel for the Department of Insurance. 5. On May 4, 1971, hearing was held and the Department of Insurance did not appear. 6. On May 15, 1971, order was ente'red overruling the motion to set aside the execution. No appeal was taken from that order. 7. On July 30, 1971, counsel for the Department of Insurance moved to set aside the execution and attachment for the same reasons that had been argued by counsel for Maryland National on May 4, 1971. 8. On September 10, 1971, after hearing, the Department of Insurance’s motion was overruled. 9. On September 17, 1971, Robert Preston brought an original action in this court for a writ of prohibition. Order was entered the same day for temporary writ of prohibition. Motion was made to dismiss the writ on the ground there was an adequate remedy by appeal, and the order of May 15, 1971, was final to all parties and not appealed from. 10. On September 21, 1971, there was a notice of appeal filed in Shelby Circuit Court in the case of: Robert Preston, Commissioner of Insurance v. Honorable George Williamson, Shelby Circuit Judge. 11. At this time there is pending in this court: A. A writ of prohibition, filed and temporarily granted on September 17, 1971, by Robert Preston, Commissioner of Insurance v. Honorable George Williamson, Shelby Circuit Judge. B. An appeal from the order overruling the Department of Insurance’s motion to set aside the execution styled: Robert Preston, Commissioner of Insurance v. Honorable George Williamson, Shelby Circuit Judge. But the motion was made in the case of Commonwealth of Kentucky v. Maryland National Insurance Company. We are first faced with the problem of whether the notice of appeal is sufficient. The notice of appeal is styled: Robert Preston, Commissioner of Insurance v. Honorable George F. Williamson, Shelby Circuit Judge. The case from which the attempted appeal is taken is Commonwealth of Kentucky v. Maryland National Insurance Company. Robert Preston did not enter the case until an execution was issued against the funds of Maryland National, which Preston as Commissioner of Insurance had deposited with him as statutory deposit. After execution was issued the Commissioner made a motion to set it aside. It is from the order overruling this motion that he attempts to appeal. CR 73.03 states: “The notice of appeal shall specify the party taking the appeal and shall designate the judgment.” In the proceedings now before us, Robert Preston is the party attempting to take the appeal. His notice of appeal reads as follows: “Notice is hereby given that Robert Preston, Commissioner of Insurance for the Commonwealth of Kentucky, appellant above named, hereby appeals to the Court of Appeals from the final order issued in this action on the 10th day of September, 1971.” The problem with this notice of appeal is that it states the appeal is “from the final order issued in this action.” The appeal is not in the action of Robert Preston v. Circuit Judge, et al. The appeal is from the final order in the action of Commonwealth of Kentucky v. Maryland National Insurance Company. We are of the opinion that the foregoing notice of appeal did not sufficiently designate the order from which the appeal was taken and, therefore, is insufficient. See Hopkins v. Hilliard, Ky., 444 S.W.2d 130; Hawks v. Wilbert, Ky., 355 S.W.2d 655. For the foregoing reasons the appeal in the case of Commonwealth of Kentucky v. Maryland National Insurance Company is hereby dismissed. Now, coming to the action in this court for a writ of prohibition prohibiting the circuit judge from issuing execution upon the funds, we are of the opinion that the Commissioner of Insurance had an adequate remedy at law by appeal had he properly perfected his appeal. Therefore, the petition for prohibition must be disallowed. All concur.

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John W. YOUNG, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, and B. & S. Coal Company, Appellants, v. Osle BURGETT and Workmen’s Compensation Board of Kentucky, Appellees. Court of Appeals of Kentucky. June 9, 1972. Gemma M. Harding, Dept, of Labor, Louisville, William A. Rice, Harlan, for appellants. W. M. Melton, Hazard, for appellees. OSBORNE, Judge. This is a Workmen’s Compensation proceeding wherein the Board denied recovery to the claimant who claimed to be suffering from miner’s pneumoconiosis. Claimant appealed to the Perry Circuit Court which reversed the Board. We reverse the judgment of that court. The issue before the Board was whether or not claimant was suffering from pneumoconiosis. In all, seven doctors testified, three for the claimant and four for the appellants. There was a direct conflict in their testimony. We have held many times that the claimant must carry the burden of persuasion in these proceedings. And, where the Board has found against the party having the burden, the test is whether the evidence for the claimant was so persuasive as to require a finding in his favor. See Porter v. Goad, Ky., 404 S.W.2d 795. Where medical testimony is concerned, and that testimony is conflicting, the question of who to believe is one exclusively for the Board. Dave Hall v. Island Creek Coal Company, Ky., 474 S.W.2d 890, decided November 19, 1971. Judgment reversed. All concur.

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ADAM DANTE CORPORATION d/b/a Adam and Eve Health Spa, Petitioner, v. Beulah H. SHARPE, Respondent. No. B-2859. Supreme Court of Texas. June 21, 1972. Rehearing Denied July 26, 1972. Hartt & Perry, Grover Hartt, Jr., Dallas, for petitioner. Feldman, O’Donnell & Neil, Larry Feld-man, Dallas, for respondent. POPE, Justice. Beulah H. Sharpe slipped and fell on the premises of Adam Dante Corporation, a health spa to which Mrs. Sharpe had fully paid her one-year membership fee. She sued for damages for the personal injuries sustained in her fall, and the trial court granted defendant’s motion for summary judgment. In reversing the trial court judgment and remanding the cause, the court of civil appeals ruled (1) that Mrs. Sharpe proved by the membership contract that Adam Dante owed her the duty to maintain safe premises, (2) that the contract also defeated the necessary element of voluntariness to the defense of volenti non fit injuria, and (3) that Adam Dante did not prove Mrs. Sharpe was contributo-rily negligent as a matter of law. 468 S.W.2d 167. We affirm the judgment of the court of civil appeals. Mrs. Sharpe alleged that the floor of the area in which she fell was slippery, that there was an excess of a foamy substance and water on the floor, and that Adam Dante did not place rubber pads on the floor leading to the swimming pool. The defendant pleaded (1) a general denial, (2) volenti non fit injuria, and (3) contributory negligence. Thus, in this rather simple fact situation, we find the whole network of legal principles unique to actions against an occupier of premises. Defendant Adam Dante, as movant for summary judgment, had the burden to prove, and urges that it did prove, that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. Rule 166-A, Tex.R.Civ.P. Mrs. Sharpe’s deposition testimony and some photographs are the basis for the trial court’s summary judgment against her. Mrs. Sharpe had enrolled as a member of the Adam Dante health spa about two weeks before her accident and had a membership contract for one year. The accident occurred on her fifth visit to the spa; she had been in the swimming area, however, only two times previously. Upon her arrival in the late afternoon she went to the locker room, and then left through a door and down the corridor. She said there was “another hallway that goes into the gym section, and up above there was a little sign, a very small sign . . . that said, ‘Slippery When Wet.’ ” She denied the presence of any other warning sign on the premises. She entered a hallway. On one side was a sauna room, next to that was a steam room, and at the far end was the swimming pool. Near the swimming pool there was a sunken whirlpool which she said was out of order most of the time. It was not functioning three of the five times she had visited the spa. She said there was foam on the water in the whirlpool and that whirlpools are not supposed to have foam. She said that she had seen the whirlpool overflowing on a former visit when she saw a woman mopping up slippery foam and that if the whirlpool overflowed, the floor would be extra slippery. She refused to say that the water from the whirlpool was like any other water. Defendant’s counsel asked Mrs. Sharpe if she made any claim that the water in the whirlpool was mixed with anything such as soap which would cause it to be more slippery than ordinary water. She said she could not answer that question. The whirlpool was not overflowing while she was there, but she said that if there had been an overflow earlier during the day “the floor would have probably been slipperier than usual.” There were no mats on the floor of the hallway and there had been none on her prior visits. There were no employees around the premises at the time of her visit, and she was the only person in the pool area. She said that she walked barefooted down the tile floor of the hallway and entered the swimming pool. After swimming, she entered the whirlpool and then went into the sauna room. Upon leaving the sauna room, she walked back down the hallway toward the pool for the purpose of picking up a towel. In the area of the whirlpool her feet slipped from under her resulting in serious injuries. Our first inquiry is whether Adam Dante discharged its summary judgment burden to prove, as a matter of law, that it owed no duty to Mrs. Sharpe to do anything more than it did. It becomes necessary for us, therefore, to determine whether she was either an invitee, or, as Mrs. Sharpe urges, one to whom Adam Dante owed a contractual duty similar to that which the nine-year-old child enjoyed in Harvey v. Seale, 362 S.W.2d 310 (Tex.1962). We held in that case that the members of a family holding under a lease contract enjoyed a greater right than that of an invitee because the landlord was under a covenant to keep the premises in repair. We ruled that proof of the lease agreement was also proof of the landlord’s duty. The court of civil appeals in this case so regarded Mrs. Sharpe’s rights. Persons who have been treated as invitees include patrons of restaurants, banks, theatres, and places of amusement. W. Prosser, Law of Torts § 61, at 385-386 (4th ed. 1971). The difference between those business relationships and this one is that Mrs. Sharpe had a continuing right to return to the spa from time to time. While the question is not an easy one, Mrs. Sharpe’s relationship to the spa was something less than that of a tenant whose landlord is under a contractual obligation to make needed repairs. She was more like a person who holds a season ticket to a number of separate performances or a meal ticket which can be used from time to time. Club membership has been held to create an invitee relationship. See Bentley v. Hamden Post 88, Inc., 27 Conn.Sup. 56, 229 A.2d 32 (1967); Davis v. Springfield Lodge No. 158, 24 Ill.App.2d 102, 164 N.E.2d 243 (1960); Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 124 N.W.2d 557 (1964) ; City of Madisonville v. Poole, 249 S.W.2d 133 (Ky.1952). We hold that Mrs. Sharpe was an invitee. This court has often measured the duty which an occupier of premises owes to an invitee. Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); City of Beaumont v. Graham, 441 S.W.2d 829 (Tex.1969); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954). The duty is that which is summarized in Restatement (Second) of Torts § 343 (1965) : § 343. Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. The occupier is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Restatement (Second) of Torts § 343, Comment b (1965). We have set forth in the margin some, but not all, of the basic issues for a conventional occupier-invitee case. Under such issues, it would be Mrs. Sharpe’s burden at trial to prove the existence and violation of a legal duty owed to her by Adam Dante. Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701 (Tex.1970). That includes her burden to prove that she did not possess actual knowledge of the danger, that she did not fully appreciate the nature and extent of the danger, and that the danger complained of was not so open and obvious as to charge her, as a matter of law, with such knowledge and appreciation. Since this is a summary judgment proceeding, however, Adam Dante had to prove as a matter of law the opposite of what would ordinarily be the plaintiff’s burden to prove or it had to prevail as a matter of law on one or more of its defenses. The evidence Adam Dante relies upon, in support of its proof that it owed Mrs. Sharpe no duty, is (1) Mrs. Sharpe’s own deposition testimony, and (2) proof of an adequate warning of the slippery condition. In our opinion reasonable minds could differ about the conclusions to be drawn from the facts. Mrs. Sharpe knew about the presence of some water and moisture and she appreciated that condition. A fact finder could conclude, however, that something more was present on the floor besides water. She said the danger was not the water but the slippery condition. She gave a plausible basis for that condition by her testimony of the foamy and slippery whirlpool water which overflowed in the area where she fell. She may have known of some danger, but she may not have known and fully appreciated the nature and extent of the hidden danger of the foam which may or may not have been properly wiped from the tile floor. Reasonable minds could conclude that there was a slippery film on the floor around the whirlpool about which she did not know and which she did not fully appreciate. We cannot say that the proof showed as a matter of law that she knew and appreciated the particular risk. See Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Greenhill, Assumed Risk, 20 Sw.L.J. 1, 12 (1966). Adam Dante also says that it discharged its duty by supplying knowledge of the danger to Mrs. Sharpe through some warning signs posted on the premises. Mrs. Sharpe, however, said that there was only one small warning sign. She described it as a sign about six by twelve inches in size, on which was written, “Slippery When Wet.” She said it was located above a door which leads from a hallway into the gym section. It is not clear from her testimony whether the sign was or was not in the pool area. We cannot say as a matter of law that the sign warned her of a latent danger such as a slick film on the floor around the whirlpool. In our opinion, the adequacy of the warning was also a disputed fact. We, therefore, hold that Adam Dante did not prove as a matter of law either the absence of a duty toward Mrs. Sharpe or that it discharged its duty. Volenti non fit injuria was Adam Dante’s second pleaded defense. The thrust of the defense is actual knowledge by Mrs. Sharpe of the specific dangers, which, with full appreciation, she voluntarily encountered. At a conventional trial the defendant has the burden to prove the plaintiff’s knowledge and appreciation as elements of its affirmative volenti defense. Adam Dante had the burden to prove those elements as a matter of law in the summary judgment proceeding. Our views about Adam Dante’s failure to prove these elements as a matter of law coincide with those views already expressed concerning its failure to prove them with respect to the no-duty issues. Hence, Adam Dante did not establish as a matter of law two of the elements of volenti and we do not reach the third element, i. e., whether Mrs. Sharpe voluntarily encountered the risk. Mrs. Sharpe’s contributory negligence is Adam Dante’s third pleaded defense. As explained in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963), when dealing with the contributory negligence issues, unlike the rule applied to no-duty and volenti, inquiries about a plaintiff’s knowledge and appreciation of the danger are measured by the objective test of an ordinary prudent man who “should have” known and “should have” appreciated the danger. The actual issue usually inquires whether the plaintiff kept a proper lookout. We agree with the holding of the court of civil appeals that the record does not show conclusively that Mrs. Sharpe acted unreasonably as a matter of law in using the premises. Whether conduct is reasonable is ordinarily a question of fact. Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (1948); McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941); Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698 (1940). See also Bentley v. Hamden Post 88, Inc., 27 Conn.Sup. 56, 229 A.2d 32 (1967); Davis v. Springfield Lodge No. 158, 24 Ill.App.2d 102, 164 N.E.2d 243 (1960); Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 124 N.W.2d 557 (1964). We accordingly approve the judgment of the court of civil appeals that reversed the judgment of the trial court and remanded the cause for trial of the fact issues. We now express some further views concerning the trial of this case on remand and the simplification of the issues in occupier cases. Among the practical problems encountered in this area of the law are (1) the submission of opposite issues, (2) the awkward submission of issues requiring a plaintiff to obtain an affirmative finding on negative issues, (3) confusion surrounding the term “open and obvious,” and (4) the overlap of the no-duty and volenti issues. We shall briefly discuss these problems. According to the present trial practice, some form of the plaintiff’s knowledge and appreciation of a condition are the subject of inquiry in three different sets of issues. First, to prove the defendant’s duty toward her, Mrs. Sharpe must obtain findings that she did not have actual knowledge and appreciation of the condition, and she also must prove that she was not charged in law with such knowledge and appreciation. Next, the defendant’s affirmative volenti defense permits the submission of the same two knowledge and appreciation issues, but with the burden of proof upon the defendant. Finally, Adam Dante’s defense of contributory negligence permits a third inquiry concerning the plaintiff’s knowledge and appreciation of the danger in terms of the objective inquiry, “should have,” as explained in Halepeska v. Callihan Interests, Inc., 371 S.W.2d at 379. The inquiry should take the form of a more specific issue such as the plaintiff’s failure to keep a proper lookout. Thus, under the present method of special issue submission, the plaintiff must negative her own knowledge and appreciation to prove a duty on the part of the defendant and then the defendant may submit the opposite of those issues as elements of its proof of volenti. Such submission is generally condemned. Ross v. Texas Employers’ Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541 (1954); 3 R. McDonald, Texas Civil Practice § 12.10.2, at 309 (Rev. ed. 1970). The practice which requires Mrs. Sharpe to prove and obtain a jury finding that she did not have actual knowledge and did not fully appreciate the nature and extent of the danger has become known as the submission of the no-duty issues. The practice is based upon the principle that an occupier owes no duty to one who has full knowledge and appreciation of the condition about which he complains. In McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 393 (1954), this court correctly recognized that a plaintiff’s actual knowledge and appreciation of a danger eliminates any duty which the defendant owes a plaintiff. See also Restatement (Second) of Torts § 343A (1965). There is a practical difficulty in the submission of these negative issues, because, as we said in Halepeska, it is “a rather clumsy concept . . ..” Another contributing factor to this difficult area of the practice is the varying uses of the phrase “open and obvious” by the bench and bar. A plaintiff, such as Mrs. Sharpe, may be charged in law with knowledge and appreciation of a dangerous condition if the condition is open and obvious to her. A defendant, therefore, owes her no duty as to conditions which are open and obvious. On some occasions the phrase has been improperly treated as a separate fact issue which should be submitted to the jury. Gundolf v. Massman-Johnson, 473 S.W.2d 70, 72 (Tex.Civ.App.1971, writ pending); Goodson v. Southland Corporation, 454 S.W.2d 823 (Tex.Civ.App.1970, writ ref. n. r. e.); El Rancho Restaurants, Inc. v. Garfield, 440 S.W.2d 873, 877 (Tex.Civ.App.1969, writ ref. n. r. e.); Crowell-Gifford Furniture Co. v. Cloutman, 276 S.W.2d 539, 544 (Tex.Civ.App.1955, writ ref. n. r. e.); see Keeton, Personal Injuries Resulting from Open and Obvious Conditions — Special Issue Submission in Texas, 33 Texas L.Rev. 1, 11 (1954); 9 Stayton, Texas Forms § 5041, at 483 (1961). At other times the term has correctly been used to mean that the proof shows the condition was so patent as to charge the plaintiff as a matter of law with knowledge and appreciation of the danger. In this sense, there is no issue of fact. See Greenhill, Assumption of Risk, 16 Baylor L.Rev. 111, 114-118 (1964); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964) ; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); Houston Nat’l Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); Houston Sports Ass’n, Inc. v. Russell, 450 S.W.2d 741 (Tex.Civ.App.1970, writ ref. n. r. e.); Burton v. Stasny, 223 S.W.2d 310 (Tex.Civ.App.1949, writ ref’d) ; Hausman Packing Co. v. Badwey, 147 S.W.2d 856 (Tex.Civ.App.1941, writ ref’d). The fourth area of confusion arises out of the overlap of the so-called no-duty issues and the volenti issues. We recognized this situation in McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), when we said, “Actually, in their application to a given fact situation the two theories so completely overlap as to be almost indistinguishable.” A plaintiff’s failure to overcome the no-duty issues and a defendant’s proof of the volenti issues both go toward the same goal. Both are grounded upon the negation of any duty owing by an occupier to one entering the premises as an invitee. An occupier’s proof of volenti negates the presence of the duty owing to a plaintiff. Ellis v. Moore, 401 S.W.2d 789, 792-793 (Tex.1966); W. Prosser, Law of Torts § 68, at 440 (4th ed. 1971); Green, Assumed Risk as a Defense, 22 La.L.Rev. 77 (1961); Keeton, Assumption of Risk and the Landowner, 20 Texas L.Rev. 562, 568 (1942); Note, 29 Texas L.Rev. 268 (1950). The reason that proximate cause is not an element of volenti is that volenti rubs out the possible underlying duty of a defendant toward the plaintiff and that ends the case. Logically, there is as much reason for imposing the burden on a plaintiff to negate volenti as there is for imposing that burden on a plaintiff to negate the no-duty issues. Historically, the burden has always been upon the defendant to prove volenti as a defense. Restatement (Second) of Torts § 496 G, Comment a (1965). Pragmatism and the way the human mind operates are also good reasons for the practice which imposes the burden upon the defendant to prove volenti, which includes knowledge of and appreciation of the danger as two of its elements. Also running through this entire area of the law is some ambiguity in the use of the terms voluntary assumption of risk and volenti non fit injuria. In Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951), we recognized the historical limitation of the assumption of risk doctrine to cases arising out of a master-servant or some other contractual relationship. That case, however, held that the same principles could be applied more broadly under the doctrine known as volenti. The distinction between the two has been said to be one without a difference. W. Prosser, Law of Torts § 68 (4th ed. 1971) ; 2 F. Harper & F. James, The Law of Torts § 27.13 (1956). In the present status of the law we do not limit voluntary assumption of risk to master-servant and contractual relationships, and we regard volenti as an extension to, as well as another name for, voluntary assumption of risk. Upon the trial of this case, depending upon the evidence as it is there presented, the issues more appropriately would be submitted as suggested by the form in the margin. Mrs. Sharpe must make prima facie proof that she did not know of and did not appreciate the danger and that she was not charged in law with knowledge and appreciation of the danger. Upon such a showing she will be entitled to go to the jury on the issues of defendant’s negligence. She will not be required to obtain findings that she did not actually know and did not appreciate the danger. The defendant, by its pleading of voluntary assumption of risk, will be entitled to an issue which inquires about plaintiff’s knowledge and appreciation. No issue should be submitted to the jury which inquires whether a condition was or was not open and obvious. Whether a condition is open and obvious is not a separate issue nor a separate concept. The matters relevant to a plaintiff’s duty, more accurately stated, are the plaintiff’s knowledge and appreciation of the danger. When one speaks of a condition as being open and obvious, the phrase means that there is no dispute in the evidence or the facts which will charge an invitee with knowledge and full appreciation of the nature and extent of danger. It means that knowledge and appreciation of the danger are considered as proved as a matter of law. The defendant, Adam Dante, will be entitled to the submission of its defense that Mrs. Sharpe voluntarily assumed the risk, because it has pleaded that defense. The issue, however, may hereafter be submitted in a single issue with suitable definitions and explanatory instructions. The defendant will also be entitled to special issues which separately inquire about each pleaded act or omission as contributory negligence. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953). The judgment of the court of civil appeals is affirmed. . Plaintiffs Issues (Duty and Breach of Duty) 1. Defendant created or maintained a dangerous condition (stating it) on its premises. (Objective Test) 2. Defendant knew (or should have known) of the condition. (Objective Test) 3. Plaintiff did not have actual knowledge of the condition. (Subjective Test) 4. Plaintiff did not fully appreciate the nature and extent of the danger. (Subjective Test) 5. Negligence in some particular act or omission (failure to inspect, failure to correct, failure to warn, etc.). (i. Proximate cause. Defendant's Issues (Volenti) 7. Plaintiff actually knew of the particular condition. (Subjective Test) 8. Plaintiff fully appreciated nature and extent of the danger. (Subjective Test) 0. Plaintiff voluntarily encountered the danger. (Subjective Test) (Contributory Negligence) 10. Plaintiff was negligent (in some particular, such as failure to keep a proper lookout, walking too fast, etc.) in encountering the risk. 11. Which was a proximate cause of the injury. . Plaintiff’s Issues 1. Defendant created or maintained a dangerous condition (stating it) on its premises. (Objective Test) 2. Defendant knew (or should have known) of the condition. (Objective Test) 3. Negligence in some particular act or omission (failure to inspect, failure to correct, failure to warn, etc.). 4. Proximate cause. Defendant’s Issues (Assumption of Risk) 5. Did plaintiff voluntarily assume the risk of (stating it) ? (Subjective Test) You are instructed that in order for the plaintiff (naming), to assume the risk, she must have actually known of the condition which caused her injury and she also must have actually and fully appreciated the nature and extent of the danger involved in encountering the condition, and she must have voluntarily and of her own free will encountered the danger of the condition causing her injuries, if any. (Contributory Negligence) 6. Plaintiff was negligent (in some particular, such as failure to keep a proper lookout, walking too fast, etc.) in encountering the risk. 7. Which was a proximate cause of the injury.

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David E. ACEVEDO, Appellant, v. The STATE of Texas, Appellee. No. 45802. Court of Criminal Appeals of Texas. July 19, 1972. No Attorney on Appeal. Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for driving a motor vehicle on a public highway while intoxicated; the punishment, three days in jail and a fine of $100.00. The complaint alleged that the offense was committed on or about the 22nd day of November, 1970. The information based on the complaint alleged that the offense was committed on or about the 20th day of November, 1970. It has been consistently held that a variance between the complaint and the information as to the date when the offense was committed is fatal to the validity of the information. Harrison v. State, 297 S.W.2d 823 (Tex.Cr.App.1957) and cases cited; Wheat v. State, 172 Tex.Cr.R. 259, 356 S.W.2d 323 (1962) and cases cited; Beasley v. State, 397 S.W.2d 454 (Tex.Cr.App.1966) and cases cited; and Thomas v. State, 474 S.W.2d 236 (Tex.Cr.App.1971). The judgment is reversed and the cause remanded. Opinion approved by the Court.

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Gwyneth January WILLIAMS, Appellant, v. The STATE of Texas, Appellee. No. 45690. Court of Criminal Appeals of Texas. July 28, 1972. Foreman & DeGuerm by Dick De-Guerin, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Victor Driscoll, 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. This appeal arises out of a conviction for the felony offense of shoplifting. The punishment was assessed at 2 years. On September 3, 1971, the appellant waived trial by jury and entered a plea of guilty before the court. Appellant contends the court erred in admitting into evidence an oral stipulation of the facts. She acknowledges that the plea of guilty was taken after the 1971 amendment to Article 1.15, Vernon’s Ann.C.C.P. (Acts 1971, 62nd Leg., ch. 996, p. 3028, effective June 15, 1971), which permits oral stipulations in pleas before the court, but contends that the written consent to stipulate covered only “affidavits, written statements and any other documentary evidence.” It is obvious that the printed form for the consent to stipulate was drafted prior to the amendment of Article 1.15, supra, and made no reference to oral stipulations. Further, we note that the written stipulations entered into evidence were never offered or introduced into evidence. The only stipulations offered by the State were oral and were dictated into the record. At the conclusion of the stipulations, which were clearly sufficient to support a judgment of conviction, the record reflects : “THE COURT: So agreed and stipu lated by the defendant ? “THE DEFENDANT: Yes, sir. “THE COURT: And by her attoi ney ? “MR. HARTMAN: Yes, Your Hon. or. “THE COURT: All right. . . .” The written consent to stipulate, as required by Article 1.15, supra, is required whether the stipulations are oral or written, but we conclude that the court did not err in admitting the oral stipulations in the instant case as there was no objection and appellant and her counsel expressly agreed to the same. The ground of error relates to the admissibility of such evidence without objection, not as to whether there had been a full compliance with the requirements of Article 1.15, supra. Next, appellant challenges the sufficiency of the evidence to sustain her plea of guilty. It is observed that the appellant voluntarily took the witness stand and, on cross examination, made a judicial confession. In Beaty v. State, 466 S.W.2d 284, 286 (Tex.Cr.App.1971), this court wrote: “. . .A judicial confession standing alone is sufficient to support appellant’s guilty plea under provisions of Article 1.15, supra, despite any defects in stipulated evidence or the insufficiency of the other evidence offered. Alvarez v. State, Tex.Cr.App., 374 S.W.2d 890. See also Bell v. State, Tex.Cr.App., 455 S.W.2d 230.” See, also, Moss v. State, 468 S.W.2d 807, 808 (Tex.Cr.App.1971). The judgment is affirmed. ROBERTS, J., not participating.

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Charles Ray HEARN, Appellant, v. The STATE of Texas, Appellee. No. 44825. Court of Criminal Appeals of Texas. July 28, 1972. Vern F. Martin, Midland, Thomas Rocha, Jr., San Antonio (on appeal only), for appellant. James M. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist. Atty., Midland, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State. OPINION ON APPELLANT’S MOTION TO REINSTATE THE APPEAL MORRISON, Judge. The offense is burglary; the punishment, enhanced under Article 62, Vernon’s Ann.P.C., is twelve (12) years. The appellate record in this cause has now been corrected to reflect that this Court improvidently granted the State’s motion to dismiss the appeal of this case. The appellant’s motion to reinstate the appeal is granted and the appeal will now be considered. This Court’s opinion of April 12, 1972, which is reported as Hearn v. State, 478 S.W.2d 467, is hereby withdrawn and the following substituted therefor. The record reflects that the Ideal Cleaners in Midland was burglarized on October 12, 1970, and approximately $300 was taken from a safe inside the building. Appellant’s fingerprint was found on the safe, facing upward, near the point where he gained entry to the safe and identified by fingerprint expert Henry Norton who testified that he found the print 21 inches from the floor. Testimony from Norton and fingerprint expert Lt. Roger Meurer indicated the print was put on the safe 10 to 24 hours prior to the time it was lifted. The State introduced exhibits depicting the inside of the cleaners and showed that a print could not be left on a safe, as appellant’s was, without a person going behind the counter. John Adcock, the owner of the building, testified that the appellant had never worked for him. He also stated that someone using the restroom in the back of his establishment would have no reason to go near the safe and that the nearest someone could get to the safe while using the telephone was two feet away. He further testified that appellant, and two other men, had, on several occasions, waited outside his place of business for one of his female employees but he was positive that appellant had never been inside his establishment. Adcock’s wife and one of the employees testified that they had never seen the appellant prior to the trial. The State also called Vince Conklin, who testified that he met the appellant at approximately 9 P. M. on the evening of the burglary and that appellant displayed a cold chisel to him and asked him what he thought of the instrument as a burglary tool. Appellant did not testify in his own behalf but called one of the injured party’s female employees who testified that she had seen appellant in the building sometime prior to the burglary but admitted that she had never seen him behind the counter where the safe was located. Appellant’s first three grounds of error relate to the sufficiency of the evidence. In his first and second grounds of error, he contends the court erred in failing to grant his motions for an instructed verdict, and in his third ground of error complains of the court’s failure to charge on circumstantial evidence. We have examined the record and conclude there is ample evidence to submit the case to the jury. Appellant’s first two grounds of error are overruled. Appellant’s complaint concerning the court’s failure to charge on circumstantial evidence was answered adversely to him in Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211, where we held that a fingerprint alone was sufficient to support a conviction, stating: “Our investigation leads us to conclude that where the evidence, as here, shows the finger print found at the scene of the crime was left there by the criminal at the time the crime was committed, thereby excluding the hypothesis that it ■might have been placed there innocently prior to or subsequent to the commission of the crime, and the evidence further shows that said print is identical with known prints of accused, that such evidence satisfied the law and excludes every reasonable hypothesis save guilt of the accused.” In the recent case of Galvan v. State, Tex.Cr.App., 461 S.W.2d 396, we cited Grice, supra, with approval and concluded, as we do here, that: “The facts in this case are in such close relation to the main fact to be proved as to constitute direct evidence and renders a charge on circumstantial evidence unnecessary . . .” Appellant’s third ground of error is overruled. Appellant’s fourth and fifth grounds of error relate to expert testimony concerning experiments the State’s expert performed to determine the age of the latent print found on the safe. Appellant contends the court erred in failing to exclude such testimony. Appellant also claims that the testimony concerning the fingerprints was repetitious. We have examined the testimony of Lt. Meurer and the experience upon which he predicated his opinion and have concluded that he was competent to express the opinion which he gave. He testified fully concerning the experiments and was thoroughly cross-examined about them. We find this contention discussed in Moses, Scientific Proof in Criminal Cases, Sec. 7.06, p. 9, and we adopt this view: “. . . .In some cases the expert may be able to offer an opinion as to age of a latent print, however, this type of evidence should be predicated on a showing that the expert conducted a proper control test duplicating the conditions obtained at the site of the latent.” Further, we find nothing repetitious in the testimony. Appellant’s fourth and fifth grounds of error are overruled. Appellant’s sixth ground of error relates to argument which he claims was tantamount to the State impeaching its own witness. We do not so construe such argument. The prosecutor merely told the jury that he did not ask his first fingerprint witness to estimate the length of time the print had been on the safe prior to its discovery but rather had waited to ask his later, more experienced expert witness to give an estimate. Appellant’s ground of error number six is overruled. Appellant’s seventh through thirteenth grounds of error are not briefed and, consequently, not in compliance with Art. 40.-09, Sec. 9, Vernon’s Ann.C.C.P. Nothing is presented for review. Finding no reversible error, the judgment is affirmed. ROBERTS, J., not participating.

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Ex parte William Ray WOODS. No. 44919. Court of Criminal Appeals of Texas. July 26, 1972. Thomas J. Griffith, Daniel H. Benson, Lubbock, for appellant. Jim Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty,, Austin, for the State. OPINION ON PETITIONER’S MOTION FOR REHEARING ODOM, Judge. Our opinion on original submission is withdrawn and the following is substituted in lieu thereof. This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., and in accordance with Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, in which petitioner seeks his release from confinement in the Texas Department of Corrections. He was represented by counsel at his 1951 trial, where he entered a plea of not guilty before a jury for the offense of murder with malice. The jury found him guilty of the offense, and punishment was assessed at fifty years. No appeal was taken. Petitioner challenges his conviction on the ground that the grand jury which returned the indictment in this cause (No. 718) was illegally constituted and chosen. His contention is that members of the Negro race were deliberately excluded from grand jury service in Garza County. The record reflects that appellant was tried in October, 1951, in Cause No. 718. A mistrial was declared because the jury was unable to agree upon a verdict. The grand jury then re-indicted appellant for the same offense in Cause No. 736, with a subsequent re-indictment in Cause No. 739. A hearing was held on petitioner’s application before the Honorable Truett Smith, Judge of the 106th District Court of Garza County. At the conclusion of such hearing, the trial judge made findings of fact which include the following: “9. The indictment in Cause No. 739 used the same language in alleging this offense as was used in Cause No. 718. “12. No person was selected, or excluded from a grand jury panel or a petit jury panel during the years 1950 and 1951 in Garza County District Court by reason of his race. “13. During those years there existed in Garza County no intentional or deliberate scheme or plan on the part of any person connected with the selection of panels for grand jury or petit jury service to exclude nonwhite members, nor to select token negro members.” We agree with the finding of the trial court that petitioner has not shown that members of the Negro race were systematically excluded from a grand jury during the years 1950 and 1951. Jaquez v. State, Tex.Cr.App., 473 S.W.2d 530. To the contrary, the record reflects that the grand jury panel which indicted him on November 17, 1950, in Cause No. 739, had one Negro member. Even assuming arguendo the validity of appellant’s challenge to the indictment in Cause No. 718, appellant has wholly failed to show that he was harmed in any manner. As we noted above, the indictment in Cause No. 739 is not subject to challenge bn the basis of systematic exclusion. Though the docketing of such proceeding was under Cause No. 718, it is apparent from the reading of this record that the special venire was called to proceed in Cause No. 739. Thus, to uphold appellant’s contention would be to elevate an apparent clerical error to a constitutional dimension and to upset a twenty year old conviction on the basis of the type of legalistic formalism required under the common law writs. This we decline to do. No harm has been shown. The petition for writ of habeas corpus is denied. Petitioner’s motion for rehearing is overruled. ROBERTS, J., not participating. . The trial court found that “[t]here was an error in the date of the offense alleged ia Cause No. 736 requiring his re-indictment in Cause No. 739.”