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Caselaw Access Project

2024-08-24T03:29:51.129235

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James R. YOCOM, Appellant, v. Thomas HUNT et al., Appellees. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied Feb. 15, 1974. Robert D. Hawkins, Thomas L. Ferreri, Dept, of Labor, Frankfort, for appellant. C. Kilmer Combs, Combs & Combs, Baird & Baird, Pikeville, for appellees. Memorandum Opinion of the Court by Commissioner CATINNA, Reversing. Opinion ordered not to be published.

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Caselaw Access Project

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Joe Wallace PAGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 24, 1974. Kenneth F. Osborne, Louisville-Jefferson County Public Defender, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner GARDNER, Affirming.*

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Caselaw Access Project

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Waldo E. RAYBOURNE, Appellant, v. EYERISH & GARASCH, and Ellis B. Brown et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Edward L. O’Connor, Louisville, for appellant. Joseph C. O’Bryan, Louisville, for appel-lees. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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UNITED DEALERS CORPORATION, Appellant, v. Conley LEWIS and Virginia Lewis McAlister, etc., et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Frederick G. Williams, Berea, for appellant. Guy K. Duerson, Jr., Berea, for appel-lees. Memorandum Opinion of the Court by Special Commissioner J. BRANDON PRICE, Affirming.*

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Caselaw Access Project

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Adrian STACY, etc., et al. v. The CITY OF NEWPORT, Kentucky. Court of Appeals of Kentucky. April 19, 1974. Morris Weintraub, Bruce W. Henneberg, Newport, for appellants. Lawrence Riedinger, Jr., Newport, for appellee. PER CURIAM, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. DIAMOND J. CORPORATION, a Kentucky corporation and Hartford Deposit Bank, Mortgagee, Appellees. Court of Appeals of Kentucky. April 19, 1974. Carl T. Miller, Jr., General Counsel, Department of Highways, James D. Robinson, Acting General Counsel, Department of Highways, Frankfort, Jerry W. Nall, Nall & Stephens, Owensboro, Perry M. Lewis, Madisonville, for appellant. Walter L. Catinna, Bartlett & Catinna, Hartford, for appellees. Memorandum Opinion PER CURIAM, Affirming.*

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Caselaw Access Project

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PITTSBURG AND MIDWAY COAL COMPANY and Gulf Oil Corporation, Appellants, v. Donald HEINE et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. J. Quentin Wesley, Wathen & Wesley, Morganfield, for appellants. James Holloran, Sturgis, for appellees. Memorandum Opinion of the Court by Commissioner CATINNA, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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Donnie R. DAVIS, an Infant by M. L. Davis, Father v. Catherine T. LAWHORN. Court of Appeals of Kentucky. April 19, 1974. Edwin I. Baer, Baer & Grauman, Louisville, for appellant. J. L. Richardson, Jr., Richardson & Richardson, I. G. Spencer, Jr., Louisville, for appellee. Memorandum Opinion of the Court by Special Commissioner, J. HOWARD HOLBERT, Affirming.*

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Caselaw Access Project

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Robert Russell ORANGE, Appellant, v. Geneva Gifford ORANGE, Appellee. Court of Appeals of Kentucky. April 19, 1974. Tyler C. Bourne, Paducah, for appellant. H. W. Roberts, Jr., Clinton, William L. Shadoan, Wickliffe, for appellee. Memorandum Opinion of the Court by Special Commissioner ARMAND ANGE-LUCCI, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Docie ASHER et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Carl T. Miller, Jr., General Counsel, Department of Highways, James D. Robinson, Acting General Counsel, Department of Highways, Charles E. Skidmore, Department of Highways, Frankfort, for appellant. Lester H. Burns, Jr., Burns, Maride & Mitchell, Manchester, for appellee. Memorandum Opinion PER CURIAM, Reversing.*

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Caselaw Access Project

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Kenneth William BOWN et al., Appellants, v. Barney DOUBLIN, Adm’r of the Estate of Bettye Jane Bright, Deceased, Appellee. Court of Appeals of Kentucky. April 19, 1974. Farland Robbins, Mayfield, for appellant. James B. Brien, Jr., Mayfield, William L. Shadoan, Wickliffe, for appellee. Memorandum Opinion of the Court by Special Commissioner RALPH N. WALTER, Affirming.*

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Caselaw Access Project

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William Watson SHEWMAKER et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. Carl T. Miller, Jr., Gen. Counsel, Dept, of Highways, Frankfort, Theodore H. Lavit, Lebanon, for appellant. H. Edward O’Daniel, Jr., Springfield, for appellees. Memorandum Opinion of the Court by Commissioner CATINNA, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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John Milton GEARHEART, Appellant, v. Rinehart SHEPHERD, Appellee. Court of Appeals of Kentucky. April 19, 1974. Kelley R. Asbury, Cattletsburg, William J. Curry, Ironton, Ohio, for appellant. Charles M. Daniels, Greenup, for appel-lee. Memorandum Opinion of the Court by Commissioner GARDNER, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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Charles A. Van WINKLE, Appellant, v. Louis J. HOLLENBACH, III, et al., Appellees. Charles Van WINKLE, Appellant, v. George S. PARTRIDGE et al., Appellees. Court of Appeals of Kentucky. April 19, 1974. J. Bruce Miller, Louisville, Don H. Major, Louisville, Tom B. Givhan, Bullitt Co. Atty., Shepherdsville, Boyce F. Martin, Jr., Louisville, for appellant. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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Caselaw Access Project

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Ronnie WELDON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Anthony M. Wilhoit, Public Defender, William C. Ayers, Jr., Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., G. Edward James, Asst. Atty. Gen., Frankfort, for ap-pellee. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming.*

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Caselaw Access Project

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Ray PROFITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Anthony M. Wilhoit, Public Defender, Paul F. Isaacs, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion by Justice PALMORE, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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Johnny Ray GARRISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. William I. Bubenzer, Covington, for appellant. Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner VANCE, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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James L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Don H. Major, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Peter C. MacDonald, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice PALMORE, Affirming.*

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Caselaw Access Project

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Henry L. GREENEBAUM, Appellant, v. Sam BANKS, Appellee. Court of Appeals of Kentucky. April 19, 1974. John M. Mayer, John M. Mayer, Jr., Louisville, for appellant. Reford H. Coleman, Elizabethtown, for appellee. Memorandum Opinion of the Court by Justice JONES, Affirming*

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Caselaw Access Project

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Fred E. FUGAZZI et al., Appellants, v. Charles BAESLER, Jr., Fayette County Clerk, Appellee. Court of Appeals of Kentucky. April 19, 1974. William C. Jacobs, Lexington, for appellants. E. Lawson King, Lexington, for appellee. Memorandum Opinion of the Court by Justice JONES, Affirming. Opinion ordered not to be published.

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Caselaw Access Project

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Murray SIMMONS and Carrie C. Simmons, Appellants, v. CONVENIENT INDUSTRIES, INC., Appellee. Court of Appeals of Kentucky. April 19, 1974. Allen Schmitt and Charles I. Sandmann, Louisville, for appellant. Bill V. Seiller, Louisville, for appellee. Memorandum Opinion of the Court by Special Commissioner ROBERT M. SHORT, Reversing. Opinion ordered not to be published.

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Caselaw Access Project

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Francis Edgar COX, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. April 19, 1974. Henry J. Curtis, Staff Attorney, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice PALMORE, Affirming.*

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Caselaw Access Project

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Martha Lane SHEPHERD, Natural Guardian and Next Friend of Cynthia Ford, an Infant, Appellant, v. Ronald JONES and Bill Warren, Appellees. Court of Appeals of Kentucky. April 19, 1974. Wm. Donald Overbey, Overbey, Overbey & Overbey, Murray, for appellant. H. E. Miller, Jr., McMurry & Livingston, George R. Effinger, Boehl, Stopher, Graves & Deindoerfer, Paducah, for appel-lees. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming*

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Caselaw Access Project

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Ted David ABBOTT, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error. Court of Criminal Appeals of Tennessee. Jan. 14, 1974. Certiorari Denied by Supreme Court April 1, 1974. Ray E. Cate and Kenneth D, McCasland, Jr., Knoxville, for plaintiff in error. David M. Pack, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Ronald Webster, Dist. Atty. Gen., Joseph Ni-gro, John W. Gill, Asst. Dist. Attys. Gen., Knoxville, for defendant in error. OPINION DWYER, Judge. From a conviction by a jury for committing the offense of concealing stolen property over the value of $100, see T.C.A. § 39-4217(B), with resulting punishment of confinement for not less than three years nor more than five, this appeal has been seasonably perfected. With the assignments of error reflecting that the evidence is insufficient and that the verdict is not supported by the record we will summarize the evidence we have found from our review. A Mr. Arnhart’s house in Knox County was burglarized, while he was out of town, at some time between the latter part of December 1970 and January 2, 1971. The burglar took, among other things, Arn-hart’s gun collection which was valued at $3,800. A state witness, Robert Lobetti, owner of a package store in Knox County, related that while at the American Legion Club some time after the second of January he met Abbott, the defendant. After a conversation with him, Lobetti went to Abbott’s apartment to view a gun collection which Abbott had told him he wanted to sell because he was broke. When the witness saw the guns, arrayed in a disorderly fashion in the apartment, he became suspicious and told Abbott he did not want to buy them. On their return to the club, Abbott told him he wanted $1,500 for the guns but that, if he did not get the money, he was going to throw them in the river because they were hot. Lobetti, himself a gun collector, told his physician about this matter and, as he related, the two agreed the owner would probably rather pay $1,500 for the return of the guns than have them thrown in the river. The next day Lobetti called the sheriff’s department and found out that Mr. Arn-hart had had his gun collection stolen. He then called Arnhart and related that he could get his guns back for $1,500. Arn-hart asked how many of the guns would be returned. The witness then contacted Abbott and subsequently called Mr. Arn-hart, identifying himself, and related that he could get 15 of the 20 guns lost. When Arnhart agreed the witness related that Abbott later brought the guns to his place of business and that he paid Abbott the $1,500. That afternoon he called Mr. Arnhart who came and got the guns, reimbursing Lobetti in the amount of $1,500. The witness related that he told Arnhart he was going to report this matter to the police whereupon Arnhart told him that he knew Abbott had the guns. The following day the sheriff’s department asked Lobetti to come to the station house. While there, the witness related, he found out that Mr. Arnhart wanted to put him in the penitentiary. Lobetti then sought legal advice before answering any questions. After obtaining advice he gave a detailed statement as to the activities as outlined. The record further reflects that the witness had been an honorary deputy sheriff. The record further reflects that the witness was subpoenaed and testified before the Knox County Grand Jury. The defendant testified in his own defense to the effect that he had known Lo-betti for a number of years and that his testimony about the guns was a lie. There was no other proof offered by the defendant. We think the evidence as narrated is sufficient to sustain the verdict. The jury has resolved the diametrically opposite testimony of Lobetti and Abbott. We are not free here to reevaluate their findings. See State v. Grace, Tenn., 493 S.W.2d 474, 476. The assignment pertaining to the sufficiency of the evidence is overruled. The defendant urges that the trial court erred in not finding, as a matter of law, that the witness Lobetti was an accomplice; and that the trial court erred in not charging the jury on how to receive the testimony of an accomplice. We hold that the trial court was not in error in refusing to find Lobetti an accomplice as a matter of law. The reasons for this will become apparent in our discussion of the second part of this assignment concerning the failure of the trial court to charge the jury on the accomplice issue. A timely request for this charge was submitted and denied by the trial court. See T.C.A. § 40-2517. We think that the learned trial court erred in not instructing the jury, as requested, and how to receive the testimony of the witness, Lobetti. The witness admits: (1) knowledge that the guns were stolen; (2) contacting anonymously the owner; (3) arranging the transfer of the guns into his possession; (4) paying the defendant for the guns in the amount of $1,500 in small bills; (5) not reporting his knowledge about the guns to the sheriff when he called and inquired as to who from the vicinity had had guns stolen; (6) his reluctance to give a statement. These facts and circumstances, shown in this record, as we view it, raised a jury question as to whether or not the witness voluntarily and in concert with the defendant furthered the offense of concealing stolen property so as to make him an accomplice as defined in Clapp v. State, 94 Tenn. 186, 194, 195, 30 S.W. 214. When the facts are clear and undisputed there is no doubt but that the question concerning whether a witness is an accomplice or not is a question of law for the court. But when, as in the present case, the facts as to the witness Lo-betti’s complicity are disputed and susceptible of different inferences, it is a question of fact for the jury. See Ripley v. State, 189 Tenn. 681, 686, 227 S.W.2d 26, 29; Hicks v. State, 126 Tenn. 359, 363, 149 S.W. 1055. We do not think that the trial court was relieved in his duty to charge the jury on the law pertaining to accomplices simply because the defendant took the stand and denied the offense. See Ripley v. State, supra. In short, as we view it, the acts of Lo-betti may have been of the noblest intent. However, the jury should have been instructed on how to weigh his testimony, if they found as fact that he was an accomplice. We are satisfied that his acts, if they were done with guilty knowledge (jury question) bring him within the offense of concealing as defined in Jones v. State, 219 Tenn. 228, 234-235, 409 S.W.2d 169, and it is for the commission of this offense that the defendant now stands before this court, under the presumption of guilt. The assignment having merit, we reverse the judgment of the trial court for failure to charge the jury the law on receiving the testimony of an accomplice. See Ripley v. State, supra. We also think that the learned trial judge should have allowed the defendant to question Lobetti as to why he sought out the advice of the other learned trial judge of Knox County. This, as we see it, cast no reflection whatsoever on the honorable judge. It was material, however, to show or explain the actions of Lobetti, as to whether his participation in the offense was with the requisite and necessary criminal intent as opposed to the intent, as he styles it, to help another gun collector get his guns back. This assignment has merit. He next contends that the admission of certain hearsay statements was prejudicial. We think the hearsay testimony of the prosecuting witness Arnhart pertaining to his investigation and uncovering of certain facts did affect the results of this trial. It allowed the jury to evaluate as fact Arnhart’s hearsay testimony that he knew Abbott had the guns in his apartment. With this before the jury it was the sole and only evidence linking Abbott to the theft of the guns independent of the testimony of Lobetti. It denied Abbott his constitutional guarantee of confrontation. There is merit in this assignment in this light and the assignment of error is sustained. In conclusion, the assignments urged as to the verdict being contrary to the law are sustained. In short, the assignments of error pertaining to the questions of law having been sustained, we reverse the judgment of the trial court. WALKER, P. J., and GALBREATH, J„ concur.

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Caselaw Access Project

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Johnny Brownlow MILLER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Dec. 7, 1973. Certiorari Denied by Supreme Court April 15, 1974. Lewis Taylor, Elizabethton, for plaintiff in error. David M. Pack, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Lewis W. May, Jr., Dist. Atty. Gen., Mountain City, for defendant in error. OPINION OLIVER, Judge. Johnny Brownlow Miller, an inmate of the State Penitentiary where he is serving concurrent terms of one, three and three years, respectively, adjudged in the Criminal Court of Johnson County upon his pleas of guilty in three cases of receiving and concealing stolen property, in all of which he was represented by appointed counsel, appeals to this Court from the judgment of that court dismissing his petition for post-conviction relief after an evidentiary hearing. In entering judgment in each of those three cases, the court also ordered them to be served concurrently, and also concurrently with a sentence adjudged in an earlier concealing-stolen-property case which was at that time on appeal to this Court and was reversed and remanded for a new trial. In his present petition filed under the Post-Conviction Procedure Act (T.C.A. § 40-3801 et seq.), in which he is represented by appointed counsel, he attacked his three above-mentioned guilty plea convictions upon the grounds (1) he was interrogated by police officers and a member of his family at the request of the State’s attorney without being advised concerning his constitutional rights and without counsel, (2) he was arrested illegally without an arrest warrant and property in his possession was seized without a search warrant, (3) the State’s attorney threatened him with an habitual criminal charge if he did not enter guilty pleas in the three pending cases, and (4) the trial court erred in accepting his guilty pleas in the three cases because the indictment in each of them charged him with receiving and concealing stolen property and “it has to be either receiving or concealing since they are distinct and separate offenses and must be dealt with accordingly.” After an evidentiary hearing upon this petition, the trial court found (1) the petitioner voluntarily and knowingly entered his pleas of guilty, without any threats or promises, and (2) that before the evidence was presented counsel stated Miller was pleading guilty to receiving stolen property. The court dismissed the remaining allegations as stating no ground for relief. At the evidentiary hearing the petitioner testified that his appointed trial counsel told him if he pleaded guilty in the three pending cases the sentences in those would run concurrently and also concurrently with his sentence in the former case which was then on appeal, and that if the latter was reversed the other convictions would be overturned; that the State’s attorney also told him the three sentences would run concurrently with the one on appeal, and that if he did not plead guilty an habitual criminal charge might be involved; and that he did not remember the prosecution stating he would have to serve three years regardless of the outcome of his appealed case. The petitioner’s trial attorney testified that after Miller’s first conviction of receiving stolen property, the District Attorney General approached him and said the defendant had stated he wanted to discuss the three pending charges, and that he told Miller he could not discuss them unless his attorney was present; that he, the District Attorney General and Miller discussed the cases twice, and that he talked with him (Miller) on two or three other occasions; that he told the petitioner he believed his first conviction would be reversed. This attorney further testified he was certain he did not tell the petitioner his convictions in the three pending cases would be overturned if the former conviction was reversed on appeal; and that he was also certain he advised Miller that he was willing to try the cases. The District Attorney General testified that either the petitioner or one of the other prisoners in the jail yelled at him once as he was passing by and asked him to come to the jail; that he did so and the petitioner asked him what he was willing to do about the other cases, and he told him he would not discuss those matters in the absence of his attorney; that the petitioner said, “Well, I’d like to talk about a plea in these cases, discuss it with you” and “I’m afraid of the Habitual Criminal Act”; that he believed he told the petitioner that under the rules of evidence in regard to the Habitual Criminal Act the four crimes would only be counted as one offense and not as four separate offenses, since they happened “in such close sequence”; that he was personally opposed to the Habitual Criminal Act and had never tried or threatened anyone with prosecution under it; and that in the conference with Miller and his trial counsel, he told Miller he would get three years in the penitentiary regardless of the outcome of his appealed case. The foregoing demonstrates that in his testimony the petitioner attempted to raise a ground of attacking his convictions which was not alleged in his petition. That is, that to induce and persuade him to enter guilty pleas in the three pending cases his trial counsel and the District Attorney General told him his convictions in those three cases would be set aside if his earlier case then on appeal should be reversed. By his first Assignment of Error here he complains that the trial court erred in not holding that his three guilty pleas were involuntary because induced by promises of freedom if the case on appeal should be reversed. It is unquestionable that a post-conviction petitioner limits the inquiry to the questions he raises therein. As in other civil actions, he cannot allege one case and prove another; he can rise no higher than the averments set out in his petition; no relief can be sought or given upon grounds not raised therein. A habeas corpus or post-conviction petition must necessarily rest upon and be determined by the factual allegations it contains. Without such rules of orderly procedure a trial degenerates into chaos. This is the clear undergirding principle of the established rule that an evidentiary hearing is not required and no relief can be granted in a post-conviction case when the petition states no ground for relief. Carvin v. State, 2 Tenn.Cr.App. 220, 452 S.W.2d 681; Floyd v. State, 2 Tenn.Cr.App. 250, 453 S.W. 2d 418; Porter v. State, 2 Tenn.Cr. App. 437, 455 S.W.2d 159; Guy v. State, Tenn.Cr.App., 470 S.W.2d 28; Crumley v. Tollett, Tenn.Cr.App., 474 S.W.2d 148; Arthur v. State, Tenn., 483 S.W.2d 95; T. C.A. § 40-3809. We turn next to the petitioner’s allegation in which he implies that his guilty pleas were void because the indictments in those cases charged both receiving and concealing stolen property and the trial judge should not have accepted the single plea to such indictments. It is true that receiving and concealing stolen property are separate and distinct offenses. Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 ; 76 C.J.S. Receiving Stolen Goods § 7, p. 10. But it is also true that an indictment is not void because it charges both offenses. Moore v. State, 1 Tenn.Cr.App. 190, 432 S.W.2d 684. In each of the petitioner’s cases the indictment charged the receiving and concealing in separate counts. In two of the indictments the value of the property involved was alleged to be more than $100, and in the other one the value was alleged to be under $100. Therefore, in the first two indictments each count charged an offense punishable by not less than three nor more than ten years in the penitentiary. T.C.A. § 39-4217. And the other indictment charged an offense in each count punishable by not less than one nor more than five years in the penitentiary. T.C.A. § 39-4218. But the trial judge only sentenced the petitioner to one minimum sentence under each of the three indictments. He was not sentenced under both counts of either of the three indictments. Thus, being convicted and given the minimum statutory sentence upon only one count in each indictment, obviously there is no basis for his claim that his guilty plea in each of the three cases was void because it did not relate specifically to a single count in the indictment. If that had been done, his sentence in each of the three cases could not have been less than the legal minimum which he received. In a habeas corpus or post-conviction proceeding, the burden is on the petitioner to prove his allegations attacking the validity of his conviction. Bratton v. State, Tenn.Cr.App., 477 S.W.2d 754; Morgan v. State, 1 Tenn.Cr.App. 454, 445 S.W.2d 477; State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 199, 433 S.W. 2d 96; Shepard v. Henderson, 1 Tenn.Cr. App. 694, 449 S.W.2d 726; State ex rel. Carroll v. Henderson, 1 Tenn.Cr.App. 427, 443 S.W.2d 689. There is a presumption that in entering pleas of guilty, court-appointed counsel for an accused acts properly and with his knowledge and consent. And the fact that he was represented by competent counsel at the time of entering a guilty plea is a factor which strongly militates against the conclusion that the plea was involuntary. Shepard v. Henderson, supra. In considering Assignments of Error challenging the correctness of the trial judge’s findings and dismissal of the petitioner’s petition, we are bound to adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court’s judgment. Such findings of a trial judge in an oral hearing, who sees and hears the witnesses testify, and hears and considers conflicting testimony, will be given the weight of a jury verdict. Bratton v. State, supra, and cases therein cited. This record amply sustains the finding of the trial judge that the guilty pleas entered by the petitioner in the three cases he attacks were voluntarily and understandingly entered without any threats or coercion or promises. Affirmed. DWYER and RUSSELL, JJ., concur.

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Caselaw Access Project

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Robert TROTTER and Pat Trotter, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error. Court of Criminal Appeals of Tennessee. Jan. 22, 1974. Certiorari Denied by Supreme Court April 1, 1974. Joe P. Binkley, Jr., Nashville, for Robert Trotter. West M. Coss, Ashland City, for Pat Trotter. David M. Pack, Atty. Gen., W. Henry Haile, II, Asst. Atty. Gen., Nashville, Noel R. Bagwell, Dist. Atty. Gen., Clarksville, for defendant in error. OPINION RUSSELL, Judge. Robert Trotter and Pat Trotter, represented on appeal by separate retained counsel, seek reversals of their respective convictions upon a joint trial for extortion, as proscribed by T.C.A. § 39-4301, and penitentiary sentences of two (2) years. Although separately filed, the two assignments of alleged error are the same for both plaintiffs-in-error. The legal sufficiency of the convicting evidence is questioned. The two men, under the State’s proof, went to the house of one Bradford and stated to him that they had a warrant for his arrest for permitting his daughters to ride bicycles upon the public road at night, and that they would have to take him to jail unless he paid off in the amount of ten dollars ($10.00). Bradford was illiterate, and testified that although he knew that the Trotters were not officers and that they had no warrant, he paid the money demanded because he was afraid of them. They gave him two gasoline credit card sales ticket copies as and for the arrest warrant when he paid the money. The only defendant to testify was Pat Trotter. He admitted going to Bradford’s house and getting ten dollars ($10.00), but claimed that it was money owed him on account for wood. The jury resolved the sharp issue of fact against the Trotters, and the evidence certainly does not preponderate against the verdict. Cooper v. State, 123 Tenn. 37, 138 S.W. 826. The assignment is overruled. The remaining assignment of error is not properly before us. The motion for a new trial contained a ground complaining that the jury was “not properly sequestered”. The only thing in the record relevant to this question is argument of counsel in support of his motion for a new trial, in which he said: “ * * * I, as an officer of the Court, can testify that I saw with my own eyes. When Your Honor recessed this case for lunch, I was standing on the steps out there when the jury came out and they were strung from the steps of this Courthouse and the front down there, without a sign of the presence of an officer. As a matter of fact, while I was standing there watching this jury, the officer came out of the Courthouse and starts down toward the jail. “Of course, certainly I am not insinuating that anybody got to the Jury. As Your Honor well knows, the law doesn’t state that, it’s the availability for them to get there, and I have several cases to this point. “I think, to clarify this for the benefit of the Court, this jury should be re-subpoenaed and brought back in here and let them testify under oath as to what happened. “That, as Your Honor knows, is reversible error — the fact that they were allowed to go in such a manner. There was one officer assigned to them and he wasn’t even with them, the Court please, he came out after most of the jury had gone into the jail all the way across this parking lot, some two or three blocks away. And I think, Your Honor please, that this jury would readily admit it.” No affidavit in support of this argument was filed with the motion for a new trial, and no proof was presented by counsel in support of his factual thesis. He did not call the jurors, or any witness. His argument is not testimony. While it is true that a lawyer is an officer of the court, his statement of extra-judicial facts made in the course of argument, when not under oath as a witness and not subject to cross-examination, proves nothing. We need not go into the law on the question attempted to be raised, or attempt to make a judgment upon facts not properly before us. The assignment is overruled. Affirmed. OLIVER-, P. J. pro tern., and MITCHELL, J., concur.

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Earl Dean EFFLER, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error. Court of Criminal Appeals of Tennessee. Feb. 25, 1974. Certiorari Denied by Supreme Court April 1, 1974. K. D. McCasland, Jr., Knoxville, for plaintiff in error. David M. Pack, Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Asst. Dist. Atty. Gen., Kingston, for defendant in error. OPINION DWYER, Judge. The plaintiff-in-error was convicted for committing the offense of concealing stolen property over the value of $100, see T. C.A. 39-4217(C), with resulting confinement for not more than ten years. There is one assignment of error urged here, that is, the trial court erred in overruling the plaintiff-in-error’s motion to suppress the evidence upon the contention that the arrest and search were illegal. The facts as found from our review reflect the evidence to reveal that on December 3, 1972, around 7:00 p. m. two deputies, patrolling on Marshall Hill Road in Blount County, noticed a car crossways in the highway- 200 feet in front of them. This car’s headlights were not on but the parking lights were. They observed the car backing off the road into an opening leading to a field. The deputies stopped their cruiser at which time the plaintiff-in-error alighted from his car and approached their cruiser. He inquired of them what was the trouble. The deputies noticed him wringing his hands and nervously puffing-on a cigarette. They approached the plaintiff-in-error’s car and with the aid of a flashlight saw on the back floorboard three guns: an antique rifle, a .22 caliber rifle and a .20 gauge shotgun. They also noticed Christmas packages on the back seat some of which had been ripped open, displaying their contents. The officers further noticed equipment for a muzzle-loading rifle. They placed the defendant in the cruiser and called for their superior officer. The superior, upon arrival at the scene, placed the plaintiff-in-error in custody. It was developed at the hearing that the deputies had been paying particular attention to the area where plaintiff-in-error was arrested because there had been a rash of breakins in that vicinity the past Christmas season and many Christmas presents had been stolen. The trial court, after a full hearing, with only the deputies and their superior testifying-, found the arrest and search to be lawful. With this we agree. In the first instance the deputies surely had a right, after seeing the car crosswise in the road, to investigate. We are also satisfied that the operation of the car on the highway at that time without lights was an offense committed in the officers’ presence. See T.C.A. 59-909. In the second instance, they had the right to be where they were when making this investigation and to look into defendant’s car. This is not a “search” as such. See Armour v. Totty, Tenn., 486 S.W.2d 537, 538, 539. Nor do we think that the officer’s use of the flashlight constituted an unlawful search. See Smith v. State, 155 Tenn. 40, 42, 290 S.W. 4. When the officer saw the Christmas packages ripped open some time before Christmas, having prior knowledge that burglaries involving stolen Christmas presents had occurred in that area, we think his actions in detaining the defendant and in confiscating the goods was not unreasonable. The assignment is overruled. We note, in closing, that the evidence at the trial reflected that the owner’s home was burglarized the day plaintiff-in-error was arrested. The owner identified the items found in the plaintiff-in-error’s car as having been taken from his home, which was a mile away from the arrest location. The plaintiff-in-error did not testify but did offer witnesses who testified that he had bought the guns from an unknown party whom he had given a push after happening upon the party and his stalled truck. The plaintiff-in-error at that time had been on his way to have his car washed in Maryville. The jury’s verdict has discredited his theory. The evidence does not preponderate against that finding here. See Grace v. State, Tenn., 493 S.W.2d 474, 476. In finding no merit in plaintiff-in-error’s only assignment of error, we affirm the judgment. WALKER, P. J., and GALBREATH, J., concur.

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HUMBLE OIL AND REFINING COMPANY, Petitioner, v. Wesley WEST et al., Respondents. No. B-4132. Supreme Court of Texas. April 24, 1974. Rehearing Denied June 5, 1974. McGinnis, Lochridge & Kilgore, Robert C. McGinnis, Austin, Walter B. Morgan, Dillard W. Baker, Talbert J. Fox and J. Lamar Hart, Houston, for petitioner. Stayton, Maloney, Black, Hearne & Babb, John W. Stayton, Austin, for respondents. STEAKLEY, Justice. This is a suit by West, et al., Respondents, who are royalty owners, for injunction and, in the alternative, for declaratory judgment. The action is brought against Humble Oil and Refining Company, Petitioner, the fee owner of the gas field and mineral rights, subject to the royalty interests. The problem arises from Humble’s action of injecting extraneous gas into the underground reservoir, for purposes of storage, prior to production of all the recoverable native gas. The history of the matter will be recited in some detail. The Wests, by fee simple conveyance dated December 28, 1938, deeded all lands owned by them in the West Clear Lake (Frio) gas field in Harris County, Texas, to Humble. Each conveyance recited that the Wests “except from this conveyance and retain unto themselves, their heirs, successors and assigns, those certain royalties on oil, gas and other minerals which may be produced and saved from the lands hereby conveyed.” Insofar as gas is concerned, the retained royalty was described as “a royalty equal to the market value at the well of one-sixth (⅛) of the dry gas so sold or used; provided that on such dry gas sold at the wells the royalties shall be one-sixth (⅛) of the amount realized from such sale.” The West Clear Lake Field, a water drive field, has been producing gas since 1938. In 1969, Humble concluded that the reservoir was approaching depletion and that the injection of extraneous gas was necessary to preserve the reservoir from destruction by water encroachment. In response to Humble’s application, and after a hearing on September 23, 1969, at which the Wests appeared in opposition, the Railroad Commission of Texas, under date of January 20, 1970, authorized use of the reservoir for the storage of gas. There was no appeal from this order. On March 26, 1970, the Wests instituted this suit against Humble for permanent injunction, i. e., “that upon final trial hereof defendant be enjoined from using the Clear Lake, W. (Frio) Field, Harris County, Texas, as a gas storage reservoir until all the native gas therein has been produced.” In the alternative, the Wests sought a “declaratory judgment decreeing that if defendant uses said reservoir as a gas storage reservoir, defendant must account to plaintiffs for their royalty interests in all gas produced from said reservoir irrespective of whether said produced gas be native gas or stored gas.” Humble commenced the injection of extraneous gas on September 1, 1970. In response to the Wests’ suit, Humble’s first amended answer, filed June 2, 1972, alleged that before commencement of the gas storage project, it had produced 89% of the recoverable gas reserves in the reservoir and that production of the remaining recoverable gas would have resulted in destruction of the reservoir’s gas storage capability. Further, in answer, Humble committed itself to continue to pay royalties on production from the reservoir “until, but only until, the total volume of all gas so produced from the particular tract is equal to the volume of gas in place in the reservoir in such tract above the gas-water contact as of January 1, 1969, terminating all royalty payments as to such tract in such reservoir when such production has occurred.” Under date of September 18, 1972, and after a trial before the Court, judgment was entered denying the prayer of the Wests for permanent injunction but decreeing “[tjhat defendant must account to plaintiffs for their royalty interests in all gas produced from the tracts in which they own royalty interests in the Clear Lake W. (Frio) Field, Harris County, Texas, irrespective of whether said produced gas be native gas or stored gas.” Upon appeal by all parties, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause, with instructions “to enter a permanent injunction restraining defendant from further injecting the field and using same as a gas storage reservoir until all native gas has been produced therefrom.” 496 S.W.2d 212. Writ of error was granted at the instance of Humble. We reverse and remand. The initial and underlying problem to be solved is whether, under the contract between the parties and the existing circumstances, the Wests are entitled to enjoin Humble from injecting gas in the reservoir until all recoverable native gas has been produced. If not, we must then determine the rights of the parties under the Wests’ alternative prayer that Humble account to them in royalty payments on all gas produced from the reservoir, whether native or stored. As to the first issue, the Wests argue that prior writings of this Court establish principles which entitle them to injunctive relief. They cite Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021 (1934), where this Court determined that in the context of property taxation, a royalty interest, whether payable in money or in kind, should be denominated an interest in land. See also Brown v. Smith, 141 Tex. 425, 174 S.W.2d 43 (1943); Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699 (1945). They emphasize that one in the position of Humble is required not only to produce and market gas from the tract found in paying quantities, W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929); Knight v. Chicago Corp., 144 Tex. 98, 188 S.W.2d 564 (1945), but also to accurately measure such production and sales in order to accurately account to the royalty owner. French v. George, 159 S. W.2d 566 (Tex.Civ.App. — Amarillo 1942, writ ref’d); Brown v. Smith, supra. Thus, the Wests contend that the proprietary and contractual rights arising from their royalty interest translate into certain absolute rights in the native gas now in the reservoir, under which they are entitled to total production of all native gas prior to utilization of the reservoir for storage of extraneous gas. Otherwise stated, it is their position that the nature of their royalty interest, coupled with their right to royalties on all native gas produced at market demand and sold at prevailing market prices, precludes any right in Humble to commingle gas in the reservoir, and that Humble’s actions so impaired the rights of the Wests as to entitle them to enjoin further commingling. Additionally, they argue by analogy the applicability of the principle of awarding injunctive relief when one intentionally appropriates another’s property interest by encroachment, Bickler v. Bidder, 403 S.W.2d 354 (Tex. 1966), or when one is acting in violation of building restrictions. Welton v. 40 East Oak Street Building Corp., 70 F.2d 377 (7th Cir. 1934) cert, denied 293 U.S. 590, 55 S.Ct. 105, 79 L.Ed. 685 (1934). The nature of the respective property interests of the parties should first be noted. As stated, the Wests conveyed fee title to the lands but reserved “royalties on oil, gas and other minerals which may be produced and saved from the lands hereby conveyed,” payable in money. Humble, on the other hand, owns the lands in fee simple, and this includes not only the. surface and mineral estates, but also the matrix of the underlying earth, i. e., the reservoir storage space, subject only to the reserved right of the Wests to the payment of royalties on minerals that are produced and saved. See Emeny v. United States, 412 F.2d 1319, 188 Ct.C1. 1024 (1969), where it was said that the surface of the leased lands remaining as the property of the respective landowners included the geological structures beneath the surface, together with any such structure that might be suitable for the underground storage of extraneous gas produced elsewhere. Indeed, the Wests do not challenge Humble’s ownership of the reservoir and its right to utilize it for storage; instead, they direct their argument to the time at which, they say, the storage right accrues. They argue, in essence, that the exercise of such right by Humble is postponed by the royalty reservation until total depletion of all recoverable native gas from the reservoir. It is manifest that the interests of the parties have come into conflict and are not fully compatible. Thus, we have again the recurring problem of adjusting correlative rights. The factual context is unique and there is no directly controlling precedent; however, this Court has led the way in conciliating conflicts between owners of the surface and of the mineral rights, and in requiring reasonable accommodations between them. See Robinson v. Robbins Petroleum Corp., 501 S.W.2d 865 (Tex.1973) ; Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (Tex.1972); Acker v. Guinn, 464 S.W.2d 348 (Tex. 1971) ; Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex.1971); Humble Oil & Refining Co. v. Williams, 420 S.W.2d 133 (Tex.1967); Railroad Commission v. Manziel, 361 S.W.2d 560 (Tex. 1962); Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 (1961); Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362 (1957); Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). These writings and the principles which they establish are instructive here. In Acker v. Guinn, supra, we affirmed that it is not ordinarily contemplated in mineral leases or deeds that the utility of the surface will be destroyed or substantially impaired by the uses made of the surface for the production of minerals. In Getty Oil Co. v. Jones, supra, a dispute arose between the surface owner and the oil and gas lessee over rights to exclusive use of air space above the surface area occupied by oil pumping units required for production of the minerals. This Court was faced with seemingly irreconcilable positions; the surface owner was unable to operate his automatic irrigation sprinkler system, and hence unable to fully utilize his surface rights because of obstacles' in the form of the lessee’s existing pumping units. In addressing the conflict between the parties, we recognized the well settled principle that the oil and gas estate is dominant over the surface estate; further, that the lessee has a right to use as much of the premises as necessary to produce and remove the minerals. However, we also reiterated that while the rights accruing from the dominant estate are well established, they are not absolute. The lessee is required to exercise his rights with due regard for the rights of the surface owner; and we held that the lessee was subject to the rules of reasonable usage with respect to an existing use of the surface. Thus, the factual context, coupled with the public policy of developing resources and promoting productive agricultural use, required an accommodation between the rights of the dominant and servient estates. A further example of the balancing of competing interests in the oil and gas context is found in Railroad Commission v. Manziel, supra. Here, this Court was faced with a question of whether an en-joinable “trespass” occurred when an adjoining mineral estate was invaded by salt water injected pursuant to secondary recovery projects authorized by the Railroad Commission. While the issue arose in the context of the validity of the Railroad Commission order, we emphasized that application of orthodox rules and principles may not be appropriate under such circumstances ; we spoke of balancing the interests of society and the interests of the oil and gas industry as a whole against the interest of the individual operator. In Woodson Oil Co. v. Pruett, 298 S.W. 2d 856 (Tex.Civ.App. — San Antonio 1957, writ ref’d n. r. e.), a lease was lost as the result of non-production. The lease specifically provided that Woodson had the right to remove all property and fixtures, including the casing, and Woodson sought an injunction to enforce this contractual right against a producing well. While fully recognizing Woodson’s explicit rights under the lease, the court determined that the destruction of the well and the waste of natural resources which would result from such removal were sufficient reason to deny the equitable relief. In the case at hand, the interests of the parties are evident; the Wests possess a royalty interest in native gas produced from the West Clear Lake Field, while Humble owns fee title to the lands, including the subsurface reservoir. In conciliating the interests asserted by each party, we must necessarily consider the unusual nature of the subsurface reservoir and the West Clear Lake gas fields. The unique geologic and geographic characteristics of the reservoir are shown by the record; further, the evidence establishes that since this reservoir lies in a water drive field, salt water encroachment reduces the storage capability as native gas is produced. Absent injection of extraneous gas, production of native gas to depletion will result in a “watering out” or total destruction of the storage capability of the reservoir. As a consequence, injunction against the injection of extraneous gas would render illusory Humble’s ownership of the storage rights in the reservoir. Moreover, our ruling will determine the continued existence of an important natural resource. The record reveals two significant features of the reservoir which vitally affect the public interest. First, the reservoir is well-suited as a “peaking” facility which can handle the seasonal fluctuations and rapidly increasing energy demands for the greater Houston area; secondly, it is a strategically located “emergency” facility, capable of providing a readily deliverable supply of gas at times when accidents, natural disasters or mechanical failures make continued delivery through normal channels impossible. Under these circumstances, the accepted principles of accommodation that have ruled the resolution of like conflicts are determinative, and we hold that the Court of Civil Appeals erred in ordering the in-junctive relief sought by the Wests. The denial of injunctive relief requires a determination of whether the contractual obligation of Humble is to account in royalties on the production of all gas from the reservoir, “irrespective of whether said produced gas be native or stored gas,” as decreed by the trial court. The Wests argue that this “pay forever” judgment is compelled by the language of the original conveyance. The conveyance stated that the Wests “except from this conveyance and retain unto themselves. their heirs, successors and assigns, those certain royalties on oil, gas and other minerals which may be produced and saved from the lands hereby conveyed.” Thus, the Wests claim that while Humble may be permitted to inject extraneous gas for storage purposes, all gas produced and saved from the lands is subject to the Wests’ royalty interest. The original conveyance made no distinction between native gas and extraneous or stored gas, and the Wests contend that to hold that Humble is not under obligation to pay royalties on the. stored gas “produced and saved” would require a rewriting of the existing instruments of conveyance. To date, the only Texas case dealing with the issue of ownership of gas stored in a natural reservoir is Lone Star Gas Co. v. Murchison, 353 S.W.2d 870 (Tex.Civ. App. — Dallas 1962, writ ref’d n. r. e.). Lone Star Gas, by various conveyances, acquired wells and leases in the Bacon Lime Field; Lone Star Gas also executed a unit operating agreement by which it acquired the right to inject and store extraneous gas in the Bacon storage reservoir. The Murchison group possessed rights as oil and gas lessees on the Jackson tract, and the southwestern part of the Bacon storage reservoir extended under the Jackson tract. The Murchisons drilled a well into the Bacon storage reservoir and took large quantities of gas therefrom. The question was whether the title and ownership of extraneous gas which Lone Star injected into the reservoir for storage was lost upon production of the commingled gas. The Murchisons urged the court to adopt the reasoning of Hammonds v. Central Kentucky Natural Gas Company, 255 Ky. 685, 75 S.W.2d 204 (1934); when faced with a similar fact situation, the Kentucky court determined that the doctrine of animals ferae naturae was applicable. Thus, once extraneous gas which was “turned loose” in the earth wandered to another’s land, the party injecting the stored gas ceased to be the exclusive owner of gas; the gas became a mineral ferae naturae. The Court of Civil Appeals in Murchison rejected the doctrine established in Hammonds and embraced the language of White v. New York State Natural Gas Corp. et al, 190 F.Supp. 342 (W.D.Pa. 1960), where it was stated that “once severed from the realty, gas and oil, like other minerals, become personal property title to natural gas once having been reduced to possession is not lost by the injection of such gas into a natural reservoir for storage purposes.” Therefore, under Murchison, the extraneous gas injected for storage by Humble having assumed the character of personal property, remained its property. See also Chaffin v. Hall, 210 S.W.2d 191 (Tex. Civ.App. — East-land 1948, writ ref’d n. r. e.) ; Stephens v. Stephens, 292 S.W. 290 (Tex.Civ.App. — • Amarillo 1927, writ dism’d). The Wests assert, however, that since they possess a perpetual royalty on the gas produced from the field, their royalty interest “expires with the end of time.” Thus, they argue that the contractual relationship of the parties, i. e., the obligation to pay royalty on all gas produced and saved, becomes the controlling distinction between the instant case and Murchison. In our view, this is not a tenable distinction but one which if adopted would implicitly recognize the doctrine of minerals ferae naturae which was rejected in Murchison. In accord with Murchison, Humble’s ownership of the gas as personal property is not altered either upon injection of the gas into the reservoir or upon later production of the gas. The language of the conveyance does no more than reserve the royalty interest in the native gas in the reservoir, and Humble’s ownership of the extraneous gas is unaffected thereby. An alternative basis to be considered is whether the trial court judgment may be sustained on a confusion of goods theory. Under Murchison, as noted, the extraneous gas is the personal property of Humble. However, by injecting this extraneous gas into the reservoir prior to production of all native gas, Humble has commingled extraneous gas, in which Humble has an exclusive property interest, and native gas, in which the Wests have a royalty interest. The question thus becomes one of determining whether Humble’s intentional “confusion” of the two bodies of gas should result in the forfeiture of its exclusive rights to the extraneous gas. If such a forfeiture is proper, the Wests would be entitled to a royalty on all gas produced, consistent with the trial court judgment. As a general rule, the confusion of goods theory attaches only when the commingled goods of different parties are so confused that the property of each cannot be distinguished. Where the mixture is homogeneous, the goods being similar in nature and value, and if the portion of each may be properly shown, each party may claim his aliquot share of the mass. Belcher v. Cassidy Bros. Live Stock Commission Co., 26 Tex.Civ.App. 60, 62 S.W. 924 (Tex.Civ.App. — 1901, writ ref’d); Farrow v. Farrow, 238 S.W.2d 255 (Tex. Civ.App. — -Austin 1951, no writ); 1 Am. Jur.2d Accession and Confusion, § 21 (1962); 15A C.J.S. Confusion of Goods § 7 (1967). Additionally, the burden is on the one commingling the goods to properly identify the aliquot share of each owner; thus, if goods are so confused as to render the mixture incapable of proper division according to the pre-existing rights of the parties, the loss must fall on the one who occasioned the mixture. 15A C.J.S. Confusion of Goods §§ 7, 12 (1967); 1 Am.Jur. 2d Accession and Confusion, §§ 18, 24 (1962). Stated differently, since Humble is responsible for, and is possessed with peculiar knowledge of the gas injection, it is under the burden of establishing the aliquot shares with reasonable certainty. See Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493 (1943) ; Cf. Mooers v. Richardson Petroleum Co., 146 Tex. 174, 204 S.W.2d 606 (1947); Ortiz Oil Co. v. Luttes, 141 S.W. 2d 1050 (Tex.Civ.App. — 1940, writ dism’d); 1 W. Summers, The Law of Oil and Gas § 27 (1954). Humble sought to discharge this burden by offering expert opinion evidence in estimation of the volume of native gas as of January 1, 1969; its commitment in the trial court was to continue the payment of royalties to the Wests on the basis of this proof until production of the commingled gas equaled the volume of the gas in place at such time. As to this, the Wests contend that the obligation of Humble to account for their royalty interests may not rest upon expert opinion evidence and that, at the least, upon its election to utilize the reservoir for storage and hence to commingle native and extraneous gas, Humble came under the obligation of paying royalties on all gas thereafter produced from the reservoir. The counter position of Humble is that the opinion testimony of the geology and engineering witnesses is reasonably certain ; that their testimony was based upon more than acceptable well control for mapping the reservoir, and that there existed sufficient data upon which to compute reservoir pressure, reservoir temperature, gas formation volume factor, reservoir porosity and permeability and connate water saturation. Thus, Humble asserts that the Wests’ aliquot share of the gas in the reservoir prior to injection of the extraneous gas is subject to a reasonable estimate and that the expert testimony sufficiently established the volume of the reserves. In the context of their asserted right to equitable relief, the Wests emphasize, on the other hand, that Warnack, Humble’s geologist witness, admitted that a certain “judgment or opinion decision” had to be made in calculating the reservoir size. They stress that the witness acknowledged that wide discrepancies may exist in determining the size of a reservoir and insist that his calculations were based upon limited and unacceptable information. Also, they note that Whitson, the petroleum engineer called to testify by Humble, made critical calculations of porosity and perme-abilitjr by means of mathematical averages; further, that experts agree that the limits of a reservoir are difficult of exact determination. As we have indicated, it is our view that the act of commingling native and extraneous gas did not impose upon Humble the obligation of paying royalties on all gas thereafter produced from the reservoir, if the evidence establishes with reasonable certainty the volume of gas reserves upon which the Wests would have been entitled to royalties, absent injection of extraneous gas. The burden of this showing devolves upon Humble after proof by the Wests of their royalty interests, together with proof of Humble’s commingling of extraneous and native gas. The threshold question for determination is whether the requisite computation of reserves is capable of establishment with reasonable certainty; and, if so, the further question to be resolved is whether the burden defined above is discharged by Humble under the evidence. We have concluded that the cause should be generally remanded to the trial court for determination of these issues at the trial level, as well as for consideration of any other issues the parties may raise in the light of our rulings. The judgment of the Court of Civil Appeals is reversed and the cause remanded to the trial court for further proceedings in accordance with this opinion.

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Jacinto Ramirez ZAMORA, Appellant, v. The STATE of Texas, Appellee. No. 48066. Court of Criminal Appeals of Texas. April 24, 1974. Rehearing Denied May 22, 1974. L. Aron Pena, Edinburg, Bob Hillin, Dallas, for appellant. Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for possession of marihuana. After the jury returned a verdict of guilty, punishment was assessed by the court at seven years. In appellant’s first three contentions it is urged that the evidence is insufficient to support the conviction. The record reflects that Federal Narcotic Agent Chism had a telephone conversation with one Josephina Santa Maria on September 1, 1972, in which arrangements were made for a quantity of marihuana to be delivered to the agent at the Ramada Inn in Grand Prairie later that night. Pursuant to such conversation a white 1966 Dodge sedan arrived at the motel about 10:30 p. m. that evening. Codefendant Ca-siano was the driver of the car, Josephina Santa Maria was the other occupant in the front seat and appellant was sitting in the back seat. Chism got in the car and asked Casiano “if he had the stuff,” and Casiano replied, “Yeah, do you have the money?” Chism replied that he had the money in his hotel room and asked Casiano if he would drive the car “over to the hotel room where I had my car parked and we would transfer the stuff from his car to my car.” According to Chism, appellant was in the car throughout this conversation and was “within hearing distance.” After the car was moved, Chism went to his hotel room where he talked to Federal Agent Hollens-head who, according to plans formulated by the officers, was to exhibit a roll of money to the persons selling the marihuana. Upon Chism returning to the car, Cas-iano opened the trunk. A footlocker containing twenty bricks of marihuana was opened by Casiano. A plastic bag in the trunk contained an additional nine bricks of marihuana. Chism stated appellant was standing by the car and observed all of the transactions. After the trunk was opened Hollenshead approached the vehicle where he observed appellant, Casiano, Josephina Santa Maria and a black individual (Chism) “standing around the rear of the vehicle” with the trunk open. Hollenshead detected an odor coming from the automobile which he described as “a very strong odor which I associate with marihuana.” Upon looking inside the trunk Hollenshead observed “bricks of a green leafy substance” in the trunk, and gave a prearranged signal to other officers who converged on the car and arrested appellant, Casiano and Josephina Santa Maria. Codefendant Casiano testified that he and appellant made the trip to Grand Prairie from Donna on the date in question as a result of one Chico Perez offering Casi-ano five hundred dollars to come to Dallas and pick up some money for Perez’s family who lived in Pharr. Casiano did not have a car and offered appellant two hundred dollars plus expenses to drive him to Dallas to pick up the money. While the record reflects that the vehicle was not registered in appellant’s name (the record does not show to whom the car was registered), Casiano stated that he had seen appellant drive this automobile “at other times down in Donna,” and that “his mother or brother or somebody else” owned it. Appellant drove Casiano to Grand Prairie where they went to the house of Jose-phina Santa Maria. Perez arrived shortly thereafter, and, after asking for the keys to their car and making a trip outside while appellant and Casiano remained in the house, Perez told them to go to the Ramada Inn and pick up some money. Appellant did not want to drive the car because “he was not used to driving in big city,” and since Casiano had lived in Los Angeles for five years, it was agreed that he would drive the vehicle to the Ramada Inn. Casi-ano denied that he and appellant had any knowledge that the trunk contained marihuana. Appellant urges that the evidence is insufficient to support the conviction in light of the opinion of this court in Payne v. State, Tex.Cr.App., 480 S.W.2d 732. In Payne, this court held that evidence showing only that drug was found in matchbox located on left side of dashboard of automobile in which defendant was a passenger was insufficient to support conviction of defendant for unlawful possession of dangerous drug. Unlike Payne, where the evidence reflected nothing more than appellant was a passenger in the vehicle where the drug was found in a matchbox, appellant had secured and driven the vehicle in which the large quantity of marihuana was found from Donna to Grand Prairie on the day in question. See Hahn v. State, Tex.Cr. App., 502 S.W.2d 724; Aldridge v. State, Tex.Cr.App., 482 S.W.2d 171. For this service, appellant was to receive two hundred dollars and expenses. Appellant had been seen driving the car in Donna, and Casiano believed the vehicle belonged to appellant’s mother or brother. See Harris v. State, Tex.Cr.App., 486 S.W.2d 88. It further appears that the only reason appellant did not drive the vehicle to the scene of the arrest was his reluctance to drive in city traffic. Unlike Payne, a discussion took place in the vehicle where appellant was a passenger relative to the purchase of “stuff,” and the moving of the automobile where the “stuff” could be transferred to the buyer’s car. In addition, appellant was in a position to observe all of the transactions when the trunk was opened and the marihuana was examined by Chism. While appellant was “standing around the rear of the vehicle,” prior to his arrest, Hollenshead noted a strong odor of marihuana coming from the automobile. See Adair v. State, 482 S.W.2d 247; Ald-ridge v. State, supra. In proving possession in narcotic cases, facts and circumstances surrounding a search or an arrest may be shown to prove that the accused and other persons acted together in jointly possessing a narcotic. Lewis v. State, Tex.Cr.App., 502 S. W.2d 699; Wright v. State, Tex.Cr.App., 500 S.W.2d 170; Collini v. State, Tex.Cr. App., 487 S.W.2d 132; Harvey v. State, Tex.Cr.App., 487 S.W.2d 75. We find that the combination of the foregoing circumstances provides the affirmative link between appellant and the contraband he is alleged to have possessed required by the decisions of this court in joint possession (narcotic) cases. See Barnes v. State, Tex.Cr.App., 504 S.W.2d 450; Powell v. State, Tex.Cr.App., 502 S. W.2d 705; Wright v. State, Tex.Cr.App., 500 S.W.2d 170; Collini v. State, Tex.Cr. App., 487 S.W.2d 132; Sanders v. State, Tex.Cr.App., 482 S.W.2d 648; Payne v. State, supra. We deem the evidence sufficient to support the conviction. In appellant’s next two contentions it is urged that the court erred in failing to charge the jury on “circumstantial evidence,” and that “in order to convict appellant they must find that he had knowledge that the contraband was in the automobile and that it was marihuana.” Appellant’s contentions are not before this court for consideration where neither written objection to the court’s charge nor a written request for the charge desired was filed with the trial court. Articles 36.14 and 36.15, Vernons Ann.C.C.P.; Nichols v. State, Tex.Cr.App., 494 S.W.2d 830. Objections and requested charges dictated to the court reporter are not sufficient to preserve error. Louden v. State, Tex.Cr.App., 491 S.W.2d 168; Ross v. State, Tex.Cr.App., 486 S.W.2d 339; Woods v. State, Tex.Cr.App., 479 S.W.2d 952; Fennell v. State, Tex.Cr.App., 460 S.W.2d 417. Appellant contends the court erred in refusing to grant his requested charge on entrapment. Appellant urges he was entitled to a charge on entrapment by virtue of the testimony of Chism that he initiated the transaction with Josephina Santa Maria for purchase of marihuana which ultimately resulted in appellant’s arrest. The record reflects that Chism had no contact with appellant or Casiano until the time of their arrest. While appellant did not testify, codefendant Casiano denied that he and appellant had any knowledge of the marihuana in the trunk of the car. According to Casiano, the inducement for him and appellant to make the trip to Grand Prairie and ultimately to the motel where they were arrested was a five hundred dollar payment (of which appellant was to receive two hundred dollars) from Perez to pick up money and return it to his family in Pharr. Under these circumstances we cannot agree that the trial court erred in refusing to charge on the defense of entrapment. The defense of entrapment necessarily assumes the act charged was committed. Appellant’s defense was based on lack of knowledge that there was contraband in the vehicle in which he was a passenger. In Godin v. State, Tex.Cr.App., 441 S.W.2d 196, it was stated, “It is the rule in Texas and most jurisdictions that the defense of entrapment is not available to a defendant who denies that he committed the offense charged.” See Canales v. State, Tex.Cr.App., 496 S.W.2d 614; Mc-Kelva v. State, Tex.Cr.App., 453 S.W.2d 298; Holdaway v. State, Tex.Cr.App., 505 S.W.2d 262. Appellant contends that the “so-called ‘Impact Court No. 2 of Dallas County, Texas,’ which tried this case for the Criminal District Court of Dallas County, Texas, was . . . established in violation of the Constitution and laws of the State of Texas.” By order dated January 19, 1973, the Honorable Dallas A. Blankenship, Presiding Judge of the First Administrative Judicial District, assigned the Honorable Hoyet A. Armstrong, retired district judge, to the Criminal District Court No. 3, Dallas County, and further provided that Judge Armstrong was authorized to hear matters in all of the courts of Dallas County which try felony cases. Appellant first urges that Senate Bill No. 259 of 1893, which created the first Criminal District Court of Dallas County, had the effect of divesting all other district courts of Dallas County of criminal jurisdiction. We find no merit in this contention since Article S, Section 8 of the Texas Constitution, Vernon’s Ann.St. vests the district court with original jurisdiction in all criminal cases of the grade of felony. The argument advanced by appellant that Judge Armstrong could not be authorized by assignment to preside over more than one court in Dallas County was answered adversely to appellant in Peach v. State, Tex.Cr.App., 498 S.W.2d 192. The contention that Judge Armstrong was not authorized to sit as judge of the Criminal District Court of Dallas County when Judge Jerome Chamberlain, the regular district judge of the Criminal District Court of Dallas County, was present and trying another case at the same time is without merit in view of this court’s decision in Reed v. State, Tex.Cr. App., 500 S.W.2d 137. The judge is affirmed. Opinion approved by the Court. . Appellant and Casiano were tried jointly. Appellant did not testify. The jury, as the trier of the facts, could accept or reject all or any part of a witness’s testimony. Nalls v. State, Tex.Cr.App., 476 S.W.2d 297; Aguilar v. State, Tex.Cr.App., 471 S.W.2d 58.

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James William MILLS, Appellant, v. The STATE of Texas, Appellee. No. 48382. Court of Criminal Appeals of Texas. May 8, 1974. Michael L. Morrow, Dallas, for appellant. Henry Wade, Dist. Atty., William L. Hubbard, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION BILL J. CORNELIUS, Commissioner. In a jury trial the appellant was convicted of the offense of theft of personal property over the value of $50.00. The punishment, which was assessed by the court at appellant’s election, and enhanced under the provisions of Art. 63, Vernon’s Ann.P.C., was life imprisonment. In his first ground of error appellant complains the “trial court committed fundamental error by failing to require the court reporter to take notes of the voir dire examination of the jury panel.” This contention is without merit. The record shows the court granted appellant’s motion to take the voir dire examination of the panel in accordance with Article 40.09, Sec. 4, Vernon’s Ann.C.C.P., and such voir dire examination has been transcribed and is in the record before us. From the file marks, it appears that it was not filed until appellant filed his appellate brief in the trial court. However, there was no written designation by the appellant that it be incorporated in the record, and it is not a matter that must be mandatorily included in the record. See Articles 40.09, Secs. 1, 2, and 3. Further, we find no objection to the record due to the absence of such transcribed voir dire examination. And a'fter such transcription was filed, the appellant has made no effort to point out any error that occurred during such voir dire examination, but continues to rely upon the fact that the court refused to order the court reporter to record such voir dire examination. Ground of error No. 2 is multifarious. It first contends that reversible error was committed when the State’s counsel, in responding to the inference of the defense that the State’s witness Chandler was engaged in some kind of illegal activity, stated that such inference “was not true,” when there was no evidence in the record supporting such statement. However, no objection whatever was made to this comment by State’s counsel and appellant may not now complain of it. It is then contended that prejudicial error was committed when the State’s counsel repeatedly emphasized the testimony of the State’s witness Chandler to the effect that appellant threatened to “get anyone who sends me back to the penitentiary.” This was a correct quote of the testimony, which not only was admitted without objection by the appellant but which was elicited again by appellant’s counsel on his cross-examination. Therefore, no error is presented. Thirdly, appellant complains of the action of the State’s Attorney in advising the jury that the witness Chandler had told the police and the grand jury the same story he told at the trial. Appellant’s objection to this statement was sustained by the court and the prosecutor was admonished by the court to “stay in the record.” No further instruction or relief was requested by appellant. As he received all the relief he requested, no error is presented. Newman v. State, Tex.Cr.App., 501 S.W.2d 94. In his ground of error No. 3, the appellant complains of certain unresponsive and prejudicial answers of the State’s witness Chandler. We have carefully examined the record and find that no objection or request for an instruction was ever made by the appellant in connection with these answers, and therefore no error is presented. Ground No. 4 contends that appellant’s punishment was enhanced by the use of prior convictions which had already been used for enhancement on another occasion. Appellant’s sworn plea in bar, based upon this contention, alleged that his conviction on April 1, 1966, in Cause No. C 65-338K had been enhanced by a conviction in Cause No. D-3707 and another conviction, but that his conviction in Cause No. C 65-338K was ordered retried as the result of a habeas corpus proceeding and that upon the retrial of it the enhancement portions of the indictment were dismissed. Therefore, the final conviction in Cause No. C 65-338K was not successfully enhanced and there was no error in allowing the use of the conviction in Cause No. D-3707 to enhance the punishment in the case at bar. McGill v. State, 160 Tex.Cr.R. 324, 269 S.W.2d 398. In Ground No. 5 appellant contends that the court should have charged the jury on circumstantial evidence. The record reflects that appellant’s counsel neither objected to the court’s charge nor requested any special instructions or charges. In fact, he advised the court that he had nd objections to the charge as presented. Therefore, complaint cannot now be made of the failure to charge on circumstantial evidence. Art. 36.14, Vernon’s Ann.C.C.P.; Gray v. State, Tex.Cr.App., 475 S.W.2d 246; Burleson v. State, Tex.Cr.App., 449 S.W.2d 252. In Ground No. 6 appellant urges that he should have been allowed to impeach the witness Chandler by showing a prior conviction for breaking and entering a coin-operated vending machine. In a hearing outside the presence of the jury it was revealed that the sentence in that case was probated and that the probation had expired. By the express provisions of Art. 38.29, Vernon’s Ann.C.C.P., a probated sentence may be used to impeach a witness only when the probation has not expired. The trial court correctly refused to allow such proof. Parker v. State, Tex.Cr.App., 384 S.W.2d 712; Smith v. State, Tex.Cr. App., 455 S.W.2d 282; Nichols v. State, Tex.Cr.App., 494 S.W.2d 830. In his last ground of error appellant maintains that there was no direct proof of his guilt, but only circumstantial evidence, and that such evidence is not sufficient to support the conviction. This claim is based mainly upon the contention that appellant explained the incriminating circumstances against him, consistent with his innocence, and that the State failed to show the explanation to be false, thus requiring an acquittal under the rule applied in Huff v. State, Tex.Cr.App., 492 S.W.2d 532. In the case at bar the evidence showed that a U-Haul trailer containing a supply of apples was left on the side of the road by the owner of the apples while he went to get the trailer-hitch on his vehicle repaired. Shortly thereafter, the trailer and the apples were stolen. The State’s evidence showed that one Norris, who admittedly helped to take the goods, and the appellant were seen hauling the stolen trailer with a white Rambler automobile only minutes from the taking; that shortly thereafter they were seen unloading the apples, with the help of others; that upon being questioned about where they got the trailer and the apples the appellant said they had rented the trailer; that upon this statement being disputed and upon being advised that the police were being called, both Norris and the appellant left the scene and were later arrested. The appellant produced evidence from Norris and from Mr. Winn, who had purchased the apples, that he had been working for Winn as a substitute meatcutter and was not in the car with Norris when the trailer was driven to Winn’s place of business and that he had nothing to do with the taking; that Norris and another party actually took the trailer and drove it to Winn’s place of business, where they sold him the apples; and that Winn got the appellant to merely help unload the apples. It thus is seen that the evidence here is conflicting in nearly all material respects. As to the appellant’s explanation of the circumstances, his claim that he was not in the automobile with Norris at all but that he only came out of Winn’s place of business to help unload the apples, and that he knew nothing about the trailer, conflicts directly with the State’s evidence that he was with Norris in the automobile; that upon being accosted he falsely claimed to have rented the trailer; that the witness Winn at the scene told the police that he did not know the appellant; as well as other items of proof. In addition, the State offered proof that appellant threatened and offered to bribe the witness Chandler to prevent his testifying against him, and suggested that he swear to untrue alibi testimony. Under these circumstances the appellant’s explanation was refuted, if the jury chose to believe the State’s evidence, and the overall circumstances of guilt were sufficient to support the conviction. The jury is the exclusive judge of the evidence adduced, the credibility of the witnesses, and the weight to be given their testimony. Art. 36.15, 38.04, Vernon’s Ann.C.C.P.; Brown v. State, Tex.Cr.App., 477 S.W.2d 617; Easley v. State, Tex.Cr.App., 478 S. W.2d 539. The jury may accept one version of the facts and reject another, or reject any part of a witness’ testimony, Wright v. State, Tex.Cr.App., 437 S.W.2d 566. In circumstantial evidence cases, it is not necessary that every fact point independently and directly to the defendant’s guilt. It is enough if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances. Jones v. State, Tex.Cr.App., 442 S.W.2d 698; Frison v. State, Tex.Cr. App., 473 S.W.2d 479; Parish v. State, 85 Tex.Cr.R. 75, 209 S.W. 678; Finch v. State, 89 Tex.Cr.R. 363, 232 S.W. 528. We find no reversible error, and the judgment is affirmed. Opinion approved by the Court.

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Clifford MORRISON, Appellant, v. The STATE of Texas, Appellee. No. 48079. Court of Criminal Appeals of Texas. May 1, 1974. Rehearing Denied May 22, 1974. John R. Foster, Del Rio, for appellant. John F. Pettit, Dist. Atty. and Edwin E. Springer, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from a conviction for the offense of burglary. Punishment was assessed by the court at seven years. Appellant contends by his first ground of error that the trial court erred in admitting items taken from his apartment. Since the reasonableness of seizure must be decided upon the facts of the case, they will be outlined first. On September 5, 1971, sometime after midnight, a men’s clothing store in Del Rio was broken into, and between eight and ten thousand dollars worth of merchandise was taken. Three days later, on September 8, 1971, Sheriff McCourt went to Laughlin Air Force Base to remove Edgar Heard, a trespasser. Upon questioning, Heard indicated some knowledge of the burglary. Heard then led McCourt to appellant’s apartment at 102 West 10th Street to see if some of the merchandise stolen in the burglary was at the house. Heard said that appellant had given him (Heard) permission to use the apartment since he was out of town. But since Heard did not have a key to the apartment, the landlady had to unlock the door in order for them to enter. Upon entering the apartment, McCourt saw some clothing in plain view which was subsequently seized and proved to be some of that taken in the burglary, and identified as various State’s exhibits. He then left the apartment to secure a search warrant, and upon his return showed the search warrant to Miss Dah-nert, who then again let the officers inside. A large quantity of clothing, identified by Dobkins as the merchandise stolen from his store, was then seized. Appellant was arrested on September 14th at the apartment. The initial entrance by McCourt upon appellant’s apartment was at the invitation of Heard, who was authorized by appellant to have temporary use of the premises. The rule is that third persons can consent to searches of premises which they exercise control over and have authority to use. It is a question of fact whether the consenting party has the right to use and occupy a particular area to justify his permitting officers to search that area. See generally Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App. 1973). In the case at bar, the trial court found at the close of the evidence that Heard previously had been to appellant’s apartment on at least one occasion and that he had permission to use the apartment during appellant’s absence; that Heard returned on the day of the seizure to retrieve personal belongings he had left there earlier, and that McCourt was present at Heard’s invitation. The court further found that upon entering the apartment the stolen merchandise subsequently seized was observed by McCourt in plain view. Appellant’s own testimony indicates that Heard had previously been to his apartment as a guest. The evidence shows that Heard had a key to appellant’s room on the Laughlin Air Force Base at the time he was arrested. We conclude that the trial court heard sufficient evidence to support its findings. Furthermore, the fact that the articles in question were removed from appellant’s apartment during Sheriff Mc-Court’s subsequent visit does not change the result reached herein. This is so because Heard accompanied McCourt back to appellant’s apartment upon this second trip, thus allowing the consent originally given to carry over during the intervening time span of approximately four hours. The seizure of evidence observed in plain view by an officer who is lawfully in the place from which he observes the items seized is not unreasonable. Appellant contends by his second and final ground of error that the trial court erred by admitting into evidence his written confession. His argument is based entirely upon the proposition that the fruits of the illegal seizure induced and thereby tainted the confession. Having found the seizure lawful, appellant’s argument is clearly without merit. Finding no reversible error, the judgment is affirmed. . Appellant testified denying this. . The State concedes that the search warrant in question: was invalid, so its validity need not be discussed further. . Sheriff McCourt testified that he left guards at appellant’s apartment while he went to secure his search warrant. Miss Dalinert corroborated his testimony in this respect. . Appellant has not urged, nor does the record reflect, that some of the seized evidence was not in plain view of the officers. If only a portion of offered evidence is inadmissible, a defendant must make an objection properly directed to the objectionable portion. Here the evidence was apparently considered as one unit, and as such found to have been in plain view.

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Charles Earl CLEVELAND, Appellant, v. The STATE of Texas, Appellee. No. 48351. Court of Criminal Appeals of Texas. May 8, 1974. Frank D. Coffey, Fort Worth, for appellant. Tim Curry, Dist. Atty., Bill Mills, Robert A. Sewell, Tom E. Hill, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for robbery by firearms; the punishment, imprisonment for eight years. The manager of the Perkmore Grocery Store testified that he was robbed by armed men but he was unable to make a positive identification of the appellant as one of the robbers because their faces were masked. The only witness who positively identified the appellant as one of the armed robbers was Jewell O. Harris. In his first ground of error the appellant urges that: “The testimony of Jewell O. Harris was coerced from him by the State of Texas and the trial court and therefore wrongfully obtained under Article 38.23 of the [Vernon’s Ann.] Code of Criminal Procedure of the State of Texas.” Harris accompanied by some members of his family stopped his automobile at the Perkmore Grocery Store on the evening of the robbery. His young son went into the store to make a purchase. Harris observed three armed masked men approach the store. Two of them entered. Harris went to an adjoining business establishment, told the proprietor what he had observed, and said he had recognized one of the participants in the robbery as his stepson. The robbers soon emerged from the store. As the robbers escaped back of the store they exchanged gunfire with the proprietor of the neighboring business who had been alerted by Harris. Harris was wounded by shotgun pellets fired by the escaping men. Harris testified that he had been the common-law husband of the appellant’s mother for over twelve years. He first met the appellant when the appellant was about five years of age and he had seen the appellant “often” during the intervening years. He positively identified the appellant as the masked man carrying a sawed-off shotgun whom he saw participating in the robbery. At a pretrial hearing, however, the witness had refused to identify appellant as one of the robbers, saying alternately that he could not make such an identification and that he feared for his life. He did not invoke any recognized testimonial privilege. After much interrogation, all in vain, the following exchange took place: “THE COURT: . . . You’re not going to testify in regard to what you told the officer about who the man was who shot you ? Is that what you’re telling me ? “THE WITNESS: Uh-huh. “THE COURT: . . . I am directing you to testify. You are ordered by the Court to testify. Are you not going to testify ? 5ji ⅝ * “THE COURT: Okay. Just take him back to jail. « * * * “THE WITNESS: What grounds are you keeping me in jail ? “THE COURT: Because you won’t testify. “THE WITNESS: Well, do you want me to go out here and get killed ?” When the trial was held five days later the witness was no longer hesitant and testified as indicated above. The record is not clear whether Harris ever spent any time in jail after the pretrial hearing. There is nothing in this record to show that the witness was improperly coerced to testify. Every citizen has a duty not only to the parties but to the community at large to testify in a court of law concerning facts and information within his knowledge that is relevant to the issue in litigation. This testimonial duty of a witness is basic and fundamental in the quest for justice in our judicial system. This testimonial duty is only qualified by certain recognized privileges such as that against self-incrimination and certain privileged communications. On the rare occasions when it is necessary the Court may use its inherent contempt powers to enforce the testimonial duty of a recalcitrant witness. See Ex parte Heptinstall, 118 Tex.Cr.R. 160, 39 S.W.2d 75 (1931); Lehnhard v. Moore, 401 S.W.2d 232 (Tex.S.Ct.1966). 8 Wigmore on Evidence, Ch. 76, Section 2190, et seq. (McNaughton rev. 1961); 17 Am.Jur.2d, Contempt, Section 29 at p. 34; 12 Tex.Jur.2d, Contempt, Section 27 at p. 506. There is no evidence that Harris’ testimony was wrongfully obtained in violation of Article 38.23, V.A.C.C.P. The first ground of error is overruled. Appellant’s second ground of error is that during the penalty phase of the trial, the prosecutor’s argument was outside the record and prejudicial to him. The complained of argument is: “(Proprietor) Roy Carter, a man who is lawfully employed, trying to make a living. As a result of Cleveland, he never again returned to work as a manager of that grocery store. Here is one member of our society but for the violence of the defendant’s acts has been taken away from his employment and his ability to make a living. Now, this happened - - . ” Defense counsel’s objection that this argument was outside of the record was overruled. The record shows that during the trial Roy Carter testified as follows: “Q. Did you go to work the next day? “A. No. “Q. Did you ever go back to work? “A. No.” There is no further testimony regarding Carter’s return to work. The evidence shows that during the robbery he was struck on the face and head. The argument of the prosecutor was a reasonable deduction from the evidence. O’Dell v. State, 467 S.W.2d 444 (Tex.Cr.App.1971); Mauldin v. State, 463 S.W.2d 10 (Tex.Cr. App.1971). The second ground of error is overruled. The judgment is affirmed. Opinion approved by the Court. . Article 38.23, V.A.C.C.P. in pertinent part provides as follows: “No evidence obtained by an officer or other person in violation of any provisions of ■ tbe Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

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Azzie PRUITT, III, Appellant, v. The STATE of Texas, Appellee. Nos. 48436, 48437. Court of Criminal Appeals of Texas. May 8, 1974. James P. Finstrom, Dallas, for appellant. Henry Wade, Dist. Atty., Maridell Tem-pleton, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. The appellant entered pleas of guilty to two cases, one for burglary with intent to commit theft, and one for robbery, before the court without a jury; the punishment, twelve (12) years and forty (40) years. The first complaint in both appeals is that the evidence is not sufficient because the court reporter’s notes do not show that sufficient evidence was introduced. However, ample written evidence was actually introduced and stipulated, the exhibits were shown by the statement of facts to have been introduced in evidence, marked filed as exhibits, and are shown in the transcript certified by the Clerk of the District Court, Bill Shaw. Art. 1.15, Vernon’s Ann.C.C.P., requires the introduction “into the record” of evidence showing the guilt of the defendant. Thus, since the written stipulated evidence was in evidence and appears in the record certified by the Clerk, it is before us and is sufficient to show appellant’s guilt in both cases. We overrule ground of error number one. Next, appellant contends that the sentences are unconstitutional because, in addition to ordering confinement for the number of years assessed, they also contain the words, “and $25 costs.” He contends that since the record indicates his indigen-cy he is ordered to be confined on account of his being poor, contrary to the holding in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130. What is therein prohibited is that the State must not impose a fine and then automatically convert it “into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” It is true that the sentences provide for $25 costs, but do not order appellant confined until he pays the costs. As written the costs provisions of the sentences constitute only judgments and not orders for imprisonment. Art. 1018, V.A.C.C.P., provides as to felony convictions that when a defendant is convicted, the costs and fees paid by the State shall be a charge against him. We are not called upon herein to determine if the State paid any costs or fees in these cases. Assuming without deciding that appellant was liable for the amount of $25 costs in each of these cases, nevertheless he could not be imprisoned in lieu of payment therefor. It was so held in Ex parte Smith, 110 Tex.Cr.R. 335, 8 S.W.2d 139, where this Court said: “The state is primarily liable for costs in felony cases; and while we recognize that, under the provisions of article 1018, C.C.P. 1925, in such cases, save those punished by death or imprisonment for life, all costs and fees paid by the state shall become a charge against the convict, still we will never subscribe to the doctrine that, when such convict serves out his term of imprisonment, whether it be one year or two, or 90 days, as the case may be, he may still be imprisoned an indefinite length of time in lieu of payment of costs accrued in such case. The Court in Ex parte Byrd, 112 Tex. Cr.R. 19, 13 S.W.2d 855, opinion by Hawkins, J., reiterated this holding. See also Ex parte Hill, 111 Tex.Cr.R. 426, 15 S.W. 2d 14; Ex parte Neeley, 118 Tex.Cr.R. 171,42 S.W.2d 445. Thus, the appellant need have no fear that upon completion of his 40 and 12 years sentences in these cases, he can be held in confinement for nonpayment of the $25 cost bill owed by him in each case, whether he be indigent or not. We overrule ground of error number two. Finally, appellant argues that the record does not reflect that he was present when the $25 costs were assessed against him. There is no contention that he was not present when he was sentenced. Since he was not sentenced to be held in confinement in lieu of the payment of costs, the assessment of costs was not a part of the sentencing process, and his presence was not required as to the costs as indicated under Art. 42.03, V.A.C.C.P. We overrule ground of error number three. The judgments are affirmed. Opinion approved by the Court.

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John Henry MOULTON, Appellant, v. The STATE of Texas, Appellee. No. 48337. Court of Criminal Appeals of Texas. May 1, 1974. Arturo C. Gonzalez, Del Rio, for appellant. John R. Pettit, Dist. Atty., and Edwin E. Springer, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION QUENTIN KEITH, Commissioner. Appellant was indicted for murder with malice and the jury assessed his punishment at thirty-five years’ imprisonment. Although the appellant does not challenge the sufficiency of the evidence to sustain the conviction, we set out a few of the salient facts necessary for treatment of the contentions which are advanced. Appellant and Everette Arthur Phillips, Jr., were jointly indicted for the murder of Ignacio Garcia by choking him on the neck with a wire and a piece of cloth. At the time of the commission of the offense, appellant and Phillips were prisoners in the county jail of Kinney County in Brackett-ville. The deceased was the jailer and had entered the jail block to bring the afternoon meal to the prisoners. There was but one other prisoner, Jesus Sandoval, confined at the time. When Garcia entered, appellant began choking him; or, to use his own words, tried to put “a sleeper hold” on the deceased. Appellant and Phillips bound and gagged the deceased, tied up Sandoval, locked the deceased and Sandoval in the jail, stole a car in Brackettville and started toward Eagle Pass. They were apprehended a short time after their escape from custody. Upon appellant’s motion, venue was changed to Val Verde County, while venue of the trial of his co-defendant was changed to Maverick County. The State proved the legal incarceration of appellant, his escape from the jail, his apprehension and the voluntary nature of his confession. It likewise proved by the pathologist that death was caused by extreme pressure applied to a wire and cloth around the neck of deceased, causing a fracture of the larynx and suffocation. Appellant, Phillips, and Sandoval each testified upon the trial of the case with appellant admitting to his acts in binding and gagging the deceased, although he denied using the wire around the deceased’s neck. He and Phillips testified that Sandoval was a willing participant in the tying up of the deceased, although the officers found Sandoval in the locked jail with his hands bound behind his back and a gag which he had worked loose from his mouth after the escape of appellant and Phillips. Appellant has but two grounds of error, and we will first turn our attention to his second complaint. The confession was offered in evidence after the court concluded the same was voluntarily made. The confession was read to the jury by the District Attorney; however, it is not included in our record as an exhibit. It was appellant’s responsibility to obtain a complete transcript of the record for use upon appeal and to be certain that all of the exhibits necessary for a consideration of his grounds of errror be included therein. Cf. Conerly v. State, 412 S.W.2d 909 (Tex.Cr.App.1967); Goodings v. State, 500 S.W.2d 173 (Tex.Cr.App.1973). Had appellant complied with the requirement of Sec. 9, Art. 40.09, Vernon’s Ann.C.C.P., by making an appropriate record reference, this omission would have become apparent before the brief was filed. Instead, counsel for both parties have quoted an isolated sentence which apparently was contained in appellant’s confession and have joined issue thereon. Although not included in the record, the confession is available to this Court since it was admitted into evidence before the jury. Boening v. State, 422 S.W.2d 469, 471 (Tex.Cr.App.1967), and, since there is no dispute between the parties as to the accuracy of the single sentence relied upon by appellant, we consider the ground of error as presented. The so-called exculpatory statement forming the basis of the present complaint reads: “We [appellant and Phillips] were intending to grab him [deceased] and scare him long enough to get the keys and lock him in the cell, but he started yelling so we asked him not to yell, and we tried to quiet him down to put him to sleep, evidently it did not work out that well.” Appellant was not entitled to a charge on exculpatory statements upon the basis of this statement contained in his confession. In Simon v. State, 488 S.W.2d 439, 443 (Tex.Cr.App.1972), the Court held: “[A] statement must amount to an admission plus an assertion that would exculpate an accused before such a charge is required.” Or, stated differently and more succinctly, “A statement is not exculpatory unless it exculpates.” Perez v. State, 160 Tex.Cr.R. 376, 271 S.W.2d 281, 284 (1954). See also, Mendez v. State, 168 Tex.Cr.R. 315, 327 S.W.2d 454, 456 (1959); Stokes v. State, 506 S.W.2d 860 (Tex.Cr.App.1974). Moreover, appellant testified as a witness on his own behalf and his testimony was substantially to the same effect as the part of the confession claimed to be exculpatory. The trial court submitted the case fairly under every defensive theory finding support in the testimony. A charge on exculpatory statements was not required. Madden v. State, 171 Tex.Cr.R. 80, 344 S. W.2d 690 (1961); Vaughns v. State, 172 Tex.Cr.R. 465, 358 S.W.2d 133 (1962); Bruce v. State, 402 S.W.2d 919 (Tex.Cr. App.1966) ; Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.1971); Pogue v. State, 474 S.W.2d 492, 495 (Tex.Cr.App.1971). Ground of error number two is overruled. Appellant complains in his first ground of error that the trial court erred in overruling his objection to the court’s charge wherein the court charged on the law of accomplice testimony as a matter of fact, contending that Jesus Sandoval “unquestionably was an accomplice as a matter of law.” Paragraph 18 of the charge was an almost verbatim reproduction of the charge appearing in 8 Texas Practice, Criminal Forms, Willson (Morrison & Blackwell, 7th Edition, 1966), Sec. 3568, p. 575. The main thrust of the objection was that since Sandoval had theretofore been granted immunity by the State, “that in and of itself makes him an accomplice to the offense with which this defendant is charged.” Appellant has not cited us to any authority supporting this position and State’s counsel confesses that he, too, has been unable to locate such a case. Appellant places his primary reliance upon Alsup v. State, 120 Tex.Cr.R. 310, 49 S.W.2d 749 (1932), but we do not find it to be in point or persuasive under our fact situation. It is true that Sandoval had made several abortive efforts to escape jail in Brackettville, but the fact remains that only appellant and his co-defendant Phillips raise any issue as to his aiding them in the commission of their crime. Sandoval denied participation, and the jury may very well have disbelieved appellant and Phillips. One thing stands firmly established in our record: Sandoval was gagged, bound, and left in the locked jail when appellant and Phillips escaped after binding and gagging the deceased. It was Sandoval’s cries which led the officers to the scene of the murder. We have carefully reviewed the voluminous record and say, as did this Court in Silba v. State, 161 Tex.Cr.R. 135, 275 S. W.2d 108, 109 (1954), “We do not find that Guzman’s [Sandoval’s] relationship to the crime or the criminals would render him accountable under the law as a party to the crime itself.” See also, Lundy v. State, 164 Tex.Cr.R. III, 296 S.W.2d 775 (1956) ; Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116, 118 (1961). The mere fact that State granted transactional immunity to Sandoval did not, ipso facto, change his status into that of an accomplice as a matter of law. The record does not show that he was indicted for the crime nor does it show that he was either an accomplice, accessory, or principal — as a matter of law. We are unwilling to hold that the testimony of appellant and his co-defendant, denied by the witness, can change Sandoval’s status into an accomplice as a matter of law. The most that appellant was entitled to receive in the charge was a submission of the question as one of fact. Moreover, the overwhelming evidence, including that of appellant and Phillips, establishes the commission of the offense so that if the testimony of Sandoval were to be removed from the record, there would be an abundance of evidence upon which the conviction would stand. Consequently, no error is shown. Haines v. State, 134 Tex.Cr.R. 524, 116 S.W.2d 399 (1938); Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903, 910 (1950). The judgment is affirmed. Opinion approved by the Court. . “The Court erred in not instructing the jury by Paragraph 12 of its main charge that the exculpatory statement contained in a statement introduced by the state and signed by the Defendant had to be disproved or contradicted by other evidence and unless they did so find, they should acquit the Defendant.”

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Millard Joseph KEAH, Appellant, v. The STATE of Texas, Appellee. No. 47510. Court of Criminal Appeals of Texas. May 1, 1974. William F. Kortemier, II, W. John Allison, Jr., Dallas, for appellant. Henry Wade, Dist. Atty., John H. Hag-ler, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. Appellant was convicted of possession of a dangerous drug; punishment was assessed at a fine of $125.00 and eighteen months confinement, probated. Appellant complains of the admission into evidence of property seized by an alleged unreasonable search and seizure. On November 5, 1971, the appellant and two companions were riding in a car driven by James D. Thiehoff. There was testimony that shortly after midnight Thie-hoff braked the vehicle suddenly and made a sharp right-hand turn without signaling. Officers Holmes and Proctor were following in a police car and nearly collided with the turning vehicle. When the red lights were turned on, the car appellant was in started to pull over to the curb, and appellant was observed “lowering his left shoulder as if to pick something up or stick something up under the seat.” After the vehicle stopped, appellant got out of the vehicle with his hand in his left pocket. When appellant withdrew his hand, Proctor saw a “large bulge” in the pocket. Three times he asked appellant what was in his pocket, to which no reply was made. Proctor then reached into the pocket and pulled out a plastic bottle and a cellophane wrapper, each containing tablets, later determined to be amphetamines. Appellant had been in the officer’s presence approximately 30 to 45 seconds before the seizure took place. The seizure was made without appellant’s consent, and prior to his arrest. Appellant properly objected to the introduction of the fruits of the search, and preserved his objection for review on appeal. We must review the reasonableness of the search and seizure in the instant case. The issue is not the existence of “probable cause,” but rather the reasonableness of the search and seizure, as was noted in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, where the facts showed a stop and frisk. There it was stated: “If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether ‘probable cause’ existed to justify the search and seizure which took place. However, that is not the case. . . . [W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. “Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context.” 392 U.S., at 20, 88 S.Ct. at 1879. The test as stated in Terry, supra, is a two-staged inquiry: “ . . . [I]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U.S., at 19-20, 88 S.Ct. at 1879. In Terry the court held: “ . . . where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 392 U.S., at 30, 88 S.Ct. at 1884. This holding that in such circumstances a frisk would be constitutionally permissible is not a holding that a frisk of the outer clothing is the only permissible alternative to a full-blown search. A ruling on other specific situations and responses was specifically reserved: “We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.” 392 U.S., at 29, 88 S.Ct. at 1884. In the instant case there was no patdown or frisk, but rather an immediate reaching into appellant’s pocket to retrieve the seized evidence. Terry v. Ohio, supra, does not hold that such action is prohibited, or that every such seizure must be preceded by a patdown or frisk. ■ Indeed, the language of Terry suggests that in some situations an immediate seizure may be permissible where a patdown would not be: “A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.’’ 392 U.S., at 25-26, 88 S.Ct. at 1882. (Emphasis supplied) In Martinez v. State, Tex.Cr.App., 500 S. W.2d 151, we held the seizure proper, citing Terry v. Ohio, supra, and this even though no patdown preceded the seizure. Thus we decline to hold that the immediate seizure of what reasonably appears to be a dangerous weapon without first conducting a thorough patdown is per se unreasonable and unconstitutional. The ultimate question is whether the scope exceeded that justified by the concrete factual circumstances of the individual case. The State relies upon the theory that the seizure was justified because the officer “had probable cause to believe that the Appellant was carrying a prohibited weapon.” In Sibron v. New York, 392 U.S. 40, at 64, 88 S.Ct. 1912, at 1903, 20 L.Ed.2d 917, the Supreme Court said: “In the case of the self-protective search for weapons, [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. In Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880, it was stated: “ . . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” And later: “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, supra, at 27, 88 S.Ct. at 1883. We have quoted extensively from Terry v. Ohio in order that the test may be more clearly understood. We must now ask what “specific and articulable facts” appear in the record which would warrant a self-protective search for weapons. Proctor testified that before the car stopped he observed appellant “bend down, lowering his left shoulder as if to pick something up or stick something up under the seat.” He later testified that it was at this point that he determined he was going to check out appellant. The other officer testified that he observed appellant “making a movement, bending forward in the car.” We are unable to say that such a movement standing alone is sufficient to warrant a search. Brown v. State, Tex.Cr.App., 481 S.W.2d 106. Finally, we reach the question of whether Proctor’s observation of a “large bulge” in appellant’s pocket and appellant’s failure to reply to Proctor’s question, standing alone or coupled with his prior observations, was sufficient to justify a self-protective search for weapons. At no point did Proctor testify that he thought the bulge was a weapon; at no point did he testify that he thought appellant was armed and dangerous; at no point did he testify that he believed his safety or that of others was in danger. When asked what he believed the bulge to be, he stated, “I did not know whether it would be a weapon or what it would be.” When asked if he had any reason to believe appellant may have been a dangerous or suspicious character, he replied, “I did not know who he was.” The only reason given by the officer for the seizure was: “I reached in his pocket to see what it was.” We do not hold that there is no situation where an officer may make an immediate seizure such as was here made. Cf. Martinez v. State, supra. We do hold that the record in this case does not reflect the officer possessed specific and articula-ble facts sufficient to warrant the conclusion that his safety or that of others was in danger. In fact, the record does not even reflect that Proctor made any such conclusion. The burden was upon the State to show the seizure here made was not unreasonable under the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 433, 454-455, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971) ; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). We do not hold the scope of the search was per se unconstitutional, but rather that the record does not disclose facts sufficient to justify the intrusion made. Absent a showing that the search and seizure were reasonable, the evidence seized should have been excluded. The judgment is reversed and the cause remanded.

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Richard Allen SAPPINGTON, Appellant, v. The STATE of Texas, Appellee. No. 48059. Court of Criminal Appeals of Texas. Feb. 27, 1974. Rehearing Denied May 22, 1974. Milton E. Douglass, Jr., Wichita Falls, for appellant. Z. D. Allen, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty. and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. This is an appeal from a revocation of probation. In October, 1970, the appellant pled guilty to a charge of possession of marihuana. He was sentenced to five years’ imprisonment, but the court suspended the imposition of sentence and placed him on probation for a five-year period. In February, 1973, the State filed a motion to revoke, on which a hearing was held on March 1, 1973. At the hearing, the State proved that appellant had committed the offense of burglary in December 1972, in violation of the condition of his probation that he commit no offense against the laws. However, the court at that time refrained from immediately revoking appellant’s probation, apparently because he was preparing to undergo treatment with the United States Public Health Service under the Narcotic Addict Rehabilitation Act, 42 U.S.C. Sec. 3413. On June 2, 1973, the appellant was again arrested, and on June 4, 1973, the court revoked his probation for the violation shown at the March 1, 1973, hearing. Appellant’s first ground of error urges that he was denied an evidentiary hearing on the charge which precipitated the revocation of his probation. Appellant apparently contends that the incident which resulted in the revocation was not the burglary, which was clearly proved at the March 1 hearing, but rather that it was his June 2, 1973, arrest. Appellant’s position is without merit for the reason that the record clearly reveals that his probation was revoked because he was found to have committed the offense of burglary on December 19, 1972. Appellant does not question the sufficiency of the evidence presented at the March 1, 1973, hearing, and that evidence clearly shows that the violation occurred. Appellant’s second ground of error urges that the court lacked jurisdiction to revoke his probation and that the order was void. Appellant contends that, since his initial conviction involved less than four ounces of marihuana, a misdemeanor under the new Controlled Substances Act, Art. 725f, Vernon’s Ann.P.C., Acts 1973, 63rd Leg., Ch. 429, p. 1132, which was effective on the date his sentence was imposed (August 31, 1973—the act became effective on August 27, 1973), the trial court lacked the authority to sentence him to a term of imprisonment in the penitentiary because appellant requested re-sentencing under Section 4.06 of the Act. This contention is disposed of by the holding of this Court in State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973), which held Section 4.06 of the Act unconstitutional and void. See also Ex Parte Giles, 502 S.W.2d 774 (Tex.Cr.App., delivered Dec. 5, 1973), holding Sec. 6.01 (c) of the Act partially void. In a related ground of error, appellant contends that the court should have heard his arguments on the issue of resen-tencing. The record reflects that, beyond offering these arguments, the appellant did nothing else. No objection to the court’s ruling was made. Therefore, the error, if any, was not preserved for review. See Freeman v. State, 491 S.W.2d 408 (Tex.Cr.App.1973). Appellant’s last ground of error urges that the court failed to enter findings of fact and conclusions of law, although appellant requested that he do so. It is clear that such findings should be made in every case. See Gamble v. State, 484 S.W.2d 713 (Tex.Cr.App.1972). However, failure to include them requires reversal only when they have been requested. See Flournoy v. State, 481 S. W.2d 898 (Tex.Cr.App.1972) and Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972). In the instant case, the court’s order revoking probation states that appellant violated the terms of his probation “ . . . by committing the felony offense of burglary on December 19, 1972 in Wichita County, Texas.” While these findings could have been more detailed, an examination of the cases in this area has convinced us that these findings were sufficient to inform the appellant of the reason for the revocation of his probation. See Garcia v. State, 488 S.W.2d 448 (Tex.Cr.App.1972). The judgment is affirmed. DOUGLAS, J., dissents to this opinion.

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Louis VALDEZ, Appellant, v. The STATE of Texas, Appellee. No. 47910. Court of Criminal Appeals of Texas. Dec. 12, 1973. Rehearing Denied Jan. 16, 1974. Thomas V. Priolo, Amarillo, for appellant. Michael P. Metcalf, Dumas, Jim D. Voll-ers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from an order revoking probation. Appellant was convicted for the offense of rape on July 28, 1971. Punishment was assessed by the jury at five (5) years. Pursuant to the jury’s recommendation the sentence was suspended and appellant was placed on probation. On November 16, 1972, the State filed a motion to revoke probation alleging: “The Defendant, Louis Valdez, has failed to make the following monthly probation supervision payments: July 1, 1972; August 1, 1972; September 1, 1972; November 1, 1972, in violation of Article 13 of the terms of the Defendant’s probation. “The defendant, Louis Valdez, has failed to make the following monthly reports to the office of his probation supervisor: August 1, 1972; September 1, 1972; October 1, 1972; and November 1, 1972, in violation of Article 6 of the terms of the Defendant’s probation.” On December 1, 1972, the court, after a hearing, entered judgment revoking probation. Embodied in the order revoking probation are findings by the court that appellant failed to make probation payments on July 1, August 1, September 1, November 1, 1972; and that appellant failed to make monthly reports to the office of his probation supervisor on August 1, September 1, October 1, and November 1, 1972. At the outset, appellant contends the court erred in failing to set out in the order of revocation the findings and conclusions upon which the court based its order revoking probation. We need not consider the sufficiency of the court’s findings since the record fails to reflect any request of the trial court for further findings or clarification. Marshall v. State, Tex.Cr.App., 466 S.W.2d 582. See Wilkinson v. State, Tex.Cr.App., 480 S.W.2d 730; Hulsey v. State, Tex.Cr. App., 447 S.W.2d 165. Appellant’s contentions that the Adult Probation Law of Texas, Article 42.12, Vernon’s Ann.C.C.P., is unconstitutional have been decided adversely to his arguments. A hearing on a motion to revoke probation is not a criminal trial and probationer is not entitled to a jury. Hood v. State, Tex.Cr.App., 458 S.W.2d 662; Shelby v. State, Tex.Cr.App., 434 S.W.2d 871; Manning v. State, Tex.Cr.App., 412 S.W.2d 656. Settles v. State, Tex.Cr.App., 403 S.W.2d 417 is adverse to appellant’s contention that appellant is subjected to be twice placed in jeopardy for the same crime. The argument that appellant has not been convicted of a crime upon which to base a revocation of probation has been decided by this court contrary to appellant’s contention “in cases too numerous to mention.” Farmer v. State, Tex.Cr.App., 475 S.W.2d 753. Appellant’s complaint that the probation laws of this State do not permit the right to bail is likewise without merit. Ex parte Jones, Tex.Cr.App., 460 S.W.2d 428. Appellant contends that the evidence was insufficient to support the revocation of his probation. After appellant was placed on probation, he moved to Amarillo and transfer of the supervision of appellant’s probation was made to the Potter County Probation Office. Appellant, testifying in his own behalf, admitted that he knew he was supposed to report to the Potter County Probation Department and that he failed to report in August, September, October and November of 1972. Appellant stated that car failure kept him from reporting. He further stated that he did not think of catching the city bus or taking a taxi to the place he was to report. In addition, appellant’s testimony reflected that his brother took him to work and that “Teresa” could have taken him to report. The foregoing evidence is sufficient to support the court’s finding that appellant did not report to his probation officer as required by the judgment of probation. See Barber v. State, Tex.Cr.App., 486 S.W.2d 352. Further, appellant, an unmarried man, admitted that his income during the time he had been on probation averaged between eighty and eighty-five dollars per week. The record reflects the following occurred on cross-examination of appellant regarding the payment of the probation fee: “Q. And you could have made the $10.-00 a month ? “A. Yes, sir. “Q. And, with no problem at all. “A. Yes, sir. “Q. But, you chose to even ignore to do that on a number of occasions, did you not? “A. Let’s see, October and this month.” With respect to other months in which it was shown that appellant had not paid the fee, appellant testified that he had receipts for the payment of same, but that the receipts were in his billfold which he lost. The foregoing evidence reflects that appellant was able to pay the probation fee and that the State sustained its burden in proving that failure to pay was intentional. Cf. Gormany v. State, Tex.Cr.App., 486 S.W.2d 324; Cotton v. State, Tex.Cr.App., 472 S.W.2d 526; Hall v. State, Tex.Cr. App., 452 S.W.2d 490. We conclude that the court did not abuse its discretion in revoking appellant’s probation. The judgment is affirmed. Opinion approved by the Court.

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Danny Charles PETERSON, Appellant, v. The STATE of Texas, Appellee. No. 47824. Court of Criminal Appeals of Texas. May 8, 1974. H. Thomas Hirsch, Odessa, for appellant. James A. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist Atty., Midland, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for assault with intent to murder with malice. Punishment was assessed by the jury at twenty-five years. While the sufficiency of the evidence to support the conviction is not challenged, the nature of the case merits a brief recitation of the facts in order that contentions raised herein may be discussed with greater clarity. The record reflects that Officer Jesse Robbins was working undercover in Midland on March 11, 1972, in an effort directed toward the apprehension of prostitutes. About 11:40 p. m. on said date Robbins was driving by the Jones Hotel when a woman, later identified as Barbara Nell Anthony, hollered, “Hey, hey baby.” In response to the greeting, Robbins stopped the car and Anthony said, “Hey, baby what you looking for? You want to f — ?” Twenty dollars was quoted as the requisite fee by Anthony. Robbins invited her to get in his car and drove toward the Midland police station. En route, the officer identified himself and advised Anthony that she was under arrest. Anthony started hitting Robbins, honking the horn of the automobile, and brought the car to a stop by pulling the keys from the ignition. Appellant approached the car and asked, “What are you doing to that girl?” Robbins told appellant that he was an officer and that the girl was under arrest. Appellant exhibited a pistol and said, “You let that girl go.” Robbins got out of the vehicle and appellant told Anthony to get his gun. Robbins stated that he would get the gun for appellant, that “She is under arrest for prostitution, and it is not worth anyone getting shot over.” At this juncture, Robbins stated that he picked up his gun where his finger would not be around the trigger “ . . . with my palm open. . . . ” At this point in time appellant shot Robbins. At the outset appellant challenges the sufficiency of the indictment in that the indictment injects the element of malice aforethought to an Article 1160a, Vernon’s Ann.P.C. indictment, and that the indictment does not set forth with particularity an offense so as to notify a person of the charge he has to defend against. The pertinent portion of the indictment reads: “. . . did then and there unlawfully and with malice aforethought shoot Jesse Robbins with a pistol with the intent then and there to murder the said Jesse Robbins; the said Jesse Robbins then and there being a peace officer, to wit, an officer of the Midland Police Department of Midland County, Texas, in the lawful discharge of the duties of said office; and the said Danny Charles Peterson then and there knew that the said Jesse Robbins was then and there a peace officer performing his official duties, . . . ” Appellant urges that the indictment is faulty on its face in that malice aforethought is not a part of the offense set forth in Article 1160a, V.A.P.C., that it fails to give notice of the crime charged, and that the indictment will not support a conviction. In Steambarge v. State, Tex.Cr.App., 440 S.W.2d 68, this court said: “The provisions of Art. 21.24, Vernon’s Ann.C.C.P., that an indictment may not charge more than one offense does not prohibit alleging several ways in which an offense was committed or charging more than one offense based upon the same incident or transaction.” The indictment in the instant case is sufficient to charge “assault [upon] a peace officer with intent to murder” under Article 1160a, V.A.P.C. and “assault with intent to murder” under Article 1160, V.A. P.C. In Bennett v. State, Tex.Cr.App., 455 S. W.2d 239, it was stated: “Even if the indictment were held to be duplicitous, such is not a fundamental defect to charge more than one separate and distinct offense in the same count, and ‘[i]t can be waived, and, unless raised by motion to quash or in limine, it cannot thereafter be relied upon. * * * Duplicity is not a fundamental error in the indictment and does not render it void but voidable.’ Villalva v. State, 142 Tex.Cr.R. 120, 151 S.W.2d 222; Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367.” While the indictment in the instant case was duplicitous, it was not void and an objection to such indictment raised for the first time on appeal comes too late. Bennett v. State, supra; Edison v. State, 172 Tex.Cr.R. 313, 356 S.W.2d 692. “In determining whether or not the indictment supports the conviction the material inquiry is not whether the allegations are appropriate in charging the violation of some other statute, but whether the indictment contains the allegations necessary to show the commission of the offense which is submitted to the jury and for which he is convicted.” Gomez v. State, 126 Tex.Cr.R. 30, 280 S.W.2d 278; Welcome v. State, Tex.Cr.App., 438 S.W.2d 99. The indictment in the instant case, while duplicitous in charging violations of Articles 1160 and 1160a, V.A.P.C., was not fundamentally defective and was sufficient to support a conviction of assault with intent to murder. Appellant contends that the court erred in permitting Robbins to testify to a conversation with Barbara Nell Anthony which occurred out of the presence of appellant. Appellant’s contention is directed to all of Robbins’ testimony about his conversation with Anthony outside of the presence of appellant. A review of appellant’s objection in the trial court as well as the argument advanced in his brief reflects that appellant’s concern is directed to Robbins’ testimony that he told Anthony he was a police officer. Anthony testified in behalf of appellant, and, while her version of the events which transpired after she got in the car with Robbins varies somewhat from the testimony of Robbins, the record reflects the following testimony was elicited from Anthony: “Q. Now while you were in the car, the mán did tell you he was a police officer, is that not accurate ? “A. Yes, he did.” Thus, appellant’s witness testified to the very statement about which he appears to complain. Appellant’s argument that the complained of conversation was harmful to his defense that he did not know Robbins was an officer is clearly without merit. Patently, if appellant were not present when the conversation occurred, Robbins’ statement to Anthony did not serve to put appellant on notice that Robbins was an officer and would appear to lend credence to appellant’s defense. We perceive no error. Appellant’s fourth contention is directed to the court admitting testimony of Officer Reeves as to his conversation with Anthony out of the presence of the appellant. This contention does nothing further to identify the complained of testimony nor does it point to any adverse ruling by the court. No discussion or argument is advanced in support of the general allegation of error. No authorities are cited. Nothing is presented for review. Article 40.09, Section 9, Vernon’s Ann.C.C.P. In appellant’s next three contentions appellant urges that the court erred in its charge to the jury: (1) in submitting a definition of charge of assault with intent to murder with malice for the reason that same is not a lesser and included offense of assault with intent to murder a peace officer; (2) in charging the jury with the definition of assault with intent to murder without malice for the reason that the same is not a lesser and included offense of assault with intent to murder a peace officer; and (3) in charging the jury with the definition of assault with intent to murder without malice for the reason that there is no such offense as assault with intent to murder a peace officer without malice. This court has consistently held that an appellant’s contentions are not before this court for consideration where neither written objection to the court’s charge nor a written request for the charge desired was filed with the trial court. Articles 36.14 and 36.15, V.A.C.C.P.; Nichols v. State, Tex.Cr.App., 494 S.W. 2d 830. Objections dictated to the court reporter (as in the instant case) are not sufficient to preserve error. Louden v. State, Tex.Cr.App., 491 S.W.2d 168; Ross v. State, Tex.Cr.App., 486 S.W.2d 339; Woods v. State, Tex.Cr.App., 479 S.W.2d 952; Fennell v. State, Tex.Cr.App., 460 S. W.2d 417. Where objection is not made to the court’s charge in accordance with Article 36.14, V.A.C.C.P., a case will not be reversed on appeal because of an error in the charge unless the error was calculated to injure the rights of the defendant, or unless it appears that he has not had a fair and impartial trial. Article 36.19, V.A.C. C.P.; Jefferson v. State, Tex.Cr.App., 487 S.W.2d 331; Aston v. State, 120 Tex.Cr.R. 534, 48 S.W.2d 292. Thus, we are confronted with the question of whether the alleged errors in the court’s charge constituted fundamental error. See Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; Jefferson v. State, supra. While we agree with appellant that the offense of assault with intent to murder is not a lesser included offense of assault upon a peace officer with intent to murder, we are not here confronted with this problem. The question before us is one of whether the duplicitous indictment contains all the necessary allegations to authorize the charge and support the conviction. See Martinez v. State, Tex.Cr.App., 494 S.W.2d 182; Reeves v. State, Tex.Cr. App., 428 S.W.2d 320. Applying this test we find that the court’s charge conforms to the allegations in the indictment and authorized a conviction under a theory (assault with intent to murder with malice) charged therein. We conclude that fundamental error is not present in the court’s charge and reject appellant’s fifth, sixth and seventh contentions. Appellant next contends the court “erred in proceeding on to the punishment stage for the reason that the defendant was found guilty of assault with intent to murder with malice aforethought which is not a lesser and included offense of assault with intent to murder a peace officer.” The jury’s verdict reads: “We, the jury, find the defendant, Danny Charles Peterson, guilty of the offense of assault with intent to murder with malice aforethought, a lesser included offense of assault with intent to murder a peace officer with malice aforethought, as alleged in the indictment in this cause.” Appellant contends the verdict is fatally defective because assault with intent to murder with malice is not a lesser included offense of assault with intent to murder a police officer. He asserts the verdict amounts to a finding of not guilty of the Article 1160a, V.A.P.C. offense charged by the indictment. The verdict in a criminal case must be responsive to the offense charged in the indictment, but surplusage can be disregarded if the intent of the jury is clear. Ballard v. State, Tex.Cr.App., 438 S.W.2d 924; Mansell v. State, Tex.Cr. App., 364 S.W.2d' 391. A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Where the error in the charge is in the form of the verdict and there is no prejudice to the rights of the accused the error is harmless. Cupp v. State, 127 Tex.Cr.R. 10, 74 S.W.2d 701 (on motion for rehearing). In the instant case no harm resulted to appellant from inclusion of the “lesser included offense” phrase in the verdict. The conviction was of an Article 1160, V.A.P.C. offense fully alleged in the indictment. No error is shown. Appellant next contends that the court erred in that the additional element of malice aforethought was added to the offense of assault with intent to murder a peace officer in the court’s instruction. Appellant’s objection to this phrase of the charge was dictated to the court reporter and therefore presents nothing for review. The complaint here urged does not constitute fundamental error in the court’s charge. As heretofore noted the indictment and charged authorized the conviction herein. Further, while malice aforethought is not an element of assault with intent to murder a police officer, appellant does not point out what harm, if any, resulted from a charge which placed an additional burden on the State. See Atwood v. State, 96 Tex.Cr.R. 249, 257 S. W. 563. No error is shown. Lastly, appellant complains of the court’s preambles to instructions in the charge which read, “You will next consider whether or not the defendant is guilty of the offense of . ‘assault with intent to murder with malice aforethought’ ‘assault with intent to murder without malice aforethought’ ‘aggravated assault.’ ” Again, appellant’s objection is not in compliance with Article 36.14, V.A. C.C.P., in that same was dictated to the court reporter and presents nothing for review. Louden v. State, supra; Ross v. State, supra. Clearly, fundamental error is not shown. Even if appellant’s objection were properly preserved, error is not shown. A charge must be read as a whole and review not limited to parts standing alone. Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; Daniel v. State, Tex.Cr.App., 486 S.W.2d 944. The charge properly places the burden on the State in proving guilt of appellant and, after reading the charge as a whole, we cannot agree that the complained of portions of the charge amount to an instruction to convict. Finding no reversible error, the judgment is affirmed. Opinion approved by the Court. . Article 1160a, V.A.P.O. provides : “Sec. 2. A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty, knowing that the person assaulted is a peace officer, is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for life or for any term of years not less than two. Acts 1969, 61st Leg., p. 1575, ch. 4S0, emerg. eff. June 10, 1969.” Article 1160, V.A.P.C., provides: “Section 1. If any person shall assault another with intent to murder, he shall be confined in the penitentiary for not less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three (3) years confinement in the penitentiary; and provided further that in cases where the jury finds such assault was committed without malice but was made with a Bowie knife or dagger as those terms are defined by law, or with any kind or type of a knife, or in disguise, or by laying in wait, or by shooting into a private residence, the penalty shall be doubled. As amended Acts 1961, 57th Leg., p. 706, cli. 331, § 1.” . The only attack made upon the indictment came at the dose of the testimony when appellant dictated a motion to quash the indictment in which he urged the indictment could be interpreted as charging “assault with intent to murder a peace officer” and “aggravated assault” and in the alternative requested the court to submit only the issue of aggravated assault to the jury. Such motion did not raise objections to the indictment voiced on appeal but appellant urges the defects pointed to on appeal render the indictment fundamentally defective. . Examples of fundamental error in a court’s charge: omission of a requirement to find an essential element of the offense charged, Mendoza v. State, Tex.Cr.App., 491 S.W.2d 888; authorization of conviction under a theory not charged in the indictment, Ross v. State, Tex.Cr.App., 487 S.W.2d 744. . See Flores v. State, Tex.Cr.App., 487 S.W.2d 122; Ellard v. State, Tex.Cr.App., 507 S.W.2d 198 (1974).

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William Hooker DAVIS, Appellant, v. The STATE of Texas, Appellee. No. 48438. Court of Criminal Appeals of Texas. May 8, 1974. O. Joseph Damiani, Houston, for appellant. Carol S. Vance, Dist. Atty., James Brough, Ronald Woods, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from an order revoking probation. On June 2, 1971, appellant waived trial by jury and entered a plea of guilty before the court to the offense of possession of marijuana. The punishment was assessed at four years. The imposition of sentence was suspended and appellant was placed on probation. On November 3, 1972, the State filed its third amended motion to revoke probation. Such motion alleged, among other things, that appellant violated his probation in that he committed the offense of driving while intoxicated on or about May 4, 1972. On December 18, 1972, a hearing was held on the State’s third amended motion to revoke probation and the court found that appellant had violated his probation because he had committed the offense of driving while intoxicated on or about May 4, 1972. At such hearing appellant made a judicial confession and orally admitted that he drove while intoxicated on a public road in Harris County. Appellant contends that the trial court abused his discretion in revoking probation solely on the ground that appellant had driven an automobile while intoxicated, because he contends that Article 42.12, Vernon’s Ann.C.C.P., did not intend that the commission of a criminal act not involving moral turpitude be a ground for revocation of probation. One of the terms of probation was that he “commit no offense against the laws of this State or of any other State or of the United States.” Article 42.12, Section 6, V.A.C.C.P. The wording of the statute itself shows that it was not intended to be limited only to offenses involving moral turpitude. In Smith v. State, Tex.Cr.App., 494 S.W.2d 873, we upheld an order revoking probation where it was shown that the probationer had violated the terms of his probation by committing the offense of driving while intoxicated. Appellant also contends that he is entitled to be resentenced under the provisions of the Controlled Substances Act. These contentions have previously been determined adversely to appellant in Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774. See also State ex rel. Smith v. Blackwell, Tex. Cr.App., 500 S.W.2d 97, and Jones v. State, Tex.Cr.App., 502 S.W.2d 771. No abuse of discretion has been shown. The judgment is affirmed.

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Adam J. WADE, Jr., Appellant, v. The STATE of Texas, Appellee. No. 48432. Court of Criminal Appeals of Texas. May 8, 1974. Frank Altgelt Adams (On appeal only), Beaumont, for appellant. Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This is an appeal from a felony conviction for passing a worthless check wherein the punishment was assessed by the court at three (3) years’ confinement in the Texas Department of Corrections. In his sole ground of error appellant contends the trial judge erred in not making further inquiry into his reasons for pleading guilty before the jury when during the admonishment he twice stated he hoped for “a parole.” The trial court carefully and exhaustively inquired into appellant’s understanding of the charges against him, determined appellant’s age and other background information, determined that appellant was pleading guilty because he was guilty, advised him of the range of punishment (consequences of his plea), and determined after lengthy inquiry that he was not prompted to plead guilty because of fear, persuasion, “illusory hope of pardon,” coercion, force, promise, etc. Appellant relies upon the following portion of the record to support his contention: “THE COURT: Do you contend that you are entering this plea out of fear, persuasion or illusory hope of pardon? Do you contend any of those things? “DEFENDANT: I hope for a parole. “THE COURT: Well, nobody has told you you will get a parole ? “DEFENDANT: No, sir. “THE COURT: You hope you will get one? “DEFENDANT: Yes, sir. “THE COURT: Adam, I can understand how you feel, but I want to be sure nobody has promised you, in fact, you will get a parole ? “DEFENDANT: No, sir. “THE COURT: Counsel, are you satisfied that defendant’s plea is utterly and completely uninfluenced by fear, persuasion or any promise or hope of pardon or parole ? “MR. ROEBUCK (Defense Counsel): Yes, Your Honor.” The foregoing clearly shows that the court did make further inquiry after appellant’s remarks and did determine that no one had promised the appellant parole and made further inquiry of defense counsel with regard to the same. We find no merit to appellant’s contention. It is only natural for an individual pleading guilty to a felony to hope that in the future he will be paroled, but where such hope is not based on any promise and is not a delusive hope of pardon, then the guilty plea is not rendered involuntary. Cf. Kirven v. State, 492 S.W.2d 468 (Tex.Cr.App. 1973) ; Williams v. State, 487 S.W.2d 363 (Tex.Cr.App.1972). Further, we cannot agree that, under the circumstances, the court should have sua sponte withdrawn the guilty plea. See Lewellen v. State, 485 S.W.2d 787 (Tex.Cr.App.1972); Luna v. State, 436 S.W.2d 910 (Tex.Cr.App. 1969). The judgment is affirmed.

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Fidel Lozano HERNANDEZ, Appellant, v. The STATE of Texas, Appellee. No. 47764. Court of Criminal Appeals of Texas. April 24, 1974. Rehearing Denied May 22, 1974. Sam C. Bashara, San Antonio, for appellant. Ted Butler, Dist. Atty., Gordon Armstrong, Stephen P. Takas, Jr., Stephen Allison, Asst. Dist. Atty., San Antonio, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. The appellant was convicted of the offense of sale of heroin. The court assessed his punishment at fifteen years’ imprisonment. In view of our resolution of the contention urged in appellant’s second ground of error, we need not discuss the other matters raised in his brief. Appellant contends that the trial court unduly restricted his right to voir dire examination when he was not allowed to ask a certain question of the prospective jurors. The question sought to be propounded was as follows: “Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand ?” This Court has repeatedly held that the right to propound questions on voir dire, in order to intelligently exercise peremptory challenges, is of the greatest importance. See the discussion and cases, cited in De La Rosa v. State, 414 S.W.2d 668 (Tex. Cr.App.1967). While we have held that a showing of injury is necessary when the right is restricted, Crowson v. State, 364 S.W.2d 698 (Tex.Cr.App.1963), and that there is no error when an improperly framed question is denied, Hunter v. State, 481 S.W.2d 137 (Tex.Cr.App.1972), we have not retreated from the holdings of the cases cited in De La Rosa v. State, supra. The court erred in refusing to allow the question to be asked. In Hunter v. State, supra, the question sought to be propounded was as follows: “By virtue of your personal knowledge of the truthfulness of Mr. Booe, would you place greater credence on his testimony than you would on someone who contradicted him whom you did not know ?” Our opinion emphasized that the question was improper as framed, and by this emphasis clearly implied that such a question would not be per se improper. The question, by its specificity, clearly required a prospective juror to commit himself in answering it. The question in the instant case, however, merely inquires of a prospective juror, in general terms, whether he could conceive of the possibility that a police officer-witness might lie from the stand. Further, unlike the situation in Crowson v. State, supra, we have not been presented with a record showing no injury. As in De La Rosa v. State, supra, this appellant filed a written motion requesting the court’s permission to ask the question at issue on voir dire. The motion was denied. Appellant then sought additional peremptory challenges, which were denied. He then sought to perfect a bill of exception, while the prospective jurors were present, showing what their answers would have been. The court refused to allow him to do so. He later informed the court that he had been required to take two objectionable jurors. Finally, the court refused to honor his request that a transcript of the voir dire examination be included with the record on appeal. As in De La Rosa v. State, supra, this appellant has, in effect, been denied an effective opportunity to show harm. See also Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). For the reasons stated, the judgment is reversed and the cause remanded. ODOM, Judge (concurring). I concur in the opinion of the majority that reversal is called for due to the trial court’s improper restriction of appellant’s voir dire examination of the prospective jurors. While the defense should be permitted to ascertain whether prospective jurors would give unwavering credibility to any witness because of his membership in a class, such as peace officer or minister, regardless of what the evidence may show, no particular form of question is being enshrined as being always in order. As the dissent properly points out, the jury selection process is already, in many cases, too long and drawn out. I do not understand the majority position, however, as adding a particular question to some check list of permissible questions, each of which may in every case be asked. The trial court properly may limit examination of prospective jurors to reasonable bounds to avoid undue prolongation, and within reasonable bounds counsel has the duty to budget his time. But when counsel is not prolonging the examination beyond reasonable bounds, he may pose any proper question he desires. The majority, as I understand it, holds the propounded question was proper in all respects. I therefore concur. MORRISON, J., joins in this concurrence. DOUGLAS, Judge (dissenting). The majority by its opinion allows counsel for the defense to try the prospective witnesses in advance of the trial. The logical conclusion from such holding is that counsel for the State may try prospective defense witnesses before selecting the jury. Would it now follow the majority opinion for the prosecutor to ask the prospective jurors if a defendant became a witness whether they could believe that he would tell a falsehood from the witness stand? Would not the same question be proper concerning the mother, wife, or other prospective witnesses for a defendant ? Under our procedure, we now have a two-stage or' bifurcated trial. Under the decision of the majority, it appears that we will probably have a four-stage or quadri-furcated, or at least some sort of hydra-headed trial. The defense may try the credibility of State’s witnesses and the State may try the credibility of defense witnesses before the prospective jurors. After this has been completed, the two-stage trial heretofore adopted by the Legislature will commence. Witnesses take the oath to tell the truth. After the jurors hear their testimony, it is then for a juror to determine who is credible and not before. Until today this has been the rule. The majority cites De La Rosa v. State, 414 S.W.2d 668, as its leading case. There the trial court limited the voir dire examination of the jury panel to 30 minutes, The additional questions sought to be propounded by defense counsel in that case were not set out in the opinion. The case was not reversed for the refusal to permit any particular questions. So there will not be any question of what the Court held, the holding is quoted as follows: “Given the circumstances of this cause, we conclude that the imposition of the strict time limitation was unreasonable, and that the able and learned trial judge fell into error.” (Emphasis supplied) How is that holding applicable here? In the present case, the question sought to be propounded to the jury panel was: “Is there any member of the panel who, regardless of what the evidence showed in any case could not believe that a police officer was telling a wilful falsehood from the witness stand ?” The conduct of voir dire examination is largely within the discretion of the trial court and except in a clear case of abuse, a ruling on the question that is within such discretionary power will not be reversed by the appellate court. See 35 Tex.Jur.2d, Jury, Section 117, page 172. In Crowson v. State, 364 S.W.2d 698, this Court held that the trial court did not err in refusing to permit the defendant to question prospective jurors on voir dire whether they would give more weight to the testimony of police officers than to the testimony of laymen, absent a showing of injury. In Hunter v. State, 481 S.W.2d 137, we upheld a trial court’s refusal to permit defense counsel to inquire of prospective jurors who admitted knowing the complaining witness whether they would give greater credence to his testimony because they knew him than to that of another witness whom they did not know. We found the question to be improper, stating: “[t]he question, as framed, was an attempt to require the prospective jurors to commit themselves as to how they would pass upon the credibility of the witnesses prior to trial and the receipt of evidence.” Id, at page 138. The question appellant sought to ask prospective jurors in this case was but another mode of attempting to commit the jury in advance as to the weight they would give the testimony of certain witnesses. As such, the question was improper and abuse of discretion is not shown in the trial court’s refusal to permit it. It is the duty of the trial courts to confine the examination of prospective jurors within reasonable limits. If this were not so, some trials would never terminate. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. The Hunter and Crowson cases are neither distinguished nor overruled by the majority. The majority ignores applicable authority to add this (and perhaps any other similar) question to those permissible in the already too long and drawn out jury selection process. This conviction should be affirmed.

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Fred LAURY, Appellant, v. The STATE of Texas, Appellee. No. 48423. Court of Criminal Appeals of Texas. May 8, 1974. T. M. Reid, Abilene, for appellant. Ed Paynter, Dist. Atty. and Bob Lindsey, Asst. Dist. Atty., Abilene, Jim D. Voll-ers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. Appellant waived trial by jury and entered a plea of guilty before the court to the offense of unlawfully selling beer in a dry area as proscribed by Art. 666-4(b), Vernon’s Ann., of the Liquor Control Act. Punishment was assessed at thirty (30) days in jail. Neither the complaint nor the information alleges the name of the purchaser of the beer. The content of the allegation is only that appellant “did then and there unlawfully sell an alcoholic beverage, to-wit: beer . . . . ” Under Arts. 21.12 and 21.23, Vernon’s Ann.C.C.P., in order “to charge an unlawful sale, it is necessary to name the purchaser.” The only exception to this requirement is that such allegation is not necessary where the name of the purchaser is unknown, but in such event the pleading must so allege. Barnett v. State, 156 Tex. Cr.R. 396, 242 S.W.2d 885 (1951). Since the name of the purchaser is not alleged, the information is fatally defective. Barnett v. State, supra; Wilson v. State, 242 S.W.2d 886 (Tex.Cr.App.1951); Keeton v. State, 159 Tex.Cr.R. 431, 264 S. W.2d 737 (1954). This rule has also been applied to cases involving sales of goods other than alcoholic beverages. See e. g. Christa v. State, 171 Tex.Cr.R. 464, 351 S. W.2d 221 (1961); Treadgill v. State, 163 Tex.Cr.R. 426, 292 S.W.2d 121 (1956) (both sales of fireworks) ; Poston v. State, 296 S.W.2d 542 (Tex.Cr.App.1957) (sale of falsely labelled agricultural seed); and King v. State, 162 Tex.Cr.R. 453, 286 S. W.2d 422 (1956) (sale of falsely labelled feedstuff). The information being fatally defective, the judgment is reversed and the prosecution ordered dismissed.

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George MAPUS, Appellant, v. Jesus GARZA d/b/a Garza Electric, Appellee. Court of Civil Appeals of Texas, San Antonio. Feb. 27, 1974. Rehearing Denied March 27, 1974. J. G. Hornberger, Laredo, for appellant. Rocha, Garza-Gongora, Haynes & Not-zon, Laredo, for appellee. PER CURIAM. This is an appeal from a judgment in the sum of $2,603, plus attorney’s fees of $500, entered on a jury verdict in appel-lee’s suit to recover for labor and materials furnished appellant pursuant to a construction contract. The transcript, statement of facts and filing fee were tendered on February 11, 1974. On examination of the transcript, it appeared to our Clerk that the appeal had not been timely perfected; and, therefore, the record was referred to us pursuant to Rule 388 for determination of whether we have jurisdiction. ' The judgment was signed on September 17, 1973. A motion for new trial was filed on September 25, 1973, and timely amended on October 15, 1973. The amended motion for new trial was heard on November 27, 1973, and verbally overruled at such time; however, the order overruling same was not signed until January 21, 1974. The appeal bond was filed on January 25, 1974. Our jurisdiction is determined by the question of when the time commenced to run for perfection of the appeal. The order overruling such motion was signed on January 21, 1974, and the appeal was timely perfected from such date. However, under the express provisions of Rule 329b (4), the amended motion for new trial was overruled by operation of law on November 29, 1973, and the order of January 21, 1974, purporting to overrule said motion is a nullity. Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856 (Tex.Civ.App.—Houston 1966, writ ref'd 408 S.W.2d 227 [Tex. 1966]); Heldt Bros. Trucks v. Alvarez, 477 S.W.2d 691 (Tex.Civ.App.—San Antonio 1972, writ ref’d) ; Roth v. Maryland American General Insurance Co., 454 S.W.2d 779 (Tex.Civ.App.—San Antonio 1970, writ ref’d); Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.—San Antonio 1968, writ ref’d). Since appellant did not timely file his bond within thirty days after said motion for new trial was overruled as required by Rule 356, we do not have jurisdiction over such appeal. Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956) ; Heldt Bros. Trucks v. Alvarez, supra. Thus, we have no alternative but to dismiss this appeal for want of jurisdiction. . All references are to Texas Rules of Civil Procedure. . If we assume that regardless of the provisions of Rule 306a, the motion was overruled for appeal purposes on November 27, 1973, the appeal was not timely perfected.

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TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Calvin L. DEMPSEY, Appellee. No. 16307. Court of Civil Appeals of Texas, Houston (1st Dist.). March 28, 1974. Rehearing Denied April 25, 1974. Martin & Sperry, Jack R. Martin, Stephen L. Burkett, Houston for appellant. George B. Huckeba, Stanley W. Crawford, Houston, for appellee. PEDEN, Justice. Workmen’s Compensation case. In response to the jury’s request, the trial judge had the court reporter read back to the jury the testimony of one doctor concerning the claimant’s disability. This act of the trial judge and his selection of the testimony to be read are the subjects of the appellant insurance carrier’s only complaints on this appeal. The claimant, Mr. Dempsey, was employed by Armour and Company as driver of a delivery truck. He testified that on July 31, 1972, while he was unloading a hindquarter of meat in Lake Charles, La., he slipped and felt pain in his back and leg. He had to complete his deliveries that day without help, and by then he could hardly walk. When he returned to Houston that evening complaining of pain, arrangements were made for him to see a doctor the next day. There followed a series of visits to Dr. Geo. Hart and Dr. Donald Lazarz and several attempts to return to his job as a truck driver. About two months later he changed to a night checker’s job that did not require lifting of heavy objects. He testified that he still experiences considerable back and leg pain, which prevents him from working at the job he had when he hurt his back. The parties stipulated to accidental injury in the course and scope of employment, lump sum, attorney’s fees and to total disability for four weeks and six days. The jury found that appellee’s injury caused total incapacity from July 31, 1972 to September 20, 1972, permanent partial incapacity beginning on September 21, 1972 and that this partial incapacity caused a reduction in his average weekly earning capacity of $60.00. During its deliberations the jury sent a note to the trial judge, stating: “We want Dr. Lazarz’s testimony pertaining to Mr. Dempsey’s disability.” After checking the doctor’s testimony the judge instructed the court reporter to read the following excerpts of Dr. Lazarz’s testimony: “The court reporter: ‘This is from the direct examination of Dr. Lazarz, questions by Mr. Crawford.’ “Q. All right, sir. Do you have an opinion based on reasonable medical probability as to your final diagnosis of the problems that Calvin Dempsey suffers as a result of this injury of July 31, 1972? “A. I believe most people understand it as a chronic back. He has what we call a chronic lumbar strain, that — it is a back that has to do heavy work, he wouldn’t be able to do the heavy work. “Q. All right, sir. Do you have an opinion based on reasonable medical probability as to whether Mr. Dempsey would at this time or any time in the future be able to return to the type of employment that he’s described in the history given you; that is, heavy lifting, long hours and lifting heavy forequarters? “A. Well, this is always a difficult question to answer. It is hard to tell the future but he’s had a trial over a year now and he hasn’t been able to do the heavy work so I would have to base it on that, those findings, that he would not be able to return to that type of heavy work. “The court reporter: ‘The following questions were asked asked on cross examination by Mr. Martin:’ “Q. Now, that was the last time you saw him and I assume at that time you still did not find any reason from a medical standpoint why he was not able to do his work; am I correct there ? “A. Yes, sir. “Q, That is medically speaking, taking all your years of experience and you started and opened up your office here in 1965, is that right, sir ? “A. Yes, sir. “Q. And taking the many patients — you see how many patients a week approximately with back problems ? “A. Fifty. “Q. Fifty? Taking all this knowledge and experience and your training and your examination and history and everything from a medical standpoint, you didn’t find anything why the man didn’t resume his normal activities, did you? From a medical standpoint? “A. His examination was normal. “Q. All right. “A. Yes, sir.” In appellant’s two points of error it contends that the excerpts read to the jury constitute comments by the trial judge on the weight of the evidence and the excerpts chosen were not in response to the jury’s request because there was no testimony in the record showing any disability to the claimant. That the excerpts indicated that the disability was permanent even though the jury did not ask whether it was, and this constituted a comment on the weight of the evidence. “If the jury disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness’ testimony on the point in dispute; . . . ” Rule 287, Texas Rules of Civil Procedure. In Aetna Casualty and Surety Co. v. Scott, 423 S.W.2d 351 (1968, no writ), the 14th Court of Civil Appeals pointed out that by the very nature of the situation that arises in the application of Rule 287, the trial judge is required to exercise judgment and discretion in deciding what part of the testimony is relevant to the point in dispute; the testimony in question has not, of course, been reduced to writing at the time the request is made, and the task of selecting the portion relevant to the inquiry is not an easy one. Under such circumstances the judge may be given broad discretion and his action held erroneous only where there is an abuse of it with resulting harmful results. We have carefully examined all 43 pages of the testimony given by Dr. Lazarz. We consider that the testimony selected by the trial judge in answer to the jurors’ request amounted to an eminently fair and direct response. Appellant contends on this appeal that there was no evidence of disability despite its stipulation in the trial court of total disability for four weeks and six days. Further, the testimony of either the claimant or Dr. Lazarz fully supports the jury findings of disability. Nor do we find any merit in appellant’s assertion that the jury was not asking about permanency. The jury asked for the doctor’s testimony about disability; the elements of disability are degree and duration. We find no basis for the appellant’s contention that the trial judge’s response to the request amounted to a comment on the weight of the evidence. By cross-point the claimant says this appeal was taken by the carrier without sufficient cause, and for delay only. He asks us to apply Rules 435 and 438, Texas Rules of Civil Procedure and assess 10% damages on the amount in dispute because the appeal was taken in bad faith. He points out that he has been without compensation payments for more than seventeen months. He argues that the appellant’s points of error are patently frivolous, so opposed to logical argument and legal precedent as to indicate a lack of good faith and says that this appeal was taken to force him to settle his case in order to avoid the delay of appeal and to prejudice him economically. We hold that the statutory interest does not fairly compensate the claimant for the delay occasioned by the appeal in this case. We exercise our discretion under Rule 435 and assess damages against the appellant for delay in the amount of 5% of the original judgment. Charter Oak Fire Insurance Co. v. Adams, 488 S.W.2d 548 (Tex.Civ.App.1972, writ ref. n. r. e.). Affirmed, with damages for delay at 5% of the trial court’s judgment.

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Vickie Lynn TURNER, a delinquent child, Appellant, v. The STATE of Texas, Appellee. No. 17496. Court of Civil Appeals of Texas, Fort Worth. April 19, 1974. Guy H. McNeely, Wichita Falls, for appellant. Timothy D. Eyssen, County Atty., Wichita County, Wichita Falls, for appellee. OPINION LANGDON, Justice. This is a case in which no briefs were filed by either party and no cause shown or given for such failure. An inspection of the record by the Court discloses no fundamental error exists. Therefore, it is the conclusion of the Court that the ends of justice will be better subserved by an affirmance of the judgment of the trial court rather than a dismissal of the appeal. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811 (Tex.Com.App.1929). The judgment of the trial court is accordingly affirmed.

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Sam J. MANDOLA, Appellant, v. Mary Antoinette OGGERO, Appellee. No. 980. Court of Civil Appeals of Texas, Houston (14th Dist.). April 17, 1974. Rehearing Denied May 8, 1974. Joe S. Maida, of Houston, for appellant. Sherwood Gaines, Gaines & Merrill, Houston, for appellee. CURTISS BROWN, Justice. This is an action to recover an alleged indebtedness. Appellant Sam J. Mandola (Mandola) brought suit against Mary Antoinette Og-gero for the balance of an alleged indebtedness evidenced by a check dated July 2, 1965, and made to the order of Mandola. Trial was to the court, and judgment was entered that Mandola take nothing. The check to Mandola was made by Og-gero’s, Inc., as drawer in the amount of $6,600. It was signed by Bat Oggero and Steve Oggero. Appellant claims that this is a written instrument evidencing a debt and signed by the parties to be charged thereby making applicable the four-year statute of limitations, Vernon’s Tex.Rev.Civ.Stat. Ann. art. 5529 (1958). We do not need to decide whether this writing is sufficient under Article 5529, but we will assume it to be so for the purposes of this decision. There was introduced in evidence a detachable voucher from a check of Ogge-ro’s, Inc. The voucher indicates a payment of $1,000 on a $6,600 loan, made on June 2, 1966, leaving a balance of $5,600. There is no indication that this payment was to Mandola. Furthermore, it is not signed by the parties. A list written by Mandola was admitted into evidence, for the limited purpose of showing amounts and dates of payments received by Mando-la from Steve and Bat Oggero. The final payment was made on July 3, 1969. Steve Oggero died on November 29, 1969. In settlement of his affairs, Steve’s wife, Mary, the appellee, entered into an agreement with Bat Oggero (also known as John Oggero). Under the terms of that agreement, she assumed as a personal obligation all obligations and liabilities that John Oggero may have had in connection with Oggero’s, Inc., as of November 13, 1969. The agreement, executed April 27, 1970, expressly acknowledged that as of November 13, 1969, Oggero’s, Inc., and John and Steve Oggero “had or may have had certain liabilities or obligations in connection with the operations of Oggero’s, Inc.,” to several named persons including Mandola. Assuming that the check evidenced the debt, it was a demand instrument, since no date for payment was indicated. Tex.Bus. & Comm.Code Ann. § 3.-108, V.T.C.A. (Tex. UCC 1968). As such, any cause of action on the debt accrued on the date of the instrument, July 2, 1965. Tex.Bus. & Comm.Code Ann. § 3.122 (Tex. UCC 1968). Assuming the four-year statute of limitations applies, Mandola’s action became barred July 2, 1969. This suit was filed on December 22, 1971. The payments made on the debt did not toll the running of the statute. Article 5539, Tex.Rev.Civ.Stat.Ann.(1958), provides: When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby. The voucher in evidence was not signed by the parties and is not referable to Mandola. The evidence of other payments does not show that they met the statutory requirements. The fact that part payments have been made, standing alone, is not sufficient to toll the statute. Stein v. Hamman, 118 Tex. 16, 6 S.W.2d 352 (Tex.Comm’n App.1928, opinion adopted); Meuseback v. Halff, 77 Tex. 185, 13 S.W. 979 (1890). The appellant failed to meet his burden of proving payments which tolled the statute. Sauer v. Macy Oil Co., 218 S.W.2d 1017 (Tex.Civ.App.—Austin 1949, writ ref’d n. r. e.). The agreement signed by appellee was also insufficient to toll the statute. Article 5539 does not require that the written acknowledgment include a promise to pay. It has been held that such a promise may be implied from an acknowledgment of the debt without accompanying language indicating an unwillingness to pay. Elsby v. Luna, 15 S.W.2d 604 (Tex.Comm’n App.1929, jdgmt adopted). Nevertheless, the written acknowledgment of the debt must be unqualified and unequivocal. Elsby v. Luna, supra; Andree v. Edwards Drilling Company, 379 S.W.2d 88 (Tex.Civ.App.—Fort Worth 1964, no writ). The language in the agreement signed by appellee, that the parties “had or may have had certain liabilities or obligations,” does not meet his test. In addition to the equivocal language, the list of possible creditors did not indicate amounts owed, so the agreement would not be referable to this indebtedness. Appellant’s cause of action is barred by limitations. The judgment of the trial court is affirmed.

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ALLRIGHT, INC., Appellant, v. Roy Lee ELLEDGE, Jr., Appellee. No. 16310. Court of Civil Appeals of Texas, Houston (1st Hist.). April 11, 1974. Rehearing Denied May 9, 1974. Tipton & Bishop, George M. Bishop, Houston, for appellant. Chilton Bryan, Lowell T. Cage, Houston, for appellee. COLEMAN, Chief Justice. This is a suit for damages resulting to an automobile owned by Roy Elledge when it was stolen from a parking garage. A judgment was entered for the plaintiff based on jury findings. Interesting issues involved are (1) the point in time when the parking garage owner’s duty of ordinary care arises, and (2) whether a parking lot operator can limit his liability for negligence. The plaintiff had a contract with the defendant by reason of which he had the right to park his automobile on the ground floor of the parking garage. He had in- and-out privileges. For this service he paid a fee of $50.00 per month. The general public was permitted to park in this garage on an hourly fee basis. The owners of such cars were required to stop in the entrance to the garage to secure a parking ticket. The cars would then be parked by attendants. On January 26, 1972, plaintiff drove his car into a parking garage owned by the defendant by way of the exit lane and parked it in that lane. When he got out of the car he left the keys in the ignition. Two of defendant’s employees saw the plaintiff park his car. There is no evidence that any of the defendant’s employees removed the keys from the car or otherwise manifested by physical acts the taking of custody and control of the car. Within a period of about four minutes the car was stolen. It was recovered some few days later in a damaged condition. William Pennie was employed by the defendant to park cars in the parking garage on the date of the theft of the plaintiff’s car. He was acquainted with Mr. Elledge and saw him park his car in the exit ramp on the date in question. He had seen him park there before and had moved his car from the exit ramp to the regular parking space on previous occasions. He ordinarily waited until the traffic died down before he moved the car. He would then remove the keys from the car. He had never removed the keys from Mr. Elledge’s car while it was sitting on the exit ramp. When Mr. Elledge parked on the exit ramp they were usually too busy to get the keys or to remove the car. Gloria Boatwright was the defendant’s cashier on January 26, 1972. She was not in the cashier’s booth when Mr. Elledge parked his car but she saw him when he got out of the car. She later heard a car start and looked out and saw someone driving off in his car. She testified: “I told him on several occasions that his car might be taken if he didn’t take his keys out of his car when he drove his car into the exit. He has on occasions taken the keys out and brought them to me.” She testified that Mr. Elledge had previously parked his car at the same place on the exit ramp and that the car normally would be moved by an employee over to the other side by the cashier’s booth. After the car was moved an employee would sometimes take the keys out of the car but she had never seen an employee take the keys while the car was sitting on the exit ramp. She testified: “The only reason people park in the exit ramp is because they can’t wait to get into the garage. They are in too big of a hurry. At that time the employees would be too busy parking other cars to take the keys out of the cars in the exit ramp.” In answer to special issues the jury found (1) that it was the custom of the defendant to take possession of cars which had been driven into the garage and left unattended by the owners, (2) that plaintiff left his car in reliance on that custom, (3) that defendant failed to take possession (the term “possession” was defined by the court to mean the actual acceptance of custody and control over the automobile in question by physical acts which manifested the acceptance of that automobile for parking and storage; (4) that the failure was a departure from their customary practice; (5) that the departure from customary practice was negligence; (6) that the negligence proximately caused plaintiff’s damage; (7) that the plaintiff had delivered his automobile into defendant’s garage for parking; (8) that the defendant failed to take possession of the car; (9) that the failure was negligence; (10) which proximately caused plaintiff’s damage; (11) that the defendant failed to remove plaintiff’s keys; (12) that the failure was negligence; (13) which proximately caused plaintiff’s damage; (14) that the defendant failed to keep watch over plaintiff’s car; (15) which was negligence; (16) which proximately caused plaintiff’s damage; (17) that defendant failed to have a sufficient number of employees; (18) that this failure was negligence; (19) that this negligence proximately caused plaintiff’s damage. As a general rule, in order to constitute a bailment transaction there must be a contract, express or implied, delivery of the property to the bailee and actual acceptance of the property by the bailee. An essential to bailment is delivery of the property by the bailor to the bailee and without such a delivery there can be no bailment. Since the relation is a contractual one, the duty and liability ordinarily cannot be thrust upon one without his knowledge or consent, but must be voluntarily assumed. Bill Bell, Inc. v. Ramsey, 284 S.W.2d 244 (Tex.Civ.App.—Waco 1955, n. w. h.) ; Adair v. Roberts, 276 S.W.2d 565 (Tex.Civ.App.—Texarkana 1955, n. w. h.) ; Rust v. Shamrock Oil & Gas Corporation, 228 S.W.2d 934 (Tex.Civ.App.—Amarillo 1950, n. w. h.); Panhandle South Plains Fair Association v. Chappell, 142 S.W.2d 934 (Tex.Civ.App.—Amarillo 1940, n. w. h.). The defendant contends that in the absence of evidence that it accepted the custody and control of the car as manifested by physical act, it had no duty of exercising due care for the protection of the car. The cases cited above require that the bailor deliver the property to another in trust for a specific purpose, and that the bailee accept such delivery, in order to create a contract of bailment. They do not require that the bailee’s custody and control be manifested by physical acts. A duty of exercising due care for the protection of personal property may arise out of either an express or an implied contract of bailment on delivery of the property. By reason of the express contract between the parties the defendant owed plaintiff a duty to accept the car for storage on delivery. The evidence and findings of the jury establish an implied acceptance of delivery of the automobile when it was parked in the exit lane of the garage by plaintiff. A duty to exercise due care for the protection of the automobile arose immediately. The jury found in answer to Special Issue No. 11 that the defendant failed to remove the keys from plaintiff’s automobile, and in answer to Issues 12 and 13 found that such failure was negligence and a proximate cause of the plaintiff’s damages. The trial court erred in submitting Special Issue No. 11 over the objection of the defendant since the facts with reference to this issue were uncontroverted. This error, however, was not one which probably caused the rendition of an improper judgment and is harmless. There is evidence that the manager of the parking garage knew that Mr. El-ledge on occasion parked his car in the exit ramp. There is evidence that no one had ever told Mr. Elledge not to park in the exit ramp. The jury might believe from this evidence that both Mrs. Boat-wright and Mr. Pennie realized the danger of theft if the ignition keys remained in the automobile and that in the exercise of ordinary care they should have removed the keys from his automobile before proceeding with their other duties. The evidence supports the jury’s answers to Special Issues 12 and 13. The defendant complains of the action of the trial court in overruling its objections to the form of certain other issues submitted by the trial court to the jury by reason of the wording of such issues. We find it unnecessary to reach these questions. The findings of the jury in answer to Special Issues 11, 12 and 13 are sufficient in themselves to support the judgment of the court awarding the plaintiff a recovery of the damages assessed in his favor by the jury. City of Waco v. Branch, 8 S.W.2d 271 (Tex.Civ.App.—Waco 1928, writ ref.). The defendant plead that the plaintiff was negligent in parking the car on the exit ramp and leaving the keys in the ignition, and that this negligence relieved it of the responsibility for the loss of the car due to its own negligence. The trial court submitted a series of issues which were designed to place before the jury the question of the contributory negligence of the plaintiff and the defense of assumption of risk. The jury failed to find the facts necessary to establish these defenses. However, they did find that Mrs. Boatwright instructed Mr. Elledge to remove the keys from his automobile when parking on the exit ramp; that the plaintiff failed to remove the keys from his automobile after parking on the exit ramp as previously instructed by Mrs. Boatwright; that such failure was negligence, but failed to find that this negligence was a proximate cause of the occurrence in question. The jury failed to find that the defendant took over custody and control of the plaintiff’s car on January 26, 1972 in answer to Special Issue No. 24. In answer to Special Issue No. 34 it found that the plaintiff’s car was stolen from the garage prior to any attendant of the garage taking possession of the car. We do not reach the question of whether the contributory negligence of a bailor will bar recovery from a bailee of damages resulting from the negligence of the bailee. In this case the jury found that the plaintiff was negligent but failed to find that such negligence was a proximate cause of the resulting injury. In Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60 (1935), the Supreme Court said: “Before it can be said that an act of negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of such act of negligence, and that the party committing the act ought reasonably to have foreseen such consequences in the light of attending circumstances.” The defendant contends that there is no evidence to support the action of the jury in failing to find that the plaintiff’s negligence was a proximate cause of the occurrence in question. There is evidence that the car was parked inside the parking garage. There were four or five employees in and around the area where the car was parked. The plaintiff and his car were known to these employees. Reasonable minds might differ as to whether in light of these circumstances plaintiff ought reasonably to have foreseen that the car might be stolen. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). The plaintiff signed an instrument entitled “Contract Parking Agreement”, the first paragraph of which reads: “Contract parking is on a month to month basis. In consideration of the low rates charged for parking, operator will not be responsible for loss by fire, misdelivery or theft, except such loss occasioned by negligence of operator, and then only up to a maximum of $100.00. Proportionately greater rates must be paid in advance if customer sets larger limits of liability.” Based on this provision of the contract the defendant contends that the trial court erred in entering a judgment for a sum in excess of $100.00. It is well settled that garage keepers may limit their liability for damage to automobiles left with them by reason of theft or fire. These limitations of liability, however, will be strictly construed against the bailee. Langford v. Nevin, 117 Tex. 130, 298 S.W. 536 (1927). In Langford the court stated that no prior Texas case had determined whether a parking lot owner could exempt itself from the exercise of ordinary care. Therefore, this is a case of first impression. “Agreements exempting a party from future liability for negligence are generally recognized as valid and effective except where, because of the relationship of the parties, the exculpatory provision is contrary to public policy or the public interest.” Crowell v. Housing Authority of the City of Dallas, 495 S.W.2d 887 (Tex.1973). What is public policy? Justice Holmes, in Beasley v. Texas & Pacific Ry. Co., 191 U.S. 492, 48 L.Ed. 274, 24 S.Ct. 164, 168 (1903), defined public policy as the interest of others than the parties to the contract. A more comprehensive statement by Justice Wanamaker in Pittsburgh, C., C. & St. L. Ry. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 507 (1916), is: “It has frequently been said that such public policy, is a composite of constitutional provisions, statutes, and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination. When a contract is contrary to some provision of the Constitution, we say it is prohibited by the Constitution, not by public policy. When a contract is contrary to a statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy. Public policy is the corner stone — the foundation — of all Constitutions, statutes, and judicial decisions; and its latitude and longitude, its height and its depth, greater than any or all of them.” A review of Texas Cases on limitation of liability for negligence discloses that exculpatory agreements generally are not enforced when there is a disparity in bargaining power. A provision in a ticket given to a hotel guest depositing articles with the hotel for safekeeping that the articles deposited are at the owner’s risk has been held not to exempt the innkeeper from the consequences of his own negligence. Dallas Hotel Company v. Richardson, 276 S.W. 765 (Tex.Civ.App.—Dallas 1925, no writ). It has been held that warehousemen render duties in the nature of a public service and lack the power to contract against liability for their own negligence. Cameron Compress Co. v. Whitington, 280 S.W. 527 (Tex.Com.App.1926). In Dittmar v. New Braunfels, 20 Tex.Civ.App. 293, 48 S.W. 1114 (1899, no writ), it was held that a city cannot require a citizen, as a prerequisite to his right to receive water, to sign a contract releasing the city from liability for any scarcity or failure in supply or for defects in quality. A telegraph company was not allowed to exempt itself by contract from liability for damages caused by its own negligence. Western Union Telegraph Co. v. Linn, 87 Tex. 7, 26 S.W. 490 (1894). In a recent case the Texas Supreme Court held that an exculpatory clause in a building lease was void as against public policy because it presented a classic example of unequal bargaining power. Crowell v. Housing Authority of the City of Dallas, supra. In its opinion the Court stated: “The rules applicable to public utilities have been applied by some courts to innkeepers and public warehousemen. According to Professor Prosser, there is a definite tendency to extend the same rules to other professional bailees such as garagemen and owners of parking lots and parcel checkrooms. These bailees are under no public duty, but they deal with the public and the indispensable need for their services deprives the customer of any real bargaining power. See Prosser, The Law of Torts, 3rd ed. 1964, § 67.” We consider that had the clause in the contract between plaintiff and defendant exempted the defendant from all liability for the consequences of its negligence it would have been contrary to the public interest and void as against public policy. The defendant recognized that it was responsible for the damage which its customers might suffer by reason of its negligence. It attempted by contract to limit its liability to the sum of $100.00 unless the customer wished to negotiate a contract at a higher fee. The fee required for unlimited liability is not in evidence. The customer of a public parking garage is at such a disadvantage in bargaining power that he would be practically compelled to accept limited liability. In effect the customer is required to purchase insurance against damage resulting from the bailee’s negligence by this agreement. We hold this agreement limiting liability to be contrary to the public interest and void. The trial court did not err in entering judgment for the actual damage as found by the jury. All other points of error presented by appellant’s brief are either immaterial or have been sufficiently considered in this opinion. They are respectfully overruled. The judgment of the trial court is affirmed.

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Russell C. CHERRY et al., Appellants, v. Hatto M. BERG et al., Appellees. No. 799. Court of Civil Appeals of Texas, Corpus Christi. April 18, 1974. Oscar Cavazos, Raymondville, Merrill W. Russell, Jr., Greenwood & Russell, Harlingen, for appellants. Marion J. Borchers, New Braunfels, for appellees. OPINION NYE, Chief Justice, This is a usury case. Plaintiffs Hatto M. Berg and Atley M. Berg brought suit to declare that a certain promissory note was usurious. They sought in their suit to have all of the interest payments made by them applied to the principal debt; cancellation of the indebtedness; return of the moneys paid into the registry of the court representing the balance of the note and interest pending a final determination of their cause; release and cancellation of the lien securing the note; and judgment for penalty, interest and attorney fees. The case was tried before a jury, and based on a partial jury verdict, the trial court rendered judgment for the plaintiffs. The defendants appeal. On or about August 28, 1958, the plaintiffs borrowed from Lourana Gather Cherry the sum of $25,000.00. The plaintiffs executed a note dated August 28, 1958, in the amount of $27,250.00 payable August 1, 1959, and bearing interest at the rate of 6% per annum. The note was secured by a deed of trust lien covering 589.96 acres of land in Cameron County, Texas. At the time when the note was due, Mrs. Cherry’s accountant instructed the plaintiffs that they owed her $4,150.00 interest. On August 31, 1959, the plaintiffs issued their check in the amount of $4,150.00 payable to Mrs. Cherry and marked on the check "interest”. The evidence showed that the plaintiffs treated such payment as interest and deducted the same as an expense on their Federal Income Tax returns. Mrs. Cherry likewise treated such payment as interest and reported the same as income on her Federal Income Tax return. About a month later the plaintiffs executed a new note in the amount of $25,000.00, representing the exact amount of the principal sum originally borrowed. The note was dated September 27, 1959, and was payable on or before September 1, 1960. The note called for 10% interest and was secured by the same property securing the original note. Thereafter for the next 12 years, by a series of renewal notes, the plaintiffs paid 10% interest and some amounts on the principal, thereby reducing the final note to $16,300.00 which note is the subject matter of this suit. Mrs. Cherry died on September 19, 1969. The defendants, who were her children, inherited the last renewal note from their mother. The case was submitted to a jury which found that $25,000.00 was the actual amount loaned on the original $27,250.00 note. The jury further found that Russell Cherry, one of the defendants, knew that the sum loaned was $25,000.00. The jury was unable to answer the other issue inquiring whether the defendant Russell C. Cherry knew at the time the loan was made in August of 1958, that the actual sum loaned was $25,000.00. Several accountants testified during the course of the trial. It was undisputed that all of the interest paid after September 27, 1959, beginning with the second note, was the legal rate authorized by law, that is, 10%, on the second and all subsequent notes. One of the accountants testified that by applying all of the interest paid, at the time it was paid, to the principal sum of the note, the note would have been paid in full in January of 1967. The trial court held that because the original payment ($4,150.00) exceeded 10% interest, the entire transaction was usurious. The trial court entered judgment, the effect of which was: to allow interest payments to be applied to the principal debt until the same was extinguished; to double the amount of interest paid during the two year period prior to the filing of the suit; to allow attorney fees in the amount of $2,960.00, and release of the lien against the property. At the time the plaintiffs filed their lawsuit against the defendants, they paid into the registry of the court the exact amount of money left owing on the note plus the accrued interest. This was done, according to the plaintiffs, as evidence of their good faith in bringing this usury suit. By stipulation, the parties placed this money in the First National Bank of Raymondville, at interest, pending the outcome of this suit. The trial court in its judgment ordered that this money be repaid to the plaintiffs with the interest that had accrued while on deposit at the bank. The trial court disallowed the over-payments made by the plaintiffs from the time the note was extinguished (by the application of interest to principal) to the date suit was filed. This amounted to $8,558.40, which is the subject of plaintiffs’ cross point on appeal. The defendants filed a motion for judgment non obstante veredicto. This was overruled by the trial court. The defendants did not file a motion for new trial but appeal here solely upon the trial court’s alleged error in failing to grant them judgment as a matter of law. The defendants advance seven points of error on appeal. These can be conveniently summarized as follows: 1) the evidence established that no usurious interest was charged, paid or received; 2) that since the plaintiffs elected to treat the August 31, 1959, payment in the amount of $4,150.00 as “interest”, they cannot now attempt to have the same payment applied to principal; 3) that they cannot collect penalties since this is barred by the statute of limitations; 4) that when the original payee Mrs. Cherry died, no penalty could thereafter be collected; 5) that there was no evidence to support the jury’s finding that Russell Cherry subsequently knew or learned that the original amount of the loan was $25,000.00. The plaintiffs contend that the original note was usurious as a matter of law, and that this usury extended into all of the subsequent renewals. They argue that either as a matter of law, or by their election during the trial of the suit, the first payment on the note of $4,150.00 (interest), was applied automatically to discharge a portion of the original principal indebtedness with the result that the second note and all subsequent renewal notes were usurious. They say by such election and application, the second note in the amount of $25,000.00 was really for only $20,850.00, ($25,000 less $4,150.00). Therefore they contend that the 10% paid on the $25,000.00 was usurious interest since they actually only owed $20,850.00 on principal. By such contention, the plaintiffs say that they are entitled to double the amount of interest paid by them during the last two year period preceding the time they filed their suit (in the amount of $5,920.00) and attorneys fees (in the amount of $2,960.-00); that they are entitled to judgment extinguishing the balance left due and owing on the subject note (in the amount of $16,300.00) and accrued interest (in the amount of $1,630.00) due on such note at the time suit was filed; and, by cross point, they say they are entitled to all of the overpayments made by them between the time the principal of the note was fully paid (by the application of all prior interest payments to principal) until suit was filed (in the amount of $8,558.40) ; for a total of $35,368.40. The defendants contend that because the parties designated the 1959 payment of $4,150.00 as “interest”, such designation amounted to an election at that time to forever treat it as interest, which now bars its application to principal. They argue that since the first payment was not designated or used by the parties to discharge a portion of the principal, and since the renewal of the loan as evidenced by the second note was for the exact amount borrowed (i. e., $25,000.00), no usurious interest was then or thereafter charged or collected. They say that the second note and the renewal notes were, in effect, a novation, purged of the usury; that the statute of limitations has run against the $4,150.-00; and that they are entitled to the balance due on the last note in the amount of $16,300.00, plus interest of $1,630.00, and foreclosure of their deed of trust lien. We disagree with some of the contentions of both parties and with a portion of the result reached by the trial court in its judgment. The question of whether or not the second new note was a novation and therefore was purged of its usurious taint was a fact question. Wallace v. D. H. Scott & Son, 133 Tex. 293, 127 S.W.2d 447 (1939). There was certainly evidence in the record that would have supported a jury issue on this determination. However, since the defendants did not request such an issue and elected to appeal on a no evidence contention, we must view the evidence in the light most favorable to the trial court’s judgment. The jury’s answer to the first special issue finding that only $25,000.00 was loaned on the $27,250.00 note at 6% made the transaction usurious at its inception as a matter of law. The evidence supported the jury’s findings. The second note, executed in September of 1959, was secured by a deed of trust lien on the same property covered by the first note. The renewal deed of trust recited that “the above note (second note dated September 27, 1959) is given in renewal and extension of unpaid balance in the original principal sum of $27,250.00 (the first note) described in the deed of trust dated August 28, 1959, . ” This evidence, standing alone, tainted the entire transaction including the renewal notes. There was no novation. All contracts for a greater rate of interest than 10% per annum are deemed usurious. Article 16, Section 11, Texas Constitution, Vernon’s Ann.St. ; Temple Trust Co. v. Moore, 133 Tex. 429, 126 S. W.2d 949 (1939); Temple Trust Co. v. Haney, 133 Tex. 414, 126 S.W.2d 950 (1939). Any written contract which provides directly or indirectly for a greater rate of interest than 10% shall be void and of no effect for the amount of the interest only. The principal sum of the contract may be received and recovered, however. (Article 5071, Revised Statute 1925) Since the particular original note was usurious, its taint of usury extends to and affects all subsequent renewals. First Nat. Bank of Montague v. Waybourn, 81 Tex. 57, 16 S.W. 554 (1891); Wallace v. D. H. Scott & Son, 133 Tex. 293, 127 S.W.2d 447 (1939). The interpretation of this statutory law by the courts leaves the renewal notes as though they did not stipulate for any interest at all. Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942 (Tex.Comm’n.App.1935, opinion adopted). In a suit for penalties, the inquiry under Article 5073 is whether there has been “received or collected” upon the contract within the two years before the filing of the suit, “a greater rate of interest than ten per cent”. Article 5073, (Revised Statute 1925) is available to a borrower only when he has in fact paid, and the lender has in fact received, in the years in question, interest in excess of 10% for such year. Jennings v. Texas Farmers Mortg. Co., 124 Tex. 593, 80 S.W.2d 931 (Tex.Comm’n.App.1935, opinion adopted). Where payments are made on a debt that is usurious without specific application by either the debtor or creditor, the parties may apply such payment to that part of the debt which the debtor is legally bound to pay. This is ordinarily the sum lent or so much thereof that remains unpaid. Where the debtor elects to recover his statutory penalty even though the principal or a part of it is unpaid, he may offset the penalties against the principal. “Of course he is not entitled to resort to both remedies, that is, the application to the principal and the collection of penalties, on account of the same payments of interest.” Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (Tex.Comm’n.App.1935, opinion adopted). Robertson v. Connecticut General Life Ins. Co., 140 S.W.2d 936 (Tex.Civ.App.—Waco 1940). The first question we address ourselves to is whether the first interest payment was applied automatically to the reduction of the principal indebtedness at the outset, or later, by election, so as to enable all subsequent interest payments to be usurious. “Where the debtor executes a renewal note (in this case the second note) including therein the full amount of principal of the former obligation, (i. e., $25,000.00) he elects to treat prior payments as interest and waives the right to have them applied on the principal of the new note.” 91 C.J.S. Usury § 92, page 676, citing Robertson v. Connecticut General Life Ins. Co., supra. It was said in Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939, Comm’n of Appeals, opinion adopted, 1935: “ . . . it is not entirely accurate to say, since the enactment of the penalty statute in 1892, that payments of interest on a contract affected with usury are by law applied to the principal. The borrower is entitled to have them so applied if he desires it, but he may prefer to sue for penalties under article 5073 on account of such payments. Plaintiffs in error’s contention is faulty in its assumption that payments of interest become payments of principal because they may be applied to the principal. They are still payments of interest, which may or may not be applied to the principal.” “The law does not automatically convert payments of usurious interest into payments of principal, but merely gives the borrower the right to have them so applied.” Temple Trust Co. v. Haney, 103 S.W.2d 1035, 1040 (Tex.Civ.App. — Austin, 1937) (Tex.Sup.1937), opinion approved, 133 Tex. 414, 107 S.W.2d 368. Plaintiff’s contention that an election in 1971 during the trial of their lawsuit to treat an interest payment made in 1959 as principal, so as to cause all subsequent payments of interest by them to be usurious, is untenable. The first payment was interest when paid and the parties treated the payment as “interest”. This $4,150.00 is not entitled to be credited posthumously by the plaintiffs to Mrs. Cherry’s notes (to make the subsequent interest payments usurious) after the plaintiffs had elected originally to have such payment received and applied as interest. Only Mrs. Cherry received this usurious interest payment, not the defendants who were her children. See Art. 5073 Revised Statute of 1925. The plaintiffs could have recovered from Mrs. Cherry $8,300.00 (double the amount of the interest payment) within two years after they made the first usurious payment of $4,150.-00. (Art. 5073). But, since the plaintiffs designated the first payment to apply as interest, they cannot lay behind the log for 12 years before bringing suit and then attempt to use such first payment to restructure the entire loan transaction. The Supreme Court in Stacks v. East Dallas Clinic, 409 S.W.2d 842 (Tex.Sup.1966) stated: “Stacks next contends that in a usury case, payments are allocated to principal first and interest last; therefore, the last payments made by Stacks to the collection agency and by the agency to the Clinic should be regarded as the actual interest payments. This rule has no application to our case. Here, the advance payments made by Stacks to the Clinic were for interest. The Clinic told Stacks that the payments would not apply to reduce the principal of the notes. Likewise, Mrs. Stacks testified that she knew the first two advance payments were for interest. Where the parties designate a payment as interest, then interest it will he. Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935); Rosetti v. Lozano, 96 Tex. 57, 70 S.W. 204 (1902); Hamilton v. Bill, 90 S.W.2d 929 (Tex.Civ.App.1936, writ ref’d).” (Emphasis supplied). We hold that where the parties designated the first payment interest, the same was not automatically applied to principal thereby making the subsequent interest payments usurious. The plaintiffs were not entitled to apply the first interest payment retroactively to the principal indebtedness so as to re-arrange it from the beginning to make the subsequent interest payments usurious. Stacks v. East Dallas Clinic, supra. This designation, however, did not prohibit the plaintiffs from subsequently applying this interest payment to the principal debt at time of suit. Since the contract as to interest was void, the plaintiffs were entitled to apply the first as well as all interest payments subsequently made to the reduction of the unpaid principal or so much thereof that remained unpaid. This application of all interest payments to the principal indebtedness was sufficient to retire the principal debt, thereby resulting in no principal debt remaining. This also entitled the plaintiffs to a release of the deed of trust securing the obligation. Such relief is not affected by any statute of limitations. Adleson v. B. F. Dittmar Co., supra; 58 Tex.Jur.2d, Usury, § 44. Now that the principal debt has been extinguished, we must dispose of plaintiffs’ suit for penalty. Since its inception, the statute (Art. 5073) authorizing penalty has been strictly construed, because it is penal in nature. Temple Trust Co. v. Powers, 107 S.W.2d 734 (Tex.Civ.App.—Austin 1937, affirmed 126 S.W.2d 947 Tex.Sup.1939); Commerce Trust Co. v. Best, 124 Tex. 583, 80 S.W.2d 942 (1935). It was undisputed that all interest payments made on the second note and the subsequent renewal notes thereafter were for 10% interest, the legal rate. Therefore, there have not been any payments of usurious interest since the first payment was made in 1958. The penalty statute, Article 5073, inquires as to whether there has been received or collected upon the contract within the two years before the filing of the suit a greater rate of interest than 10%. Since such interest was not received or collected by these defendants, plaintiffs’ suit for penalty fails. Temple Trust Co. v. Haney, 103 S.W.2d 1035 (Tex.Civ.App.—Austin 1937). affirmed 133 Tex. 414, 107 S.W.2d 368. Plaintiffs’ penalty action fails for still another reason. Since the principal debt has been extinguished (by the application of interest to principal) there was nothing to which to apply usurious interest. Therefore, there was no usurious interest paid within the two year period claimed by the plaintiffs. As a result, the penalty statute does not apply and the trial court’s award of penalty on the interest paid and attorneys fees must be disallowed. Last, we are confronted with the plaintiffs’ claim for excess interest payments made after the principal was fully extinguished. This recovery cannot be allowed. The trial court apparently disallowed the excess of the overpayments from the time the principal note had been extinguished (by application of previously paid interest to principal) up to two years before suit was filed, because of the two year statute of limitation period set out in Article 5073 as it was in effect at the time the contract was entered into by the parties. See Hockley County Seed Delinting, Inc. v. Southwestern Ins. Co., 476 S.W.2d 38 (Tex.Civ.App.—Amarillo 1971, n. r. e.). The plaintiffs, by cross point, contend that they are entitled to recover all of the payments of interest and principal made after the principal debt has been extinguished. In this regard they use an arbitrary date in January of 1967 where the accountants stated that the principal debt would have been paid by the application of all interest heretofore paid to the principal. However, this is not exactly correct. All written contracts which directly or indirectly provide for a greater rate of interest than 10% are usurious. They are void and of no effect for the amount of interest only. The principal sum of money may still be recovered. Here, all of the plaintiffs’ principal payments made prior to suit are to be applied to the principal debt, not just those up to January, 1967. Thereafter, all interest paid by the plaintiffs to the defendants and their predecessors, beginning with the first interest payment, should be applied to the principal debt to the extent that the same was left owing. But there cannot be any recovery for interest voluntarily paid by the plaintiffs after the principal indebtedness was thus satisfied. There is some indication that this overpayment could be recovered by the language stated in Adleson v. B. F. Dittmar Co., supra. However, a recovery of overpayment is not now allowed. Such recovery of overpayments has been changed by judicial evolution as is indicated by reading of the following cases in this order: Ingram v. Temple Trust Co., 108 S.W.2d 306 (Tex.Civ.App.—Austin 1937); Temple Trust Co. v. Hanly, 103 S.W.2d 1035 (Tex.Civ.App.—Austin 1937) ; Thompson v. Kansas City Life Ins. Co., 102 S.W.2d 285 (Tex.Civ. App.—Waco 1937, writ ref’d); and then Ingram v. Temple Trust Co., supra, on motion for rehearing. Ingram v. Temple Trust Co. was affirmed in Glenn v. Ingram, 133 Tex. 431, 126 S.W.2d 951 (1939). In accord is Eastern Mortgage and Securities Co. v. Collins, 118 S.W.2d 479 (Tex.Civ.App.—Galveston 1938 writ ref’d.). It is settled now that a borrower who pays interest on a usurious contract is entitled to have all such payments credited upon principal. Where he brings himself within the provisions of Article 5073, he is entitled to recover the penalties therein provided. However, where he voluntarily pays this interest and principal, he cannot thereafter recover as overpayment of principal the interest theretofore so voluntarily-paid by him. Ingram v. Temple, supra. In the Ingram case, the court said: “ . . . No question is made but that Ingram had voluntarily paid all interest up to the time he filed his suit. That interest he was entitled to have applied to a reduction of his principal still unpaid. But, when the remaining principal is thus discharged the rule announced in the Thompson Case, supra, would, we think, become operative as to any stich excess, and bar his recovery as overpayment of principal such excess interest theretofore voluntarily paid by him.” (Emphasis supplied). There is no question here, as there was no question in the Ingram case, that the plaintiffs had voluntarily paid all the interest up to the time they filed their suit. Under our holding herein, the plaintiffs are entitled to have applied to the reduction of the principal debt the amount still unpaid, to-wit: $16,300.00. However, when the remaining principal is thus discharged, by the application of the interest payments to the principal debt, the rule announced in the Thompson and Ingram cases, supra, became operative as to any such excess. This rule bars plaintiffs’ recovery as to such overpayments. 91 C.J.S. Usury § 100, Extent of Recovery, p. 685. The amount of money paid into the registry of the court by the plaintiffs, under stipulation by the parties, is not affected by this holding. This brings us to the proper disposition of this appeal. The trial court applied the interest payments paid by the plaintiffs to the principal debt left owing, until the same was extinguished. The trial court allowed penalty in double the amount of interest paid by the plaintiffs during the two year period preceding the filing of the suit. Additionally, the court allowed attorney fees in the amount of $2,960.00. The allowance by the trial court of the penalties and attorney fees was error requiring us to reverse the case. Rule 434, Texas Rules of Civil Procedure, provides that when the judgment of the trial court shall be reversed, the Court of Civil Appeals shall proceed to render such judgment as the court below should have rendered where the amount of damages has already been ascertained. The plaintiffs admitted that the balance owed on the note at the time suit was filed was $16,300.00. The trial court was correct in applying interest paid by the plaintiffs to the extinguishment of the principal debt and in releasing the deed of trust liens heretofore existing against the lands owned by the plaintiff and described in the judgment. In this respect the judgment of the trial court is affirmed. The judgment of the trial court recited that the plaintiffs had heretofore paid into the registry of the court the sum of $17,930.00 representing the amount left owing on the unpaid principal of the note in the amount of $16,300.00, together with accrued interest at the rate of 10% per an-num in the amount of $1,630.00. By agreement of the parties hereto, this amount was placed on deposit with the First National Bank at Raymondville, at interest, according to a stipulation entered into by and between the plaintiffs and defendants. The trial court was correct in directing that said sum be repaid to the plaintiffs and ordering the First National Bank of Raymondville, Texas, to pay over to the plaintiffs the said deposit together with all interest accrued thereon and to issue its check in favor of the plaintiffs for this amount. In this particular, the judgment of the trial court is further affirmed. As to the interest paid ($2,960.00) within the two year period prior to the time suit was filed, the trial court awarded as .penalty, double the amount of the interest paid for a total amount of $5,920.00. As additional penalty, the trial court awarded attorney fees in the amount of $2,960.00 for a total penalty in the amount of $8,880.00 (double interest and attorney fees). In this respect, the trial court was in error. Insofar as the court awarded judgment of double the amount of interest paid and attorney fees, the same is reversed and here rendered that the plaintiffs take nothing as to this amount ($8,880.00). Defendants’ points of error are sustained insofar as they are consistent with the result reached in this opinion. All of the other points of error are overruled. The plaintiff’s cross point is overruled. The judgment of the trial court is affirmed in the part herein set out and reversed and rendered in part as here stated. Costs are allocated two-thirds to be paid by the defendants and one-third by the plaintiffs. Affirmed in part, reversed and rendered in part. . Plaintiffs and Defendants agreed that the two year statute of limitations was applicable in this case. . (Amended in 1060, but amendment not applicable here) . Articles 5071 and 5073, Revised Statute of 1925, were in effect at the time the parties entered into the original contract. However, both articles have been subsequently amended twice since that time: in 1963, and in 1967—■ All reference to Articles 5071 and 5073 in this opinion are to Rev.Stat.1925. . Article 5073, Revised Statute of 1925 reads as follows: “Within two years after the time that a greater rate of interest than ten per cent shall have been received or collected upon any contract, the person paying the same or his legal representative may by an action of debt recover double the amount of such interest ■from the person, firm, or corporation receiving the same. Such action shall be instituted in any court of this State having jurisdiction thereof, in the count of the defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where the parties who paid the usurious interest resided when such contract was made.” (Emphasis supplied) Article 5073 is now Art. 5069-1.06 (1967). . Article 5073, Revised Statute 1925, which was in effect at the time the parties entered into the contract, did not allow attorney fees. See Hockley County Seed Delinting, Inc. v. Southwestern Ins. Co., 476 S.W.2d 38 (Tex.Civ.App.—Amarillo 1971, n. r. e.)

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

James Henry JORDAN, Appellant, v. Sherry Neil HANCOCK, Appellee. No. 951. Court of Civil Appeals of Texas, Houston (14th Hist.). April 10, 1974. Rehearing Denied May 1, 1974. Harry H. Walsh, James H. Randals, Huntsville, for appellant. C. B. Stanley, Houston, for appellee. TUNKS, Chief Justice. This is an adoption proceeding, in which the natural father of the children in question refused to consent to the adoption. Sherry Neil Hancock, the appellee, married Aretta Marlene Hancock in 1959. Before their divorce in 1967, this couple had three children, none of whom are involved in the present controversy. In 1968 Mrs. Hancock married James Henry Jordan, the appellant. While married to Mr. Jordan, Mrs. Hancock gave birth to the two children in question. In July of 1969 this couple separated and they were divorced on June 3, 1970. In July of 1970 Mrs. Hancock remarried her present husband, Mr. Hancock. Mr. Hancock petitioned to adopt the two children on May 4, 1973, and on June 29, 1973, the adoption was granted, and the last name of the two children, a girl and a boy, was changed to Hancock. Mrs. Hancock and the trial judge consented to the adoption, but Mr. Jordan, the natural father, refused to consent. Mr. Jordan has appealed. Vernon’s Tex.Rev.Civ.Stat.Ann. art. 46a, sec. 6(a) (1969) (repealed as of January 1, 1974) provided that adoption is proper only if the written consent of the living parents is obtained. However, it was provided that the written consent would not be required if: a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall háve not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability. No findings of fact or conclusions of law were requested or filed. Therefore, the trial court’s judgment should be sustained “if it can be upheld on any legal theory that finds support in the evidence.” Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.Sup.1962). Furthermore, it must be presumed that every fact issue was found favorably to the appellee. Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769 (1957). The rule of Heard v. Bauman, 443 S.W.2d 715 (Tex.Sup.1969), that Article 46a is to be strictly construed in favor of the non-consenting parent, does not alter the above appellate principles. The burden of proof is still on the petitioner for adoption to demonstrate why the non-consenting parent’s consent is not required. In re Armstrong’s Adoption, 394 S.W.2d 552 (Tex.Civ.App.—El Paso 1965, no writ). However, the quantum of proof required is not increased. All that is meant by the rule of Heard v. Bauman is that the exact terms of the statute must be established by a preponderance of the evidence. It should be noted that although the primary consideration is the natural right of a parent, Heard v. Bauman, supra, another consideration in the discretion of the trial court is the best interest of the children. Rubey v. Kuehn, 440 S.W.2d 95 (Tex.Civ. App.—Houston [1st Dist.] 1969, writ ref’d). If the evidence will support the conclusion that Mr. Jordan either abandoned the children or failed to support them commensurate with his financial ability, then the adoption was proper. In early July of 1969 Mr. Jordan, who had just recently been released from a military stockade (apparently for being absent without leave), left his family in Houston and traveled to Tennessee. On July 22, 1969, he was arrested in Tennessee, and on October 31, 1969, he was sentenced to prison. While he was in prison in Tennessee his wife sued for divorce. When the divorce was granted, on June 3, 1970, Mrs. Hancock was given custody of the two children. The divorce decree also recited that, “The Court further finds that the Respondent is in the Penitentiary, and therefore makes no findings as to child support or visitation.” When Mr. Jordan left Houston, the older child was less than a year old, and Mrs. Hancock was three months pregnant with the younger. Mrs. Hancock claims Mr. Jordan was aware of her pregnancy when he left, but he claims the contrary. In September of 1970 Mr. Jordan was released from the Tennessee prison and returned to Houston. He held several jobs until he was again arrested in April of 1971 and placed in the Harris County Rehabilitation Center. He eventually received a four-year prison sentence, which he was still serving at the time of the trial. It is undisputed that at no time after July of 1969 did Mr. Jordan contribute anything to the support of the children. Because Article 46a must be strictly construed, it was encumbent upon the petitioner to prove that at no time during a two-year period did Mr. Jordan contribute to the children’s support in accordance with his financial ability. The record reflects that while he was in prison in Tennessee he received $70 per month. The various jobs he held in Houston, during the seven-month period he was free, paid $300 per month, $3.00 per hour, and $2.25 per hour. Of these seven months he was employed for only four. After being jailed in April of 1971 he received no income. The petitioner has failed to establish that for a continuous two-year period Mr. Jordan failed to support the children commensurate with his financial ability, when it is clear that during certain portions of any possible two-year period he had no income at all. When Mr. Jordan left Houston in the family car in July of 1969, he left his family with three weeks overdue rent, no food in the house, and no milk for the baby. Mrs. Hancock did not hear from him until right before their divorce, which was over a year later. During his seven-month period of freedom he made no attempt to locate his ex-wife or the children. Neither did he attempt to obtain a judicial order of visitation rights. He was informed before the divorce of the birth of his second child. In Hendricks v. Curry, 401 S.W.2d 796, 801 (Tex.Sup.1966), statutory abandonment was defined as a wilful act or course of conduct, such as would imply a conscious disregard or indifference to such child in respect to the parental obligation that the parent owes to such child [citing Strode v. Silverman, 209 S.W.2d 415, 419 (Tex.Civ.App.—Waco 1948, writ ref’d n. r. e.)]. Mr. Jordan contends that because he was involuntarily imprisoned he cannot be deemed to have abandoned his children. In Hutson v. Haggard, 475 S.W.2d 330 (Tex.Civ.App.—Beaumont 1971, no writ), it was held that the “course of criminal conduct” which resulted in imprisonment for an entire two-year period constituted intentional abandonment. A different approach to this question is that taken by the Minnesota Supreme Court, which said, in Staat v. Hennepin County Welfare Board, 287 Minn. 501, 178 N.W.2d 709, 712-713 (1970): [I]mprisonment per se is not sufficient to constitute abandonment. a separation of child and parent due to misfortune and misconduct alone, such as incarceration of the parent, does not constitute intentional abandonment. In fact, it is conceivable that one’s involvement in crime might reflect his misdirected concern for the welfare of his children, rather than his disregard for it. However, in Staat the Court concluded that the non-consenting parent was chargeable with abandonment because of other evidence which indicated such an intent. The fact of imprisonment should not constitute abandonment as a matter of law. Neither should it preclude a finding of abandonment. In the present case the other evidence that Mr. Jordan intended to abandon his children was sufficient to support a conclusion of law to that effect. Mr. Jordan also contends that because his wife was granted custody, he cannot be held to have abandoned the children. There is a line of Texas cases which supports this position. E. g., Smith v. Waller, 422 S.W.2d 189 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n.r.e.) ; Trotter v. Pollan, 311 S.W.2d 723 (Tex.Civ. App.—Dallas 1958, writ ref’d n.r.e., 158 Tex. 494, 313 S.W.2d 603). These cases, though, are all based upon a case involving criminal desertion. See Freeman v. State, 103 Tex.Cr.R. 428, 280 S.W. 1069 (Tex.Cr.App.1926). It would seem that the standards utilized in the determination of what constitutes the crime of desertion would not necessarily be the same as those standards used to determine civil abandonment. It would be onerous indeed if one were chargeable with criminal desertion of his children after custody had been judicially awarded to another. There are also many Texas cases in which a non-consenting parent was found to have abandoned children which had been awarded to the other party in a divorce case. E. g., Hutson v. Haggard, supra; Rubey v. Kuehn, supra; Hammond v. Eplen, 216 S.W.2d 258 (Tex.Civ.App.—Galveston 1948, no writ). However, none of these cases expressly deals with the question of whether a parent without custodial rights may be found to have abandoned his children. It seems, though, that the normal situation when an adoption without consent would occur is when a new spouse of the custodial parent seeks to adopt his stepchildren. If a finding of abandonment were precluded in such a situation, then the petitioner would be relegated to proving failure to support. We therefore hold that the trial court properly concluded that Mr. Jordan abandoned his children for a period of two years. The adoption was therefore not invalid for want of consent of the natural parent. Affirmed.

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CITY OF GALVESTON, Appellant, v. Frank RUSSO et al., Appellees. No. 898. Court of Civil Appeals of Texas, Houston (14th Dist.). Feb. 13, 1974. Rehearing Denied May 8, 1974. See also 508 S.W.2d 886. Robert V. Shattuck, Jr., Acting City Atty., Preston Shirley, Russell B. Serafín, Mills, Shirley, McMicken & Eckel, Galveston, for appellant. James R. Watson, Jr., Chris Dixie, Dixie, Wolf & Hall, Houston, for appellee. CURTISS BROWN, Justice. This is a suit by firemen of the City of Galveston to recover additional wages for temporary duty in higher paying job classifications. Frank Russo, W. D. Isbell, and Genoice Walker brought this suit for themselves and as a class action against the City of Galveston (the City). The plaintiffs are firemen who have been assigned from time to time to duty in a higher paying job classification when a regular employee is on vacation or sick leave. This temporary duty is called “acting time.” They seek to recover the additional pay for this duty. After trial to the court, the trial court entered judgment that the individual plaintiffs recover specified amounts. The City has appealed. The fire-fighting firemen of the City of Galveston are divided into the following classifications, with the following minimum pay: Fire-fighter — $2.32 per hour, Driver —$2.48 per hour, Lieutenant — $2.62 per hour, Captain — $2.76 per hour, Assistant Chief — $3.04 per hour. It is admitted by the City that from time to time firemen are assigned to fill the position of someone in a higher classification. It is the City’s position that such temporary assignment requires a pay increase only when there is a vacancy in the position filled. These positions are created by the City under authority of Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1269m (1963), which creates firemen’s and policemen’s civil service in cities with a population over 10,000. The Galveston City Council regulates the number of firemen by ordinance, and it is clear from the evidence that no vacancies now exist or have existed in the temporarily filled positions which are the subject of this suit. Plaintiffs based this suit on two statutory provisions. Tex.Rev.Civ.Stat.Ann. art. 1269m, sec. 8 (1963) provides in part as follows: No classification now in existence, or that may be hereafter created in such cities, shall ever be filled except by examination held in accordance with the provisions of this law. All persons in each classification shall be paid the same salary and in addition thereto be paid any longevity or seniority pay that he may be entitled to. This shall not prevent the Head of such Department from designating some person from the next lower classification to fill a position in a higher classification temporarily, but any such person so designated by the Head of the Department shall be paid the base salary of such higher position plus his own longevity pay during the time he performs the duties thereof. In addition, Vernon’s Tex.Penal Code Ann. art. 1583-2, sec. 3 (Supp.1972) provides: Provided further, that all municipal governments affected by this Act, shall, within thirty (30) days following enactment, set up classifications in Police and Fire Departments providing for duties under such classifications and specifying salary for each classification; and thereafter any member of any Fire and Police Department who is called upon to perform the duties under any such classification shall be paid the salary provided therefor for such period as he performs such duties. Appellant challenges the jurisdiction of this Court and the trial court to hear an action based on provisions of the Penal Code. In the first place, the Supreme Court has held that Article 1583 of the Penal Code authorizes a civil action by necessary implication. Austin Fire & Police Departments v. City of Austin, 149 Tex. 101, 228 S.W.2d 845 (1950). In the second place, this suit was also based on Article 1269m, sec. 8 of Tex.Rev.Civ.Stat. Ann. The jurisdictional challenge is therefore overruled. Appellant next argues that the trial court’s findings of fact were based on no evidence or, in the alternative, insufficient evidence. We overrule these contentions. There is sufficient evidence to show that the named plaintiffs are classified employees of the Galveston Fire Department and that they have been assigned to higher classifications from time to time without receiving higher pay. This fact is established by the list, stipulated to by the City, showing the names and amounts due each fireman for the temporary duty. The findings as to amounts due each plaintiff were a matter of stipulation and are not subject to an evidentiary challenge. Appellant’s points three through eight and thirteen and fourteen are overruled. Appellant challenges the applicability of both statutes and the very existence of Article 1583-2, sec. 3. Turning first to Article 1269m, sec. 8, we hold that the critical language is not limited to the situation in which a vacancy exists. It is included in a section concerning the filling of va-candes, but its applicability is not so limited. It merely states that the civil service requirements for promotion will not interfere with temporary duty assignments. This is clear from the language immediately following the previously quoted text: “The temporary performance of the duties of any such position by a person who has not been promoted in accordance with the provisions of this Act shall never be construed to promote such person.” The above holding makes it unnecessary to analyze the language of Article 1S83-2, sec. 3, or to determine whether that section was repealed in 1953. Points nine through twelve are overruled. Any error in rendering judgment based on Article 1583-2, sec. 3 is harmless because of the alternative basis of Article 1269m, sec. 8, and point nineteen is therefore overruled. Texas Rules of Civil Procedure, rule 434. Appellant’s final contention is that the trial court improperly granted prejudgment interest. We do not agree. When the measure of damages is determinable at the time of injury, interest is properly awarded from that date. Davidson v. Clearman, 391 S.W.2d 48 (Tex.Sup.1965). The recovery of prejudgment interest must have a basis in the pleadings, but a general prayer for relief will ordinarily be sufficient. Tennessee Life Insurance Company v. Nelson, 459 S.W.2d 450, 454 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). In the Tennessee Life case, this Court held that the prayer for “damages as they appear, together with interest on the amount of the judgment at the legal rate until paid” was not sufficient to recover prejudgment interest. The Court reasoned that this prayer for special relief would override the general prayer. In the present case there is a special prayer for interest, but it is not limited by reference to the judgment. The prayer seeks judgment for “pay due .; an attorney’s fee . . . ; for interest at the legal rate; . . . ” and concludes with a prayer for general relief. We hold that this prayer for interest supports an award of prejudgment interest. Further, we hold that this is an appropriate case for such an award. See Womack Machine Supply Co. of Houston v. Fannin Bank, 504 S.W.2d 827 (Tex.Sup.1974). The injury to each class member occurred on each pay day he was not compensated for acting time in the previous pay period. This was a liquidated amount on the date of each injury. Appellant complains that the court awarded the interest from the end of each fiscal year in which acting time was served. It would have been proper to award the interest from the date of each pay day on which the additional wages were due. The court’s judgment orders the interest to be computed from a later date and therefore has benefited rather than harmed appellant. Appellant has failed to point out that the judgment adjudges costs against the City and directs that execution issue for their collection. Public policy prohibits the levy of execution against a political subdivision of the state in the performance of governmental functions. National Surety Corp. v. Friendswood Ind. School Dist., 433 S.W.2d 690, 694 (Tex.Sup.1968); City of Houston v. Hamons, 496 S.W.2d 662, 665 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.). Further, this is fundamental error and must be noted regardless of appellant’s failure to point it out. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983 (1947). All of appellant’s points have been considered and are overruled. The judgment is modified to eliminate the order of execution for costs and, as modified, is affirmed. . This section lias been transferred to the civil statutes as Tex.Rev.Civ.Stat.Ann. art. 1269q, sec. 3 (Supp.1973), by authority of Tex.Laws 1973, eh. 399, sec. 5, at 995, enacting the new Texas Penal Code.

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2024-08-24T03:29:51.129235

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CITY OF GALVESTON, Appellant, v. Frank RUSSO et al., Appellees. No. 899. Court of Civil Appeals of Texas, Houston (14th Dist.). Feb. 13, 1974. Rehearing Denied May 8, 1974. See also 508 S.W.2d 882. Robert V. Shattuck, Jr., Acting City Atty., Preston Shirley, Russell B. Serafín, Mills, Shirley, McMicken & Eckel, Galveston, for appellant. James R. Watson, Jr., Chris Dixie, Dixie, Wolf & Hall, Houston, for appellees. CURTISS BROWN, Justice. This is a suit by firemen of the City of Galveston to recover overtime pay. Frank Russo, W. D. Isbell, and Genoice Walker brought this suit for themselves and as a class action against the City of Galveston (the City). The plaintiffs are firemen who have been assigned from time to time to work in the dispatcher’s office when a regular dispatcher is not on duty. They seek to recover overtime pay for serving in this capacity. After trial to the court, the trial court entered judgment that the individual plaintiffs recover specified amounts for overtime hours. The City has appealed. The hours of work of firemen and dispatchers are governed by Vernon’s Tex. Penal Code Ann. art. 1583-1, sec. 6 (Supp. 1972) which provides in part as follows: It shall be unlawful for any city having more than ten thousand (10,000) inhabitants but not more than sixty thousand (60,000) inhabitants, according to the last preceding Federal Census, to require or permit any fireman to work more than seventy-two (72) hours during any one calendar week. It shall be unlawful for any city having more than sixty thousand (60,000) inhabitants but not more than one hundred twenty-five thousand (125,000) inhabitants, according to the last preceding Federal Census, to require or permit any fireman to work more than an average, during a calendar year, of sixty-three (63) hours per week. It shall be unlawful for any city having more than one hundred twenty-five thousand (125,000) inhabitants, according to the last preceding Federal Census, to require or permit any fireman to work more than an average, during a calendar year, of sixty (60) hours per week. Provided further, that in any city having more than ten thousand (10,000) inhabitants, according to the last preceding Federal Census, the number of hours in the work week of members of the fire department whose duties do not include fighting fires, including but not limited to mechanics, clerks, investigators, inspectors, fire marshals, fire alarm dispatchers and maintenance men, shall not exceed the number of hours in the normal work week of the majority of the employees of said city other than firemen and policemen. The fire-fighting firemen of the City of Galveston are divided into the following classifications, with the following minimum pay: Fire-fighter — $2.32 per hour, Driver —$2.48 per hour, Lieutenant — $2.62 per hour, Captain — $2.76 per hour, Assistant Chief — $3.04 per hour. These men work twenty-four hours on and forty-eight hours off, which means they work forty-eight hours one week and seventy-two the next, averaging fifty-six hours per week. These positions are state civil service jobs. Dispatchers work a forty hour week and receive $324 per month salary. Their positions are not governed by civil service rules. The City employs four dispatchers who combine to work 160 hours per week. That leaves eight hours each week which must be covered, in addition to vacation time and sick leave. To respond to this need, the Fire Chief issued the following memorandum: TO All Assistant Chiefs DATE Dec. 21, 1970 FROM Chief Stanforth SUBJECT Dispatching Office Beginning this date, you will assign Firefighters only to the Dispatching Office. This is to be done whenever the regular Dispatchers are off sick or on vacation or off days. Each Firefighter will stand a four (4) hour watch. No one is to be given time off for this or sent home for the remainder of the Shift. This is the Fireman’s responsibility to perform this duty. The plaintiffs contended below that since they work fifty-six hours as fire-fighters, in those weeks when they doubled as dispatchers they should be entitled to overtime pay for an eight-hour shift. Although the memorandum quoted above calls for a four-hour shift, the Fire Chief conceded that a longer shift was worked at times. In addition, however, plaintiffs’ counsel admitted in a statement to the trial court that from the records of the fire department it was impossible to tell how many hours each man worked as a dispatcher. The records merely indicated with a check mark those weeks in which a fire-fighter doubled. They did not indicate how many shifts or hours were worked in that week. Further, the trial court granted overtime on the basis of the fire-fighters’ pay scale rather than that of the dispatchers. Although it has no effect in view of our ultimate decision in this case, we do not feel it inappropriate to mention that the damages assessed in this manner were without basis in the evidence. The appellant’s first point on appeal is a challenge to the jurisdiction of the district court and this Court. Appellant contends that we have no jurisdiction of this claim which arose under a provision of the Penal Code. This point is overruled on the basis of the decision by the Supreme Court in Austin Fire & Police Departments v. City of Austin, 149 Tex. 101, 228 S.W.2d 845 (1950). That case involved a suit under another part of the statute involved in the instant case, and in overruling a challenge to its jurisdiction the Court held that although the statute did not expressly authorize a civil action based upon it, a civil action was authorized by necessary implication. We base our decision in this case on appellant’s points thirteen and fourteen and therefore do not discuss any others. Points thirteen and fourteen in essence challenge the applicability and interpretation of section 6 of Article 1583-1. We agree. A simple, straightforward reading of the statute reveals that the plaintiffs were not entitled to recover overtime for their duties as dispatchers. That part of the statute applicable to the City of Galveston restricts firemen to an average of sixty-three hours per week during any calendar year. There is no dispute that the plaintiffs average fifty-six hours a week. The language on which plaintiffs rely states that the hours of fire department employees “whose duties do not include fighting fires, including . . . fire alarm dispatchers ...” (emphasis added) shall not exceed the hours in the normal work week of other city employees. In the City of Galveston, city employees normally work a forty-hour week. It is true, as appellees argue, that a fire-fighter who doubles as a dispatcher may have to fight a fire or attend other duties after a shift as dispatcher. Nevertheless, he is still a fire department employee whose duties include fighting fires, and the “normal work week” limitation would not apply to him. Each fire-fighter serves on a twenty-four hour shift. His duties during that shift are subject to the order of his superiors, whether he is told to clean and check equipment or serve the equally vital function of taking alarm reports by phone and notifying the proper station. We wish to be careful, however, not to be understood as passing on several related problems. If it were shown that duties as dispatchers were detracting from firemen’s ability to fight fires, other remedies might be available to restrict this practice. It is also clear that the City could not abolish the job of dispatcher and fill the positions with fire-fighters. See City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960). Also, this is. not a case in which the City has assigned token or insubstantial fire-fighting duties to avoid the thrust of the statute. No bad faith or arbitrary action has been shown. The decision in City of Temple v. Brown, 383 S.W.2d 639 (Tex.Civ.App.—Austin 1964, writ dism’d), cited to us by appellees, seems on its face to be somewhat in conflict with our decision. We believe that it is distinguishable. In that case, the City of Temple dismissed all its fire alarm dispatchers and used fire-fighters to fill such positions. Brown sued for reinstatement, and the fire-fighters sued for overtime pay for the hours they served as dispatchers. The trial court upheld the dismissal and awarded the overtime. The court of civil appeals affirmed. We do not find this case persuasive for several reasons. First, it is not clear whether the hours worked as dispatchers were during or in addition to a regular fire-fighter’s shift. Second, it is not clear whether the fire-fighters involved were used exclusively as dispatchers or whether they continued their other duties as well. Third, the dispatchers had civil service status and the city attempted to use firemen to abolish these positions. In Galveston dispatchers have no such status. The plaintiffs were not entitled to recover on the basis on which they brought this action. We therefore reverse the judgment of the trial court and render judgment that the plaintiffs take nothing. Reversed and rendered. . This section has been transferred to the civil statutes as Vernon’s Tex.Rev.Civ.Stat.Ann. art. 1269p, sec. 6 (Supp.1973), by authority of Tex.Laws 1973, ch. 399, sec. 5, at 955, enacting the new Texas Penal Code.

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TEXAS STEEL COMPANY, Appellant, v. Carl J. RECER, Appellee. No. 17482. Court of Civil Appeals of Texas, Fort Worth. March 15, 1974. Rehearing Denied April 12, 1974. Brown, Crowley, Simon & Peebles, and M. Hendricks Brown, Fort Worth, for appellant. Hooper, Kerry, Chappell & Broiles, and R. David Broiles, Fort Worth, for appel-lee. OPINION MASSEY, Chief Justice. On or about September IS, 1969, Carl J. Recer, an employee of Pangborn Corporation sustained personal injuries while working in the plant of Texas Steel Company in Fort Worth, Texas. In connection with such work the Pangborn Corporation had manufactured a large steel parts cleaning unit which Texas Steel was in the process of installing in its plant, and Recer (pursuant to contractual agreement between Pangborn and Texas Steel) was present for the purpose of consultation and aid in the installation of the unit. To clarify: Recer, an employee of Pangborn Corporation, was for the benefit of Texas Steel Company on its premises pursuant of a provision of contract between his employer and Texas Steel, owner of the premises. In other words he was an “invitee”. Within the Texas Steel plant there were cranes for the purpose of moving heavy metal from the general directions of north to south, and from south to north. These operated by rolling suspended from overhead trolleys. For the purpose of both their movement and the pick up and deposit of material there was a cab within which an operator was situated to control such. Most of the unit manufactured by Pang-born was in place, and certain machinery which was a part thereof and located on its top was already installed. There was a “landing” or platform proximate to the machinery intended for purposes of attending installation or repair, etc. of such machinery. The situation of this platform was such that a man of ordinary height standing upon it was squarely in the path of the cab portion of the aforedescribed crane, in the event its movement was either from north to south or from south to north. At the request of one of the foremen of Texas Steel, Recer had accompanied him in a climb to the top of the Pangborn unit aforementioned for some purpose connected with the machinery on top of the unit. The two men were standing on the platform giving their attention to the machinery when a crane operator (employee of Texas Steel) moved the crane toward either the north or the south. He did not observe Recer or the man with him on the platform. Neither Recer or the man with him observed that the crane was being so moved. As the cab of the crane passed over the platform and machinery aforede-scribed the cab struck the upper part of the bodies of Recer and the man with him knocking them over. The cab operator did not know that the event had occurred until he had moved past the men on the platform of the Pangborn unit and was some distance removed. This is mentioned to clarify the fact that extremely heavy machinery was involved. Recer brought suit in tort against Texas Steel on the theory that the personal injuries he had sustained as the result of being struck by the cab of the crane were proximately caused by its negligence. Trial was to a jury and judgment for damages was rendered based upon the verdict returned. From this judgment Texas Steel appealed. We affirm. The acts of negligence found to have been committed by Texas Steel, which was also found to have amounted to a proximate cause of the event culminating in Re-cer’s injuries, were: the failure of the crane operator to keep a proper lookout; the failure of such operator to sound a warning of the approach of the crane upon the place where Recer was standing; the failure of Texas Steel to instruct the crane operator as to appropriate .warning measures to be given by the operator to individuals in or near the path of the crane when it is moving; the failure of the crane operator to stop the crane; and the failure of Texas Steel to warn Recer that the crane would be operating in or near the area where he was struck. The jury also found that Recer was in fact injured as result of the occurrence. Texas Steel contended that Recer was guilty of contributory negligence proximately causing the occurrence and his injuries in consequence. However in its findings the jury refused to find that he was guilty of any act of contributory negligence. The jury also, by its answer in the negative, or “No”, found that at the time and upon the occasion in question Recer was not a “borrowed employee” of Texas Steel. Though having found that immediately prior to the occurrence in question Recer was in a position of danger, the jury refused to find that Recer had voluntarily assumed risk of injury in getting into or remaining in such position. Texas Steel requested the submission of a special issue, and objected because of the absence of a special issue, which would inquire of the jury — with the burden of the issue placed upon Recer— whether the occurrence was the result of “unavoidable accident”. According to practice and usage of several years ago it would have been reversible error not to submit such an issue. However, since the decision in Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup., 1971) this is no longer part of our law. We recently had occasion in Austin Road Company v. Evans, 499 S.W.2d 194, 199 (Fort Worth Civ.App., 1973, writ ref, n. r. e.) to write thereon. Though it is the law that a plaintiff in such character of suit is obliged to prove that the event was not the result of unavoidable accident (as applied to the parties to the suit) that burden is discharged in jury findings upon special issues by which the plaintiff may be said to have discharged such necessarily included burden when he successfully establishes negligence in acts and/or omissions of the defendant and that such amounted to a proximate cause of the event and consequent injury. Here, by the definition of “proximate cause”, by the manner of special issue submission, and by the answers returned by the jury plaintiff is deemed to have discharged the burden of establishing that the event was not the result of unavoidable accident. We hold that as a matter of law Recer was an invitee, and that every issue presented to the jury as a fact issue was to be resolved as a matter of fact and not of law; further that each fact finding was raised by evidence of probative force and effect, and that none of the jury findings returned were against the great weight and preponderance of the evidence. There was evidence of which Texas Steel complains relative to the fact that after the happening of the event it had placed a flashing light underneath the cab of the overhead traveling crane. This came about as the result of photographs (which were taken and introduced by Re-cer some time after the occurrence) which showed the presence of such a light having been introduced before the jury without objection, but which were later shown by Texas Steel to have been installed after the event. Although there would be additional reason why no reversible error resulted we are of the opinion that there was support for the admission of the photographs and supplementary evidence which showed the presence of the later installed flashing light. Although reversing in 273 S.W.2d 603 the Supreme Court (1954) (at p. 610) approved the holding of this court upon the admissibility of photographs plus evidence bearing thereupon in explanation of a condition shown thereby different from that existent at time of an accident or occurrence. Driver v. Worth Const. Co., 264 S.W.2d 174, 184 (Fort Worth Civ.App, 1953). In Driver v. Worth Const. Co., supra, we wrote, as follows: “ . . .It appears, however, that the changes were not of a character which might tend to prejudice appellant’s (defendant) case theory. It likewise appears that the changes were explained and that the jury, though it had before it the photographs, likewise had explanatory testimony whereby it could consider the photographs in light of the evidence concerning the differences therefrom which actually obtained the night of the fatal accident. Admission of the photographs over objection was a matter of discretion on the part of the court. The court did admit them. Obviously the court must have considered that their admission would aid the jury in considering the evidence and in finding facts based thereon. We believe this was justified and that no abuse of discretion exists. In view of the fact that the pictures were coupled with oral testimony, application of which to the scene portrayed by the pictures in effect operated to change the pictures themselves into other pictures which did effectively portray the actual conditions obtaining at the time which was actually in question, the photographs thereby became admissible. (Citing cases.)” Certainly Texas Steel may, with justification, argue that when after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. Texas Steel points out that the language to that effect is found in Rule 51 of “Uniform Rules of Evidence”. There is no doubt but that it is a correct statement of a legal principle. However, what if the tender of such character of evidence is not to prove negligence or culpable conduct in connection with the event, or, what if its evidence as such would be merely incidental to another and proper purpose? Where the latter is true, and that is the situation in this case, the matter of admissibility must be left to the sound discretion of the trial court and that discretion not to be interfered with save in an instance where it is abused. Here there was no abuse of discretion. We reach the matter of Recer’s injuries and evidence relative thereto and the findings upon damages. Actually there is no doubt but that Recer did sustain personal injury for which he would be, under the jury findings upon liability, entitled to recover damages. Those injuries not in dispute concern his shoulder and the upper part of his body. Those in dispute concern injury to his spine in the sacral area. Re-cer may or may not have been aware of that injury immediately following his injury. By the verdict it is obvious that the jury did factually deem such back injury to have been sustained by Recer as the result of the event and occurrence at the premises of Texas Steel Company on September 15, 1969. By the jury findings the jury stated that Recer’s damages were as follows: (1) Expenses for necessary medical, medications, appliances, and hospital care in treatment for his injuries resulting from the occurrence in question: $7,784.88; (2) Expenses for such to be incurred in the future: $2,600.00; (3) Past physical pain and mental anguish: $10,000.00; (4) Future physical pain and mental anguish: $50,000.00; (5)Past loss of earning capacity: $30,000.00; and (6) Future loss of earning capacity: $110,000.00. It is the finding of $30,000 for loss of earning capacity past, the finding of $110,000.00 for future loss of earning capacity, and the finding of $50,000.00 for future physical pain and mental anguish upon which there is the most significant attack. Connected therewith was the admission, over the objection that they were immaterial and irrelevant, of Recer’s service records while in the military. The information therein did tend to show the absence of any disability during the course of Recer’s service and at the time of his discharge. This was so because Recer had fourteen years of service and because of the absence of any indication by the records that any such had been experienced. For this reason the trial court did not err in deeming the records relevant. Also connected with the complaint on the damage' issues were three photographs of Recer’s back after the completion of the surgery and medical treatment. These photographs showed scars from the incisions incident to the surgery which had been performed upon his back. They were relevant in that they more clearly indicated to the jury the portion of the back contended to be the site of the injury because of which suit was brought. They were not unsightly though no part of Recer’s case is for disfigurement. Nothing in the photographs could be considered inflammatory. Admission of the photographs was proper. In the hospital records introduced, incident to the reports contained therein by the doctors, were several notations on “history” which stated circumstances relative to the accident pursuant to which Recer claims to have sustained the injury to his back, and which further stated that Recer gave the history of having sustained the injury to his back at Texas Steel. Texas Steel contends by points of error that such portions of the records and reports were improperly admitted into evidence because they constituted hearsay statements upon disputed fact issues as to where and how Recer came to have his back injury, and the cause thereof. To clarify: there was no question but that Recer sustained an injury on September 15, 1969. There was a fact issue upon trial about whether the injury caused the condition of Recer’s back. The condition was undoubtedly existent on September 27, 1969, when Recer was admitted to the hospital and was operated upon for his back trouble. The condition found existent was an extruded spinal disc at the interspace between lumbar spinal process number 4 (or L 4) and lumbar spinal process number 5 (or L 5). Actually Recer was to be found calling on a physician because of his back trouble on September 24, 1969, nine days after the injury of September 15, 1969. He at that time visited Dr. Raymond Kahn in Tarentum, Pennsylvania, complaining of pain in his lower back and right hip and leg. The doctor’s report was admitted into evidence. The doctor’s deposition, later taken, was also made part of the record. On the matter of Recer having been injured on September 15th there is no dispute, the dispute being whether or not such injury caused the condition which occasioned his call upon Dr. Kahn on September 24th. There is no actual dispute about when Recer claimed to have experienced trouble with his back, at least to the extent that he sought medical attention. That date was September 24th. Therefore the language in Dr. Kahn’s report stating that Recer claimed to have been injured September 15th, and that he stated on September 24th that he was experiencing pain in his lower back and right hip and leg did not present evidence upon any actual disputed fact issue. This is so because the report admitted over objection on the ground that it constituted hearsay does not purport to be evidence proving that the injury of September 15th was the cause of the condition of which complaint was made to Dr. Kahn on September 24th. After having seen Dr. Kahn in Pennsylvania Recer went to Memphis, Tennessee and called on Dr. Howser on September 25th or 26th. He was admitted to the hospital in Memphis on September 27th, where he was operated upon for his back condition. In operating the doctor performed what is called a laminectomy of the L 4 disc (or the disc between the lumbar vertebrae numbers 4 and 5). Pursuant to the operation Dr. Howser called into consultation a Dr. Boals, also of Memphis. Dr. Boals also treated or directed treatment relative to Recer’s upper extremity. With regard to the condition of the back for the correction of which Dr. Howser performed an operation he appears as consultant merely. (It might here be noted that after Dr. 'Howser had twice operated upon Recer’s back Dr. Boals then operated upon the back at the same place and performed what is termed a “spinal fusion”.) Anyway, Dr. Boals’ report on this consultation, made a part of the hospital records at Memphis, states the circumstance of Recer’s injury on September 15, 1969, and continues “Since then he has had low back pain with right leg pain, severe, with numbness of the toes and dorsum right foot. Has had back pain before, but no leg pain or history of any back injury. . ” (This record was signed by Dr. Howser, which fact is immaterial to our discussion and holding.) The report of Dr. Boals, as a part of the hospital records, was received into evidence over the objection that it constituted hearsay evidence purporting to prove that ever since the injury sustained on September 15, 1969 and up until the time Recer first began to complain of back trouble (undisputed from September 24th when he saw Dr. Kahn) he was experiencing pain from injury to his back caused by the occurrence of September 15th. The report of Dr. Boals of which complaint is made was a part of the hospital records which were introduced under Vernon’s Ann.Tex.Civ.St. Art. 3737e, “Memorandum or record of act, event or condition; ...” In Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup., 1962) the Supreme Court, acknowledging the authority of Art. 3737e in respect to the reception of hospital records generally, held that such authority did not extend to the statement made thereon relative to Mrs. Rosen, viz.: “ ‘The patient slipped and fell at 5:30 p. m. while walking in the slushy snow in front of a local drugstore.’ ” The reason why, said the Supreme Court, was because of the statutory provision that those admissible portions of hospital records must have been made by the hospital’s employee or representative, in the regular course of its business, upon such agent’s personal knowledge of such act, event or condition. It is of interest to note that the court, though holding the entry inadmissible by Art. 3737e, nevertheless declared that it was receivable as an admission against interest on the part of Mrs. Rosen. Her contention was that she had fallen inside the store of Skillern & Sons. Had the evidence in question in the instant case been tendered for a limited purpose, such as for the purpose of showing the occasion upon which Recer first claimed to a physician that his back trouble was the result of the occurrence on September 15, 1969, there would be no question of its admissibility. However the tender of the evidence was unrestricted, or for all purposes. We are of the opinion that by Skillern & Sons, Inc. v. Rosen, supra, the court erred in admitting the testimony. We speak relative to the statement attributed to Dr. Boals — that since the occurrence of September 15th, 1969 Recer had experienced low back pain, etc. Nevertheless we believe that the complaint of Texas Steel should be overruled by provisions of Texas Rules of Civil Procedure, rule 434, the “harmless error” Rule. We find ourselves in agreement with the statement in Purvis v. Johnson, 430 S.W.2d 226, 231 (San Antonio Civ.App., 1968, no writ hist.), as follows: “The erroneous admission of evidence will not require reversal unless the record as a whole affords subtsantial basis for the reasonable belief that such evidence may well have caused the rendition of an improper verdict and judgment. The basic question is whether it is likely that such evidence may have been a controlling factor in persuading the jury to reach the verdict that it did. Appellate Procedure in Texas, Harmless Error, § 17.12 (2).” From the above we have considered the complaint of Texas Steel primarily in its relation to the liability aspect of the case. Its complaint also embraces the medical aspect, and the damages found by the jury to have been a proximate result of the injuries sustained by Recer on September 15, 1969. Considered anew in that light we have reached the same conclusion, i. e. there was not reversible error. The opinions of every medical expert who testified were based upon hypothetical questions which did not necessarily depend upon the authenticity of the “history” as related to Dr. Boals. Furthermore Texas Steel was afforded opportunity to cross-examine not only Dr. Boals, but also Drs. Howser and Kahn, and such opportunity was apparently afforded after Texas Steel was on notice that Recer intended to introduce into evidence the portions of the hospital records of which complaint is made. In discharging the burden of proof Re-cer endeavored to develop his case on damages, as applied to future disability because thereof, in a manner somewhat novel to personal injury litigation. Rather than to merely content himself by proving disability and attendant damages in the time prior to the trial and with a minimum of testimony opening up the matter of such likely to be experienced in the future, he proceeded to offer evidence exhibiting the kind and character of work he thought he could perform in the future, with further and additional evidence concerning his reasonable expectation of ability to earn money thereby and the amount he should be able to earn. With proof thereof, coupled with proof concerning what he would have earned if he were able to continue the same character of employment in which he was engaged at time of his injury on September 15, 1969, he sought to show with substantial exactitude the amount of his diminished earning capacity in the future. Generally, it would be expected that it would be a defendant who would endeavor to show an ability on the part of the claimant to work and earn money in the future, what should be earned if claimant would only apply himself, etc. It was, of course, entirely proper for Recer to make this a part of his proof though the evidence might reduce the outer limits of what the jury might return as its finding upon future damages based upon loss of earning capacity. Principally, as we see it, his tender of such evidence would be to show that he desired to be fair in his contentions upon physical disability, etc. From the record before us it is apparent that the jury was impressed by such evidence. The jury returned findings rather close to the amount established by such evidence. Texas Steel deems itself aggrieved. Texas Steel contends that most of such evidence was improperly placed before the jury, and that its prejudicial effect was apparent by the findings of the jury in accord therewith. We will first consider the evidence elicited from the psychologist by whom Recer was tested as to mental and physical efficiency, motivation, etc., in a determination of what character of work he could and should attempt in the future, the monetary rewards to be expected therefrom, etc. We may and will take judicial notice that a modern-day practice of industry and commerce is to seek the services of psychologists (expert or not) as a part of the screening process in selecting employees from among those who offer their services. In 1969 the State of Texas (by Acts 1969, 61st Legislature, p. 2059, Ch. 713) provided for the certification and licensing of psychologists to practice in Texas by its Texas State Board of Examiners of Psychologists, a body created by the Act. See V.A.T.S., Art. 4512c, “Certification and licensing psychologists”. A man so certified and licensed was Dr. Curtis J. Firkins. He was an expert witness who testified relative to Recer. He had, as a part of his qualifications as an expert, approximately 25 years experience in the field of vocational disability determination. Not long before trial date he had spent approximately a day and a half with Recer, giving certain tests which were described, talking with him, etc., and formulating the opinion he proposed to give as an expert. Recer had begun to take a course in drafting and was, by testimony from another witness, shown to be progressing satisfactorily in the school he was attending. From such witness there had been elicited testimony as to the amount Recer should be able to make after he qualified to work as a draftsman. Based upon a hypothetical question propounded to Dr. Firkins, which had been no doubt prepared with his aid, Recer’s attorney elicited from him the opinion, as an expert, that Recer would be able to substantially perform the tasks of a workman who was a draftsman, as work he could do most fruitfully by way of an occupation in the future. Texas Steel vigorously objected to the reception of Dr. Firkins’ testimony on the ground that it invaded the province of the jury to determine the future disability of Mr. Recer. Following the reception of Dr. Firkins’ testimony Recer offered the testimony of a Dr. Floyd Durham, Professor of Economics at Texas Christian University. He testified that his specialty was income, employment and labor, and stated that he was qualified to make determinations of lost income and diminished earning capacity. By so testifying, certainly if the trial court deemed the evidence such as to make of the subject matter one wherein the character of evidence tendered would be “expert” testimony, the proffered evidence would be admissible. The weight to be given it as evidence would be for the jury. Dr. Durham was asked what would amount to a series of hypothetical questions based upon earlier testimony concerning Recer’s anticipatory earnings (had he been able to continue in that same character of employment in which he was engaged on September 15, 1969) and also based upon anticipatory income from his intended future work as a draftsman. Additionally a similar hypothetical question posed inquiry upon projected (by economics) earnings of Recer as a millwright, an occupation in which he had once been engaged but in the performance of which he claimed he would be in the future hampered in performing due to his disability. In replying to the hypothetical question (s) Dr. Durham assumed (his own independent testimony having shown the fact) that Recer’s expense account and automobile furnished pursuant to his past employment comprised part of his remuneration — or was a benefit from employment — in addition to the salary paid. In giving his answer, or answers, Dr. Durham made what would amount to mathematical calculation of loss of earnings or calculation as to lost earning capacity in the past. Mathematical calculation was made upon the loss of earning capacity during the three periods when Recer was unable to work because of time in the hospital for operations, plus the recuperative period thereafter entailed until able to return to work, and plus the period from November, 1970 (when he ceased to work at what had been his former employment by Pangborn Corporation) until time of the trial. Additionally, the witness testified to mathematical amounts projected by economics as indicated by the hypothetical question referred to in the paragraph immediately preceding. A convenient summary of Dr. Durham’s testimony was provided by Recer in his brief, as follows: DIMINISHED EARNING CAPACITY Texas Steel vigorously objected to the reception of Dr. Durham’s testimony on the ground that it invaded the province of the jury to determine the damages sustained by Recer (other than pain and suffering and medical expenses). The same character of contention opposed the propriety of argument upon the per diem measure of pain and suffering in a personal injury case in Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153, 164 (Fort Worth Civ.App., 1959, writ ref., n.r.e.). The holding of the propriety of such argument is now recognized by Texas law. The question of whether the witnesses were indeed experts has given us some trouble. Our conclusion, however, it that the trial court was entitled to treat them as such and to receive their evidence as expert testimony. That such was within the province and discretion of the court in a case where the witnesses tendered testified as experts in the field of diving safety was one of the holdings of this court in Urquhart v. Barnes, 335 S.W.2d 666, 669 (Fort Worth Civ.App., 1960, no writ hist.). The same holding would be proper concerning the testimony here. There was not an abuse of discretion on the part of the trial court in admitting such as evidence by experts, and in treating their testimony as “expert”. There is no question but that the evidence was not absolutely necessary or essential to be proved as a part of Recer’s case. As already noticed he merely chose to offer such in going further than the law required to establish his damages with definiteness and certainty. See text on background and related matters in the forepart of'60 A.L.R.2d, p. 1347, Annotation: “Per diem or similar mathematical basis for fixing damages for pain and suffering”; 22 Am.Jur.2d 44, “Damages”, Sec. 25, “As to amount”; 32 C.J.S., “Evidence” § 446, p. 62, “Invasion of Province of Court or Jury in General”, Sub. b., “Skilled or Expert Witnesses”, and following on the same subject at p. 70, Sec. 447(2), "- Admission of Opinion Evidence”. In McCormick on Damages, p. 109, “The Problem of Proof”, is stated under Sec. 29, as follows: “ ‘Estimates’ or ‘opinions’ as to the profits that would have been made, that" is, the amount of the lost profits, stand on a different footing. If concrete data, such as the past profits of the same or other businesses, are furnished by the proof, then a witness having special experience in the field, may be allowed to interpret the data by giving his opinion therefrom as to the probable profits that would have been made. But, if no such data are available, or if the witness has no special skill or knowledge, his opinion does not lessen the uncertainty of the inference, and it is inadmissible.” The text writer might well have stated the last sentence conversely, that if the witness has special skill or knowledge so that his opinion would lessen the uncertainty of the inference it would be admissible. On pages 302 to 306 in McCormick’s book is stated the development of use of life expectancy tables, now universally acknowledged to be proper to be introduced. On page 306, “Personal Injuries”, under Sec. 86, “Impairment of Future Earning Capacity”, it is stated: “This expression of attitude on the part of the court raises fundamental questions of policy about our haphazard methods of assessing compensation in actions for personal injuries. Admittedly, the practice of isolated awards by juries, inexperienced in such matters, and having no accurate knowledge of results in other similar cases, is intuitional and unscientific. . . . It is suggested that the courts should shift from the present extreme emphasis upon caution in the use of the tables (under discussion was material collected upon life expectancy and upon present value of future income) to a willingness for actuarial witnesses in their testimony and counsel in argument to develop the application of these statistical methods of measuring economic values of human life and limb to their full limits of usefulness.” We need not go so far as to make recommendation like unto that of Professor McCormick. We need only pass upon the propriety of admitting the testimony of Dr. Firkins and Dr. Durham. We hold same to have been admissible within the discretionary power of the court, which discretion was not abused by admitting the testimony. Texas Steel complains because of the $2,600.00 finding of the jury as future medical and hospital expenses to be incurred. Admitting that there was some testimony concerning the need for future expenses of such nature, Texas Steel contends that the size of the figure is purely speculative and not based upon any testimony concerning any reasonable probability. At the time of trial, as was shown, Recer’s life expectancy was 26.2 years. Thus, by resort to the medical evidence it is obvious that the jury allowed him $100.-00 per year, or an amount which would contemplate such expenditure when averaged over 26.2 years. Here we have a case where there would be no doubt that future expenses will, in all reasonable probability, be necessary. Furthermore, where there is not doubt as to the character of medical attention to be entailed. The only guide to amount is the very high ($7,784.88) amount expended since September 15, 1969, and to the time of trial; but this involved over $7,000.00 in expense attendant to three operations on Recer’s back. While not shown to be necessary, but a possibility merely , was medical evidence that an operation in the future might become a necessity. A more likely possibility would be that Recer might be required to undergo therapy, perhaps in a hospital. A probability is that Recer will find it necessary to resort to medication and drugs, charges for which would be along the lines of previous drug charges. Previous medications and drugs amounted to $151.55. Within the limitation that the award in the respect considered be not excessive, the jury should be entitled to exercise its common sense and general knowledge in its determination of future medical expenses which likely will be required. Here we do not deem the amount of the award to be excessive. The application of the jury’s common sense and general knowledge was called into operation because it was entitled to believe that the condition of injury and infirmity shown as existent was such that medical, etc., attention would in reasonable probability be required; — that it having been shown that Recer did not hesitate to resort thereto when such was needed in the past the presumption followed that he would not hesitate to do so again,- — that since there had been expense involved in the medical, etc., attention obtained in the past,- — that it followed that there would be expense attached to Recer’s resort thereto in the future. Lieske v. Natsuhara, 165 Wash. 270, 5 P.2d 307 (1931). The rule of requisite certainty in proof consistent with the practicality of its production was sufficiently satisfied in this instance. Texas Steel presents a point of error contending that if no one error be sufficient in itself to evidence reversible error nevertheless the cumulative effect of the errors involved was sufficient to exhibit reversible error in the verdict and judgment. Since we have found only that there was error in the admission for general purposes (and not for the restricted purpose whereby it was admissible) that portion in the history given by Dr. Boals’ report which stated that Recer’s back pain began immediately after he sustained injuries on September 15, 1969, and since we have held that in light of the entire record such did not amount to reversible error, there obviously could be no cumulative error in the case. Remaining as a matter of complaint is the contention of Texas Steel that the findings upon damages were excessive and against the great weight and preponderance of the whole of the evidence in the case. This complaint we overrule. Rarely have we seen more meticulous proof to establish the items of damage to be expected in the future (save for the item upon reasonable medical expense to be expected in the future) and such proof fully supports the damages found. The damages which had accrued prior to the time of the trial were adequately established by the evidence, and there has been minimal difficulty in determining the propriety of the findings relative thereto. There was no complaint of jury argument. There is nothing in the record indicative of any passion, prejudice or other improper motive on the part of the jury in its assessment of damages; rather does the record reflect that the jury carefully followed the evidence produced before it and dispassionately arrived at the several amounts found for the guidance of the court in rendering judgment. Judgment is affirmed. LANGDON, J., not participating. ON MOTION FOR REHEARING On rehearing Texas Steel finds fault with our failure to discuss its points of error insisting that the overhead traveling crane and its cab was so open and obvious to Recer and patently constituted a dangerous condition to him, as a person in the path of the cab and crane, that it owed no duty to warn Recer and owed no duty with respect to the other instances of negligence found. Texas Steel contends that the court should have disregarded the findings upon such issues, all of which were submitted to the jury over its objection. In the opinion we noted that the jury, in connection with Texas Steel’s issues under its pleaded defense of volenti non fit inju-ria, refused to find that Recer voluntarily assumed risk of injury in getting into and remaining in the position of danger where he sustained his injuries as result of being struck by the cab of the crane. The issues bore upon the pleaded defense mentioned and not directly upon the concept of “no duty”, as to which Recer was required to carry the burden of proof. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 458, (Tex.Sup., 1972) is the latest of the cases by the Supreme Court upon the theories of “no duty” and rrvolen- ti” in suits for damages by a plaintiff “invitee” (as Recer) against the owner/operator of premises where plaintiff was allegedly injured. Justice Pope, author of the opinion, goes so far as to indicate his thoughts relative to the proper submission of special issues in such a case. The case discussed was one where “no duty” and “volenti” went “hand in hand”. The same is true in the case presently before us. Here the trial court “tracked” the special issue submission indicated by Adam Dante. The trial court, deeming both theories to have been raised by pleadings and finding (as was within the province of the court) that they were raised by the evidence, submitted the special issues indicated by Justice Pope. On “no duty”: By Adam Dante Recer was not required to obtain a jury finding that he did not actually know and did not appreciate the danger, but he was merely required to present evidence making a prima facie case to that effect. By his proof of a prima facie case on “no duty” a character of obligation was cast upon Texas Steel to “go forward with the evidence” upon its affirmative defense of "volenti”. On such affirmative defense Texas Steel was required to seek (under its evidence) the submission of special issue inquiry to the jury (with the burden thereof cast upon it) inquiring whether Recer had voluntarily assumed the risk of injury. This was the manner by which the case was submitted to the jury and no attack is made upon the mode of framing the court’s charge on these theories. Thus, primarily, the contention of Texas Steel is that there was no evidence whereby Recer might be said to have discharged his burden of proof upon “no duty”. Secondarily, its contention is that the trial court’s necessarily implied finding that such burden was discharged was contrary to the greater weight and preponderance of the evidence by the whole record. On this we hold that there was sufficient evidence of probative force by which the trial court correctly treated Re-cer’s duty as discharged; and that the necessarily implied finding by the court that the burden was discharged was not against the greater weight and preponderance of the evidence. We again note that we have held that the jury’s negative finding, or refusal to find, that Recer voluntarily assumed risk of injury — Texas Steel’s defensive issue — was not contrary to the greater weight and preponderance of the evidence. The motion for rehearing is overruled.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

EXXON CORPORATION, Appellant, v. BUTLER DRILLING COMPANY et al., Appellees. No. 16299. Court of Civil Appeals of Texas, Houston (1st Dist.). April 11, 1974. Rehearing Denied May 16, 1974. Frank L. Heard, Jr., William A. Dun-canson, Robert D. McGee, Houston, for appellant. Frank M. Bean, Houston (Bean & Manning, Houston, of counsel), for appellees. PEDEN, Justice. Butler Drilling Company and Production Maintenance Company brought this action against Exxon Corporation, successor to Humble Oil & Refining Company, for damages to their drilling rig and related equipment resulting from a blowout and a fire on October 24, 1966. On September 13, 1966 Butler commenced drilling a well for Humble under the terms of a Master Drilling Contract. On September 28, 1966 Humble provided a 2-inch Nordstrom valve as called for in the Drilling Order, which was made part of the Master Drilling Contract. Humble had conducted a visual examination of the valve, manual operation tests, pressure tests with water to 4500 pounds per square inch, and had inserted lubricants or sealants in the valve prior to delivery to Butler. On the day of delivery the valve was successfully tested after installation on the well head to 2350 PSI. As part of the efforts to complete the well, the valve was opened so the blowout preventers could be washed out, and it was left open. A new crew came on duty following the washing out process and began cleaning up the rig site. The driller was unable to clear the mud away from the area where the Nordstrom valve was located. It was found that mud was flowing from the well through the valve, so an attempt was made to close the valve, but it failed to hold. The driller tried to open and close the valve to see if the valve plug was properly seated, but the flow of mud continued and it was accompanied by gas. An hour or an hour and a half later the fire which damaged Butler’s drilling rig started. In response to special issues bearing the indicated numbers, the jury made these findings: 1) the involved valve was in a defective condition when furnished by Humble for the use of Butler; 2) such defective condition was latent (i. e., could not have been discovered by the exercise of ordinary care); 3) before furnishing the involved valve for the use of Butler, Humble failed to make such an inspection of it as would have been made by an operator using ordinary care and 4) such failure was a proximate cause of the occurrence in question. The jury did not find from a preponderance of the evidence that 5) after receiving the valve from Humble, Butler failed to make such an inspection of it as would have been made by a drilling contractor using ordinary care; 7) on the occasion in question Butler failed to keep such a lookout for movement of mud from the valve as a drilling contractor using ordinary care would have kept or that 9) on the occasion in question Butler failed to make such closure of the valve as a drilling contractor using ordinary care would have made. The jury was not required to answer predicated defensive issues numbers 6, 8 and 10, which inquired as to proximate cause. Appellant’s fifth point of error is that the trial court erred in overruling the appellant’s motion for judgment on the verdict because the jury found that the defective condition of the valve was latent. Appellant’s twelfth point of error is that the trial court erred in denying appellant’s motion for a new trial and in entering judgment on the jury verdict because the jury’s answers to special issues number 2 and 4 are in irreconcilable conflict and cannot support the judgment entered. We will consider the fifth and twelfth points of error together. “To require a judgment entered on a verdict containing conflicting answers to be set aside, the conflict between the answers must be such that one answer would establish a cause of action or defense, while the other would destroy it “To apply this test, the court must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer but taking into consideration all of the rest of the verdict, and if, so considered, one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict. It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.” Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 147, 222 S.W.2d 985 (1949). Our Supreme Court has also stated: “A conflict in jury findings will not prevent the rendition of judgment and require a mistrial unless the findings, considered separately and taken as true, would compel the rendition of different judgments. . . Moreover, it is the duty of the courts to reconcile apparent conflicts in jury findings if that can reasonably be done.” Texas & Pacific Railway Company v. Snider, 159 Tex. 380, 321 S.W.2d 280 (1959). We have noted that by its affirmative answer to Special Issue No. 2 the jury found that the defective condition of the Nordstrom valve was latent, and a latent defect was defined as one which could not have been discovered by the use of ordinary care. In answering Special Issue No. 4 the jury found that before furnishing the valve for Butler’s use, Humble’s failure to make such an inspection of it as would have been made by an operator using ordinary care was a proximate cause of the occurrence in question. The jury was instructed that a valve is in a defective condition if it is unreasonably dangerous to the user or his property, that is to say, dangerous to an extent beyond that which would be contemplated by the ordinary user with the knowledge available to him as to the characteristics of the valve. These findings appear to be in conflict. If the defective condition of the valve could not have been discovered by the use of ordinary care, then Humble’s failure to use ordinary care in inspecting the valve could not be a proximate cause of the occurrence giving rise to this suit. We hold that under the evidence in this case the conflict between issues 2 and 4 can be reconciled. Special Issue No. 1 asked whether the valve was in a defective condition “when furnished.” Special Issue No. 2 was predicated on an affirmative answer to Issue No. 1, so the same time reference is involved in the finding that the defective condition was latent. On the other hand, Issue No. 3 asks whether Humble failed to use ordinary care in making its inspection “before furnishing” the valve to Butler, so predicated Special Issue No. 4, the proximate cause issue, also applies to the time before the valve was furnished by Humble. There is opinion evidence in the record that a defective condition of the valve such as scoring on its plug or body could be discovered only by an internal inspection. Under the evidence in this case the jury was entitled to believe that since Humble had had the valve stored in a warehouse before delivering it to Butler at the well for installation, the exercise of ordinary care required Humble to disassemble the valve for an internal inspection before delivering it. The evidence also permitted the jury to decide, however, that the exercise of ordinary care did not require an internal inspection by Butler after it received the valve in the field. We overrule the appellant’s fifth and twelfth points. In Humble’s first four points of error it alleges that it had no duty to inspect the valve prior to its delivery to Butler because Section 13.8 of the Master Drilling Contract relieved Humble of the duty to inspect the equipment provided to Butler and contractually placed that duty upon Butler. Absent this contractual provision, it is clear that since Humble had a business interest in supplying the Nordstrom valve to Butler, Humble had a common law duty to exercise reasonable care to discover its dangerous condition or character. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Restatement, Torts, Sec. 392. “Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract.” Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W. 2d 508 (Tex.1947). Section 13.8 states: “Inspection of Materials Furnished by Operator: Contractor (Butler) shall carefully examine all casing, equipment, machinery, tools or other items furnished by Operator (Humble) and if any defects are found therein sufficient to make the use of any such items unsuitable or unsafe. Contractor (Butler) shall immediately notify Operator (Humble) of such defect or defects and Operator (Humble) shall at once replace the items so found defective. Should Contractor (Butler) fail to report a defect in such item or items, Contractor (Butler) shall be deemed to have assumed all risks and all liability for any mishap which may occur in the drilling of said well by reason of failure or defects in such casing, equipment, machinery, tools, or other items except for failure due to latent defects.” Does this language requiring Butler to carefully examine the Nordstrom valve provided by Humble relieve Humble of its common law duty to provide Butler with suitable and safe equipment ? Humble contends that the entire duty of inspection is placed upon Butler and that Butler assumed all risk and all liability for the failure of the defective valve unless the defect causing the mishap was latent. Butler contends that Humble’s duty to inspect is not relieved by Section 13.8, its effect being to place an additional duty on Butler; that Butler assumed all the risk and liability only when it failed to report a patent defect to Humble. We hold that the contract relieves Humble from liability only where damages are caused by patent defects which Butler fails to report to Humble. Under the jury findings in this case, as reconciled, the exercise of ordinary care required Humble to disassemble the valve before delivering it to Butler but did not require Butler to do so after receiving it. The contract did not relieve Humble of its common law duty to make a reasonable inspection (i. e., disassemble the valve) nor require Butler to assume the risk because when the valve was delivered to Butler the defect was latent. We overrule the appellant’s first four points. Appellant’s sixth point of error complains of the trial court’s refusal to submit to the jury special issues and a definition requested by the appellant relating to Butler’s failure to timely close the valve. The refused material was: “Do you find from a preponderance of the evidence that Butler Drilling Company failed to timely close the Nordstrom valve after hanging the 5½ inch casing? “In connection with the above and foregoing Special Issue you are instructed that the word ‘timely’ is defined as the time at which a persdn of ordinary care under the same or similar circumstances would have taken such action. “If you have answered (the foregoing) Special Issue ‘Yes’, and only in that event, then answer: “Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of the blowout?” We overrule this point because we believe the refused issues and definition are but other phases and shades of Special Issues No. 9 and 10 which were submitted to the jury. In No. 9 the jury was asked whether, on the occasion in question, Butler failed to make such closure of the valve as a drilling contractor using ordinary care would have made. Rule 279, Texas Rules of Civil Procedure, requires only that the controlling issues be fairly submitted. See Hullum v. St. Louis Southwestern Railway Co., 384 S.W.2d 163 (Tex.Civ.App.1964, writ ref. n. r. e.). We find in the record no objection by the appellant to Special Issue 9 or 10. In appellant’s seventh point it says the trial court erred in refusing its motion to strike the answer of Butler’s expert witness James Scott in response to a hypothetical question inquiring as to his opinion on whether scoring of the Nordstrom valve existed at the time it was furnished by Humble because there were insufficient facts to support his answer. In its next point of error the appellant says the trial court should not have submitted Special Issue No. 1 because there was no evidence to support its submission, arguing that only James Scott’s testimony purported to support the submission of the first issue. Mr. Scott qualified as an expert and testified in response to a hypothetical question that in his opinion the Nordstrom valve failed because it was internally scored at the time it was furnished to Butler by Humble. It is the appellant’s position that Mr. Scott’s testimony regarding the defect should be stricken since his answer to a subsequent question was that his opinion was based neither on facts within his personal knowledge nor on those contained within the hypothetical question. The testimony in question, taken on cross-examination, was: Q. “Is there anything that you know that was not stated in the question with regard to its usage prior to the time it was mounted that would suggest to you that it was damaged or scored prior to the time of mounting? A. “Not from personal knowledge, no, sir. Q. “So, if I understand your testimony then, you have no specific information and none out of the question which was propounded to you from which you can state it was — from which you can have an opinion that it was damaged before the mounting or after the mounting ? A. “That’s right.” We do not agree that the appellant’s interpretation of this answer by Scott is the only logical one. The trial court was entitled to conclude after considering all of his testimony that he meant by his answer that his opinion was based neither on personal knowledge nor on assumed facts which he had obtained outside of the hypothetical question. We think he did not mean that he had failed to base his opinion on facts stated in the hypothetical question. Objections had been made, at the time the hypothetical question was asked, that two relevant facts had been omitted: that the valve had been hydrostatically tested by Humble at its prior location and that Butler had opened and closed it under pressure. The alleged omissions in the question were later supplied, and Scott testified that none of the additional facts changed his mind. His opinion that there was a defect at time of delivery to Butler properly remained before the jury, and his testimony alone provides sufficient evidence for the jury’s finding. The appellant’s ninth point of error asserts that the trial court erred in refusing to submit a series of special issues, the first of which was: “Do you find from a preponderance of the evidence that following the hanging of the 5y2" casing Butler Drilling Company failed to connect the tapped bull plug and needle valve assembly to the Nordstrom valve ?” We also overrule this point. It is not clear from the evidence what is meant by “hanging” of the 5½" casing, but it appears that the reference was to a time soon after the blowout preventers were washed out. It is uncontroverted that Butler failed to connect the tapped bull plug and the needle valve assembly to the Nords-trom valve after they were removed for clean-up operations and prior to the blowout. Rule 272, Texas R.C.P. includes a provision that the court’s charge “shall only submit controverted questions of fact.” The remaining issues of this series were submitted conditioned on an affirmative answer to this one. Refusal to submit issues conditioned on an affirmative answer to another refused issue is not improper. Isenhower v. Bell, 365 S.W.2d 354, 358 (Tex.1963); Chermanie v. Scott, 324 S.W.2d 87, 89 (Tex.Civ.App.—1959, writ ref. n.r.e.). The trial court did not err in refusing to submit the issues as requested; in order to preserve error the appellant should have requested unconditional submission of the disputed questions of fact. See Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963). Appellant complains in its tenth point of error that the trial court erred in overruling its motion to disregard the jury’s negative finding in response to Special Issue No. 7 (which asked whether Butler failed to keep a proper lookout for movement of mud from the valve) because the undisputed evidence established that Butler failed to maintain any lookout at the valve immediately before the blowout. We hold that there is some evidence that Butler’s employees kept a lookout at the valve at the time in question, and we overrule the point of error. It is well settled that the standard of conduct to meet the legal test of ordinary care is ordinarily a matter peculiarly within the province of the trier of facts. A careful examination of the entire record discloses that the evidence regarding the lookout for movement of mud is such that it was proper for the court to submit the issue to the jury and to abide by its finding. The appellant’s remaining point of error alleges that the trial court erred in failing to strike the answer of Mr. Herbert Shilstone, an expert witness called by Butler, given in response to a hypothetical question asking the possible causes of the Nordstrom valve’s failure after it was tested; the appellant argues that the witness was asked to assume facts having no basis in the evidence. We do not agree with the appellant’s premise that the assumed facts had no basis in the evidence, but in any event the error, if any, was harmless under Rule 434 because the facts in question were supplied by the testimony of Mr. Scott. Affirmed.

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2024-08-24T03:29:51.129683

DAVIS BROTHERS, Appellants, v. MISCO LEASING, INC., Appellee. No. 8407. Court of Civil Appeals of Texas, Amarillo. Feb. 19, 1974. Gordon Treadaway, Lubbock, for appellants. Crenshaw, Dupree & Milam (William J. Wade), Lubbock, for appellee. ELLIS, Chief Justice. In this suit on an agreement designated as a lease covering certain irrigation equipment, the trial court entered judgment in favor of Misco Leasing, Inc., lessor, against Davis Brothers, lessees, and Plains Supply Company, the supplier and guarantor, for the recovery of a deficiency after repossession and sale of the equipment. A default judgment was taken against Plains Supply Company. S. E. Davis and D. D. Davis, herein known as Davis Brothers, brought this appeal. At the time of the execution of the equipment lease by Misco Leasing, Inc., herein known as “Misco,” the Davis Brothers were engaged in a farming operation in Lubbock County, Texas, on land leased by D. D. Davis from Edwin L. Forrest. The farm lease contained a requirement that the lessee provide a minimum of two irrigation sprinkler systems on the land. In order to comply with the farm lease provisions, the Davis Brothers contacted Dale Brown of Plains Supply Company in Lubbock, whereupon Brown placed two such irrigation systems on the leased premises. At the time the systems were placed on the land, the Davis Brothers made no arrangements with Brown to pay for equipment. Dale Brown was requested by D. D. Davis, and Brown agreed, to arrange for financing of the purchase price of the equipment. Brown agreed that if he was unable to arrange for financing, Plains Supply would finance the purchase. These particular sprinkler systems were the first of a line and Dale Brown was interested in placing them on the land leased by the Davis Brothers in order to have a working system available for display to potential customers. The leasing arrangement involved here is the method Dale Brown chose to finance the transaction. Misco had previously furnished lease application forms to Plains Supply which, in this instance, were filled out by Dale Brown. E. R. McGee, Misco’s representative in Lubbock, picked up the application from Brown and forwarded it to the Wichita, Kansas office of Misco Leasing, Inc. The normal procedure in such a leasing arrangement is for the lessee to select the equipment of his choice from a supplier. A lease application is then sent to the' les-/ sor, who runs a credit check on the applicant to determine whether the transaction is feasible. If the lessor desires to enter into the arrangement, it then purchases the equipment from the supplier and executes a lease agreement with the lessee. In the instant case, when Misco received the application from E. R. McGee, it initially determined that it would not be feasible to enter into the arrangement with the Davis Brothers. However, upon execution of a written guaranty agreement between Plains Supply and Misco, whereby Plains Supply guaranteed the payment of the Davis Brothers’ obligations thereunder, Misco decided to enter into the lease agreement. On April 12, 1968, D. D. Davis and S. E. Davis signed the agreement. It is undisputed that neither of them read the instrument before or after they signed it. The terms of the lease indicated that the equipment, with a total cost of $15,000, was being leased to Davis Brothers for an initial term of sixty months. It provided for twenty quarterly payments of $1,023.75 plus a security deposit of $3,071.25. The lease could be renewed at the end of the initial term for a renewal premium of $450 per year. The agreement was signed by a representative of Misco on April 18, 1968 and on May 2, 1968, an executed copy thereof was mailed to the Davis Brothers, along with a letter, signed by Melvin Pankratz, credit manager of Misco, which contained the following language: “This agreement includes a clause providing for renwal (sic) of the lease after its initial term, at an annual rental of $450.00, payable each year in advance on its anniversary date. In the event you should wish to purchase this Irrigation System, however, you may do so for its fair market value at that time, but not to exceed ten percent of its original total price.” Misco then sent a check for $15,000 to Plains Supply in payment for the equipment. Prior to this, however, Dale Brown had sent to Misco a check in the total sum of $4,095, representing the required security deposit of $3,071.25 plus the first quarterly rental of $1,023.75. The Davis Brothers knew nothing of this payment, but Melvin Pankratz testified that such procedure was not uncommon. Dale Brown testified that the purpose of this payment was to compensate the Davis Brothers for the inconvenience in the event Brown had to interrupt their watering cycle to show the system to prospective customers. The Davis Brothers used the equipment for two years, whereupon they lost their lease on the Forrest land, left the sprinkler systems on the land, and ceased making payments to Misco. Thereafter, at the direction of Misco, Dale Brown had a notice of private sale printed in a Lubbock newspaper, stating that bids for the purchase of the systems would be accepted at the Wichita, Kansas office of Misco no later than April 12, 1970, and that the sale would be held on April 15, 1970. A single bid of $4,000 was received from, and the equipment was sold to, Dean Chenoweth of Haviland, Kansas. This suit was brought by Misco to recover the amount of the deficiency claimed to be owing under the agreement. Plaintiff’s petition alleged a total debt of $21,975, with allowable credits in the total sum of $10,142.50, consisting of $6,142.50 in lease payments received by Misco, plus $4,000 received from the sale of the equipment to Chenoweth, leaving a deficit of $10,332.50. After trial without a jury, judgment was awarded to Misco for the sum of such deficit, interest in the amount of $3,960.80, attorney’s fees in the amount of $2,000, together with legal interest on such judgment from the date thereof. From such judgment Davis Brothers have brought this appeal asserting eleven points of error. Basically, an examination of the trial court’s judgment and the findings of fact and conclusions of law reveals that the trial court regarded the transaction strictly as a lease, rather than a security interest subject to the Texas Business and Commerce Code (UCC). We have examined all of appellants’ assignments of error, including the various aspects of their complaints and objections regarding the trial court’s findings of fact and conclusions of law and the refusal of the court to make appellant’s requested findings concerning the “lease — security interest” questions, as well as their contentions that this transaction is subject to the provisions of the UCC, the state usury laws and prohibitions against unauthorized penalties and forfeitures. We have concluded that the focal issue in this appeal is whether there is adequate evidentiary support for the court’s judgment impliedly finding that the agreement and transaction forming the basis of this suit was a lease that did not create a security interest subject to the provisions of the Uniform Commercial Code. Specific challenges of the evidentiary support for the court’s judgment are found in appellants’ seventh point of error wherein they urge that the trial court erred in its conclusion of law that “BASED UPON THE EVIDENCE PRESENTED” the plaintiff was entitled to the specific judgment entered against Davis Brothers for the reasons that the judgment is not supported by proper findings of fact, and that there is no evidence and there is insufficient evidence to support the findings of fact upon which the conclusion of law is based. Also, the appellee takes the basic position that the transaction was a lease not subject to the UCC and that the appellants’ complaints regarding the application of the UCC and usury laws need not he reached. In appellants’ points of error one and two, it is contended that the trial court erred in refusing defendant’s request for conclusions of law (1) that the option to purchase after the lease term was for a nominal consideration, and thereby created a security interest as a matter of law under the Texas Business and Commerce Code (UCC) and (2) that under the facts of this case the parties intended the lease to be “as security” under the Uniform Commercial Code. Implicit in these points of error is the complaint that the trial court erred in its implied finding that the consideration for the option to purchase was not nominal and that the parties did not intend the lease “as security.” Thus, the basic issue was joined. The appellants challenged the judgment based on the court’s implied finding and legal conclusion that under the evidence the transaction was a lease not subject to the UCC by urging, in negation thereof, their counter contentions that the evidence supports a conclusion that the agreement was one intended to create a security interest, thereby coming within the meaning of Article 9 of the Texas Business and Commerce Code, V.T.C.A. Appellants rely on Tex.Bus. & Commerce Code § 1.201(37) in support of their proposition that Article 9 of the Code (UCC) applies here. The pertinent portions of that section are: “ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. . . . Whether a lease is intended as security is to be determined by the facts of each case; however, (A) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (B) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” The recent Oregon Supreme Court case of Peco, Inc. v. Hartbauer Tool & Die Co., 500 P.2d 708 (Sup.Ct.—Oregon, 1972) dealt with a similar equipment lease, and with a statute identical in wording to Section 1.201(37) of the Tex.Bus. & Commerce Code here under consideration. In construing the statute the Court said: “At first glance the provisions of the above section may be somewhat confusing, probably because they are stated in the inverse order of importance. However, upon a careful reading of the entire section it is clear that the first question to be answered is that posed by clause (b)—whether the lessee may obtain the property for no additional consideration or for a nominal consideration. If so, the lease is intended for security. If not, it is then necessary to determine ‘by the facts of each case’ whether the lease is intended as security and, in making that determination, the fact that the lease contains an option to purchase ‘does not [of itself] make the lease one intended for security.’ ” In the light of this recommended procedure, we shall consider the question of the option to purchase and whether it could be exercised for a nominal consideration. In the instant case, the instrument denominated as the lease did not contain the option to purchase. It was instead, as previously mentioned, included in a letter sent to the Davis Brothers some three weeks after the lease agreement was entered into, accompanied by an executed copy of the agreement. Section 1.201(37) of the Business and Commerce Code makes no requirement that the option to purchase be in the body of the lease contract. The letter extending the option to purchase to the Davis Brothers is sufficiently identified as being applicable to the lease agreement involved here. The original lease instrument contains a provision for addition or alteration of the agreement so long as it is embodied in a “writing, signed and made a part hereof by an authorized officer of lessor.” The letter sent to the Davis Brothers, extending to them the purchase option, was signed by Melvin Pankratz, credit manager of Misco Leasing. The letter merely contained consistent additional terms by which the lessee was given an option to purchase the equipment. We must, therefore, look to the lease as modified by the letter to determine whether the transaction was one intended for security. In re Virginia Air Conditioning Co., Inc., 11 UCC Rep. 1260 (U.S.Dist.Ct.W.D.Va., 1972). The primary area of inquiry deals with whether the consideration for the exercise of the purchase option is nominal or substantial. The Peco case, supra, sets out, in our opinion, a reasonable rule relative to the determination of this matter. That case stated the rule as follows: “We agree that the best test is a comparison of the option price with the market value of the equipment at the time the option is to be exercised. Such a comparison shows whether the lessee is paying actual value or acquiring the property at a substantially lower price.” See, also, In re Crown Cartridge Corp., 220 F.Supp. 914 (S.D.N.Y., 1962); In re Oak Manufacturing, Inc., 6 UCC Rep. 1273 (S.D.N.Y., 1969) ; In re Universal Medical Services, Inc., 8 UCC Rep. 614 (E.D.Pa., 1970); Uniroyal, Inc. v. Michigan Bank, N.A., 12 UCC Rep. 745 (Mich.Cir.Ct.1972). Another test commonly applied to determine if the purchase option is exer-ciseable for nominal consideration is whether or not the terms of the option are such as to leave the lessee with no sensible alternative but to exercise the option. In re Vaillancourt, 7 UCC Rep. 748 (U.S.D.Ct.Maine, 1970). Both of the foregoing tests require some evidence indicative of the fair market value of the equipment at the time the lessee would be entitled to exercise the option. The record contains no evidence of such nature whereby either of such tests could be properly applied. Thus, we are unable to determine whether or not the option price is nominal. Since we have determined that the “nominal consideration” test cannot be applied herein, under the holding of the Peco case, we must now look to the actual intent of the parties to ascertain whether the purported lease agreement was intended “as security.” The mandate of the Texas Business and Commerce Code, as well as the case law, is that we must determine the parties’ intent in the light of the facts and circumstances of each case. Tex.Bus. & Commerce Code, § 1.201(37); In re Transcontinental Industries, Inc., 3 UCC Rep. 235 (N.D.Georgia, 1965); In re Walter W. Willis, Inc., 313 F.Supp. 1274 (N.D.Ohio, 1970); John Deere Co. v. Wonderland Realty Corp., 38 Mich.App. 88, 195 N.W.2d 871 (1972). Also, the substance of the document rather than mere formality of wording must be examined to determine whether the transaction involved a lease, a conditional sale, or a security interest. In re Gresham, 311 F.Supp. 974 (E.D.Virginia, 1970); John Deere Co. v. Wonderland Realty Corp., supra; Transamerica Leasing Corp. v. Bureau of Revenue, 80 N.M. 48, 450 P.2d 934 (1969); In re Walter W. Willis, Inc., supra. In re Transcontinental Industries, Inc., supra, a case quite similar factually to the instant case, enumerated a number of characteristics of the lease agreement and arrangements between the parties which indicated to the court that the actual intent of the parties was that the transaction was intended “as security.” Among those characteristics or provisions which are similar to those involved in the instant lease are: (1) the lessor’s purchase of the equipment from a supplier; (2) the lessor’s requirement of a guaranty or indemnity agreement executed by a third party; (3) payment of all taxes, insurance and expenses for repairs by the lessee; and (4) payment of a substantial security deposit by the lessee. Other similarities are demonstrated by the following statements set out in the Transcontinental Industries, Inc., case: “Upon termination of the lease period the lessee was given the first opportunity to purchase the equipment or it might renew for a rental of 2% of the cost per year .... there was no evidence of the handling of any volume of equipment by USLC. . . . No storage facilities or handling procedures were described. From this it may be conjectured that at termination of the leases the property for the most part was retained by the lessees, either through purchase or exercise of rental renewal option. “From all of these attending facts and circumstances it would appear that the lessee had no design other than to obtain the equipment and have some one finance its costs. USLC had no property to lease and had its concern only on supplying and financing at a profitable rate of earning and to be surely secure in its doing.” In response to the appellants’ discussion of the Transcontinental Industries case in their brief, the appellee refers to an article contained in law review notes- appearing in 47 Notre Dame Lawyer, 993, 1001 (April, 1972), wherein in commenting on the results reached in that particular case it was stated: “Unfortunately, this pragmatic approach is the exception, not the rule.” From an examination of the article entitled “RECORDING OF EQUIPMENT LEASES: A PROPOSED AMENDMENT TO THE UNIFORM COMMERCIAL CODE,” we note that considerable emphasis was placed upon difficulties in discerning between a sale and a lease because of the prevalence of what is called “third party leasing.” “Under such an arrangement, the lessor is actually a financial institution which acquires the equipment from a supplier for the specific purpose of filling the needs of the prospective lessee. The article is shipped directly to the lessee with the lessor never handling it. The lessor recoups his investment, plus interest, from the rental paid by the lessee under a long-term lease, often with an option to purchase.” The changes proposed by the article would bring leases of industrial and commercial equipment within the scope of Article 9 of the Uniform Commercial Code regardless of whether they are intended as security. Such changes are designed to eliminate the problems in making the factual determinations as to whether a “lease” is intended as security rather than a true lease. Although the “pragmatic” approach in reaching the result in the Transcontinental case may be regarded as the exception rather than the rule, it is our opinion that the characteristics of the arrangements dis-cussed in that case, although not necessarily determinative of the parties’ intent, may be properly considered, along with the other facts and circumstances bearing on such intent. The case of In re Alpha Creamery Co., Inc., 4 UCC Rep. 794 (W.D.Mich., 1967) establishes certain guidelines which indicate that the character of a transaction is a true lease rather than one intended as security. The indicators are as follows: “(a) Provision specifying purchase option price which is approximately the market value at the time of the exercise of the option. “(b) Rental charges indicating an intention to compensate lessor for loss of value over the term of the lease due to aging, wear and obsolescence. “(c) Rentals which are not excessive and option purchase price which is not too low. “(d) Fact showing that the lessee is acquiring no equity in leased article during the term of lease.” In the above mentioned article in 47 Notre Dame Lawyer, reference was made to the problems recognized by the accounting profession in making factual determinations in connection with proper accounting for equipment leases. The article specifically mentioned Opinion No. 5, “Reporting of Leases in Financial Statements of Lessee” issued by the Accounting Principles Board of the American Institute of Certified Accountants, issued in September, 1964, wherein it was pointed out that the standard for distinguishing between lease and sale is the presence of terms which create in the lessee a “material equity” in the property. It was further noted that the inclusion in the lease of either of the following features will usually establish this factor: “a. The initial term is materially less than the useful life of the property, and the lessee has the option to renew the lease for the remaining useful life of the property at substantially less than the fair rental value; or “b. The lessee has the right, during or at the expiration of the lease, to acquire the property at a price, which at the inception of the lease appears to be substantially less than the probable fair value of the property at the time or times of the permitted acquisition by the lessee.” The guidelines above set out are, in our opinion, reasonable for consideration in connection with the factual determinations as to whether a particular transaction between parties is a true lease or one intended as security. However, in order to apply such guidelines, it is necessary that the record contain evidence of the fair market value of the equipment at the time the purchase option may be exercised; evidence of the depreciation schedule and anticipated useful life of the equipment; and evidence as to whether the rental payments are indicative of customary rental rates for similar equipment or are indicative of an acquisition of equity in the equipment. The lack of evidence of this nature in the record makes it impossible to apply such guidelines. Thus, the absence of essential evidence precludes either a legal conclusion or a factual determination of the true character of the agreement on which the transaction was based. From a review of the record, we find the evidence was insufficient to support the implied findings and the judgment based thereon that the transaction was a lease not subject to UCC requirements. Likewise, we find that the record will not support the appellants’ contention that the evidence establishes as a matter of law that the agreement in question created a security interest. We hold, therefore, that by reason of the lack of necessary eviden-tiary support on the basic issue, the court erred in rendering the judgment based upon its implied finding as to the nature of the transaction. Thus, the judgment allowing appellee’s recovery cannot be permitted to stand and should be reversed and remanded to enable the parties to more fully develop the essential evidentiary matters relating to the controlling issue. In view of the remand, discussion of the remaining points of error, dependent upon resolution of the character of the agreement in question, is pretermitted. Accordingly, it is our opinion that the rights of the parties should not be foreclosed under the present state of the record, and in the interest of justice, the judgment is hereby reversed and the cause remanded.

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Dolly J. LOFTON et al., Appellants, v. Raymond NORMAN et al., Appellees. No. 825. Court of Civil Appeals of Texas, Corpus Christi. April 25, 1974. Rehearing Denied May 16, 1974. O. F. Jones, Victoria, for appellants. Arthur Lapham, Donald A. Edwards, Victoria, for appellees. OPINION YOUNG, Justice. This is a suit for wrongful death which arose from two separate and distinct automobile collisions. Automobiles driven by Jimmie R. Lofton and Raymond Norman collided at night November 21, 1970, on Texas Farm Road #236 a few miles west of Victoria. The automobiles came to rest side by side, facing west and obstructing both the northbound and southbound lanes of travel of the road. While attempting to remove his automobile from the road, Lof-ton was injured when the Norman automobile was knocked into the Lofton automobile by an automobile driven by Mrs. Mai Gottschalt Harwell. Lofton died as a result of injuries he sustained in the second collision. The suit was brought by Lofton’s statutory beneficiaries, Dolly J. Lofton, widow, in her individual capacity and as guardian of the person and estate of her minor daughter, Peggy Luann Lofton, against Norman, Mrs. Harwell, Horace Mann Insurance Company and Clarence Atzenhof-fer, Jr. The cause against the insurance company was ordered severed to be tried at a later time. Trial was to a jury which found that the second collision was proximately caused not only by certain acts of negligence of defendants Norman and Harwell but also by certain acts of contributory negligence of Lofton. The trial court entered a take nothing judgment and subsequently overruled plaintiffs’ amended motion for new trial. The plaintiffs appeal. Farm Road #236, with two lanes for travel and a total width of 24 feet, runs generally north and south. The first accident happened as follows. Norman backed his sedan easterly onto the road from a driveway of one of several rural homes in the vicinity. The sedan, driven by Lofton, was proceeding southerly and skidded sideways into the side of the Norman car. The impact was slight. The record reflects only minor damage to the vehicles and no personal injuries. After this collision, the vehicles were at rest virtually parallel to each other, perpendicular to and straddling the center stripe and effectively obstructing both lanes of travel. The first collision occurred at about six o’clock p.m. It was dark at the time. Then, Norman and Lofton alighted from their vehicles and began a discussion in front of their cars about whether to remove their cars from the middle of the road or leave them in position until investigating officers arrived. While this discussion was in progress, at least one vehicle, driven by defendant Atzenhoffer, came upon the accident scene from the north. Atzenhoffer slowed his pickup and drove around the east side, being the rear, of the Norman and Lofton cars. Thereafter, he parked to the south of the scene on the west shoulder of the road. Atzenhoffer said he followed another car around the scene. The driver of that car did not testify. This traffic seemed to further alert Lofton to the potential danger of the stationary cars in the middle of the road. He then terminated the conversation with Norman and began to walk between the cars preparatory to moving his car from the road. While he was so engaged, the Har-well vehicle, proceeding from the south, struck the Norman vehicle propelling it into the Lofton vehicle. Lofton apparently was crushed between the latter two vehicles. In this second collision, Lofton received the injuries causing his death which is made the basis of this suit. The elapsed time between the first and second collisions was estimated to be from two to four minutes. In response to the special issues submitted (72 in number), the jury: found that defendant Norman committed several acts of negligence proximately causing the first collision; found that Norman committed several acts of negligence proximately causing the second collision; found that defendant Harwell failed to keep a proper lookout and that such failure proximately caused the second collision; refused to find that defendant Atzenhoffer committed any acts of negligence; refused to find that decedent Lofton was negligent in matters of lookout (before and after the first collision), speed, application of brakes, direction of turning his vehicle, removal of his stationary vehicle from the highway, and removal of himself from the highway during the approach of the Harwell vehicle. Consequently, at this point in analysis, recovery in favor of the survivors of Lof-ton apparently could be based on these findings of negligence and proximate cause against defendant Norman (both collisions) and defendant Harwell (second collision). However, recovery for the survivors was prevented, in the trial court’s judgment, because of jury findings against Lofton. In response to other special issues submitted, the jury: found that, following the first collision, Lofton was negligent (63) in failing to keep his vehicle properly lighted and (65) in failing to flag or otherwise warn oncoming traffic; that each of those failures was a proximate cause (64 and 66) of the second collision. Appellants have brought forward 60 points of error. However, they have summarized the points into categories for purposes of argument under the following captions: “(1) Appellants allege that the four special findings (63, 64, 65 and 66) upon which the Trial Court based its judgment are subject to attack upon the following grounds: (a) Jimmie Lofton had no duty to warn at the time and on the occasion in question; (b) Jimmie Lofton had no duty to anticipate negligent conduct on the part of the Defendant (Harwell) ; (c) The two groups of special issue findings (63-64 and 65-66) are shades and phases of one general issue of failure to warn; (d) There is no factual proof that Lofton’s failure to warn caused his injuries, and such findings are speculative; (e) There is no proof, factually, of what a reasonably prudent person would have done under the same or similar circumstances, for the purpose of establishing negligence; and (f)There are no pleadings to support the findings of contributory negligence on the part of the Defendant, Raymond Norman, and the pleadings of the Defendant, Harwell, are insufficient to support said findings. (2) Findings of contributory negligence cannot bar a recovery under the Wrongful Death Statute. (3) The Trial Court erred in failing to award attorney fees to the attorney ad litem.” We will use the appellants’ format, generally, in considering their contentions. We will consider first the appellants’ first complaint which we here characterize as a “no duty to warn” ground. Appellants say that the cases of Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109 (1942) and Courville v. Home Transportation Co., 497 S.W.2d 788 (Tex.Civ.App.—Beaumont 1973, n. r. e.) should control the disposition of our case. In Buchanan, the Supreme Court held that one who drove over a bridge on a public road and thereafter discovered that such bridge, because of its defective condition, had broken down under the weight of his vehicle, without negligence on his part, was under no duty to give warning so as to prevent other travelers from being injured as a result of the broken down bridge. The court reasoned that the one (defendant) who broke down the bridge did not “create a dangerous condition”; the bridge was already in a defective condition before the defendant drove over it and the bridge just gave way from a normal and legitimate use of it by the truck operator. In Courville, the court held that one who, while driving his truck down a highway, was struck from the rear by another vehicle, without negligence on his part, and thereafter did not stop but left the following vehicle disabled and blocking a lane of travel, owed no duty to give warning of the dangerous condition resulting from the disabled vehicle that was blocking a lane of the highway. The court said that it must be shown that the defendant’s truck driver has done something affirmatively before it can be said that the driver “created a dangerous condition”; a showing merely that the truck was being driven in a lawful and non-negligent manner when it was struck from the rear does not raise a duty to give warning of a dangerous condition. From these cases, the appellants rationalize: the jury exonerated Lofton in all negligence issues asked regarding the cause of the first collision, that being between the Lofton and Norman vehicles; so those jury answers amount to findings that Lofton did not “create a dangerous condition”; under those circumstances, Lofton, therefore, had no duty to warn subsequent travelers on the road that the lanes for travel were obstructed. Were this all, appellants’ “no creation of a dangerous condition, no duty to warn” contention might be tenable. But there is evidence in the record of relevant affirmative action, after the first collision, on the part of Lofton. Bobby Platt, a passenger in Lofton’s car at the time of the first collision, testified that Lofton, after the first collision and before the second collision, turned off all the lights on his car. And, according to defendant Harwell, at all times while she was approaching the obstructing cars of Norman and Lofton and before she struck the Norman car, no lights were burning on either of those vehicles. From this testimony of Platt and Harwell, the jury was entitled to infer that Lofton caused complete darkness (by extinguishing his lights) where there had been some helpful light at the scene (his burning headlights); that this action of Lofton substantially aggravated, or contributed to, the dangerous situation existing, that being the obstruction of the highway by the Lofton and Norman vehicles. Further, the jury was entitled to infer that, under those circumstances, Lof-ton should have either turned his headlights back on or flagged oncoming traffic, and that the failure to do either was one of the proximate causes of the second collision. The jury apparently did so infer by its findings in that regard (63-64 and 65-66). We hold against appellants’ contention that Lofton, as a matter of law, created no dangerous condition and therefore he owed no duty to warn others. There is another reason, aside from our consideration of “creation of a dangerous condition”, why appellants’ assertion of “no duty to warn” (as a matter of law) is without merit in the case at bar. There is authority for the proposition that, irrespective of the reason for stopping, an operator of a stopped vehicle that poses a source of danger to other motorists, owes a common law duty to warn those motorists that he is stopped, if an ordinary prudent person in the exercise of ordinary care would have foreseen that, in the absence of such warning, a collision might occur. Traders and General Insurance Co. v. Anderson, 472 S.W.2d 582 (Tex.Civ.App.—Tyler 1971, n. w. h.); Shepard v. Ray, 432 S.W.2d 178 (Tex.Civ.App.—Dallas 1968, n. w. h.); McClellan v. Lee, 426 S.W.2d 635 (Tex.Civ.App.—Houston, 1st Dist., 1968 n. w. h.) ; Rodgerson v. LaFollette, 424 S.W.2d 280 (Tex.Civ.App.—Houston, 14th Dist., 1968, n. r. e.). See 60A C.J.S. Motor Vehicles § 335(1). So the duty to warn others by the operator of a stopped vehicle on the highway can be a jury question, even though the vehicle is stopped due to no fault of the operator. We hold, therefore, that there was sufficient evidence (Lof-ton’s extinguishing his lights after the first collision) to present a jury question regarding his duty to warn other motorists such as Mrs. Harwell. All of appellants’ “no evidence” points are overruled. To further support appellants’ “no duty to warn” contentions, they have brought forward “insufficiency of the evidence” and “against the greater weight and preponderance of the evidence” points in regard to the jury’s answers to special issues numbered 63, 64, 65 and 66. These types of points (in the context in which the appellants have set them out on this appeal) require us to weigh all evidence presented by the record, including evidence which tends to prove the existence of vital facts as well as evidence which tends to disprove their existence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Southern Pacific Company v. Stanley, 473 S.W.2d 52 (Tex.Civ. App.—Corpus Christi 1971, n. r. e.). We are further required to balance substantial evidence that supports the finding against substantial evidence that is against the finding and thereby determine whether the great weight and preponderance of the evidence is in favor of or against such finding. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W. 2d 933 (1958); Gonzalez v. Layton, 429 S.W.2d 215 (Tex.Civ.App.—Corpus Christi 1968, n. w. h.). In that regard, we first consider the evidence that is against the findings (63-64) that Lofton failed to keep his vehicle properly lighted and that this was a proximate cause of the second collision, as contended by the appellant. After the first collision, when the Lofton car came to rest, it was crosswise on the road and was obstructing both lanes of travel. Because it was behind the Norman car, it was hidden from northbound traffic (the direction of travel of Mrs. Harwell). The jury could infer that because of the positions of the cars, Mrs. Harwell could not have seen the lights of Lofton’s car, even if his lights had been burning. Thus, the appellants say, burning lights on Lofton’s car could not have been of any assistance to Mrs. Harwell in alerting her to the danger in front of her. We now move to the area of evidence that tends to sustain the findings (63-64). Introduced into evidence were photographs, some taken on the night of and some taken in the daytime sometime after the collision, depicting the accident scene. In the photographs the jury could see metal mailboxes, trees, utility poles and fences that were near the road and that were probably in front of Lofton’s stationary car at the time between the first and second collisions. Lofton’s headlights, even if burning, may have been hidden from the view of the driver of a car approaching the scene from the south. Nevertheless, the jury could reasonably infer that the illumination from such lights shining upon the roadside objects, shown in the photographs, could cause enough contrast in the dark scene to alert an oncoming motorist to the danger ahead in time for the motorist to avoid the danger by stopping or taking evasive action. We so hold. We next examine the evidence against the jury findings (65-66) that Lofton’s failure to flag or otherwise warn oncoming traffic was negligence and that this failure was a proximate cause of the second collision. Mr. Clarence Atzenhoffer, Sr., being the father of defendant Atzenhoffer and being a passenger in Atzenhoffer’s pickup, stated that he and his son parked on the shoulder of the road about 100 feet south of the first accident scene. At one point in his testimony, Atzenhoffer, Sr., did say, in effect, that before the second collision, he was beside the pickup waving a lighted lantern at the time Mrs. Harwell went by them. Mrs. Harwell testified that before her collision, she did not see anyone attempting to flag her by any method. From this, the appellants assert, that Mrs. Har-well would not have seen Lofton’s flagging (even if he had done so) if she did not, in fact, see Atzenhoffer’s flagging; consequently, any flagging or other warning by Lofton would have been useless gestures and duplicitous of the efforts of others. Therefore, the appellants urge, the jury findings (65-66) are not supported by the evidence and are contrary to the greater weight and preponderance of the evidence. In support of the jury findings, no flagging or other warning, we point out that the testimony of the elder Atzenhoffer was inconclusive on the subject of his flagging Mrs. Harwell in that he, at another point, said that he was not flagging when Mrs. Harwell’s car passed him; that he was just getting into position to flag with his light when she got there. So Atzenhof-fer’s testimony, the jury could deduct, failed to show that Mrs. Harwell would not have seen Lofton’s flagging, if he had done so, or any other reasonable warning. From a review of all the evidence, and reasonable inferences therefrom, it is our opinion that there is sufficient eviden-tiary support for the jury’s findings: (63) that Lofton’s failure to keep his vehicle properly lighted and (65) that his failure to flag or otherwise warn were each acts of negligence; and (64-66) that each failure was a proximate cause of the second collision. We further hold that none of the findings in question is contrary to the greater weight and preponderance of the evidence. Under their next summarized caption of complaints, the appellants contend that Lofton had no duty to anticipate the negligent conduct of Mrs. Harwell in failing to keep a proper lookout. They cite DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955). The Supreme Court, in DeWinne, did state in its opinion: that in absence of knowledge to the contrary, a motorist approaching an intersection with one way street was entitled to assume that no vehicles were traveling in wrong direction on the one way street, and such motorist was under no duty to ascertain whether a vehicle was approaching the intersection from the wrong direction. In our case, Lofton had just collided from the north with the Norman vehicle under essentially the same conditions of danger that were existing at the time of his collision as were existing at the time of Mrs. Harwell’s collision from the south with the Norman vehicle; i. e., an unlighted vehicle obstructing the motorist’s lane of travel at night. Hence, Lofton knew, or should have known, from the facts of his collision, that in the absence of a reasonable warning, a motorist approaching the Norman car would likely collide with it. In so colliding, that motorist’s conduct could still be within the standard measured by the behavior of the reasonably prudent person, just as was Lofton’s conduct. We hold against appellants’ “no duty to anticipate negligent conduct” contention. Appellants assert that the court erred in overruling their objections to the submission of special issues inquiring (63) whether Lofton failed to keep his vehicle properly lighted and (65) whether Lofton’s failure ... to flag or otherwise warn oncoming traffic . . . was negligence. They say that these two issues are shades and phases and thus the issues become a duplicitous submission of one general issue of failure to warn. The broader issue (65) probably included the narrower issue (63) and the court properly could have submitted only one issue inquiring about failure to warn. We are not convinced, though, that the error of submission of the trial court was such as was reasonably calculated to cause, or did cause, rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Holmes v. J. C. Penney Company, 382 S.W.2d 472 (Tex.Sup.1964). The point is overruled. Another contention of the appellants is to the effect that there is no factual proof that Lofton’s failure to warn caused his injuries; therefore, the findings of such failure were based only on speculation. In the forepart of this opinion, we have evaluated the evidence concerning contributory negligence in connection with appellants’ “no evidence” and “insufficiency of the evidence” points. What we said there is dis-positive of the complaint here. We again hold against appellants’ position on the quantity and quality of the evidence. “There is no proof, factually, of what a reasonably prudent person would have done,” say the appellants m another contention. They assert that appellee Har-well had the burden of proving that a reasonably prudent person, under the circumstances of this case, would have given warning instead of attempting to move his vehicle, as Lofton did. It was within the province of the jury to determine whether the reasonably prudent person standard was complied with by Lofton. The jury acquitted Lofton of any commissions or omissions amounting to negligence in issues inquiring whether he should have removed his car from its stationary position on the road. The jury did find him negligent concerning his lights. We see no inconsistency between a choice of moving the car and turning on the lights of the car. No choice by Lofton was really necessary. He could have left the lights burning when he first dismounted from his car after the first collision. This contention of the appellants is overruled. Moreover, according to the appellants, the trial court erred in basing its take nothing judgment on findings of contributory negligence because there were no pleadings, or insufficient pleadings, on the part of each of the defendants, Norman and Harwell, to support those findings. Norman answered the appellants’ petition with only a general denial. Harwell answered that petition with a general denial and, among other allegations, with general allegations of contributory negligence against Lofton. No special exceptions were levelled by the appellants to any of the pleadings of the defendants. Appellants did make some objections to the court’s charge. But in none of those objections did the appellants complain of the lack of support in the defendants’ pleadings for the submission of issues of contributory negligence. The first complaint of that type made by the appellants was asserted in their motion for new trial. That attack came too late. We hold that appellants have waived any right to make complaint on appeal, based on faults in the defendants’ pleadings, to the submission by the trial court of contributory negligence issues. Rules 90 and 274, T.R.C.P. See Deffebach and Brown, Waiver of Pleading Defects and Insufficiencies in Texas, 36 Tex.L.Rev. 459 (1957-58). In their second category of summarized points, the appellants contend that the trial court erred in refusing to hold that findings of contributory negligence cannot bar a recovery under the Wrongful Death Statute. In other words, the appellants argue that the findings of contributory negligence on the part of the decedent Lofton will not defeat a claim under Article 4671 et seq., Vernon’s Ann.Civ.St., by the beneficiaries named. The appellants in our case, the surviving wife and child, are beneficiaries within the statutes dealing with wrongful death. However, the law is against the position taken by the appellants. Contributory negligence of the decedent Lofton does preclude recovery by his surviving wife and child, the appellants here. 17 Tex.Jur.2d, Death by Wrongful Act, § 69 p. 633. See Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App.—Dallas 1966, n. r. e.). These points are overruled. Finally, the appellants urge that the trial court erred in refusing to allow the attorney ad litem for the minor plaintiff, Luann Lofton, an attorney’s fee to be taxed against the defendants. The trial court in its judgment did find a specific amount as the reasonable value of the services of the attorney ad litem. The court provided, though, in that judgment that the attorney ad litem fee would not be taxed as costs. The finding as to amount is only informational, according to the recitals in the judgment. Rule 131, T.R.C.P., provides generally, that the successful party shall recover from his adversary all costs. But Rule 141, T.R.C.P., provides that the court may adjudge costs otherwise if there exists good cause and the good cause is stated in the record. Allowance of an attorney fee for an attorney ad litem, the amount of the fee, and against whom the fee shall be taxed are matters within the discretion of the trial court. Coastal States Gas Producing Company v. Locker, 436 S.W.2d 592 (Tex.Civ.App.—Houston 14th Dist.1968, n. w. h.). We have examined the record and we find no abuse of discretion by the trial court in its refusal to tax as costs against the defendants a fee for the services of the attorney ad litem. Appellants’ point in this regard, and all other points are overruled. The judgment of the trial court is affirmed.

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DAVE SNELLING LINCOLN-MERCURY, Appellant, v. Sam SIMON et al., Appellees. No. 16208. Court of Civil Appeals of Texas, Houston (1st Dist.). March 21, 1974. Motion for Rehearing Ordered Withdrawn May 16, 1974. Bill R. Bludworth, John C. Marshall, III, Houston, for appellant; A. J. Watkins, Houston, of counsel. Kronzer, Abraham & Watkins, Houston, for appellees; John M. O’Quinn, Larry J. Doherty, Houston, of counsel. EVANS, Justice. The principal question on this appeal is whether a mother may recover damages for personal injuries sustained as the result of having witnessed the death of her child in a suit against the party whose negligence caused such death. Appellee, Mrs. Sandra Simon, mother of 18 month old Brewer Simon, was a passenger with her son, Brewer, in a Lincoln Continental automobile being driven by her neighbor, Mrs. Billie Waldo. Mrs. Simon was seated directly behind the driver, Mrs. Waldo, and also seated in the back seat with Mrs. Simon was her son, Brewer, and Mrs. Waldo’s 4 year old daughter. As the automobile proceeded down the Katy Freeway at approximately 50 miles per hour, the right rear door opened and Mrs. Simon’s son Brewer fell to the pavement where he was run over by another automobile. Mrs. Simon witnessed her son’s fall from the car and his being run over by the other car. After the Waldo car was brought to a stop, Mrs. Simon picked up her child from the highway and the Waldo car proceeded to a hospital but the child died, apparently on the way to the hospital. The Waldo automobile was a 1967 Lincoln Continental equipped with a rolling automatic vacuum door lock system. This system was designed as a safety device to automatically depress the door locking knobs on all doors when the automobile attained a speed of 10 miles per hour. Mrs. Waldo had twice taken the car to appellant’s garage for repairs to this system, and there was testimony that after the second repair effort, the locking system began to function erratically. An examination of the car made approximately four years after the accident disclosed a gap of about an inch between the plastic line and the neoprene vacuum hose which operated the locking mechanism on the right rear door. Appellees brought this action against Ford Motor Company and appellant, but Ford was dismissed at the close of the evidence. After a jury trial judgment was entered in favor of appellee, Mrs. Simon, for the amount of $30,000.00 for damages for her personal injuries, and for Mr. and Mrs. Simon in the amount of $5,000.00 for the wrongful death of their son. The jury found that appellant was negligent in failing to repair the safety door lock and that such negligence was the proximate cause of the occurrence. The jury further found that Mrs. Simon had suffered mental injury in the form of traumatic depressive reaction as the result of witnessing the death of her child. The jury failed to find that Mrs. Simon suffered physical injury in addition to her mental injury, but the trial court granted appellee’s motion to disregard such answer and found as a fact, that Mrs. Simon did suffer physical injuries or manifestations as a result of her mental injury. The appellant does not challenge such findings or rulings but contends in its first point of error that the trial court’s judgment should be reversed on the ground • that Texas law does not allow a parent to recover for personal injury resulting from witnessing an injury to a child. The question of whether recovery may be had for physical injury sustained as a result of mental distress was before our Texas Supreme Court in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890). In that case, plaintiffs were husband and wife in possession, as lessees, of a dwelling house belonging to the defendant; the wife was well advanced in pregnancy and defendant knew that fact and was also aware that undue excitement would likely produce serious injury to the lady’s health. The defendant went into plaintiffs’ yard and in the wife’s immediate presence, assaulted two negroes in a boisterous and violent manner accompanied by profane language and the drawing of blood. Plaintiffs alleged this conduct had frightened the wife, brought on labor pains and eventually produced a miscarriage, and otherwise impaired her health. The Supreme Court, in opinion by Justice Gaines, determined that the plaintiffs’ petition set forth a cause of action and held that a compensable physical injury might be produced through a strong emotion of the mind. Appellant concedes the rule established by Hill v. Kimball that physical injury resulting from fright or other mental distress, caused by the wrongful act of another, is compensable. See also Houston Electric Company v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946); Gulf, C. & S. F. Railway Company v. Hayter, 93 Tex. 239, 54 S.W. 944 (1900). However appellant argues that in the Hayter and Dorsett cases, the plaintiff, and not a third party, was the direct object of the defendant’s negligence and that in the Hill v. Kimball, the injury was the result of an intentional, as distinguished from an unintentional, act. We do not regard these distinguishing factors as necessarily controlling the disposition of the case at bar. Appellant further contends that the jury’s finding to the effect that appellee, Mrs. Simon, suffered “traumatic depression reaction” does not suggest the consideration that Mrs. Simon suffered physical injury as a result of such mental distress. Appellant cites, in support, City of Galveston v. Barbour, 62 Tex. 172 (1884); St. Louis, Southwestern Railway Co. of Texas v. Gregory, 73 S.W. 28 (Tex.Civ.App.1903, no writ hist.); Chrone v. Gonzales, 215 S. W. 368 (Tex.Civ.App.—San Antonio 1919, n. w. h.); St. Louis, Southwestern Railway Co. of Texas v. Kirby, 146 S.W. 1005 (Tex.Civ.App.—Dallas 1912, n. w. h.) ; and Drinkard v. Anderton, 280 S.W. 1076 (Tex.Civ.App.—Waco 1926, writ dism’d). Those cases hold only that a parent cannot recover solely upon a showing of mental distress resulting from a child’s injuries occasioned by another’s negligence. In this case appellant has made no attack on the trial court’s ruling determining that the evidence established such physical injury. Appellant further argues that appellee, Mrs. Simon, should be denied recovery because she herself did not suffer simultaneous fear for her own safety as the result of appellant’s negligence. Appellant relies upon the following testimony of Mrs. Simon on her cross-examination. “Q : . . .In your own mind is the reason for your emotion because you lost your son or because you saw him fall out and get killed by a vehicle in the lane following you or is it because you were afraid you yourself were going to fall out? “A: I didn’t think of myself. “Q: Did you ever at any time fear for your own safety? “A: No.” Under the so-called “zone of danger” test, as applied in some jurisdictions, the plaintiffs’ recovery may be denied where it was not shown that the defendant’s negligent act threatened harm to the plaintiff. While the existence of this arbitrary limitation on the plaintiff’s recovery received recognition in Houston Electric Company v. Dorsett, supra (194 S.W.2d at page 548), it does not appear to have received definitive approval by our State’s highest court. See Kaufman v. Miller, 414 S.W.2d 164 (Tex.Sup.1967). Recent decisions in other jurisdictions, notably California, indicate a departure from the strict application of the limitation. See Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969); Hopper v. United States, 244 F.Supp. 314 (D.C.Colo., 1965) and other authorities collated in 29 A.L.R.3d 1337, Secs. 8 and 9, pp. 1356-1362. Even assuming the “zone of danger” test applicable to the case at bar, we find its conditions met. In our opinion Mrs. Simon’s testimony as to her subjective thoughts with respect to her own safety should be considered in the light of a mother’s paramount concern for the safety of her children. Certainly it cannot be said that appellant’s negligence, as found by the jury, imperiled only the safety of one of the three passengers in the back seat of the automobile. Mrs. Simon was in the proximity of potential danger as much as anyone else in the automobile. It is unrealistic to require, as a basis for her recovery, that she have definite recall of a conscious fear for her own safety, in addition to the fear which she had for the safety of her child. In our opinion, the questions discussed above are properly determined upon the principles of foreseeability. In Kaufman v. Miller, 414 S.W.2d 164 (Tex.Sup.1967), a truck driver on his way to Louisiana, was on the freeway through Beaumont, Texas when he “heard a little crash”; he first thought he had hit the curb of the bridge and did not know he had collided with another vehicle. He then looked in his rearview mirror and saw a car against the bridge railing and knew that he “had either hit her or she hit me.” He stopped his truck and walked back to the automobile. There was no damage to the truck and the damage to the automobile was slight; however, the truck driver testified he was “shocked” and “shook up” by the accident. Subsequently he claimed to have felt nervousness, dizziness and blackout spells. His testimony revealed that several years earlier, he had been in a tragic accident in which three people had been killed. There was testimony that he had suffered a “traumatic neurosis” as the result of the prior accident and that the accident with the defendant’s automobile “triggered off” a conversion reaction. Judgment for the plaintiff on the jury’s verdict was affirmed by the Court of Civil Appeals. 405 S.W.2d 820. The Texas Supreme Court reversed and rendered in favor of the defendant. That court, in opinion by Chief Justice Calvert, after reviewing the Hill, Dorsett and Hayter cases, supra, declined to approve two of the arbitrary limitations on recovery, including the “zone of danger” limitation discussed above, and held that all of the circumstances of the case in combination compelled the conclusion, as a matter of law, that the defendant could not reasonably have foreseen the plaintiff’s injuries as the natural and probable consequence of her negligent conduct. In the case at bar we cannot say, as a matter of law, that the appellant could not reasonably have foreseen the consequences of its negligence as found by the jury. It is certainly foreseeable that an automobile’s passengers may include small children, as well as adults, and that a parent may be less inclined to control the activities of a child if the automobile’s doors have automatic safety locks. Appellant contracted to repair the automobile’s door locks and knew the door lock device was a safety feature which might be relied upon by the occupants of the automobile. There was testimony that Mrs. Simon knew of the door lock system and relied upon it. It is also foreseeable that a parent may sustain physical injury as a result of a severe emotional impact such as occasioned here. In Hill v. Kimball, supra, 13 S.W. at page 59, Judge Gaines said: “The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.” The physical effect of this traumatic experience on Mrs. Simon is evidenced by the following excerpts from the testimony: “Q Physically and from mental attitudes obvious from physical reactions describe Sandra Simon and What you knew about her before this accident took place? Can you do that? Do you understand me? “A Yes, sir. Prior to the accident she was very vivacious, energetic, fun loving, always it seemed like bright and cheerful, and then after the accident on the few occasions when she came out or the few occasions when I saw her after that she was almost constantly in tears. She was not a large woman but she had lost a tremendous amount of weight. Her eyes were sunk back in her head, you know, from losing weight in the face. She was pale. She would not carry on a conversation. She just was not the same person. “Q Since this occurrence have you noticed any physical changes in Sandra Simon? “A Yes. Her whole personality changed. She cried every time I would see her or when she was around anybody. She hid in— they had a long bathroom and she would squelch herself down in the corner and she shook all the time. She could not swallow. We could not get her to eat. She did like Cokes and then she would take a couple of swallows and she would say, T cannot swallow it.’ “Q Did she lose weight ? “A Oh, yes. She was extremely thin. She would not eat. “Q Had she been cheerful and friendly before this occurence ? Did 3rou notice any changes in her outlook? “A Oh, yes. She was not the exuberant type, but she was very friendly to everybody before the accident. After the accident she stayed in the house. She would not have anything to do with any children.” We do not believe it beyond contemplation that such an experience would cause an injury of severe degree. See Prosser, Law of Torts, 4th Ed., p. 334. We overrule appellant’s first point of error. Appellant’s second point of error is that the trial court erred in refusing its request for six peremptory challenges as provided by Rule 233, Texas Rules of Civil Procedure. Appellant contends that the pleadings showed that it was not charged with the same negligent conduct with which Ford Motor Company was charged; that separate answers were filed by the two defendants and they were represented by different attorneys at trial. Appellees counter with argument that the record does not show appellant moved for the six peremptory strikes prior to the time the jury was struck, and that the record reflects appellant’s objection was dictated the following day, just before the jury was brought in to hear the evidence, and was not made until after the jury strikes were made. Appellee further argues that the requirements of Rule 233, T.R.C.P., were modified by Article 2151a, Vernon’s Ann.C.S., in effect at time of trial, which provides: “After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.” No bill of exceptions on this matter is contained in the record before us. There is no showing that the trial court failed to exercise its duty as provided by Article 2151a, V.A.C.S. We overrule appellant’s second point of error. Appellant’s third point of error is that the trial court erred in not permitting it to file trial amendment alleging, as a defense, that if Mrs. Simon had exercised reasonable care in watching over and looking out for her son, Brewer, the accident would not have occurred. Appellant argues that Mrs. Waldo was asked in her deposition whether the automobile came equipped with seat belts in the rear, to which she had replied in the affirmative, and appellant says it was surprised to learn in its examination during trial that the seat belts had been removed from the rear seat. The statement of facts shows only a general request was made by appellant to file a trial amendment during the plaintiffs’ case and again after the parties rested. There is uncertainty as to the point when the written trial amendment, which merely shows that it was filed among the papers of the case, was actually presented. There is no bill of exceptions on this point in the record. In appellant’s objections to the court’s charge, it did state reasons for the trial amendment, but the circumstances attending the presentation of appellant’s trial amendment are not before us either in statement of facts or by bill of exception. We must therefore presume the trial court acted properly in denying appellant’s leave to file such trial amendment. Herrin Transportation Company v. Parker, 425 S.W.2d 876 (Tex.Civ.App.—Houston, 1st, 1968, writ ref. n. r. e.) ; Elnora S. Williams v. General Motors Corporation, 501 S.W.2d 930 (Tex.Civ.App.—Houston, 1st, 1973, n. w. h.). In view of our holding that no error has been demonstrated with respect to the trial court’s refusal of appellant’s motion for leave to file its trial amendment, we find it unnecessary to consider the second part of appellant’s point which complains of the trial court’s action in refusing to submit its requested issues based on the theory advanced by appellant’s trial amendment. We overrule appellant’s third point of error. The judgment of the trial court is affirmed.

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GUARANTY BANK (SOUTH OAK CLIFF BANK), Appellant, v. NATIONAL SURETY CORPORATION, Appellee. No. 18245. Court of Civil Appeals of Texas, Dallas. March 21, 1974. Rehearing Denied April 11, 1974. Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant. James K. Allen, Allen, Bowles & Davis, Dallas, for appellee. GUITTARD, Justice. In this suit for interference with business relations the trial court rendered summary judgment for defendant. We affirm on the ground that plaintiff had no legally protected interest because the transaction with which defendant is alleged to have interfered would have involved a misappropriation of trust funds. The controversy arose out of difficulties in construction of a low-income housing project for a non-profit organization known as Calvary Arms Charitable Trust. The named beneficiary of the Trust was Mount Calvary Baptist Church, and its pastor, Reverend R. N. Bell, was chairman of the board of trustees. Prudential Insurance Company had advanced funds to the Trust on a preliminary loan for construction costs and had also committed itself for a permanent loan on completion of the project. The Federal Housing Administration agreed to insure the full amount of this loan. At the insistence of Reverend Bell, the general contractor sublet the carpentry work to Lee Rabón. When Rabón experienced financial difficulty, Reverend Bell assisted him in obtaining loans from plaintiff bank, and for that purpose personally signed Rabon’s notes. Even with this help, Rabón was unable to perform, and he assigned his subcontract to the bank, which undertook to complete it. The bank found that the subcontract had been substantially-underbid, and it ultimately lost $93,501.42, including $42,140.52 which it had advanced to the insolvent Rabón on notes jointly signed by Rabón and Reverend Bell. It failed, however, to complete the subcontract, and the general contractor had to take over the carpentry work. The general contractor completed the entire project at a loss of more than two hundred thousand dollars with assistance from defendant National Surety Corporation, the surety on its performance and payment bonds, and assigned to National Surety all payments remaining on the general contract. Meanwhile, Reverend Bell, purporting to act for the Trust, applied to Prudential and FHA for a supplemental loan to be used for reimbursing the bank for its loss and paying other obligations Bell had incurred in his efforts to assist Rabón. The bank’s representatives had proposed such a loan to Reverend Bell, and they assisted him with the application and supplied information to FHA concerning costs and expenditures. FHA agreed to insure this supplemental loan, and Prudential issued a commitment to lend the Trust an additional $117,700 to be secured, like the main loan, by a mortgage on the property of the Trust. The necessary papers were prepared, and representatives of the Trust, the general contractor, National Surety, and Prudential met in the FHA office for the purpose of closing both loans. The attorney for Prudential brought with him several checks. One check represented the balance due on the original contract, most of which was due to National Surety as as-signee of the general contractor. Two other checks aggregated $117,700 the amount of the supplemental loan. At this meeting James Knox, who was attorney for National Surety and acted also as counsel for the general contractor, raised questions concerning the supplemental loan and would not permit anyone to sign any documents on behalf of the contractor. After some discussion, the meeting broke up without any documents being signed and without any checks being delivered. National Surety’s objections continued until FHA withdrew its commitment to insure the supplemental loan and Prudential cancelled its commitment for the supplemental loan. National Surety then withdrew its objections to closing the original loan, which was soon closed with cooperation of National Surety and the general contractor. The supplemental loan was never closed and the bank never received its expected reimbursement. In a separate suit the bank recovered judgment against Reverend Bell for the amount of his liability on Rabon’s notes, but apparently that judgment has never been satisfied. In the present suit the bank seeks damages in tort as assignees of the Trust for the amount of the supplemental loan, and, alternatively, for damages in the amount of its own loss of $93,501.42 on the carpentry subcontract. On defendant’s motion the trial court rendered summary judgment denying any recovery, and the bank appeals. One of the grounds of National Surety’s motion for summary judgment was that the supplemental loan would have been illegal because it would have involved a misappropriation of trust funds and a conflict of interests on the part of Reverend Bell in view of the provision in the trust instrument that “no part of the income or assets of the TRUST shall be distributed to or inure to the benefit of any individual.” The bank contends that although the Trust might have had no legal obligation to reimburse the bank or to relieve Reverend Bell from his personal liability, it would not have acted unlawfully in doing so because the purpose of the Trust was to further minority interests and Rabón, whom Bell had recommended to the general contractor, was a black subcontractor. The bank argues that when Rabón ran into financial difficulty as a result of underbidding the carpentry subcontract, Reverend Bell obtained no personal benefit from signing Rabon’s notes but did so in the interest of the Trust so that the project could be moved toward completion and that this assistance and the further sums advanced by the bank resulted in benefits to the trust property, which the trustees could properly recognize as imposing a moral obligation to prevent loss to the bank and others who had advanced funds to the subcontractor. In support of this argument the bank relies on authorities holding that a moral obligation arising from a past legal obligation may be sufficient consideration for a subsequent promise to pay a debt barred by limitation or bankruptcy. See Hoya v. Self, 245 S.W. 424 (Tex.Com.App.1922, jdgmt. adopted); Flex v. Houston Bank & Trust Co., 489 S.W.2d 126 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); Miller v. Aaron, 413 S.W.2d 426 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Simpson v. Williams Rural High School Dist., 153 S.W.2d 852 (Tex.Civ.App.— Amarillo 1941, writ ref’d), and Armstrong v. City Nat. Bank, 16 S.W.2d 954 (Tex.Civ.App.—Galveston 1929) cert. denied, 281 U.S. 737, 50 S.Ct. 333, 74 L.Ed. 1152. No such past legal obligation existed in the present case as a basis for the alleged moral obligation. According to some authorities, a past legal obligation is not essential if the promisor has previously received from the promisee a material benefit not intended to be gratuitous. Old American Life Ins. Co. v. Biggers, 172 F.2d 495, 8 A.L.R.2d 781 (10th Cir. 1949); Edson v. Poppe, 24 S.D. 466, 124 N.W. 441 (1910); Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L.R. 1339 (1931). Those authorities, however, do not support the bank’s position here because in order for a moral obligation arising from a past benefit to be recognized as consideration for an executory promise, the past benefit must not have constituted the consideration for another promise already performed or still legally enforceable. Shear Co. v. Harrington, 266 S.W. 554 (Tex.Civ.App.—Waco 1924, no writ); Marnon v. Vaughan Motor Co., 184 Or. 103, 194 P.2d 992 (1948); 1A A. Corbin, Contracts § 235 (1963). In this case full performance of the carpentry subcontract was a benefit to which the Trust was already entitled as part of the consideration for its obligation to the general contractor, and the bank’s loss over and above the funds lent to the subcontractor was incurred in the performance of the subcontract for which it had assumed responsibility to the general contractor and for which the general contractor was responsible to the Trust. Consequently, completion of the carpentry work was not a benefit which the law recognizes as imposing on the Trust a moral obligation sufficient to justify payment of trust funds to the bank and others to whom Reverend Bell had incurred liabilities in his attempts to assist the carpentry subcontractor. In the absence of such justification, the diversion of trust funds would have been a breach of trust and, therefore, illegal as against public policy. This conclusion is not affected by the fact that the subcontractor was a member of a minority race or that the purpose of the Trust was to aid minorities. The beneficiary named in the trust instrument was Mount Calvary Baptist Church, and although the tenants of the housing project may also be considered beneficiaries, nothing in the trust instrument or elsewhere in this record warrants an inference that the charitable purpose extended to providing pecuniary benefits for subcontractors over and above the amounts provided in their contracts, even though they may have been members of a minority race. Although most of the authorities concerning moral obligations discuss the sufficiency of such an obligation as consideration for an executory promise, the same principle applies to a payment by a fiduciary, as recognized in Park Falls State Bank v. Fordyce, 206 Wis. 628, 238 N.W. 516, 79 A.L.R. 1339 (1931). That was a suit by a bank to rescind a transaction by which the bank had taken over certain notes from a director, and the defense was that the transaction was supported by the moral consideration of a benefit previously received by the bank. Defendant argued that the cases holding that a moral consideration will not support a promise had no application to executed promises. In rejecting this contention, the Supreme Court of Wisconsin said: This is true as a general proposition between natural persons acting in their own behalf. A natural person, not standing in the relation of a trustee, may make a gift if he wants to. But a trustee may not make a gift of trust property, nor may the officers of a bank make a gift of its funds; and if either be done, no reason is perceived why action will not lie for rescission and recovery. The illegality of the transaction is aggravated by Reverend Bell’s conflict of interests. His efforts to aid the carpentry subcontractor cannot be considered as moving the project toward completion for the benefit of the Trust. If the subcontractor was unable to perform, the responsibility for the carpentry work rested on the general contractor, whose obligation to the Trust was secured by the bonds signed by National Surety. The bank points to no evidence indicating that the project would-have been delayed if the general contractor had been required to take over the carpentry work when Rabón first ran into difficulty. Ultimately the general contractor had to complete the carpentry work anyway, since the subcontract was not completed by either Rabón or the bank. Reverend Bell testified that he became involved because Rabón was a black subcontractor whom he had urged the general contractor to hire and Rabón had run into financial difficulties. However unselfish may have been his action in signing Rabon’s notes, there is no evidence that he did so for the benefit of the Trust, and he did not purport to act by its authority. He incurred the liability personally, and that personal liability created a conflict between his personal interest and his responsibility as trustee when the bank proposed that he make an application on behalf of the Trust for a supplemental loan for the purpose of relieving his personal liability. Such a loan would have been clearly adverse to the interests of the Trust, since the Trust would not have received the funds, but would have had the obligation to repay the loan. Even though the other trustees may have consented to the supplemental loan with full knowledge of the circumstances and no deception was practiced on anyone, Reverend Bell’s participation in the closing of the supplemental loan would have constituted a breach of his duty as trustee, ana therefore, would have been illegal. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, 338 (1944) ; Langford v. Shamburger, 417 S.W.2d 438, 444 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n. r. e.); Hendricks v. Wall, 277 S.W. 207, 209 (Tex.Civ.App.—El Paso 1925, writ ref’d) ; 6A A. Corbin, Contracts § 1456 (1962). The bank had knowledge of these facts, since its representatives suggested the supplemental loan and participated in the negotiations. Consequently, its receipt of a part of the proceeds of the loan would also have been illegal. Wichita Royalty Co. v. City Nat. Bank, 127 Tex. 158, 89 S.W.2d 394, 399 (1935). We cannot ignore the illegality of the transaction on the theory that National Surety as an interfering third person has no standing to raise this question. Such cases as Clements v. Withers, 437 S.W.2d 818. (Tex.1969), and Yarber v. Iglehart, 264 S.W.2d 474 (Tex.Civ.App.—Dallas 1953, no writ), cited by the bank, hold only that a third person has no right to interfere with performance of an oral contract for sale of land because the performance of such a contract is neither illegal nor against public policy. The same rule cannot be applied to a contract which is affirmatively illegal because it involves a misappropriation of trust funds. Neither does this case fall within the rule that a third person sued for interference with performance of a contract cannot defend on the ground that the contract was induced by fraud, as held in Robey v. Sun Record Co., 242 F.2d 684 (5th Cir. 1957) and Beekman v. Marsters, 195 Mass. 205, 80 N.E. 817 (1907). Performance of a contract induced by fraud is not illegal. Such a contract is only voidable at the election of the defrauded party, who may elect to affirm the contract and in that event may either waive the fraud or sue for his own resulting damages. An interferer has no standing to elect for him. On the other hand, interference with an affirmatively illegal act is not a tort for which damages may be recovered because it does not impinge upon any legally protected interest. The law affords no com-' pensation to a wrongdoer for interference with his illegal gain. Since we conclude from the undisputed facts that distribution of the proceeds of the loan to the bank and others to whom Reverend Bell was obligated would have amounted to misappropriation of trust funds, we hold that as a matter of law neither the Trust nor the bank had a legally protected interest which would support an action for damages. Consequently, the trial court correctly rendered summary judgment for defendant. Appellee National Surety’s motion for rehearing is granted, our former opinion is withdrawn, our former judgment is set aside, and 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 et al., Appellants, v. CITY OF AMARILLO et al., Appellees. No. 8435. Court of Civil Appeals of Texas, Amarillo. April 15, 1974. Rehearing Denied May 13, 1974. Jay U. Kirkman, Amarillo, for appellants. J. Bruce Aycock, City Atty. (Fredrick J. Griffin), C. David Fielder, Asst. City Atty., Amarillo, for appellees. REYNOLDS, Justice. This delinquent tax suit was brought by plaintiffs City of Amarillo, Amarillo Independent School District, Amarillo Junior College District, and Amarillo Hospital District against various defendants as the record owners of the real property assessed for the taxes alleged to be delinquent, seeking an in rem judgment and foreclosure of their respective tax liens. A petition in intervention was filed by the State of Texas and Potter County asking for the same relief sought by plaintiffs. Following trial before a jury, an in rem judgment was entered decreeing the sums of the delinquent taxes, penalties, interest and costs due the separate taxing entities and ordering foreclosure of their respective tax liens on the tracts of real property described in the judgment. Affirmed. Defendant Jay U. Kirkman and the defendants for whom he was attorney of record in the trial court have appealed. These defendants initially contend that the trial court erred in overruling their first special exception to the substance of the plaintiffs’ cause of action. The contentions embodied in the special exception are the provisions of a written contract executed by the plaintiff taxing entities authorizing the tax assessor-collector of the City of Amarillo to collect all taxes assessed by those taxing units and to require, except as the law may otherwise dictate, the payment of all taxes due all taxing units as a condition precedent to payment of the taxes due any one taxing unit, and the proration of any lesser payment between the signatory entities in proportion to their respective taxes. Although the record evidence is that these defendants neither tendered nor offered to tender payment for any of the taxes alleged to be delinquent, it is nevertheless contended that this contract deprived defendants of their right to discharge one or more tax claims without proration of the payment to all the taxing entities, and that it was palpably injurious to the vested property rights of defendants. The trial court correctly overruled the special exception. The cause of action pleaded by plaintiffs was neither predicated upon nor related to the collection procedures established by the contract. It is the office of a special exception to furnish the adverse party a medium by which to force clarification of pleadings when they are not clear nor sufficiently specific. Rule 91, Texas Rules of Civil Procedure; Texas Lime Company v. Hindman, 300 S.W.2d 112 (Tex.Civ.App.—Waco 1957, affirmed 157 Tex. 592, 305 S.W.2d 947 (1957)). The basis of the special exception presented by defendants is not a deficiency in the pleadings, but is instead a concern with a matter totally foreign to, and which was not properly embraceable by, the plaintiffs’ pleadings in the lawsuit. The overruling of the special exception as it was drafted was, therefore, the only ruling the trial court could have justifiably made. The first point of error is overruled. Defendants’ second point of error is directed to the action of the trial court in refusing to submit their requested special issue no. 1, which reads: “Do you find from a preponderance of the evidence that the contract between the City of Amarillo, Amarillo Independent School District, Amarillo Hospital District and Amarillo Hospital District (sic) prevents the payment of any taxes due one of the above entities, without the payment due all the other entities?” The contention made is that the requested issue should have been submitted since it would have answered the factual question of whether the contractual provisions were being enforced by the City of Amarillo tax assessor-collector to the defendants’ injury. To the contrary, the requested issue is not designed to elicit that factual determination; instead, the issue inquires as to the general interpretation to be given to the contractual provision. An issue should not be submitted to the jury if it involves the construction of a contract or written instrument, or if it involves the determination of a question of law. Cain v. Tennessee-Louisiana Oil Company, 382 S.W.2d 794 (Tex.Civ.App.—Tyler 1964, affirmed 400 S.W.2d 318 (Tex.1966)). Since the requested issue involved a construction of the contract, the trial court rightly refused to submit it to the jury. Defendants’ second point of error is overruled. The admission in evidence of certain ordinances and resolutions of the City of Amarillo levying ad valorem taxes is challenged in defendants’ third point of error. It is contended that the ordinances and resolutions are void and of no legal effect because they are not in compliance with the City’s charter provision which purportedly prohibits passage of an ordinance on the same day it is introduced and requires that all ordinances have a first and a second reading, or a first and a final reading. The charter provision asserted was never entered in evidence, and the proper predicate upon which the court would have been required to judicially notice the existence of such charter provision was not established. By Vernon’s Ann. Civ.St. art. 1174, it is required that the city secretary record the city charter and its amendments in a separate book designated for that purpose. When the charter is so recorded, it is deemed a public act and all courts shall take judicial notice of it. However, according to the construction given Art. 1174, V.A.C.S., in the case of Hayden v. City of Houston, 305 S.W.2d 798 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.), in the absence of a showing that the applicable charter provision of the City of Amarillo was recorded in the required manner, the court is not required to take judicial notice of its existence. Absent the introduction in evidence of the charter or a showing that it was recorded in the manner required, defendants’ complaint , based on violation of the charter provision is not well taken. The third point is overruled. Defendants next complain of the admission into evidence of Intervenors’ exhibits nos. 1 through 5. These exhibits consist of certified copies of the tax rolls of the State of Texas and Potter County and certain delinquent tax notices. Intervenors’ exhibit no. 1 is a certified copy of the delinquent tax rolls of the State of Texas and County of Potter. Defendants admit that, under Art. 7326, V.A. C.S., all delinquent tax records, or certified copies thereof, shall be admissible as prima facie evidence of the true and correct amount of taxes and costs due by the defendant or defendants; nevertheless, as we understand defendants’ position, the thrust of the complaint is that,' since Art. 7326, V.A.C.S., pertains only to the amount of taxes and costs, certified copies of delinquent tax rolls are not admissible as prima facie evidence of the regularity of the levy and assessment of taxes upon the real property. Article 7336(e), V.A.C.S., designates the delinquent tax rolls as being included among the delinquent tax records on file in the office of the assessor and collector of taxes. This statute further provides that such rolls shall be prima fa-cie evidence that all requirements of the law have been complied with as to the regularity of listing, assessing and levying all taxes therein set out, and that the amount assessed against said real estate is a true and correct charge. Thus, such delinquent tax rolls are a part of “all delinquent tax records” referred to in, and thereby made admissible in original or certified copy form by, Art. 7326, V.A.C.S., as evidence of the true and correct amount of taxes. Being admissible for that purpose, the rolls are, under Art. 7336(e), V.A.C.S., then pri-ma facie evidence of the regularity of the levy and assessment of the taxes therein shown. Intervenors’ exhibits nos. 2 through 5 are various delinquent tax notices covering the real property made the subject matter of the suit. At the time these exhibits were offered into evidence, the only statement made by counsel for the defendants was, “Note our exception.” No objection, and more important no specific objection, was made to the receipt of the exhibits; therefore, there was no ruling by the court on an objection to admissibility to which an exception could be taken. Accordingly, defendants waived any error in the admission of the exhibits for the failure to make timely objection to the proffered evidence prevents them from complaining on appeal of the admission of such evidence by the trial court. Cain v. Zurich Insurance Company, 426 S.W.2d 575 (Tex.Civ.App.—Dallas 1968, no writ). The residuum of the argumentation presented under this fourth point of error is more properly directed to the weight to be given to, rather than to the admissibility of, the exhibits. The point of error is overruled. By their fifth point of error, the appealing defendants assert that the trial court erred in denying their motion for continuance founded upon the alleged failure of plaintiffs to serve with proper process defendants Kim Georgia Weingarten and Christopher Kirkman, for whom no appeal was taken. These non-appealing defendants were served by publication pursuant to, and in compliance with the requirements of, Rule Il7a3, T.R.C.P., the provisions of which are directed exclusively to service by publication in delinquent tax suits. It is contended that the provisions of Art. 7345b, V.A.C.S., control the issuance of citation by publication in this case. That statute authorized service of notice by publication when allegations of non-residence and unknown address are recited in the petition, which allegations admittedly were not recited in plaintiffs’ petition. Without a determination of the plaintiffs’ inferential contention that the appealing defendants are without standing to question the process of service on the non-appealing co-defendants, the appealing defendants’ assertion of error is otherwise unavailing. By the Supreme Court’s order dated August 18, 1947, which promulgated rules of procedure, among which was Rule 117a3, T.R.C.P., to become effective December 31, 1947, Art. 7345b, V.A.C.S., was repealed, as of the effective date of those rules, to the extent that the statute conflicted with or covered the same material as the rules. Vol. 1, T.R.C.P., p. LVII. Since plaintiffs complied with the requirements of Rule 117a3, T.R.C.P., which superseded the conflicting provisions of Art. 7345b, V.A.C.S., on which defendants predicated their motion for continuance, the overruling thereof was correct. One further matter should be noticed. The argument under this point of error also includes a contention of erroneous admission of testimony, adduced during the trial on the merits, of due diligence to effect personal service on the defendants Kim Georgia Weingarten and Christopher Kirkman. The contention of error during trial is not germane to the fifth point of pre-trial error and the alleged error, not being properly brought forward by a pertinent point of error, is waived. Rule 418, T.R.C.P. At most, from a careful review of the record, the alleged error is harmless. Rule 434, T.R.C.P. The last point is overruled. The arguments advanced under the points of error include diverse contentions not specifically mentioned heretofore. All of the contentions have been examined and, whether considered singularly or collectively, they do not present reversible error. The judgment of the trial court is affirmed. ROBINSON, J., not sitting.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AMERICAN LEASE PLAN, Appellant, v. BEN-KRO CORPORATION et al., Appellees. No. 16228. Court of Civil Appeals of Texas, Houston (1st Dist.). Jan. 31, 1974. Rehearing Denied April 4, 1974. Lapin, Totz & Mayer, Ronnie Horsley, Houston, for appellant. Aaron Goldfarb, Morris L. Pepper, Houston, for appellees. EVANS, Justice. American Lease Plan, appellant, brought this suit against appellee, Ben-Kro Corporation, alleging that Ben-Kro had breached a lease agreement under which American Lease Plan was to supply and deliver certain office and printing equipment for a specified monthly rental of $81.49 over a term of 36 months. American Lease Plan alleged that Ben-Kro had failed to make required monthly payments in the aggregate amount of $325.96; that pursuant to the lease it had accelerated maturity of the un-accrued rentals for the unexpired term of the lease and was therefore entitled to recover the full amount of accrued and unac-crued rentals in the total amount of $2533.-02. It further alleged that appellee, John T. Bennett, had personally guaranteed the performance of the agreement and was also liable. At the same time it filed its original petition, American Lease Plan filed an affidavit for writ of sequestration; gave bond and a writ of sequestration was issued three days later. Acting on the affidavit, the sheriff seized the leased equipment from Ben-Kro; subsequently American Lease Plan posted a replevy bond and took possession of the property. See Rule 708, Texas Rules of Civil Procedure. American Lease Plan then filed its first amended original petition alleging that it had repossessed the equipment through writ of sequestration and that after posting its re-plevy bond, it sold the property for $585.-00, leaving a balance due and owing of $1948.02, plus costs of taking possession, storing, repairing and selling in the alleged sum of $225.25. American Lease Plan therefore sought judgment against Ben-Kro for the sum of $2,173.27 together with interest, costs and attorney’s fees. Ben-Kro answered, denying the account and asserting failure of consideration, breach of warranty, that the damages were in the nature of penalty and were unconscionable arid that attorney’s fees should not be allowed. Both parties then filed motions for summary judgment. The trial court denied the motion of American Lease Plan and granted that of appellees, Ben-Kro and John Bennett. The first page of the lease contract is set forth in full as follows: On the reverse side of this form the “Terms and Conditions” of the contract are continued and in very small print there appear Twenty separate paragraphs, the most pertinent here being the following: “16. Default: In the event Lessee shall default in the payment of any rent, additional rent, or any other sums due hereunder for a period of ten (10) days, or in the event of any default or breach of the terms and conditions of this lease, or any other lease between the parties hereto, or if any execution or other writ or process shall be issued in any action or proceeding against the Lessee whereby the said Equipment may be taken or distrained, or if a proceeding in bankruptcy shall be instituted by or against the Lessee or its property; or if the Lessee shall enter into any agreement or composition with its creditors, breach any of the terms of any loan or credit agreement, or default thereunder, or if the condition of the Lessee’s affairs shall so change as to, in the Lessor’s opinion, impair the Lessor’s security or increase the credit risk involved, then and in that event the Lessor shall have the right but shall not be obligated, to exercise any one or more of the following remedies: (a) to sue for and recover all rents and other amounts then due or thereafter accruing under this lease; (b) to take possession of any or all of the equipment, wherever it may be located, without demand or notice, without any court order or other process of law, and without incurring any liability to lessee for any damages occasioned by such taking of possession; (c) to sell any or all of the equipment at public or private sale for cash or on credit and to recover from lessee all costs of taking possession, storing, repairing and selling the equipment, an amount equal to ten percent (10%) of the actual cost to lessor of the equipment sold, and the unpaid balance of the total rent for the initial term of this lease attributable to the equipment sold, less the net proceeds of such sale; (d) to terminate this lease as to any or all items of equipment; (e) in the event lessor elects to terminate this lease as to any or all items of equipment, to recover from lessee as to each item subject to said termination the worth at the time of such termination, of the excess, if any, of the amount of rent reserved herein for said item for the balance of the term hereof over the then reasonable rental value of said item for the same period of time; (f) to pursue any other remedy now or hereafter existing at law or in equity. “Notwithstanding any such action that lessor may take, including taking possession of any or all of the equipment, lessee shall remain liable for the full performance of all its obligations hereunder, provided, however, that if lessor in writing terminates this lease, as to any item of equipment, lessee shall not be liable for rent in respect of such item accruing after the date of such termination. “In addition to the foregoing, lessee shall pay lessor all costs and expenses, including reasonable attorney’s fees, incurred by lessor in exercising any of its rights or remedies hereunder. “Should Lessee fail to pay any part of the rent herein reserved or any other sum required to be paid to Lessor by Lessee within ten (10) days after the due date thereof, Lessee shall pay unto Lessor a late charge of ten percent (10%) of the payment due or One Dollar ($1.00), whichever the greater, for each month or part thereof for which said rent or other sum shall be delinquent.” At the bottom of the second page there appears the following guaranty provision: (Signature) X (s) John T. Bennett An Individual” “Undersigned guarantees performance of above lease by Lessee and payment of all sums due thereunder in event of default, hereby waiving any modification, amendment or extension and notice thereof. The agreement of the lessee, Ben-Kro, with respect to payment of rentals is contained in paragraph 2 under designation “Terms and Conditions of Lease” and in the “Schedule of Rental Payments and Term of Lease” on the face of the lease contract. As we construe these provisions, the lessee is required to make monthly rental payments of $81.49 each, beginning March 1, 1970, with a payment being due on the first day of each succeeding calendar month during the 36 month term of the lease. These provisions do not contain an agreement or promise of the lessee to pay, as rental, any specific sum or consideration equivalent to the total amount of the lease rental payments; the lessee is merely obligated to make the monthly payments in the stipulated amounts as and when they come due during the term of the lease. A covenant to pay rent periodically during the term of the lease creates no obligation on the part of the lessee until the time for payment arrives. 49 Am.Jur. 2d, Sec. 515, p. 495. Rives v. James, 3 S.W.2d 932 (Tex.Civ.App.—San Antonio 1929, writ dismissed). See also Williams v. Houston Cornice Works, 46 Tex.Civ.App. 70, 101 S.W. 839 (1907, n. w. h.); Davidson v. Hirsh, 45 Tex.Civ.App. 631, 101 S.W. 269 (1907, n. w. h.). A different situation is presented where the lessee agrees to pay a specific gross sum, payable in installments over the term of the lease. Hart v. Wynne, 40 S.W. 848 (Tex.Civ.App.1897, writ ref.). There are provisions in the lease to the effect that the lease is irrevocable; that the lessee’s obligation to pay the aggregate rent for the term will continue notwithstanding loss or damage to the equipment, termination of its possession “or for any other reason,” and that notwithstanding any action the lessor may take on default, the lessee will remain liable for the full performance of its obligations. However these provisions, as we construe them, are not inconsistent with the provisions referred to above which obligate the lessee to pay the specified monthly rentals as and when they accrue during the term of the lease; in the absence of express provision, that obligation may not be extended so as to entitle the lessor to unearned and unaccrued rentals. Rohrt v. Kelley Manufacturing Company, 162 Tex. 534, 349 S.W.2d 95 (1961); Texas Western Financial Corporation v. Ideal Builders Hardware Company, 481 S.W.2d 919 (Tex.Civ.App.—Houston, 14th, 1974, writ ref. n. r. e.). The lease contract is on a printed form bearing the name of the lessor, American Lease Plan, and its terms reflect that it was principally intended to benefit the lessor. Any doubt as to the proper construction to be given the lease provisions must be resolved against the lessor. Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784 (Tex.Sup.1965). We believe the construction indicated above tends to harmonize the provisions discussed and avoids a harsh and unjust result. Walling v. Christie & Hobby, Inc., 54 S.W.2d 186 (Tex.Civ.App.—Galveston 1932, N.W.H.). The summary judgment proof shows that the lessee Ben-Kro made the first two rental payments due under the lease for the months of March and April, 1970 and that it also made the advance rental deposit in the equivalent of three months’ rental. This suit was filed on August 27, 1970 and American Lease Plan repossessed the leased equipment through process of sequestration on September 1, 1970. At the time the leased property was repossessed by American Lease Plan, there was apparently rental due and unpaid for the four months of May, June, July and August of 1970 and American Lease Plan held in its hands the security deposit equivalent to three months’ rental payment. In the default provisions (paragraph 16) of the lease, the lessor is given extensive remedies in the event of the lessee’s default in payment of rentals. The lease provides that the lessor may sue for all rentals “then due or thereafter accruing”; take possession of the property without demand or notice and without court order or other process; sell the equipment at public or private sale for cash or credit; terminate the lease, and/or to pursue any other remedy at law or in equity. While these remedies are stated as being both alternative and cumulative, they are in certain respects clearly inconsistent. Under the provisions of the lease in question, American Lease Plan, on default of its lessee, could either treat the lease as continuing in effect and sue on the lease for the monthly rental payments as and when they fell due; or it could sue for damages for anticipatory breach, its measure being the difference between the present value of the rentals contracted for in the lease and the reasonable cash market value of the lease for its unexpired term. Walter E. Heller & Company v. Allen, 412 S.W.2d 712 (Tex.Civ.App.—Corpus Christi 1967, writ ref. n. r. e.). See also 13 Baylor L.Rev. 374. In the latter instance the lessor had the right to take possession of the leased property. It did not, however, have the right to retake possession of the property and also recover the full amount of unaccrued and unearned rentals for the unexpired term of the lease. Walling v. Christie & Hobby, Inc. supra; 8 C.J.S. Bailments Sec. 44, p. 494; Stewart v. Basey, 241 S.W.2d 353 (Tex.Civ.App.—Austin 1951, aff’d 150 Tex. 666, 245 S.W.2d 484 (1952)). American Lease Plan’s petition recites that the lease contract provides that if the lessee fails to make the payments when due the lessor “may declare the entire balance then immediately due and payable.” We fail to find any such provision in the lease agreement. We are further of the opinion that the pleading and proof of American Lease Plan would not sustain a recovery for unaccrued rental payments even had the lease agreement purported to give the lessor a right to accelerate maturity. In certain instances such acceleration provisions have been upheld as in Blakeway v. National Credit Corp., 439 S.W.2d 155 (Tex.Civ.App.—Austin 1969, writ ref. n. r. e.) ; however, in circumstances such as here present, such provisions have generally been treated as a penalty, unenforceable both as to the lessee and the lessee’s guarantors. Walter E. Heller & Company v. Allen, supra; Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). In our opinion, American Lease Plan’s repossession of the leased equipment and its disposition of the equipment by sale effectively terminated the lessee’s continuing obligation to pay rental. Barret v. Heartfield, 140 S.W.2d 942 (Tex.Civ.App.—Beaumont 1940, writ ref.). To compel a lessee, ousted from possession, to pay full value for use of property which it no longer has the right and opportunity to use and enjoy, permits the lessor a measure of recovery far in excess of “just compensation.” Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952); see also 5 Corbin, Contracts, Sec. 1065, p. 378. This is obviously unfair, whether the lease be considered a bailment or a conventional lessor-lessee relationship. Texas Western Financial Corp. v. Ideal Builders Hardware Company, supra, 481 S.W.2d at page 923. We further hold that when American Lease Plan repossessed the leased equipment under the sequestration statutes it elected a remedy which was inconsistent with non-judicial repossession and sale under the contractual terms of the lease. While the lease authorized American Lease Plan to take possession of the equipment, without court order or other process of law, this remedy co-existed with but was inconsistent to the legal remedy afforded appellant under the sequestration statutes. Moszkowicz v. A. B. Lewis Company, 268 S.W.2d 548 (Tex.Civ.App.—Waco 1954, writ ref’d n. r. e.) ; Norris v. Wilkens, 3 S.W. 126 (Tex.Civ.App.—Dallas 1927, n. w. h.). American Lease Plan elected to proceed with its judicial remedy pursuant to the sequestration statutes and having elected such remedy, cannot assert that its action in effecting repossession and sale was done pursuant to the provisions of the lease. Moszkowicz v. A. B. Lewis Company, supra; see also Kingsbery v. Phillips Petroleum Company, 315 S.W.2d 561 (writ ref. n. r. e.) ; Fleming v. Lon Morris College, 85 S.W.2d 276 (Tex.Civ.App.—El Paso 1935, writ ref.). Accordingly, the sale and disposition of the leased property must be considered a legal eviction of the lessee and a termination of the lease. Barret v. Heartfield, supra. In view of our holdings above, we do not consider the contentions set forth in appellee’s brief as to the constitutionality of the sequestration procedures under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corporation of Bayview, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and the recent decision of the 14th Court of Civil Appeals in Southwestern Warehouse Corporation v. Wee Tote, Inc., 1974, 504 S.W.2d 592. The summary judgment proof established that the monthly rental payments for the months May, June, July and August had accrued at the time possession was retaken by American Lease Plan and that the lessee had made an advance rental deposit equivalent to three months’ rental which would be applicable as an offset against such accrued rent. The summary judgment proof also shows material issues of fact as to appel-lees’ defenses of breach of warranty and failure of consideration. The affidavits of John T. Bennett and of Jo Ann Crow, Secretary-Treasurer of Ben-Kro, state that the leased equipment failed from the beginning to work properly; that it multilated the cards and envelopes which it was supposed to print; that American Lease Plan sent repairmen to work on the machine but that they were unable to repair it and that appellees were told the machine would have to be taken out to be repaired. The affidavits further state that American Lease Plan then removed the machine and replaced it with a used demonstrator which did not work properly; that that machine was likewise serviced by the lessor’s representatives but without success and that the equipment which was actually sequestered was the used demonstrator and not the machine originally leased. We are of the opinion that these sworn statements raise material fact issues pertinent to appellees’ defenses. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

AMERICAN INDEMNITY COMPANY, Appellant, v. DA-COL PAINT MANUFACTURING COMPANY, Appellee. No. 18274. Court of Civil Appeals of Texas, Dallas. April 11, 1974. Rehearing Denied May 9, 1974. Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant. Edward S. Koppman, Ungerman, Hill, Ungerman, Angrist, Dolginoff & Teofan, Dallas, for appellee. GUITTARD, Justice. This suit was brought against the surety on an original contractor’s bond by a mate-rialman who had supplied paint to a subcontractor on an apartment project. Our questions are: (1) whether the requirement of the Hardeman Act that notice be sent to the original contractor is rendered inapplicable by the sham-contractor statute in view of the jury’s finding that the owners could have effectively controlled the affairs of the original contractor through ownership of voting stock or otherwise, and (2) if such a notice is required, whether that requirement is satisfied by sending a copy of the notice to one of the owners of the property who is also an officer and major stockholder of the corporate original contractor, but without addressing the notice to the corporation or to the owner in his capacity as officer of the corporation. We hold that the notice requirement was applicable and that the notice addressed to the owner in his individual capacity was not sufficient. Accordingly, we reverse the judgment for the materialman and render judgment in favor of the surety. Necessity of notice We consider first the defendant surety’s first and sixth points of error, which assert that notice by a materialman to the original contractor is required notwithstanding applicability of the sham-contractor statute. These points are sustained. The original contractor, Pala, Inc., entered into a contract to construct the apartment project for Shiloh Terrace Apartments, a partnership composed of Homer Caston, G. C. Butler and J. E. Andrews. Caston and Butler owned substantially all of the stock of Pala, Inc. The bond sued on was executed by Pala as principal and defendant American Indemnity Company as surety to secure the partnership against claims for labor and material. Although its sufficiency as a statutory bond is questioned, we shall treat it as sufficient to protect materialmen who have given the notices required by article 5472d. Plaintiff Da-Col Paint Manufacturing Company furnished paint to C. Hayman Construction Company, which used it in performing a subcontract with Pala, Inc. Da-Col’s deliveries to Hayman amounted to $3,687.42 in September 1969 and $6,341.-11 in October 1969. Da-Col gave no notice to anyone until November 26, 1969, when its attorney sent notice by certified mail to the owner, Shiloh Terrace Apartments, and on the same day sent copies to various parties, including Homer Caston, one of the partners in Shiloh Terrace Apartments and president of Pala, Inc. Defendant surety concedes that the notice to Shiloh Terrace Apartments was sufficient to comply with the statutory requirement that notice be given to the owner within ninety days after the tenth day of the month following each of the months in which the material was delivered, but contends that no proof was made of notice to Pala, l'nc., the original contractor, within thirty-six days after the tenth day of the month following each of the months in which the materials were delivered, as required by the same statutes. Notice to Pala, Inc., on November 26, if proved, would have been timely with respect to the October deliveries, since it would have been made within thirty-six days after the tenth day of the month following the month in which those deliveries were made, but it would not have been timely with respect to the September deliveries. Plaintiff Da-Col contends that since the jury found on sufficient evidence that the owner, Shiloh Terrace Apartments, could have effectively controlled Pala through stock ownership or otherwise, the subcontractor Hayman must be treated as an original contractor under the sham-contractor statute, article 5452-1(1), which provides: Whenever any owner of real property shall enter into any contract with a corporation for the construction or repair of any house, building or improvements thereon, and said owner can effectively control the corporation with whom such contract is made, through the ownership of voting stock therein, interlocking directorships or otherwise then . . . any person, firm or corporation who, under a direct contractual relationship with said . . . corporation and who may . . . furnish labor or material to be used in the prosecution of the work under such contract shall be deemed to be in a direct contractual relationship with the owner and may perfect his lien against the property in the same manner as any other original contractor. Da-Col’s theory is that this statute requires Hayman to be treated as an original contractor for notice purposes and that no notice to the original contractor is necessary because of subparagraph 2(b)(2) of article 5453, which provides: Where the claim consists of a lien claim arising from a debt incurred by the original contractor, no such notice need be given to the contractor but notice to the owner, as prescribed in paragraph 2b (1) of this Article will be sufficient. We conclude that this provision is not made applicable to this case by the sham-contractor statute. The purpose of requiring notice to the original contractor is to keep him advised of unpaid bills of his subcontractors so that he can protect himself against paying twice for the same materials. Youngblood, Mechanics’ and Materialmen’s Liens in Texas, 26 S.W.L.J. 665, 706 (1972). If he pays a subcontractor who has bills outstanding to material-men, he may be liable to pay for the same materials again if the materialmen perfect their claims against the owner or against the original contractor himself on his bond. Although the original contractor is not expressly authorized by the statute to withhold payment, presumably he is in a position to insist that outstanding material-men’s claims be paid before settling with his subcontractors. This problem does not arise when the materialman’s claim is a debt incurred directly by the original contractor. In that case he is not exposed to double liability and he is deemed to have notice of his own debts. Consequently, notice to the original contractor is superfluous and the above-quoted language of subparagraph 2(b)(2) of article 5453, expressly dispenses with it. This rationale has no application to a claim against a subcontractor, regardless of whether the original contractor is subject to control of the owner within the sham-contractor statute. The purpose of that statute is to protect persons dealing with a sham original contractor by giving them the same rights against the owner as if their contracts had been made directly with the owner. A materialman, such as Da-Col, who has no direct relationship with the sham contractor but only supplies material to a subcontractor, is not affected by the relationship between the original contractor and the owner. He is protected by the lien and bond statutes, articles 5452 and 5472d, to the same extent as if the original contractor were completely independent, but he is still required to give the original contractor the notice required by subparagraph 2(b)(1) of article 5453 in order to recover on the original contractor’s bond. Moreover, the jury’s finding does not establish that Hayman was the only original contractor. Hayman would be only one of several original contractors, in any event. Pala, Inc., would still be an original contractor so far as concerns Da-Col and its claim on Pala’s bond. The protection of an original contractor’s bond extends only to claimants furnishing labor and materials to that contractor or his subcontractors. It does not extend to claimants who have furnished labor or materials to a different original contractor. Fidelity & Deposit Co. v. Felker, 469 S.W.2d 389 (Tex.1971); Trinity Universal Ins. Co. v. Barlite, 435 S.W.2d 849 (Tex.1968). Under these decisions, treating Hayman as an original contractor would not afford Hay-man’s materialmen a claim against Pala’s bond. The only theory upon which their claims against Hayman may be asserted against Pala’s bond is to treat Hayman as a subcontractor of Pala, since Pala’s surety agreed to stand good only for the obligations of Pala and its subcontractors, not for those of other original contractors. Consequently, neither the sham-contractor statute nor subparagraph 2(b)(2) of article 5453 dispenses with notice to Pala as a necessary condition to validity of a claim against Pala and the surety on its bond. Sufficiency of notice Defendant surety’s second point of error challenges the sufficiency of the notice to the original contractor. This point also is sustained. It will be recalled that Da-Col delivered the materials to Hayman in September and October and the only notice was mailed on November 26. Thus notice to Pala, Inc., on that date would have been timely with respect to the October deliveries, but not with respect to the September deliveries. Accordingly, we must determine whether notice was given to Pala on November 26. The only evidence of mailing the notice was given by one of Da-Col’s attorneys. He testified that he sent the original of the notice by certified mail to the owner, Shiloh Terrace Apartments, on November 26, 1969, and that on the same day he mailed copies to the subcontractor C. Hayman Construction Company, to Pala’s surety American Indemnity Company, and to Homer Caston, G. C. Butler and J. E. Andrews, the partners in Shiloh Terrace Apartments. The attorney did not testify that the copies were sent by certified mail, nor did he say that a copy was sent to Pala, Inc., or to anyone addressed as an officer of Pala, Inc. The copy of the notice that was introduced in evidence does not list Pala, Inc., as one of the addressees to whom copies were sent. The original notice was addressed to Shiloh Terrace Apartments at 404 Chestnut Street, Bon-ham, Texas. This address is shown to be the law office of G. C. Butler, a forty-five-percent partner in Shiloh Terrace Apartments and forty-nine-percent shareowner and secretary-treasurer of Pala, Inc. According to Butler’s testimony, Pala’s office was at 410 Chestnut Street in Bonham, which was separated from his law office by a parking lot. There is no evidence that Butler personally received the notice, but Homer Caston, also a forty-five-percent partner in Shiloh Terrace and a fifty-percent stockholder and president of Pala admitted on the witness stand that he had received a copy of the letter addressed to him individually at his law office in Sherman, Texas. Da-Col argues that this evidence shows actual and timely receipt of the notice by Pala and cites cases such as City of Fort Worth v. Pippen, 439 S.W.2d 660 (Tex.1969), holding that a corporation is bound by constructive notice of facts known to its officers in handling a transaction for the corporation. We do not agree that constructive notice or even actual knowledge by the original contractor of the unpaid balance of the claim satisfies the requirement of the statute. Article 5453 requires specific written notice to the original contractor, and subparagraph 4(b) of article 5472d makes the time and manner of such notice conditions of a valid claim against the original contractor’s bond. See Anderson v. Clayton, 494 S.W.2d 650 (Tex.Civ.App.—Dallas 1973, no writ). Such a notice advises him that a claim is being made against him and his surety and gives him an opportunity to protect himself accordingly. The same result is not accomplished by mailing notice of the claim to one of the members of the owning partnership who also happens to be an officer of the corporate original contractor because such a notice does not advise him that a claim is being made against the corporation. The notice is not received by him in his capacity as an officer of the corporation unless he is addressed in that capacity or unless he receives a notice addressed to the corporation, particularly if he has an individual interest in the matter to which the notice may be pertinent. Therefore, it does not satisfy the statutory requirement of notice to the corporation. For the reasons stated we sustain American Indemnity’s first, second and sixth points and do not reach the other points of error. Accordingly, the judgment of the trial court is reversed and judgment is rendered that plaintiff Da-Col take nothing against defendant American Indemnity Company. . Tex.Rev.Civ.Stat.Ann. arts. 5453(2) (b) (1) and 5472d(4)(a) (Vernon Supp.1974). All statutory references in this opinion are to Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1974). . Article 5452-1. . The method of fixing a lien on the property of the owner is prescribed by article 5453, which provides in subparagraph 2(b)(1), as follows: Where the claim consists of a lien claim arising from a debt incurred by a subcontractor, the claimant shall give written notice of the unpaid balance of such claim to the original contractor not later than thirty-six (36) days after the tenth (10th) day of the month next following each month in which claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part; and claimant shall give a like notice to owner not later than ninety (90) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part. The method of fixing a claim on the original contractor’s bond is prescribed by article 5472d(4), as follows: A claim to be enforceable against the bond may be perfected either in the manner prescribed for fixing and securing a lien by Article 5453 hereof, or in the following manner: a. By giving to the original contractor all applicable notices of claims required by Article 5453; and, in addition thereto, by giving to the corporate surety, in lieu of to the owner, all notices therein required to be given to the owner . b. The time and manner of giving notices for claims under subparagraph 4 — a of this Article shall be conditions of a valid claim thereunder . . We do not pass on the question of whether in view of the owner’s control of the original contractor, the notice to the owner was equivalent to notice to the original contractor under the sham-contractor statute, article 5452-1, since that question has not been presented to us either in the briefs or in oral argument. That question would affect only the October deliveries and is distinct from the question considered in the first part of this opinion as to whether subparagraph 2(b) (2) of article 5453 dispenses with notice to an original contractor subject to the owner’s control and leaves only the requirement of notice to the owner within ninety days after the tenth day of the month following the month in which material was delivered.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

R. L. THOMPSON et al., Appellants, v. L. N. HAMBRICK et al., Appellees. No. 18268. Court of Civil Appeals of Texas, Dallas. April 4, 1974. Rehearing Denied May 2, 1974. Jay M. Vogelson, Steinberg, Generes, Luerssen & Vogelson, Dallas, for appellants. Sandy M. Sandoloski, Weinberg, Sando-loski & Hines, Dallas, for appellees. BATEMAN, Justice. The appellants were the minority shareholders, and appellees were the majority shareholders, in the American Bank and Trust of Irving, Texas, which was organized in early 1969. The appellants were plaintiffs in the trial court and now appeal from a take-nothing summary judgment. The parties will be designated as they were in the trial court. Plaintiffs’ first claim for relief is that the defendants, owning the majority of the shares of stock, and hence__control, of the bank, sold their shares to Dr. B. J. Case and B. M. Grantland at a price nearly twice its market value, in violation of a written agreement dated February 4, 1969 between L. N. Hambrick and B. H. Buchanan as “Trustees” on the one hand, and each individual shareholder, referred to therein as “Stockholder,” on the other hand, in pertinent part as follows: Whereas, Stockholder is one of several persons who, collectively, own 100% of the existing outstanding capital stock of the American Bank and Trust Company of Irving, Texas, hereinafter referred to as Bank; and Whereas, Stockholder recognizes that it is to his advantage and to the mutual advantage of all other stockholders for the stock of Bank to remain, insofar as possible, within the exclusive control of the existing stockholders during the first five (5) years of Bank’s existence, in order to insure its proper management and growth; and Whereas, all of the stockholders of Bank mutually desire to enter into this Agreement, by which each stockholder grants unto L. N. Hambrick and B. H. Buchanan, Trustees, for a period of five (5) years from the date of this Agreement, the right of first refusal to purchase the stock of any stockholder who may desire to sell his stock ... at such price as would be determined in accordance with this Agreement; Now, therefore, it is mutually covenanted and agreed by and between the parties hereto that, in consideration of the mutual promises, considerations and agreements contained herein, and in consideration of the execution of a similar agreement by other presently existing stockholders, the following conditions shall apply: 1. Stockholder shall neither sell nor assign to any person, firm, partnership or corporation any of his stock in American Bank and Trust Company, until he has first offered the same, in writing, to L. N. Hambrick and B. H. Buchanan, Trustees. Then followed a formula for determining the price at which the “Trustees” shall buy the stock so tendered to them, and other provisions not necessary to set out here in full. In the spring of 1971, Dr. B. J. Case and B. M. Grantland became interested in buying all of the stock of the bank, or at least enough to assure them of control. Their previous offer to buy the stock at $45 per share was rejected. Thereafter Buchanan .met Case at the Los Colinas Country Club and negotiated a sale to Case and Grantland of sufficient shares to assure control, the price agreed upon being $55 per share. At about this time Buchanan purchased 900 shares from the plaintiff William A. Wylie, one of the officers of the bank, at $40 per share. Case offered to buy defendants’ stock at $55 per share. Defendants accepted and 16,203 shares were sold. The defendants then resigned from the board of directors. Plaintiffs alleged that the said agreement of February 4, 1969 is ambiguous in that it does not state for whose benefit the defendants Hambrick and Buchanan agreed to act as trustees, or their obligations if a conflict of interest should arise. They prayed that the court should hear pa-rol evidence by which to determine the intention of the contracting parties, and to declare that (a) Hambrick and Buchanan were and are trustees under the contract for the benefit of all the other shareholders, and (b) that Hambrick and Buchanan were disqualified and should have recused themselves from acting under the agreement with respect to stock owned by them. Plaintiffs’ first four points of error, in varying phraseology, say the trial court abused its discretion in not holding the agreement to be ambiguous and in refusing to hear parol evidence as to its meaning in the light of surrounding facts and circumstances. They claim that they collectively had the right under the agreement, if properly interpreted, of first refusal of the stock of the defendants, including Ham-brick and Buchanan, that the purpose and intent of the agreement was to give all shareholders the right to buy the stock of any of them who wanted to sell their stock. Defendants contend, on the other hand, that the agreement could only have been intended for the benefit and protection of Hambrick and Buchanan. The instrument does not provide what the corpus of the “trust” was, nor who the beneficiaries were. Neither does it provide for the source of the funds that would be used to purchase the shares on behalf of the “trust.” The agreement itself indicates that it is designed to serve “the mutual advantage of all other stockholders,” but this is inconsistent with the argument that it was for the sole benefit of Hambrick and Buchanan. Parol evidence of circumstances surrounding the making of a contract is admissible to explain and resolve these ambiguities. 2 C. McCormick and R. Ray, Texas Law of Evidence § 1685 (2d ed. 1956); Page v. Marshall, 347 S.W.2d 656, 658 (Tex.Civ.App.— Austin 1961, no writ). Where there is a question as to the .true meaning of an ambiguous instrument, summary judgment based thereon is improper. Robert v. E. C. Milstead Ranching, Inc., 469 S.W.2d 429 (Tex.Civ.App.—Beaumont 1971, writ ref’d n.r.e.) ; Tinnin v. Crook, 333 S.W.2d 617 (Tex.Civ.App.—El Paso 1960, writ ref’d n.r.e.). We cannot say that the summary-judgment evidence establishes as a matter of law that the agreement was for the exclusive benefit of Hambrick and Buchanan and gave them the right to sell their stock without giving the other shareholders an opportunity to buy the same either at a price determined by the formula or at the same price that had been offered for it. We therefore sustain the first four points of error. Whether plaintiffs have alleged the correct measure of damages to which they will be entitled if it be found that the agreement means what they say it means is not before us. We merely hold that defendants have not carried their negative burden of showing as a matter of law that in that event there are no fact issues which, if resolved in favor of plaintiffs, will entitle them to damages. By their fifth point of error plaintiffs contend that, quite aside from the said written agreement, the defendants owed to them a fiduciary duty which was breached, and that the trial court erred by not so finding. In their sixth point they say the court erred in not finding that the premium paid for controlling shares was a corporate asset in which they were entitled to share pro rata. The plaintiffs rely largely upon Perlman v. Feldmann, 219 F.2d 173 (2d Cir. 1955), cert. denied, 349 U.S. 952, 75 S.Ct. 880, 99 L.Ed. 1277; Jones v. H. F. Ahmanson & Co., 1 Cal.3d 93, 81 Cal.Rptr. 592, 460 P.2d 464 (1969); and International Bankers Life Inc. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963). Feldman was a derivative action brought by minority stockholders of a steel company to compel an accounting for and restitution of allegedly illegal profits made by Feldman, the dominant shareholder, chairman of the board and president of the steel company, in selling his stock to another corporation which sought control of the steel company in order to assure itself of a continuing supply of steel in a time of shortage. The court held that the sale by Feldman of the controlling stock was a breach of fiduciary duty in that it foreclosed the steel company’s opportunity to expand, of which the minority stockholders had just cause to complain. While recognizing that a majority stockholder may normally dispose of his stock to outsiders without having to account to the corporation for profit, the court held that he is accountable to the minority stockholders under the particular circumstances of that case. Feldman involved more than the acquisition of mere control; it also involved the frustration of a corporate business opportunity to the detriment of the minority stockholders. In this respect it differs from the case at bar. The right of control is ordinarily a right inherent in ownership or control of a majority of the stock, and if a purchaser pays a premium; i. e., a price greater than the fair value of the stock, merely for the right of control as an investment, with no foreseeable looting and no appropriation or frustration of a corporate business opportunity, and no inherent unfairness to the minority shareholders, it is our view that the minority stockholders have no right to share in such premium unless the said written agreement should be interpreted to give them such a right. As said in Tryon v. Smith, 191 Or. 172, 229 P.2d 251, 254 (1951): It is generally held that majority stockholders may sell their stock at any time and for any price obtainable without informing other stockholders of the price or terms of sale, provided they act in good faith . . . The fact that Smith et al. received more for their stock than the minority is no evidence of fraud, since it is generally recognized that the stock of majority stockholders is of more value than that of the minority. To the same effect, see Levy v. American Beverage Corp., 265 App.Div. 208, 38 N.Y.S.2d 517 (1942); Bart v. Pine Grove, Inc., 326 Ill.App. 426, 62 N.E.2d 127 (1945); McDaniel v. Painter, 418 F.2d 545 (10th Cir. 1969). However, as said in McDaniel v. Painter, Id. at 547: Thus, when transferring control of the corporation, the managing majority are dutybound not to sell controlling interest to outsiders if the circumstances surrounding the proposed transfer would alert suspicion in a prudent man that the purchasers are an irresponsible group who will mismanage and loot the corporate assets. Jones v. H. F. Ahmanson & Co., supra, does appear to expand legal thinking on the scope of the controlling shareholder’s responsibility in such cases. This was a class action brought by a minority stockholder against a holding company and majority stockholders of a savings and loan association for breach of fiduciary responsibility. The book value of the association stock was very high and there was no public market for the stock. However, there developed a bull market in savings and loan associations, due to an upsurge in investor interest in such associations generally. The defendants, who were officers and directors of the association and held 85% of its stock, formed a holding company and exchanged each of their shares in the association for two hundred and fifty shares of the holding company’s stock. No opportunity for such exchange was offered to the minority stockholders. This arrangement created a public market for the shares of the majority in the holding company, but the minority were denied this advantage. Although it was stipulated that no harm had been done to the association, the Supreme Court of California held that the controlling shareholders could not use their power to control the corporation for the purpose of promoting a marketing scheme which benefited themselves alone to the detriment of the minority, and that the minorities’ pleading stated a cause of action for a sharing in the profits thus made by the defendants. In International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963), the corporation itself sued several of its former officers and directors, alleging that they had violated their fiduciary duties by selling their stock in direct competition to a new offering by the corporation. Holding that this act constituted the appropriation of a corporate opportunity, the Supreme Court of Texas held that directors of a corporation, being fiduciaries, owe to the corporation the responsibility of their uncorrupted business judgment for the sole benefit of the corporation; that they owed the corporation the duty to exert all efforts in its behalf to the end that the sale of its stock would net the corporation the greatest possible return and that under the circumstances of this case the burden was on the defendants to establish the fairness to the corporation of their personal sales transactions. The rule applicable here is stated in Seagrave Corp. v. Mount, 212 F.2d 389, 395 (6th Cir. 1954), where the court, after stating the general rule that majority stockholders are at liberty to sell their shares at any time and for any acceptable price without being liable to other stockholders added this: However, there are recognized exceptions to the general rule, such as where fraud is involved in the actions of the dominant directors and stockholders, where controlling stockholders turn over their shares to purchasers who mismanage the corporation or loot the corporate assets, |Chere non-controlling stockholders are induced to sell their shares by concealment of the fact that a premium is to be paid to the controlling stockholders,) where controlling stockholders or directors make a secret profit from the transaction, or where directors are dealing directly with the corporation to their own personal advantage, known or unknown. In summary, it is our opinion that a majority stockholder who is paid a premium for his stock because of the control that goes with it is under no duty to the corporation or to the minority stockholders to account for such additional profit, unless he has reason to suspect that the purchaser will loot the corporation, or some part of the premium he receives for his stock is in consideration of a business opportunity, as in Feldman, or unless the seller’s conduct runs afoul of the principles contained in the following language from Holloway, Id., 368 S.W.2d at 577: A corporate fiduciary is under obligation not to usurp corporate opportunities for personal gain, and equity will hold him accountable to the corporation for his profits if he does so. Transactions in which a corporate fiduciary derives personal profit, either in dealing with the corporation or its property, or in matters of corporate interest, are subject to the closest examination and the form of the transaction will give way to the substance of what actually has been brought about. One court has commented that a director of a corporation is held “in official action, to the extreme measure of candor, unselfishness, and good faith. Those principles are rigid, essential, and salutary.” Kavanaugh v. Kavanaugh Knitting Co., 226 N.Y. 185, 123 N.E. 148. It appears from the summary-judgment evidence that the defendants, shortly after joining in the rejection of the $45 per share offer, made a secret agreement to sell their stock at $55 per share to the same people who had made the previous offer, without notice to the minority shareholders and giving them neither the right of first refusal nor any participation whatever in the transaction. This indicates ./ather clearly the presence of fact issues ‘as to the alleged breach of fiduciary duty. By their seventh point of error appellants assert that the court erred in holding there was no question of fact raised as to whether the defendant Buchanan had improperly coerced the plaintiff Wylie, with the threat of job loss to sell his nine hundred shares at $40 per share immediately prior to the time that Buchanan sold such shares for $55 per share. We find no evidence in the record that Buchanan threatened Wylie with loss of his job if he failed to sell his stock at $40 per share; in fact, Wylie seems by his testimony to have assumed that with the change of control of the bank, he would lose his job in any event. Moreover, he testified in his deposition that he sold his stock at a profit of $14.50 per share and that' it was to his advantage to do so. It also appears from his own testimony that he was not coerced into selling his stock. Defendants carried their burden under Texas Rules of Civil Procedure rule 166-A of showing the absence of a material fact issue as to Wylie’s said claim and that defendants were entitled to judgment as a matter of law. Therefore, the seventh point is overruled and the summary judgment denying Wylie’s claim is affirmed. By their eighth point of error, appellants contend there was a fact issue as to whether the fair market value of their shares was lowered as a consequence “of the precipitous sale of control by defendants and their precipitous resignation en masse from the board of directors.” Since the case must be tried, we deem it improper for us to comment or pass upon this point of error. For the reasons hereinabove given, the judgment is reversed and remanded in part and affirmed in part.

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Betty Lou Goosby LUTZ, Appellant, v. William Jefferson LUTZ, Sr., Appellee. No. 16314. Court of Civil Appeals of Texas, Houston (1st Dist.). April 18, 1974. W. C. Shead, Houston, for appellant. No brief filed for appellee. PEDEN, Justice. Mrs. Lutz brought this suit on November 12, 1971 against her former husband, seeking to recover for necessaries furnished to their children. After a non-jury trial on the merits in the same court which granted the divorce, a take-nothing judgment was entered on November 16, 1973. The trial judge made these findings of fact: Plaintiff and defendant were married in 1943 and divorced in January, 1965. Four children were born of the marriage, three of which were under 18 when the divorce was granted; Mrs. Lutz received their custody and Mr. Lutz was ordered to pay $120. per month for their support. On March 7, 1970 the youngest of the children reached age 18. No contempt proceeding was ever filed under Article 4639a, Vernon’s Ann.Texas Civil Statutes. These conclusions of law were made: The evidence was insufficient to establish plaintiff’s case, so the defendant was entitled to judgment. No contempt charges having been invoked, it is essential that the plaintiff establish a sum certain as to the children’s necessaries. This is not a suit in the nature of a contempt proceeding. Plaintiff failed to show that the defendant was responsible for the alleged expenses, either by contract or otherwise. Article 4639a is the source of judicial authority concerning child support until the children reach age 18. The appellee did not file an appellate brief. The appellant’s third point of error is that the trial court erred in holding that Art. 4639a is the sole source of authority to make judgments concerning child support. We sustain this point of error. Sec. 2 of Article 4639a, Vernon’s Texas Civil Statutes provided: “This Act shall be cumulative of all other laws upon the same subject, and is not intended to repeal any other law upon the subject of the care or support of such minors.” A primary purpose of Art. 4639a was to enable the courts to enforce child support payments through contempt proceedings. It did not abrogate the common law duty of a parent to support his minor children. Burrell v. VanLoh, 404 S.W.2d 860 (Tex.Civ.App.1966, no writ). The appellant’s first point of error, that the verdict is against the great weight of the evidence, fails to direct our attention to any specific finding of fact. It is multifarious and does not require our consideration. We have, however, looked to the argument under that point to see which findings of fact were disputed, but find that it complains of none of them, only of the trial court’s conclusions of law. We overrule this point. Appellant’s second point of error states that the trial court erred in not establishing and finding what sum was furnished as necessaries for benefit of the minor children. We find nothing in the record to show that after the trial judge filed his findings of fact the appellant requested further, additional or amended findings as provided for by Rule 298, Texas Rules of Civil Procedure. If she desired additional findings it was incumbent upon her to make a request under the provisions of that rule. The point was waived. Stewart v. Stewart, 319 S.W.2d 154 (Tex.Civ.App.1958, no writ); Vanity Fair Properties v. Billingsley, 469 S.W.2d 453 (Tex.Civ.App.1971, writ ref. n.r.e.). Even if the appellant had not thus waived her right to complain that the findings were not full and complete, there are other reasons why this point does not present error. The Texas Supreme Court stated in Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921): “In determining the duty of the husband to supply necessaries to his children, before or after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations, which may include those assumed to another wife and to other children, and in no event is he liable for food, clothing, attention, or education other than such as is suitable to his and their circumstances in life.” The appellant’s testimony was the only evidence offered in this case. It contained many estimates, included many items which were not necessaries, furnished little information as to the children’s circumstances (and none as to those of the defendant) and, as the uncontradict-ed testimony of an interested witness, it did not meet the test of Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942), that if it be clear, direct, positive and free of inconsistency, and if there are no circumstances that tend to cast suspicion on it, then the witness’ testimony must be accepted as true. It did no more than raise issues of fact. The appellant’s last point of error amounts only to a prayer for reversal. We hold that the matter complained of in the appellant’s third point does not present reversible error. We affirm the judgment of the trial court.

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TEXACO INC., Appellant, v. TEXAS EMPLOYMENT COMMISSION et al., Appellees. No. 16301. Court of Civil Appeals of Texas, Houston (1st Dist.). March 28, 1974. Rehearing Denied April 25, 1974. Oliver J. Butler, Jr., Houston, for appellant. John L. Hill, Atty. Gen., Larry F. York, First Asst. Atty. Gen., James H. Broad-hurst, Wardlow Lane, Asst. Attys. Gen., Austin, for appellee. EVANS, Justice. Appellant, Texaco, Inc., seeks judicial review of a decision of the Texas Employment Commission allowing a claim for unemployment benefits filed by appellee Richard Andrus, a retired employee of Texaco. In trial to the court without a jury, upon stipulated facts, the Commission’s decision was affirmed. We affirm the judgment of the trial court. The record shows that claimant was employed by Texaco from 1933 until his retirement in 1968. In 1937 Texaco adopted an optional “Group Life Insurance and Pension Plan” which provided for automatic retirement of all participating employees with lifetime pension paid for by the combined contributions of Texaco and the participating employees. When this plan was initiated the claimant signed a card signifying his desire to participate and designated his father as beneficiary of the death benefits. Subsequently in 1957 he changed the beneficiary and directed that such benefits be paid to his mother. He contributed to the plan’s fund during his employment and was aware of provision in the plan for compulsory retirement at the age of 65. The labor organization which represented claimant for collective bargaining purposes likewise agreed to the terms of the plan. It was Texaco’s policy to require retirement of all employees when they reached the age of 65 regardless of whether or not they participated in the pension plan. The claimant was retired from Texaco’s employment effective October 1, 1968, the first day of the month following his sixty-fifth birthday. Even if the claimant had expressed a desire to continue working for Texaco he could not have done so after reaching the retirement age without specific approval of Texaco. On January 5, 1969 claimant registered for work and filed claim in Louisiana for unemployment compensation which was referred to the Texas Employment Commission. A protest was filed by Texaco but the Commission’s representative determined that claimant had been “laid off” because he had “reached retirement age” and that claimant was not disqualified for benefits under Article 5221b-3(a) or (b), Vernon’s Ann.Tex.Civ.St. The Commission’s appeal tribunal found that claimant had not voluntarily left appellant’s employ but had been discharged because he had reached retirement age and the Commission upon appeal upheld this finding. It was further stipulated that claimant met all the requirements of eligibility for benefits under Article 5221b-2, V.A.T.S. Thus, the issue presented to the trial court was whether the claimant, although eligible for compensation payments, should suffer some period of disqualification under Art. 5221b-3 for voluntarily terminating his employment without good cause connected with his work. In its first two points of error Texaco asserts the trial court erred in failing to find that claimant had voluntarily agreed to retire pursuant to the provisions of the pension plan and in failing to find that his retirement constituted a voluntary leaving of his work. Article 5221b-3, V.A.T.S., insofar as pertinent here, provides: “An individual shall be disqualified for benefits : “(a) If the Commission finds that he has left his last work voluntarily without good cause connected with his work. Such disqualification shall be for not less than one (1) nor more than twenty-six (26) benefit periods following the filing of a valid claim, as determined by the Commission according to the circumstances in each case.” In Redd v. Texas Employment Commission, 431 S.W.2d 16 (Tex.Civ.App.—Corpus Christi 1968, writ ref. n. r. e.), a very similar fact situation was before the court. In Redd, a telephone company employee was retired under the company’s pension plan when she reached the compulsory retirement age of 65 years. The Commission’s representative found she was disqualified for benefits because her separation was considered a voluntary resignation without good cause connected with the work. The appeal tribunal of the Commission affirmed the Commission’s initial determination, adding its conclusion that the employee was ineligible to receive benefits because she had failed to make active search for work. After further hearing the Commission’s decision was reaffirmed and on appeal the trial court found the Commission’s decision was supported by substantial evidence. The Court of Civil Appeals affirmed the Commission’s decision on the basis that the employee was ineligible for benefits because she had not established she was available for work so as to be entitled to such benefits; however, it further held that under the undisputed evidence the Commission was in error in holding that the employee had left her work voluntarily without good cause and was therefore disqualified to receive benefits. In a case decided subsequent to the Redd case, Texas Employment Commission v. Holberg, 434 S.W.2d 733 (Tex.Civ.App.—Beaumont 1968), a fixed pension plan was not involved, but the two claimants contended that pressure had been put upon them to retire and also that their retirement was for the good of their employers. The Court of Civil Appeals held that where the retirement was for the benefit of both the employer and the employee it would not be considered voluntary under the provisions of the statutes. A writ of error was granted to the Texas Supreme Court which held in 440 S.W.2d 38, 43, that it was unnecessary to determine whether the claimants had properly been denied unemployment benefits on the ground that they had left their work without good cause, and it upheld the Commission’s decision on the basis of findings that the claimants had not made reasonably diligent search for work. The Texas Supreme Court commented upon the decision in Redd as follows: “In Redd, the claimant was forced to retire under a fixed policy plan, and the holding was that she did not voluntarily leave her work. The Commission’s position here is that Smith and Holberg retired voluntarily and hence left their work without good cause and are therefore disqualified. Smith and Holberg contend that there was pressure put on them to retire and that their retirement was also for the good of their employers. In view of our holding above, it is unnecessary for us to determine whether (the claimants) were properly denied unemployment benefits for the additional reason of ‘leaving his (their) last work without good cause connected with his (their) work.’ ” The Court of Civil Appeals in Redd reviewed in some detail the divergent lines of authority in other jurisdictions on the question before us. Among those discussed were Bergseth v. Zinsmaster Baking Company, 1958, 252 Minn. 63, 89 N.W.2d 172; and Stream v. Continental Machines, Inc., 1961, 261 Minn. 289, 111 N.W.2d 785, holding such termination to be voluntarily effected and without good cause; it also considered the cases holding to the contrary such as Campbell Soup Co. v. Board of Review, etc., 1953, 13 N.J. 431, 100 A.2d 287, and similar cases from Pennsylvania, Alabama, Arizona, Florida and Indiana. We believe that it will serve no worthwhile function to repeat the clear analysis of those cases as set forth in Redd. Suffice it to say that we agree with the court in Redd that the better view and one more in line with the rationale of our Texas Supreme Court decisions in this field is that such termination as here present should not be considered as a voluntary resignation without good cause connected with the work. See Commission v. Huey, 161 Tex. 500, 342 S.W.2d 544 (Tex.Sup.1961); Texas Employment Commission v. Gulf States Utilities Co., 410 S.W.2d 322 (Tex.Civ. App.—Eastland 1966, writ ref., n. r. e.). Appellant’s first two points of error are overruled. Appellant’s third point of error is that the trial court erred in refusing to find that the claimant’s voluntary agreement to retire on a pension pursuant to the plan did not constitute a “waiver of rights” prohibited under the Texas Unemployment Compensation Act. In view of our holding that the Commission’s decision should be affirmed that the claimant did not voluntarily leave his work and therefore was not disqualified to receive unemployment benefits under the Act, we find it unnecessary, as did the court in Redd, to consider this point of error. The judgment of the trial court is affirmed.

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GULF OIL CORPORATION, Respondent, v. William H. FERGUSON and Helen Ferguson, Appellants. No. 57645. Supreme Court of Missouri, Division No. 1. May 13, 1974. William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for plaintiff-respondent Gulf Oil Corp. Benson Cytron, House Springs, for defendants-appellants. \ HIGGINS, Commissioner. ' Action for specific performance of option to purchase real estate. (Appeal taken prior to January 1, 1972.) Defendants leased subject property to Missouri State Oil Company for a term of twenty years from May 1, 1950, to April 30, 1970, for a rental of one cent per gallon, seventy-five dollars per month minimum, with a provision that “Lessee shall also have the option of purchasing the demised premises at any time during the term of this lease or any extended term hereof for the sum of $25,000.00.” The interest of Missouri State was assigned to plaintiff. On March 30, 1970, plaintiff mailed two letters and sent a telegram to defendants at addresses in Arnold, Missouri. The telegram was of the same substance as the letters which were identical: “You are hereby notified that Gulf Oil Corporation elects and does hereby exercise its option to purchase for the sum of Twenty-five Thousand and No/100 ($25,000.00) Dollars that certain property located at 7209 Lans-downe, City of St. Louis, Missouri, and more particularly described in a certain Lease Agreement dated May 1, 1950 and recorded in Book 6934, Page 583 of the Records Of the City of St. Louis, Missouri.” On March 31, 1970, plaintiff requested Missouri Title Guaranty Company to examine the title to subject property. Missouri Title issued its title insurance binder to Gulf April 1, 1970. The binder showed a deed of trust executed by defendants December 13, 1968, on subject and other property to secure a loan of $82,500 made by Bohemian Savings and Loan Association. On April 6, 1970, Gulf also ordered a survey of the property which ⅜ received April 1⅜':⅝970. Gulf also prepared and delivered a warranty deed to the title company to be used for conveyance of the property from defendant to plaintiff. On April 29, 1970, -Gulf delivered check fot ■$25,000 to the tfti^company and requested that ¿he title company notify defendants that the cLtx,í money; were on deposit for completion of the ti-uíis¿ivHo'n, Missouri Title Guaranty Cornpxtijfc ⅛/ letter dated and postmarked April 29, 1¾)⅜ notified defendants: “ * * * we are in receipt of funds from Gulf Oil Corporation relative to the purchase of subject property and we have been instructed to act as escrow agent and proceed to close the transaction in accordance with the notice mailed to you dated March 30, 1970 (copy enclosed) . “Please contact the undersigned immediately to arrange for closing.” Mr. Ferguson admitted receipt of the two letters and telegram of Gulf dated March 30, 1970, on or about March 31, 1970. He also admitted receipt of the letter of Missouri Title of April 29, 1970,; from his rural mailbox May 1, 1970. Hrfelt this date of receipt was correct sincje he promptly called his attorney. He did not believe the letter had been left in his< box the previous day, April 30, 1970, since he had a habit of looking in his mailbox every day except Sunday. April 30, 1970, was a Thursday. In any event, neither defendants nor their attorney made any effort to contact plaintiff, their mortgagee, or the title company with respect to completing the sale. Russell Brown, real estate representative for Gulf in the St. Louis area, first received notice of Gulf’s intention to purchase the property when he received copies of the March 30, 1970, letters from his employer to Mr. and Mrs. Ferguson. He had recommended exercise of the option because the lease “was terminating.” He received the title binder and survey on behalf of Gulf and forwarded them to Gulf’s regional office in Tulsa, Oklahoma, so that they could be checked by the engineering and legal departments. Under normal procedures these requirements had to be met before a draft or check could be issued for the purchase price. Earle LaBoube was secretary of Bohemian Savings and Loan. As of trial, May 26, 1971, $22,000 of the $82,500 loan to defendants had been paid, leaving a balance of $60,500. The deed of trust covered a number of parcels of real estate in addition to the subject property which had been appraised at $27,500. Defendants had not moved to release subject property from the deed of trust. Defendant William H. Ferguson confirmed the status and amounts of the deed of trust, and that no attempt had been made to release subject property from the deed of trust. He had not prepared a warranty deed to convey the property and he had made no contact with anyone relative to such a conveyance. The title company held the $25,000 purchase price in escrow from April 29, 1970, and invested it in interest-bearing certificates of deposit beginning July, 1970. Defendants refused to convey, and this suit ensued. The court made the following pertinent findings and conclusions: “As of the date of the hearing of this case, the property * * *, along with other parcels of real property owned by defendants, was subject to a deed of trust in favor of Bohemian Savings & Loan Association on which a balance of $60,500 was due. “On or about March 30, 1970, plaintiff Gulf Oil Corporation exercised the option [to purchase]. “On April 29, 1970, plaintiff deposited the $25,000 purchase price with Missouri Title Guaranty Company to be held in escrow pending a close of the sale. On said date the Title Company wrote defendants advising them of such deposit and requesting them to contact it to arrange for a closing. “Any obligation plaintiff Gulf Oil Corporation may have had to make any other tender of the purchase price before May 1, 1970, was waived and rendered nugatory by the failure of defendants to tender a deed to said property and to remove the mortgage lien therefrom before said date. “The exercise of the option referred to above resulted in a valid and binding contract for the sale by defendants of the property described above to plaintiff, free and clear of any mortgage lien. “Since April 29, 1970, the $25,000 purchase price of said property has been held in escrow by Missouri Title Guaranty Company. Pursuant to the consent of the parties, that company has invested said $25,000 in interest-bearing certificates of deposit. “Since a date prior to May 1, 1970, plaintiff Gulf Oil Corporation has been in possession of said property. “As of the date of this decree defendants are legally obligated to convey said real property to plaintiff by general warranty deed free of any mortgage lien.” By its judgment and decree the court ordered that defendants shall: “(a) effect a release of the mortgage lien from the real property hereinabove described, and “(b) convey such property to plaintiff by general warranty deed. “(2) In effectuating such release of the • mortgage lien, defendants are authorized to utilize all, or any part, of the $25,000 purchase price and accrued interest as may be necessary for that purpose. "(3) Defendants shall be paid the balance of said purchase price and accrued interest after any payment therefrom as provided in paragraph (2) above. “This Court shall retain jurisdiction of this case for the purpose of entering any further order, after hearing, that might be required to effectuate a transfer of title from defendants to plaintiff as herein-above set forth.” Appellants contend the court erred in its order of specific performance in that (I) plaintiff failed to prove a tender of performance prior to filing its suit, (II) plaintiff failed to accept the offer in the option prior to its expiration, and (IV) in requiring defendants to effect a release of the mortgage lien when it was not shown they had the power to do so. They contend also that the court erred (III) in finding that defendants had waived the right to tender in accordance with the contract in that there was no evidence to support such a finding. Appellants’ position is that plaintiff was obligated to tender the purchase price in order to seek specific performance; that the option was unilateral with a definite time period stated, time was therefore of the essence and, accordingly, plaintiff had to accept the option by payment of the purchase price on or before April 30, 1970; that defendants did not waive the tender; that there was no evidence to show that defendants could secure release of the mortgage. Respondent’s position is that the two letters and telegrams of March 30, 1970, exercised the option and resulted in creation of a bilateral contract for purchase of subject property; that time was not of the essence; that if tender of the purchase price was a requirement, it was waived by defendants’ failure to tender a warranty deed and to release the deed of trust; that to hold plaintiff to the one-day difference in tender, if so, would result in a forfeiture which no court would permit; that the court could properly order defendants to accomplish release of the mortgage. The principal question thus posed is whether, in these circumstances, the option should be interpreted as requiring an unconditional acceptance within the option period for its exercise, or payment of the purchase price within the option period. Two well-known authorities have addressed this question: “Each such agreement must be scrutinized to see what it requires to be done within the specified time, either expressly or by necessary implication. Does it require completed performance, that is, actual payment, or does it require tender of the agreed price? Generally, there is contemplated only a notice of acceptance of, and a readiness and willingness to perform, the irrevocable offer which is an option.” Williston on Contracts (3rd ed.), Vol. 6, § 887BB, pp. 529-531. “ * * * in specifying the mode of acceptance and the condition of his duty, the option giver can cause the contract either to remain unilateral as before the acceptance or to become bilateral. The specified condition can be either the actual rendition of a definite performance (such as payment of the price) or the making of a promise of such performance. The difference that it makes is this: first, it determines the manner in which the option holder must accept — the character and limits of his power; secondly, it answers the question whether the option giver can maintain any action, for either damages or specific performance, against the option holder. In most cases, the courts are likely to interpret the agreement in such a way that the contract will be held to be bilateral after a proper notice of acceptance. In such cases the notice of acceptance is operative without any tender of the price * * *. ” Corbin on Contracts, Vol. IA, § 264, p. 514. There is no question that plaintiff wrote two letters and sent a telegram to defendants which were received by defendants March 31, 1970. They express an unconditional exercise of the option to purchase contained in the lease, and the date of receipt was well within the option period. Viewed as suggested by Williston and Corbin, supra, the letters and telegram constituted an exercise of the option which created a bilateral contract for the sale of the property within a reasonable time and in accordance with the usual conditions impliedly attached to real estate sales, e. g., title search, a showing of marketable title, and tender of an executed warranty deed contemporaneously with tender of the purchase price. This demonstration and its underlying principles find approval in Lusco v. Tavitian, 296 S.W.2d 14, 16 (Mo.1956): “If there be no stipulation as to the mode, manner or way the optionee should give notice of acceptance, any manifestation of the determination to accept will suffice, with resultant contract of purchase and sale.” See also 55 Am.Jur., Vendor and Purchaser, § 28, p. 495; § 41, pp. 511-512. There is nothing in the option in question which expresses or implies that its exercise requires payment of the purchase price. It is remarkably similar to the option in Kottler v. Martin, 241 N.C. 369, 85 S.E.2d 314 (1955), which provided that the optionee “may at any time during the term of this lease elect to purchase said property at the sum of $6,700.00.” The optionee gave notice of exercise of the option without tender of the purchase price, and the court held that payment or tender of the purchase price was not requisite until good and sufficient deed for the property was tendered by optionor to optionee. Suhre v. Busch, 343 Mo. 170, 120 S.W.2d 47 (1938), and Baker v. Coleman, 160 Fla. 297, 34 So.2d 538 (banc. 1948), cited by appellants, are distinguished in that they involved sale of stock rather than real estate, with no question of title perfection, and the Florida case contained no binding option because the offer was without consideration. Kyner v. Bryant, 353 Mo. 1212, 187 S.W.2d 202 (1945), recognized the rule that when time is of the essence of the contract, and a purchaser desires to invoke specific performance, he must pay or offer to pay the purchase money on the date or within the time stipulated. However, in affirming a decree of specific performance, the court also recognized “the time for the performance of the contract was intended to be the time it was determined defendant had a ‘merchantable fee simple title,’ such time being fixed, by the facts of the case * * *.” 187 S.W.2d 1.c. 206. Edwards v. Sittner, 213 S.W.2d 652 (Mo.App.1948), is too remote on its facts to warrant discussion. Since, as demonstrated, this option and its exercise created a bilateral contract for purchase and sale of subject real estate, time, i. e., completion of the sale prior to May 1, 1970, was not of the essence. This proposition is well stated in 55 Am. Jur., Vendor and Purchaser, Section 110, p. 587: “Where an irrevocable option to purchase was given, under which the purchaser was required to exercise his option within a stated time, and a time was also fixed for completing the purchase after the exercise of the option, it was held that while time was of the essence of the contract as regards the exercise of the option, it was otherwise as to the contract of purchase which arose on its exercise.” See also 55 Am.Jur., Vendor and Purchaser, § 112, p. 588, and Branch v. Lee, 159 S.W.2d 677, 679-680 (Mo.1942); and note that “ ‘Where time of performance is not made the essence of thé contract an ambiguity in that respect will not defeat specific performance. In such cases, it is implied that performance may be required within a reasonable time.’ ” Wilkinson v. Vaughn, 419 S.W.2d 1, 5 [4] (Mo.1967). With the case in this posture, it is not necessary to discuss whether a tender in fact or in equity was accomplished by the letter of April 29, 1970, from Missouri Guaranty Title Company to defendants, or whether defendants waived tender by their failure to tender a warranty deed to subject property and release of the deed of trust. For authorities finding waiver of tender of the purchase price in these circumstances, see e. g., Lusco v. Tavitian, supra; Cooper v. Mayer, 312 S.W.2d 127 (Mo.1958); Branch v. Lee, supra; Kyner v. Bryant, supra; Corbin on Contracts, Vol. 1A, § 264, p. 512; and note that to deny relief to plaintiff for tendering performance one day late, if so, would work an unconscionable forfeiture. Haeffner v. A. P. Green Fire Brick Co., 76 S.W.2d 122, 126 [2, 3] (Mo.1934). With respect to appellants’ last contention (IV), it is true that specific performance cannot be decreed of a defendant who does not have title to the property to be conveyed or the means of compelling a conveyance of title, i. e., where performance is impossible, the remedy will be denied. See H. B. Deal & Co. v. Kuhlmann, 244 S.W.2d 390 (Mo.App.1951), where the court properly held that an equity court should not grant a decree purporting to affect rights of persons not parties to the suit. This authority is not applicable to this case. Requiring that defendants secure release of the deed of trust held by Bohemian Savings and Loan Association cannot affect that party adversely. All it is ever entitled to receive is the payment decreed; and the court simply required defendants, as sellers, to pay the mortgage to effect its release and convey subject property by general warranty deed. The decree permitted the use of the escrowed money to that end, and there is no pleading or evidence that they did not have title or that they were unable to perform this part of the decree for want of funds. It has been stated that “If the incumbrance could be removed by a money payment, the defendant became bound to make it.” Dennett v. Norwood Housing Ass’n, 241 Mass. 516, 135 N.E. 866, 867 [6] (1922). See also Oberg v. Burke, 345 Mass. 596, 188 N.E.2d 566 (1963); Regan v. Berent, 392 Ill. 376, 64 N.E.2d 483 (1946). Judgment affirmed. WELBORN, C., concurs. PER CURIAM: The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court. BARDGETT, P. J., and HENLEY and MORGAN, JJ., concur. HOLMAN and SEILER, JJ., not sitting.

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2024-08-24T03:29:51.129235

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Fred D. BLUM and Katheryn M. Blum, Plaintiffs-Appellants, v. Ernest B. WILKINSON, Defendant-Respondent. No. 57690. Supreme Court of Missouri, Division No. 1. May 13, 1974. John C. Russell, Raytown, for plaintiffs-appellants. Walter R. Simpson, Kansas City, for respondent; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel. WELBORN, Commissioner. Action for personal injuries, arising out of automobile collision. Katheryn M. Blum sued Ernest Wilkinson for $35,000 damages for her injuries. Her husband joined in the action, seeking $7,500 damages on account of his wife’s injuries and $750 damages to his auto which his wife was driving. Wilkinson counterclaimed against Mrs. Blum for $10,000 damages for his injuries and $500 damages to his automobile. A jury returned a verdict in favor of defendant on his counterclaim and awarded him damages of $1,000 for personal injuries and $425 property damage. Plaintiffs appealed by notice of appeal filed prior to January 1, 1972. The collision occurred shortly after 7:30 A.M., April 22, 1970, a sunny day. The site of the incident was on Route OO in Lafayette County, 2.2 miles west of Route M-131. Route OO was a blacktop road, with a paved surface 21 feet in width and narrow shoulders. The pavement was dry. The center line of the roadway was not marked. Mrs. Blum was driving east on OO, on her way to work in Odessa. She crested a hill and saw Mr. Wilkinson’s automobile approaching in a westerly direction, coming up the hill, near the bottom of the incline. According to Mrs. Blum, the Wilkinson auto was on her side of the road. She applied her brakes and turned to the right. “I * * * had my brakes on and I was pulled to the right and this gravel was soft and I thought it was pulling me towards the * * * ditch, and I turned it sharply to the left and I lost control of it, then.” Then the collision occurred, at the center of the road, according to Mrs. Blum. Mr. Wilkinson, who was alone in his automobile, testified that he saw Mrs. Blum’s car coming straight down the hill, swaying a little to the right and “just right now it happened.” He said he thought he was on his side of the road all the way along. The vehicles stopped after the collision in the westbound lane, with the front wheels on the north shoulder. The Blum auto was damaged primarily on the front and right side. The Wilkinson vehicle sustained damages to the front and left side. Trooper Drunert of the State Highway Patrol, who was called to the accident, found 135 feet of skid marks beginning in the eastbound lane. The right wheel ran off to the right side and then cut back across and slid crossways into the westbound lane. 17 feet of skid marks were found in the westbound lane, leading to the Wilkinson vehicle. The left wheel mark was approximately 11/2 feet to the right of the center of the roadway. The claim of plaintiffs and defendant’s counterclaim were submitted solely on a charge that the other was negligent in driving on the wrong side of the road and a contributory negligence instruction on the same grounds was given on behalf of Mrs. Blum and defendant. The jury returned the following verdict: “We, the Jury, find the issues in favor of the Defendant and assess defendant’s damages as follows— “Personal Injuries $1,000.00 “Property Damage 425.00” On this appeal, appellants’ first contention is that the trial court erred in permitting the investigating patrolman to reproduce on a sheet of paper the diagram he had drawn for his report of the accident and which showed the skid marks observed by him and this location with regard to the center of the roadway. Appellants objected to the introduction into evidence of the resulting sketch and attack the court’s overruling this objection on the grounds that the exhibit “was incompetent, irrelevant and immaterial and highly prejudicial to Appellants.” The trial court did not err. The exhibit was nothing more than a diagram of the skid marks as observed by the trooper at the scene of the accident. His prior oral description related to what he had observed and the diagram served only to make the oral testimony more easily understood. The diagram essentially corresponded with the photographs put in evidence by plaintiffs of the scene of the accident. The photographs show the tire marks at the scene. The diagram did nothing more than show the length of the marks as measured by the trooper and testified to by him. Furthermore the diagram was entirely consistent with Mrs. Blum’s version of the occurrence, except that it shows her skid marks crossing the center of the highway. Again, plaintiffs’ photographic evidence showed that fact. The copying of the diagram from the patrol report did not affect its admissibility. Certainly the tracing did not cause the copy to be hearsay, as appellants complain. The report depicted what the trooper observed at the scene, not what someone told him. The copying did not alter the basic nature of the evidence. The trial court did not err in overruling appellants’ objection to the exhibit. Martin v. Sloan, 377 S.W.2d 252, 263[15, 16] (Mo.1964). The second assignment of error relates to a claim of misconduct on the part of two jurors. Plaintiffs’ motion for new trial alleged misconduct on the part of two jurors in talking to an attorney with whom plaintiffs had discussed the accident, but whom they had not employed to represent them. The claim was supported by an affidavit of the plaintiffs as the court held a hearing on the allegation. Mr. and Mrs. Blum testified that they had discussed the accident with Mr. Warren Sherman, an attorney, and he had obtained a copy of the accident report, but there had been a falling out or misunderstanding and they did not employ Sherman to represent them. They testified that during a recess on the first day of the trial they saw Sherman talking to two women jurors in the courtroom for five or ten minutes, saw him talking to the same women and one of the jury men in the hall during a recess for four or five minutes, saw Sherman talking for five or ten minutes to the same two women jurors during lunch in a restaurant on both the first and second day of the trial. At no time did either of them hear what was said in the conversation. Mr. Sherman testified that he knew some of the jurors and spoke to them, but he denied that he discussed the Blum case, made any mention to them of his acquaintance with the Blums or his early connection with the case. One woman juror testified that Sherman came by the table where she was eating lunch and spoke to another juror who was with her. She said they merely “exchanged the time of day.” Another woman juror testified that she knew Sherman and spoke to him before the trial began. Both denied any discussion of the case with Sherman or anyone else not a member of the jury. “The granting of a new trial on the ground of misconduct by or affecting jurors rests largely in the discretion of the trial court.” Brady v. St. Louis Public Service Co., 361 Mo. 148, 233 S.W.2d 841, 843[2, 3] (1950). No abuse of discretion appears in this case. There is no evidence of improper influence upon the jury in the contacts between Mr. Sherman and the jurors. See Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473, 479 (Mo.1960). Therefore, there is no basis for a finding by the court that the trial court abused its discretion in overruling the motion for new trial on this ground. Appellants finally contend that they should be granted a new trial because the verdict dealt only with the respondent’s counterclaim and failed to make a finding on appellants’ claims. Forms of verdict were given the jury covering all possible verdicts, including one for use in the event the jury should find that neither party should recover from the other. The instruction did not require that a separate verdict be returned on plaintiffs’ claims and defendant’s counterclaim. No objection was raised when the verdict was returned. Plaintiffs did raise the question in their motion for new trial. As above stated, the sole issue submitted to the jury was which party was on the wrong side of the road. The jury’s verdict was, therefore, in effect a finding that Mrs. Blum drove on the wrong side of the road and that Mr. Wilkinson did not. In order to find for defendant on his counterclaim, the jury were required, under defendant’s verdict-director on his counterclaim and plaintiffs’ contributory negligence instruction on defendant’s counterclaim, to so find. Such a finding necessarily precluded a finding in favor of plaintiffs. Therefore, the verdict was “necessarily decisive” of the whole case and was adequate basis for a judgment in favor of defendant on his counterclaim and against plaintiffs on their claims. Staples v. Dent, 220 S.W.2d 791, 792[1, 2] (Mo.App.1949); Ragsdale v. Young, 215 S.W. 2d 514, 516—517[2] (Mo.App.1948); Rozen v. Grattan, 369 S.W.2d 882, 886-888[6] (Mo.App.1963). Johnson v. Hunter, 398 S.W.2d 449 (Mo.App.1965), relied upon by appellants, is not here applicable. In that case, a jury, contrary to the court’s instructions that a verdict in favor of plaintiff must be against both defendants, who stood in an employer-employee relationship, returned a verdict against the employer and exonerated the employee. The court held that such a verdict was prejudicial error as to the employer because it was contrary to the court’s instruction. Here, the instruction perhaps did not make clear the necessity of separate verdicts, but the verdict is not contrary to the court’s instructions and did effectively dispose of the issues. Judgment affirmed. HIGGINS, C., concurs. PER CURIAM: The foregoing opinion by WELBORN, C., is adopted as the opinion of the court. All of the Judges concur.

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2024-08-24T03:29:51.129235

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Nellie G. BRUMMET et al., Appellants, v. Robert Eugene PARKER and Morrison Motor Freight, Inc., Respondents. No. 56854. Supreme Court of Missouri, Division No. 2. April 8, 1974. Motion for Rehearing or to Transfer to Court en Banc for Modification of Court’s Opinion Denied May 13, 1974. J. Turner Jones, Columbia, for appellants; Jones Knight & Ford, Columbia, of counsel. Dale Reesman, Larry E. Tate, Boonville, for respondents; Williams, Reesman & Tate, Boonville, of counsel. STOCKARD, Commissioner. In this suit for wrongful death, plaintiffs have appealed from the judgment for defendants entered pursuant to a directed verdict. The notice of appeal was filed prior to January 1, 1972. This court has appellate jurisdiction by reason of the amount in dispute. Del Brummet was killed when he was walking in the eastbound lane of Interstate Highway 70 and was struck by a truck owned by Morrison Motor Freight, Inc., and operated by Robert Eugene Parker. Plaintiffs, Del Brummet’s surviving widow and two minor daughters, pleaded primary negligence on the part of Parker, including the failure to keep a careful lookout and to sound a warning. They also pleaded humanitarian negligence in failing to stop, swerve, slacken speed, sound a warning, or slacken speed and sound a warning, or swerve and sound a warning. From the evidence offered by plaintiffs a jury reasonably could have found the following facts. Del Brummet (hereafter referred to as “decedent”) was traveling eastbound on Interstate Highway 70 in his Oldsmobile automobile following a Coca-Cola truck which was being operated by Charles Barnett. He was involved in a minor collision with the truck while attempting to pass, and his automobile spun around twice and came to rest in the median between the east and westbound lanes. After the collision, Barnett stopped his truck on the right shoulder of the highway about 50 to 75 yards east of the decedent’s automobile and turned on the “flasher” lights. A second Coca-Cola truck, operated by Don Douglas, had been following the Barnett truck. Douglas pulled off the highway onto the shoulder, stopped about 50 or 75 feet west of decedent’s automobile and turned on the “flasher” lights. It was subsequently determined that decedent’s automobile had a flat tire with a foreign object in the tire. The flat tire may have been the cause of the collision with the Barnett truck and the loss of control by decedent. Decedent walked from his automobile across the eastbound lanes of the highway to the Douglas truck. He asked Douglas, “What happened?” Douglas replied that he did not know. Barnett then appeared at the rear of the Douglas truck and he asked decedent if he had insurance. Decedent asked why he wanted to know, and Douglas replied that decedent had hit his truck. The decedent wanted to know how much damage was done to Barnett’s “car,” and he stated he would pay for the damage. Barnett replied that he could not accept money, and that he would have to call the Highway Patrol. The decedent then told Barnett to go ahead and call the patrol, and he turned and walked away in the general direction of his automobile where, according to Douglas, he disappeared in the darkness. Douglas heard a truck approaching from the west and he looked down the highway toward the east because he was concerned as to where decedent might be, but he could not see him. The truck of Morrison Motor Freight, Inc., operated by Robert Eugene Parker, then came over a rise in the highway to the West. It was in the righthand eastbound lane, and traveling about 55 miles an hour. Parker testified that when his tractor-trailer topped the rise west of the collision scene his headlights were on “dim,” apparently meaning “low beam,” and that' he was traveling about 55 miles an hour. He saw a truck on the righthand shoulder ahead of him (the Douglas truck), and he took his foot off the accelerator and “hovered” it about an inch from the brake pedal and moved the truck into the left lane. When the front bumper of his truck was about even with the front bumper of the Douglas truck, he first saw the decedent who was wearing dark clothing and was 25 feet in front of his truck at the centerline of the two eastbound lanes walking northeastwardly and looking straight ahead. Parker immediately applied his brakes. He did not sound a warning and did not attempt to swerve because he could not apply the brakes and swerve too, or the truck “would definitely turn over,” and he could not “have gotten the trailer out of line in time for the trailer to have missed him [decedent] because [he] was too close.” At that time Parker’s truck was in the left lane and traveling about 40 to 45 miles an hour. Parker testified that decedent “seemed to walk just about to the middle of the lane and then just turned and started like he was going to walk right down the middle of that lane.” The truck struck decedent “about the time he turned,” and he was struck “about the middle of the grill.” It was stipulated that at the time of the collision Parker’s truck was equipped with “excellent” tires, brakes, steering equipment, lights and horn. Plaintiffs arranged for a test pertaining to sight and stopping distances. At a time when the conditions of the highway and the degree of darkness were substantially the same as at the time of the collision, a dark colored automobile was placed in the median strip at the location of decedent’s automobile. Another vehicle was placed on the south shoulder about 75 feet west of the automobile in the median which was the location of the Douglas truck. A man with dark clothing was positioned in the center of the righthand eastbound lane opposite the front bumper of the automobile in the median. A tractor-trailer, similar to the Parker truck, and containing a passenger as an observer, was operated eastward to approach the collision scene at 55 miles an hour with the lights on low beam. When the taillights on the vehicle parked on the shoulder were sighted, the operator of the truck removed his foot from the accelerator, turned the truck into the left lane, and held his foot about an inch above the brake pedal. The operator continued until the person standing on the highway was seen. He then applied his brakes and came to a stop without sliding the tires three to six feet before the truck reached a point even with the person standing on the highway. The person on the highway was first seen by the observer in the truck when the truck was 261 feet away from that person. We are of the opinion that plaintiffs made a submissible case on primary negligence in failing to keep a careful lookout, and also on humanitarian negligence. Plaintiffs’ evidence was to the effect that under the conditions then and there existing, Parker could have seen a person on the highway ahead of him approximately 260 feet away. But, Parker testified that he did not in fact see decedent until he was only 25 feet away and at the centerline of the eastbound lane. “Generally speaking the issue [of failure to keep a careful lookout] is submissible if there is evidence that the party charged with negligence could have seen the other car (or object) sooner and in time to have acted to avoid the occurrence.” Welch v. Sheley, 443 S.W.2d 110, 118 (Mo.1969). See also Heberer v. Duncan, 449 S.W.2d 561 (Mo.1970). A jury would not be required to believe the testimony of Parker which inferred that since he did not see decedent until he was 25 feet away, he could not have seen him even if he had maintained a careful lookout. Also, approximately three and one-half seconds were required for the truck to travel the 260 feet immediately before the accident. Decedent was walking, and in that time he traveled not more than twenty feet. The evidence is that decedent was walking northeastwardly. From the south edge of the pavement to the centerline would have been approximately twelve feet and approximately two seconds would have been required for decedent to cover that distance. The Parker truck would have been about 100 feet away when the deceased was at the center of the righthand lane, which was not in the path of the truck since it was then in the lefthand lane. At that time, according to plaintiffs’ evidence, Parker could and should have seen decedent, and a jury reasonably could find that a warning then given would have prevented the injury. Defendants argued to the trial court, and contend on this appeal, that decedent was contributorily negligent as a matter of law. In determining this question, we must necessarily bear in mind that whether decedent was contributorily negligent is a jury question unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiffs, the only reasonable conclusion is that deceased was negligent and that his negligence was a proximate cause of his injury. Kickham v. Carter, 314 S.W.2d 902, 908 (Mo. 1958). In this case, decedent had been involved in a minor collision with the Barnett truck, perhaps resulting from a flat tire. After decedent came to stop in the median, he went to the Douglas truck and asked Douglas what happened, but his previous collission had been with the Barnett truck. Under these circumstances, it was a jury question whether decedent' was contribu-torily negligent in being on the highway at the place he was at the time of the approach of the Parker truck. Since the judgment in this case must be reversed and the cause remanded for trial because plaintiffs made a submissible case on primary negligence, we need not go into detail on the submissibility of the pleaded humanitarian negligence. It is sufficient to refer to such cases as Yarrington v. Lininger, 327 S.W.2d 104 (Mo. 1959); Davis v. Quality Oil Company, 353 S.W.2d 670 (Mo.1962); and Downing v. Dixon, 314 S.W.2d 927 (Mo.App.1958), for a discussion of the principles of the humanitarian rule. The basic fact of liability under that rule is what was called a position of imminent peril and is now denominated a position of immediate danger. MAI 17.14. The position of immediate danger referred to, whether or not the injured party was negligent in getting there, is that position which by reason of the then existing circumstances, if unchanged, injury is reasonably certain. In this case the jury could find from the evidence that the decedent was oblivious to his danger, and in such circumstances “the zone of [immediate danger] is widened to that point where it was or should have been reasonably apparent to the defendant in the exercise of the required degree of care that the [injured party] was oblivious of the approach of defendant’s moving vehicle and was intent on continuing across its path.” Yarring-ton v. Lininger, supra. We do not consider it fatal to plaintiffs’ humanitarian case that no witness testified to the precise location of decedent when the Parker truck was, for example, 260 feet, or 200 feet, or 100 feet from the point of impact. Parker testified that when he first saw decedent he was at the center-line and walking northeastwardly. He necessarily had to have been on the highway in the preceding two seconds walking directly into the path of the Parker truck, and apparently oblivious to its approach. This evidence authorized the submission to the jury of plaintiffs’ humanitarian case, and the trial court erred in directing a verdict for defendants. The judgment is reversed and the cause remanded. HOUSER, C, concurs. PER CURIAM: The foregoing opinion by STOCKARD, C, is adopted as the opinion of the court. All of the judges concur.

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STATE of Missouri, Respondent, v. John Kenneth HURTT, Appellant. John Kenneth HURTT, Movant-Appellant, v. STATE of Missouri, Respondent. Nos. 48061, 56899. Supreme Court of Missouri, Division No. 2. April 8, 1974. Motion for Rehearing or to Transfer to Court en Bane Denied May 13, 1974. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent. William J. Fleischaker, Public Defender, Jasper County, 29th Judicial Circuit, Joplin, for movant-appellant. MORGAN, Judge. Jurisdiction over the consolidated appeals considered herein lies with this court as both Notices of Appeal involved were filed prior to January 1, 1972; thus falling under pre-amendment Article V, Section 3 of the Missouri Constitution of 1945, V.A.M.S. Appellant was tried for first degree robbery as an habitual criminal. Transcripts of two prior convictions for robbery, one from Nebraska and one from Missouri, were introduced to support the habitual criminal charge. The jury returned a verdict of guilty but was unable to agree as to punishment. The trial judge, therefore, pronounced sentence of life imprisonment. Appellant was tried and sentenced under the habitual criminal statute of 1949. No motion for new trial was filed; however, appellant did receive permission from this court to file an appeal out of time. The conviction was affirmed on appeal, State v. Hurtt, 338 S.W.2d 876 (Mo.1960). In 1968 appellant filed a motion to vacate judgment and sentence under Supreme Court Rule 27.26, V.A.M.R. The main points of this motion included: first, judgment and sentence of life imprisonment was unconstitutional, null and void as an extrajudicial decree of law; second, appellant was denied a fair trial by his appointed counsel’s refusal to file a motion for new trial and appeal; third, the use of appellant’s prior Nebraska conviction to support the habitual criminal charge denied appellant due process of law, as that conviction was based on an invalid plea of guilty. No attack was made on appellant’s prior Missouri conviction. The trial court overruled appellant’s motion and an appeal was filed. Subsequently we ordered our previous opinion in State v. Hurtt, supra, set aside, after finding that appellant had not been represented by counsel on that appeal, Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L. Ed.2d 33, and reinstated the case on our docket. These appeals were then consolidated for argument and decision. Turning first to the appeal from appellant’s original conviction, we find, and appellant concedes, that his prior Nebraska conviction was admitted into evidence at trial without objection. Furthermore, it is undisputed that appellant .filed no motion for new trial. In view of these facts nothing has been preserved for appellate review. “Constitutional questions can be waived by failing to preserve the issue for appellate review or by ignoring procedural requirements which serve a legitimate state interest. * * * Our procedural requirements for objections to be made to the admission of evidence and for assignments of error to be set forth in a motion for new trial unquestionably serve a legitimate state interest essential to orderly procedure. . . . ” State v. Phelps, 478 S.W.2d 304, 1. c. 308 [11, 12] (Mo.1972). See also State v. Tyler, 454 S.W.2d 564, 567 (Mo.1970), and State v. Bryson, 506 S.W.2d 358 (Mo.1974). Appellant urges that the introduction into evidence of the record of his prior, and allegedly invalid, Nebraska conviction can be reviewed under our Rule 27.-20(c) as plain error. In order to invoke the plain error rule there must be a “ ‘sound, substantial manifestation . a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.’ ” State v. Caffey, 457 S. W.2d 657, 1. c. 660 [4, 5] (Mo.1970). Appellant here fails to make such a showing. On the contrary, the transcript of appellant’s trial indicates strong evidence of guilt including, inter alia, appellant’s confession, statements to the police, testimony of the alleged accomplice and multiple eyewitness identifications, much of which was uncon-troverted. When guilt is established by such overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule. State v. Caffey, supra. Likewise no injustice will result from affirmance of this judgment of conviction. We now consider the appeal from the trial court’s unfavorable ruling on appellant’s motion for post-conviction relief under our Rule 27.26. Appellant’s motion raised the three points mentioned above. In appellant’s brief on this appeal he admits that the sentence of life imprisonment imposed by the trial court was within the limits of punishment for first degree robbery under § 560.135, RSMo 1949, V.A.M. S.; and, therefore abandons the first point of his motion. In its Findings of Fact and Conclusions of Law, after the evidentiary hearing on this motion, the trial court found that it was doubtful that appellant ever requested his trial counsel to file a motion for new trial, but if such a request had been made it was made after the time for filing such a motion had passed. The Court based these findings on the fact that appellant made no complaint about the failure to file a motion for new trial until after the death of the attorney accused of that failure; the appellant’s co-counsel at trial had never received or heard of such a request; appellant’s own testimony showed that he didn’t express the alleged desire to file a motion for new trial until after the time for filing had expired; and the only testimony supporting the existence of such a request was that of the appellant. In a motion under Rule 27.26 the trial court is not required to believe movant’s testimony. Rhoades v. State, 504 S.W.2d 291, 293 [2] (Mo.App.); Kimble v. State, 487 S.W.2d 544 (Mo.1972). The trial court here did not believe movant’s version of the facts, and ruled accordingly. This ruling is not clearly erroneous and, therefore, must be upheld. Goodloe v. State, 486 S.W.2d 430 (Mo.1972) ; Richardson v. State, 470 S.W.2d 479 (Mo.1971); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). The remaining point of contention on this appeal, as succinctly stated in appellant’s brief, is whether or not appellant is entitled to relief because of the introduction into evidence of the record of his prior Nebraska conviction at his original trial. Appellant urges that his prior Nebraska conviction is constitutionally infirm. Since, assuming arguendo the invalidity of this prior conviction, this point must still be ruled against appellant; it will be unnecessary to decide the question of the validity of appellant’s prior Nebraska conviction; but, we do note that the trial court on remand determined that the appellant’s prior Nebraska conviction was entirely valid. Appellant relies on the case of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), wherein the Supreme Court of the United States held that the use of invalid prior convictions under the Texas recidivist statute was inherently prejudicial. An essential difference between the Burgett case and the case at bar is that in Burgett all the prior convictions submitted were infirm; whereas here there was at least one valid prior conviction, the prior Missouri conviction, which was all that was necessary to satisfy § 556.280, RSMo 1949, V.A.M.S., the habitual criminal statute under which appellant was tried. This important distinction is pointed out in Gerberding v. Swenson, 435 F.2d 368-370 (8th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2211, 29 L.Ed.2d 682. The issue in Gerberding was identical to that presented by the instant case, “. . . whether a conviction obtained in a one-stage penalty enhancement trial is constitutionally infirm, where one of three prior felony convictions admitted on the enhancement issue was retroactively invalid for lack of counsel, and where only one prior felony conviction is necessary to support enhancement of punishment under the Second Offender Act in question. . . . ” Similarities do not end there; Gerberding was convicted under the same recidivist statute as wTas appellant, § 556.280, RSMo 1949, V.A.M.S. One of the three prior convictions submitted at Gerberding’s trial was constitutionally infirm for lack of counsel. The federal district court, basing its decision on Burgett, supra, ruled that the use of this invalid prior conviction was inherently prejudicial and tainted the entire proceeding requiring a reversal. The 8th Circuit Court of Appeals disagreed : “. . . The Burgett case, while it started out as a recidivist trial, did not end up as one, and the court there only determined that convictions called to the attention of the jury, but not admitted into evidence, were prejudicial. It does appear that the State is being unduly faulted for a trial error made at a time when it was constitutionally permissible under Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), to use a conviction obtained against a defendant who was not represented by counsel. Under the factual situation of the instant case, where two other valid prior felony convictions were proved to the jury, it clearly appears that Ger-berding was not prejudiced by the use of the now constitutionally infirm earlier conviction. The two admittedly valid prior convictions were more than sufficient to call for application of the enhanced penalty. . . . As to whether or not the use of the invalid conviction was so inherently prejudicial as to affect the substantive guilt-finding process, this case would appear to be a proper one for the application of the ‘harmless error’ rule. . . .” The opinion is in essential agreement with the conclusions reached by this court in Gerberding v. State, 448 S.W.2d 904, 906 (Mo.1970). It should also be recognized that § 556.-280, RSMo 1949, V.A.M.S., under which appellant was tried, convicted and sentenced required a penalty of life imprisonment for second offenders. Section 556.280, RSMo 1949, V.A.M.S., provides: “Second offense, how punished. — If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows : (1) If such subsequent offense be such that, upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which under the provisions of this law might extend to imprisonment for life, then such person shall be punished by imprisonment in the penitentiary for life; (2) If such subsequent offense be such that, upon a first conviction, the offender would be punished by imprisonment for a limited term of years, then such person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offense; (3) If such subsequent conviction be for an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, the person convicted of such subsequent offense shall be punished by imprisonment in the penitentiary for a term not exceeding five years.” Section 560.135, RSMo 1949, V.A.M.S., requires: “Robbery by means of dangerous and deadly weapons — penalty.—Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon shall suffer death, or be punished by imprisonment in the penitentiary for not less than five years, and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment in the penitentiary for not less than five years; every person convicted of robbery in the second degree shall be punished by imprisonment in the penitentiary not exceeding five nor less than three years; every person convicted of robbery in the third degree shall be punished by imprisonment in the penitentiary not exceeding five years.” Under the statute in question the court, upon the jury’s finding that appellant had one prior conviction, had absolutely no discretion in sentencing appellant, but was required to impose a sentence of life imprisonment. Thus it can readily be determined that this is not a proper case for the application of the rule enunciated in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). There, the Supreme Court stated that where a penalty enhancement statute allows the trial judge discretion in sentencing, and one of the prior convictions entered into evidence is invalid, the original sentence will be set aside; and the trial court will be required to resentence the defendant after taking into consideration the invalidity of one or more of the prior convictions originally considered. Appellant also relies on Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) for the proposition that use of an allegedly invalid conviction to impeach appellant’s testimony was fatally prejudicial. In the Loper case the defendant was accused of raping an eight year old girl. The trial consisted essentially of pitting defendant’s credibility against that of the complaining witness. Thus in Loper the admission of three invalid prior convictions to impeach the defendant went to the heart of the defense, making a finding of harmless error virtually impossible. Conversely, in the instant case the allegedly invalid conviction was not used to impeach appellant on the basic issue of guilt or innocence, but went only to rebutting the testimony of the officer who took appellant’s statement. . As previously indicated, there was sufficient evidence shown in the record to convict appellant without consideration of this statement. Indeed the appellant suffered other attacks upon his credibility, such as self-contradictory statements and testimony of contradictory witnesses. Thus it can be seen that Loper is clearly distinguishable from the instant case; and this point is ruled against appellant. Finding no reviewable error on the original appeal, and finding further that the decision of the trial court on appellant’s motion under Rule 27.26 (i) has not been shown to be clearly erroneous, both judgments are affirmed. All of the Judges concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. SOUTHERN DEVELOPMENT COMPANY and the Kansas City Southern Railway Company, corporations, Defendants-Appellants. No. 56949. Supreme Court of Missouri, Division No. 2. April 8, 1974. Motion for Rehearing or to Transfer to Court en Bane Denied May 13, 1974. Robert L. Hyder, Earl H. Schrader, Jr., Minor C. Livesay, Frank O. Benson, Kansas City for plaintiff-respondent. Robert D. Youle, Thomas J. Wheatley, Kansas City, for defendants-appellants; Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, of counsel. FINCH, Judge. This is a condemnation suit wherein the State Highway Commission (SHC) acquired right-of-way easements for construction of a portion of Interstate Highway 1-435, a circumferential highway around Kansas City. Commissioners who were appointed awarded $850,000 to Southern Development Company (Development) and $5,000 to Kansas City Southern Railway Company (KCS). Following trial in which the jury awarded them damages of $166,000 and $9,000, respectively, defendants have appealed. Since defendants’ evidence supported damages in the amounts of $916,650 and $10,855, respectively, and this appeal was taken prior to January 1, 1972, we have jurisdiction on the basis of the amount involved. We reverse and remand. . In this suit SHC undertook to condemn right-of-way easements for approximately two miles of the route for 1-435. The petition sought 82 acres of the 1481 acres then owned by Development and 1.67 acres of the 19.31 acres owned by KCS. Location of the lands owned by these defendants at the time of the taking, including the right-of-way condemned for 1-435, was shown on Defendants’ Exhibit 2, as follows: The property owned by Development is designated on the foregoing exhibit as Tracts 2, 2A and 2B. KCS owned the long narrow strip known as the Hawthorne Lead Branch located between Tracts 2A and 2B. SHC condemned 0.86 acres from that strip. In addition, it condemned 0.81 acres from what was known as the Air Line Branch which was to the south of the foregoing tracts and does not appear on Defendants’ Exhibit 2. KCS is an operating railroad and Development is its wholly owned subsidiary engaged in landowning and development operations for the mutual benefit of the two companies. By the early 1950’s Development had assembled for use as an industrial park a total of 1784 acres located south and west of the Missouri River and north of Blue River in the area generally referred to as the Northeast Industrial District of Kansas City. In the western portion of this tract Development had installed sewers and utilities and had dedicated some streets, including Front Street. By the time this condemnation suit was instituted, Development had sold some 28 tracts, consisting of approximately 303 acres, to 26 different business concerns. The size of the tracts varied from slightly more than one acre up to 50 acres. A considerable number of the tracts were sold in the west area where the improvements had been installed. The larger tracts, particularly the ones sold to Kansas City Power & Light Corn-pay and Chemagro Corporation, were in the eastern end of the industrial park. Since the proposed 1-435 crossed the KCS tracks at two places, SHC, as required by § 389.640, RSMo 1959, V.A.M.S., submitted to the Missouri Public Service Commission for approval the planned grade separations at those two locations. The Commission approved the plans as submitted. Construction plans which conformed to that approval were filed in the condemnation proceeding, and subsequently the grade separations were so constructed. In support of their claim for damages, defendants used as their expert witness on value Donald T. McMahon, who had been involved in the acquisition of and sales from this industrial park as well as having similar experience with other industrial tracts. He testified that the fair market value of Development’s property before the condemnation was $13,112,000 and that the fair market value after the taking was $12,019,450, or a decrease in fair market value of $1,092,550. In explanation of this decrease in value, he first detailed the sales previously made, including the fact that most recent sales in the more fully developed west end of Tract 2 had Been on the basis of 40¾⅜ to 50⅜⅜ per square foot, which, converted to a price per acre, would be $17,424 to $22,000, and that recent sales in Tracts 2A and 2B had been on the basis of $6,500 per acre. Based on his knowledge of the property, including prior comparable sales, he fixed the value of the 62 acres taken from Tract 2 at $10,000 per acre or a total of $620,000, and the 20 acres taken from Tracts 2A and 2B at a value of $6,500 per acre or a total of $130,000. McMahon also testified as to damage to the remaining portions of the tract resulting from the taking. Severance damage to the 145 acres in Tract 2 lying east of 1-435 was fixed at $1,000 per acre or $145,000. Severance damage to the portions of Tracts 2A and 2B lying west of 1-435 were fixed at $16,650 and $5,000, respectively. In addition, McMahon testified that after construction of 1-435, access to the 346.602 acres in Tract 2A, which were east of 1-435, was limited to that provided by the railroad easements granted KCS by Kansas City Power & .Light Company, and that the tract was landlocked insofar as access by road was concerned. This, he said, reduced the value of land in that area by $500 per acre or a total of $173,500. However, the trial court subsequently construed the Kansas City Power & Light Company railroad right-of-way easements as permitting construction of vehicular roads and required deduction by McMahon of said sum of $173,500 from his prior total damage figure of $1,092,550. Defendants also contended at the trial that construction of the Hawthorne Lead Branch grade separation so as to allow room for only one railroad track instead of four, as requested by KCS, would result in inadequate rail service to tracts east of I-435 with a resultant further reduction in value of that land. Development sought by witnesses Smith and Zimmerman to show damage by reason of this item of $235,000. However, for reasons more fully developed subsequently in this opinion, that evidence was excluded. In addition, KCS sought to show a resulting diminution in value of its property of $13,000, but that evidence also was excluded. The expert witness for SHC was Vincent J. O’Flaherty, an experienced appraiser. He testified that he did not use the comparable sales approach in determining value. By way of explanation, he pointed out that this.was a large tract and it would be difficult to find a buyer for the whole property; also that sales were made more difficult by reason of certain deed restrictions applicable to all the property in the industrial park. These restrictions provided that any purchaser agreed that any inprovements placed thereon must have the prior approval of Development, that if at any time a purchaser desired to sell any unimproved part of his tract, he must first offer to sell that portion back to Development on the basis of the original sale price, and that the installation of all spur tracks must have the prior written approval of seller. It was O’Flaherty’s contention that all of these factors affected marketability and made it impossible for him to use the comparable sales approach in determining fair market value. O’Flaherty utilized what he described as a cost of development approach. He first concluded that average sales per year would be 24.75 acres and that based on a total tract of 1481 acres, it would take a period of 61 years to dispose of all the property. Then, on the basis of recent sales to Kansas City Power & Light Company and Chemagro Corporation (but not considering recent sale prices in the portion of the tract which had been improved with streets, sewers, etc.), he determined upon a price of $6,500 per acre. He then adjusted that figure by a $1,000 per acre increase for inflation, thus arriving at a basic value of $7,500 per acre. He then concluded that the rate of sale would be perhaps 30 acres per year, rather than his original estimate of 24.75 acres, reducing the total disposition period to 50 years. Since the money to be derived each year from sales would not be in hand at the first of the year but would take a full year to acquire, he discounted the sums, using the Inwood Tables. He multiplied the yearly income from sales times the discount, then times the total number of years to completely absorb the tract to arrive at a before taking value of $2,450,000 for the tract. Then, considering the addition of the Front Street diamond interchange and the proximity of access of the tract to I-435, he reduced the absorption rate to 28 years, and again discounting and multiplying, arrived at an after taking value of $3,700,000 for a net gain of $1,250,000 as a result of the taking of 82 acres. On that basis, he concluded that Development did not suffer any loss. O’Flaherty did not testify with respect to a before and after value of the KCS land but did state that it suffered damage in an amount of at least $8,365. Defendants assert various grounds for reversal and remand of this case for a new trial. One of those grounds is that the trial court erred in refusing Instruction B which would have withdrawn from jury consideration all general benefits to the remaining property of defendants resulting from the condemnation. That instruction was as follows: “INSTRUCTION NO. B “In determining the value of defendants' remaining property, you must not consider any general benefit which is conferred upon all property within useable range of the new highway.” Instruction B was MAI 34.03 verbatim. Notes on Use with reference to that instruction stated, in part, as follows: “This may be given as a separate instruction or as an addition to the general damage instruction, at the option of defendant. Evidence of general benefits should be excluded upon proper objection, but the withdrawal instruction should nevertheless be proper, because the jury would otherwise take them into consideration in determining fair market value. “While Instruction 34.03 is called a ‘withdrawal’ instruction, its use is not limited to withdrawing evidence which is acci-dently or improperly admitted. It is intended rather to clarify what the jury is to consider in assessing damages. Instructions patterned after 34.02 are intended to withdraw a specific matter which might otherwise mislead the jury. Instruction 34.03 may be given at the defendant’s option while instruction 34.02 may be given only at the discretion of the trial judge.” SHC argues that the giving of MAI 34.03 is discretionary, not mandatory, basing that contention on the fact that the word “may” is used in the foregoing Notes on Use in discussing when this instruction is to be given. However, “may,” as there used, had reference to defendant’s choice between giving 34.03 as a separate instruction or adding it to the general damage instruction. The word “may,” as used, does not vest in the trial court a discretion to give or refuse the instruction if requested. This is clear from the last sentence of the last paragraph in the Notes on Use wherein it states that whether present Instruction 34.02 is given is at the discretion of the trial judge, but that whether Instruction 34.03 is given is at the defendant’s option. That means, necessarily, that the instruction must be given if requested. SHC argues that there was no evidence of general benefits in this case and hence no basis for the instruction even if it is mandatory that the court give it where there is evidence of general benefits. We disagree with the conclusion of SHC that there was no evidence of general benefits in this case (as will appear from subsequent portions of this opinion), but even if there had been no such evidence, the instruction still should have been given. The second sentence of the first paragraph of the Notes on Use so states and this court has so held. State ex rel. State Highway Commission v. Sams, 484 S.W.2d 276 (Mo.1972). Even though our decision to reverse and remand based on refusal of Instruction B could dispose of this appeal, without consideration of any of the other alleged errors asserted by defendants, we conclude that certain of the other issues raised necessarily will arise again on retrial and we should resolve them for that reason. The first such question concerns admissibility of Mr. O’Flaherty’s testimony with reference to fair market value before and after taking. Defendants, citing cases such as Shelby County R-IV School District v. Herman, 392 S.W.2d 609 (Mo.1965), assert that evidence of value is inadmissible if based on impermissible elements or on improper foundation, and that O’Flaherty’s testimony should have been excluded on both grounds. In the first place, it is claimed that O’Flaherty, in determining fair market value after the taking, took into consideration factors which constituted general rather than special benefits. This, say defendants, is contrary to the well established rule in Missouri that only special benefits are offset against damages from the condemnation in arriving at the sum to be awarded for the taking. Such a rule is expressed in State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340 (Mo. banc 1929), as follows: “ ‘General benefits,’ those accruing to the owners of property in a neighborhood or vicinity generally, are not deductible from the damages; to make such a deduction would be to require the landowner whose property is taken in part to liquidate his damages by contributing his share of the benefits which inure to the public as a whole. ‘Special benefits’ stand on a different footing; they are such as accrue directly and proximately to the particular land remaining by reason of the construction of the public work on the part taken. Such benefits must, of course, be reflected in an increase in the market value of the land. “While there is often a contrariety of opinion as to whether the benefits in specific instances are general or special, the general distinction is well understood. ‘A general benefit is an advantage not peculiar to the remainder of a tract part of which is taken, but conferred by the public work upon all property within range of its utility.’ Randolph, Em.Dom. § 269, p. 250. It is also well settled that a benefit, though conferred upon several tracts of land similarly situated, may nevertheless be a special and not a general benefit.” The rule is elaborated upon in an excellent statement in State ex rel. State Highway Commission v. Young, 324 Mo. 277, 23 S.W.2d 130, 134-135 (1929), as follows: “ * * * Granting there may be exceptions in unusual circumstances, it is not true ordinarily, at least, that if a tract receive benefits substantially greater in degree than those of the same nature accruing to other land in the community, the excess benefits thereby become special — in which event alone they may be offset against damages in a condemnation proceeding. As expressed in appreciation of market value, general benefits, themselves, may differ in amount or degree varying with the tract, its remoteness from the improvement, intrinsic character, etc. All the land in the community may not — almost certainly will not — receive the same general benefits in a monetary sense; and the general benefits derived by the particular tract in litigation might be greater than those enjoyed by any other land, and would be reflected in its increased value. But only that part of the increase resulting from special benefits — those, if any, arising from the land’s position directly on the highway improvement, such as availability for new or better uses, facilities for ingress and egress, improved drainage, sanitation, flood protection, and the like— would be chargeable. “The ultimate question in a case like this does not involve a determination of the amount of benefits in dollars and cents enjoyed by the land involved as compared with other lands in the community. * * * The true inquiry is how much of the augmented market value of the particular tract is attributable to special benefits. Sometimes it may be helpful, in the solution of this question, to find out how the improvement affects other land in the community not on the highway; but if and when this is so, the facts are of value only as evidence on the main issue. While the distinction is sometimes hard to draw, the rule in this state in the ordinary case is that special benefits are to be differentiated from general benefits by their nature or kind rather than by the amount or degree.” The parties stipulated that the highest and best use for Development’s property both before and after the condemnation was industrial development. O’Flaherty did not claim otherwise. As a matter of fact, his testimony was in accord with that stipulation because he specifically stated that the construction of the new highway and the new interchange would not mean shopping centers, motels, restaurants, commercial development, or office buildings on Development’s property. It continued to be property adaptable for industrial development. In addition, O’Flaherty did not claim any benefits such as improved drainage, sanitation or flood protection resulting from the taking. Nor did he testify that there was any change in the actual means of direct ingress and egress to and from Development’s remaining property. It was conceded that there was no direct entrance from new I — 435 to Development’s property, nor was there any access from the diamond interchange directly onto any part of Development’s property. Access into and from Development’s property had been and continued to be via Front Street, which ran through Development’s property located in Tract 2. O’Flaherty based his claim of increased value to Development’s property entirely on the fact of construction of the diamond interchange with Front Street wholly on property condemned from Development and on the proximity of Development’s land to 1-435 after the new construction. For example, he testified that “this opens up a whole new avenue of possible sales of property in this district because those people that are interested in getting to the interstate system are going to want to locate in this area.” Subsequently, he said that property in this area would start to develop immediately because “[i]t’s put a roadway in that was not there before, and that a prospective buyer for something down there is going to be again attracted to the location because of the immediate accessibility to the interestate route.” Additionally, Mr. O’Flaherty said in response to a question as to whether he also placed an increase in value on increased traffic flow, “My answer is not based on traffic flow. If you mean the traffic that is going to cross that viaduct, that isn’t what I am saying. I am saying that this interstate route will open up this area and provide a means of direct access to the people who buy land in here and to get to any connection that we have around here to an interstate route.” In the foregoing statements O’Flaherty was talking about general, not special benefits. He was saying that after the construction of 1-435 through this area and after completion of the diamond interchange between 1-435 and Front Street, businesses located in that area could get onto the interstate system quickly, whereas they could not do that before the new I-435 and interchange were constructed, and that this was an advantage which would increase value of the property. Obviously, this feature would make property located in that area attractive to firms interested in transportation via the interstate system. However, those advantages were not limited to property out of which the interchange was carved, but would apply as well to property generally in that area. There were a number of other owners of property located on Front Street and on streets connecting with Front Street. They had identically the same ingress and egress to 1-435 via the diamond interchange as did Development. All of them entered and exited from their property on Front Street (or connecting street) and then traveled on Front Street to the interchange and thence to 1-435. The slight difference in distance to be traveled on Front Street did not change the benefit to Development from a general to a special benefit. This was implicit in the statement in State ex rel. State Highway Commission v. Young, supra, 23 S.W.2d 1. c. 134-135, that: “As expressed in appreciation of market value, general benefits, themselves, may differ in amount or degree varying with the tract, its remoteness from the improvement, intrinsic character, etc. All the land in the community may not— almost certainly will not — receive the same general benefits in a monetary sense * * *. But only that part of the increase resulting from special benefits * * * would be chargeable.” Also pertinent is what this court said in State ex rel. State Highway Commission v. Vorhof-Duenke Company, 366 S.W.2d 329, 340 (Mo. banc 1963): “Furthermore, the ramps and roadways in question were not and could not be constructed for the exclusive benefit of the defendants; they were for the use of the general public, including the users of the Halls Ferry Roads, whether nearby or remote from the interchange.” An interchange which merely changes the flow of traffic in that it provides new access from an existing street or road onto a highway but which does not provide a separate direct access onto a defendant's property does not constitute a separate benefit to the property from which the right-of-way was condemned unless it causes that defendant’s property to become available for new and more remunerative uses or provides other special benefits such as improved drainage, sanitation or flood protection. If such special benefits result, then they should be deducted from other damages incurred by the landowner, and this is true even though the construction of the interchange will benefit all property in the area by improving the means of access to the highway. This is what the court meant in State ex rel. State Highway Commission v. Young, supra, 23 S.W.2d 1. c. 135, when it said that “ * * * special benefits are to be differentiated from general benefits by their nature or kind rather than by the amount or degree.” Since O’Flaherty testified to no special benefits such as new or better uses, improved drainage, sanitation, flood protection and the like resulting from the construction of the interchange, the improved access to and from the interstate system which Development’s property enjoyed along with other property in the area constituted general rather than special benefits, and this is true even if the general benefits might not have a uniform effect on value of all tracts in the area. On retrial, witnesses for SHC would be entitled to testify as to any special benefits which qualify as such under what we have said herein or in other cases decided by this court, but evidence of general benefits such as those to which we have referred should not be received in evidence, and such benefits should not be considered by witnesses in testifying as to damages suffered as a result of the condemnation. The second question raised by defendants with reference to the testimony of Mr. O’Flaherty relates to the basis upon which he arrived at fair market value of the affected property. In his testimony, Mr. O’Flaherty recognized that Missouri courts have sanctioned three normal methods or bases for arriving at fair market value. They are comparable sales, cost of replacement and capitalization of income. “Comparable sales” consist of evidence of sales reasonably proximate in time and distance and involving land comparable in character. State v. Koberna, 396 S.W.2d 654 (Mo.1965); State ex rel. State Highway Commission v. Riss, 432 S.W.2d 193 (Mo.1968). This was the method used by Mr. McMahon, who testified on behalf of the defendants. The “cost of replacement method” is commonly utilized to value improved property and takes into consideration cost necessary to replace the existing structure. This land was unimproved and therefore this method was not appropriate. The “Capitalization of income method” is utilized to value income producing property when completely taken. Land Clearance for Redevelopment Authority of the City of St. Louis v. Morrison, 457 S.W.2d 185 (Mo. banc 1970); Shelby County R-IV School District v. Herman, supra. This method also was not appropriate since this was unimproved property and there was no income therefrom. In addition, the whole property was not taken. O’Flaherty did not use any of the foregoing methods. Instead, he utilized what he said was not strictly a capitalization of income method but rather a cost of development approach, as heretofore described. SHC argues that this approach was proper because this property was of such unique character that it had no fair market value in the usual sense. SHC analogizes the situation to the ones dealt with by this court in the cases of State ex rel. State Highway Commission v. Barbeau, 397 S.W. 2d 561 (Mo.1965); State ex rel. State Highway Commission v. Mount Moriah Cemetery Assn., 434 S.W.2d 470 (Mo.1968); and City of St. Louis v. Union Quarry & Const. Co., 394 S.W.2d 300 (Mo.1965). The Barbeau and Mount Mor-iah Cemetery Association cases dealt with condemnation of cemetery land for highway purposes. The court concluded that the property taken had no market value in the ordinary sense, that it was available for and adaptable to no other use than cemetery purposes, and that it was appropriate under those circumstances to adopt a unique and different approach for the purpose of determining the fair market value of the property taken. The Union Quarry case was of a similar nature except instead of capitalizing sales of grave sites, the parties capitalized income based on the capacity of the quarry as a refuse dump. However, those cases are inapplicable here. In Barbeau, for example, the court found that the land was being devoted to the only apparent use to which it would be most advantageously and properly applied. Additionally, in Barbeau, only burial rights were being sold, and in Union Quarry dumping rights were being sold. Hence, the sale of rights in both cases was an income return on investment, not a sale of the capital asset itself, as here. This court did not in any of these cases grant carte blanche for use of this method generally. It is not available in a case such as the one here presented where the evidence clearly demonstrates that the use for which the tract is adapted is not unique. Nor is the difference in size of tracts sold (and others of which O’Flaherty had knowledge) and the size of the industrial tract a basis for not using the comparative sales approach. State ex rel. State Highway Commission v. Riss, supra. Particularly is this true where there is evidence that there have been a substantial number of sales out of this property, and where no reason is shown why the property cannot be valued on the basis of such comparable sales. As previously noted, there was evidence of 28 separate sales to 26 different companies before this condemnation proceeding was filed, and the number of sales had increased to 35 by trial time. McMahon had no trouble in utilizing the comparable sales method, and we see no reason why it should not be usable by witnesses for SHC. The next issue raised on appeal which we must assume necessarily will arise on retrial concerns the exclusion of testimony offered by defendants concerning consequential damages to portions of Tracts 2A and 2B resulting from inability to lay additional tracks by reason of the narrow bridge opening over the Hawthorne Lead Branch. The record discloses that on June 30, 1966, SHC, pursuant to § 389.640, applied to the Missouri Public Service Commission for approval of the 1-435 overpass and single track grade separation located where the new highway was to cross over the Hawthorne Lead Branch. KCS appeared at the PSC hearing and argued, as it had earlier with SHC, for approval of a grade separation plan which would permit construction of four additional tracks. SHC opposed that suggestion on the basis that no need existed for additional tracks at that time, that the Federal Btfreau of Roads probably would not approve such a plan, and that if defendants were damaged by the structure proposed by SHC, their remedy was to seek compensation in the condemnation action. The PSC denied the request of KCS and approved the single track plan. Defendants took no appeal therefrom, deciding, as SHC had alleged to be appropriate in the hearing before the PSC, to seek damages in the condemnation proceeding. On March 1, 1971, which was after I-435 (including the bridge, piers and fills at the Hawthorne Lead Branch) had been constructed according to the original plans, SHC amended its petition in condemnation with reference to the paragraphs relating to the Hawthorne Lead Branch grade separation. The amendment consisted of adding to the paragraphs relating to the Hawthorne Lead Branch grade separation the following: “ * * * and it is further reserved and excepted to defendant * * * the right to construct and maintain tracks as they may deem proper across the right-of-way described in Paragraphs 10.10 and 10.11 hereof.” On this appeal, SHC explains that amendment by saying, “The only reason we filed the amendment was to clarify the position that as far as plaintiff is concerned, defendants are at liberty to put in more tracks if they can get an order of approval from the Missouri Public Service Commission. The costs will be apportioned.” Defendants filed a motion to strike this amendment by SHC. The trial court overruled that motion, holding that the amendment merely clarified what SHC had intended all along to take and use. The court order stated further that if a different conclusion should be reached on appeal, the court was holding as a matter of law that this amendment reserved to defendants substantial additional rights which lessened the taking by SHC and lessened the damages to defendants’ property. On the basis of this amendment, the court denied to defendants the right to prove damages of $173,500 to Tract 2A and $61,500 to Tract 2B resulting from the restricted rail access. When the trial court refused to permit proof of such decreased value on account of SHC’s amendment to its petition, defendants sought to offer proof that it would cost $435,210 to change the I — 435 bridge at the Hawthorne Lead Branch so as to permit placement of four additional rail lines. It was defendants’ position that by reason of the great expense involved in making such a change, the amendment to the condemnation petition actually conferred nothing of value on defendants. The trial court rejected this offer of proof. In State ex rel. State Highway Commission v. Stotko, 365 S.W.2d 64 (Mo.App.1963), the appellate court reversed a decision of the trial court wherein it had denied plaintiff permission to amend its petition before trial whereby it reserved to the defendant landowner the right to install and maintain water mains across a previously condemned right-of-way upon which Highway 44 had already been constructed. Defendants were alleging severance damages by reason of the fact that the highway bisected their properties and precluded use of a previously existing right to establish water mains across the entirety of the tract. In reviewing the action of the trial court in denying said amendment the appellate court held that to affect the fixing of damages, the amendment must in fact reduce the extent of the appropriation and confer something of value on defendants. This question of whether there is an actual reduction in appropriation, the court held, is susceptible to expert opinion. The court concluded that experts might decide that construction of water mains across the right-of-way at that stage of development was impossible, or that the cost thereof would be so prohibitive as to render the amendment worthless. On remand the court was to hear expert testimony on this question and then decide the issue before submitting the case to the jury. SHC undertakes to distinguish this case from Stotko on the basis that whereas in Stotko the ability of the owner to .build additional water mains was affected as a direct result of the action by SHC in constructing the highway, here the restriction in size of the opening for the Hawthorne Lead Branch was the result of action by the Missouri PSC, rather than SHC. Hence, says SHC, damage resulting from size of the bridge was caused by the PSC, not SHC. Such contention overlooks the fact that both the construction of the highway and the involvement of the PSC therein all flowed from the action of SHC in bringing the condemnation suit. The PSC does not condemn land nor construct highways. It only approves grade separations pursuant to statutory mandate. The fact that the action of the SHC in constructing the highway is subject to this limitation of requiring approval by the PSC or that SHC must conform to requirements imposed by the Bureau of Public Roads is not a basis for depriving a landowner of compensation for damage shown to result from the condemnation proceeding and the resultant construction. Whatever damage defendants suffered by reason of limitation of rail access by the size of the Hawthorne Lead Branch bridge was caused by the condemnation by SHC. Since this case must be remanded for new trial anyway, the court will have an opportunity, as directed in Stotko, to receive expert testimony and determine whether a change to allow construction of four additional lines is realistically possible, and if so, what the cost would be, and whether or not it is so great as to make the amendment worthless to defendants, as they claimed at the previous trial. There is present in this case an additional factor, not present in Stotko, which affects the value of the amendment made by SHC. This involves the question of whether the Missouri PSC would approve and authorize a change in the Hawthorne Lead Branch grade separation. It appears likely, however, that such question may soon be resolved, if it has not already been settled. SHC, in its brief before this court, went outside of the record on appeal to point out that after this trial, KCS, in February, 1972, applied to the PSC for approval of a change in the grade separation at the Hawthorne Lead Branch bridge to permit room for construction of additional lines of railroad track. SHC referred to this development in response to argument in the brief of defendants that any rights granted by the amendment to the condemnation petition were of no value. If that be true, argued SHC, why did KCS file the application for approval in 1972 ? In response thereto, defendants in their reply brief called attention to the answer filed by SHC to that application and to the fact that although SHC had argued in the trial court, as well as on appeal, that the amendment gave defendants the right to construct additional lines if they could persuade the PSC to approve, it had actively opposed the granting of such approval by the PSC. SHC’s answer recited that subsequent to prior PSC approval of the grade separation based on a single railroad track, SHC had condemned the right-of-way and had constructed the highway; that modification as sought by the defendants could be accomplished only at prohibitive expense, which would exceed the original cost of the structures built; and that such change would inconvenience the public, jeopardize public safety, and would serve only private interests. Hence, SHC sought to prevent utilization by defendants of the right which allegedly eliminated any claim for damages resulting from limitation of rail access. If, prior to retrial, the PSC has denied permission to defendants to alter the grade separation and construct additional tracks, then obviously the amendment has not given defendants additional rights of any value, and the amendment should not deny to defendants the opportunity to prove damage to portions of Tracts 2A and 2B by reason of the restricted rail access via the grade separation at the Hawthorne Lead Branch. If, on the other hand, permission has been granted to make the change, then the trial court can consider what apportionment of costs has been directed and determine therefrom the extent, if any, to which damage to defendants has been diminished by reason of the amendment of March 1, 1971. The final question which we should consider and settle for purposes of retrial involves the propriety of the trial court’s ruling that the railroad right-of-way conveyance (Defendants’ Exhibit 12) granted a right to build roads as well as install railroad tracks, and that for this reason testimony as to damage to Tract 2A east of I-435 because it was landlocked should be excluded. At the trial, witness McMahon testified that construction of 1-435 had caused that portion of Tract 2A east of the new highway to be completely landlocked insofar as vehicular traffic was concerned because the new highway made impossible the extension of streets and roadways into that tract as previously planned. He pointed out that the tract was now completely surrounded by the Missouri River, a tract belonging to Kansas City Power & Light Company, the Rock Island right-of-way, and new 1-435. On the basis that the tract was now cut off from vehicular traffic, he testified that the value was decreased $500 per acre or a total of $173,500. SHC took the position that railroad right-of-way easements theretofore granted by Kansas City Power & Light Company to KCS gave to the latter the right to construct roads as well as railroad tracks across the Kansas City Power & Light Company property and that this right of access meant that the tract was not landlocked as to vehicular traffic. The trial court so construed the railroad right-of-way conveyance and required McMahon to reduce his damage estimate by said sum of $173,500. The conveyance in question described five strips across the Kansas City Power & Light Company property over which railroad easements were granted to KCS. These strips made it possible for KCS to run spur tracks from its Hawthorne Lead Branch into various portions of the 346 acres in that portion of Tract 2A lying east of 1-435. The said right-of-way conveyance recited that it granted “a right-of-way for railroad purposes” over the five strips in question, and further provided that, “The Grantee, its successors and assigns, shall have the right to survey, erect, construct, maintain, inspect, patrol, rebuild and repair railroad tracks and appurtenances thereto, together with the right to replace, renew and relocate rails, ties, switches, signaling equipment and other facilities and appurtenances and generally to conduct railroad operations upon, across, over and along said right-of-way.” In holding that the right-of-way conveyance included the right to construct roads, the trial court held as follows: “The court further rules as a matter of law that the instrument designated Defendants’ Exhibit 12 in referring to appurtenances thereto, the court interprets the word 'appurtenances’ to mean as an incident to running the railroad track across the 35-foot easement, which the court understands takes a width of approximately 14 feet for a railroad track, that the grantee, rather, Kansas City Southern Railway Company has the right to run a road across Parcels, 1, 2, 3,4, and 5.” We conclude that the foregoing easements were for railroad purposes, which gave a right to construct and maintain railroad tracks, including necessary appurtenances thereto, but which did not include a right to construct a road or street for purposes of general transportation by trucks and cars in and out of the 346 acre industrial tract. We are not talking about whether the railroad would have the right to make provision on the right-of-way for such vehicular traffic as might be necessary to install, maintain or repair the railroad tracks and pertinent facilities. Rather, we are talking about whether it was intended that this conveyance granted to KCS the right to construct roads for general vehicular traffic into and out of the 346 acre tract for the purpose of serving industries and businesses located therein. There is no language in the easement which indicates any intention of the parties to provide for such roads or streets. All . of the language relates to the fact that it is intended to convey only a right to install and operate railroad tracks and necessary appurtenances in connection therewith. The language appearing in 25 Am.Jur.2d, Easements and Licenses, § 86, is pertinent. It is there stated: “In order that the owner of an easement may perform the duty of keeping it in repair, he has the right to enter the servient estate at all reasonable times to effect the necessary repairs and maintenance, or even to make original constructions necessary for enjoyment of the easement. Such right is an incident of the easement, and is sometimes called a ‘secondary easement.’ Such secondary easements can be exercised only when necessary, and in such a reasonable manner as not to increase needlessly the burden on * * * the servient estate.” The secondary easement referred to therein would permit KCS to utilize the right-of-way insofar as necessary to repair and maintain, as well as to originally construct the railroad tracks, but would not permit a burden in the form of a primary roadway for the purpose of serving general vehicular traffic. The trial court’s ruling concluded that “appurtenance” would include the right to construct such a road, but we disagree. Language used by the court in Guaranty Trust Co. v. Minneapolis & St. L. R. Co., 33 F.2d 512, 519 (D.C.Minn.1928), is relevant: “ * * * the word ‘appurtenance,’ when used in connection with a line of railway, is used to describe something akin to the line of railway; e. g., a spur, a siding, a switchyard, a branch, an extension. That the word ‘appurtenances’ was used in paragraph 18 with this latter meaning would seem clear from the clause at the end of the paragraph, which expressly provides that branches or extensions constructed or acquired after the date of the mortgage are not intended to be covered. This provision leads to the inference that the word ‘appurtenances’ had reference to spur, sidings, etc., rather than rolling stock.” On retrial, the defendants should be permitted to offer evidence as to damage to Tract 2A east of 1-435 on the basis that construction of the highway resulted in landlocking the tract insofar as vehicular traffic is concerned. Reversed and remanded. All of the Judges concur.

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Fern WEISMAN, Respondent, v. HERSCHEND ENTERPRISES, INC., Appellant. No. 57554. Supreme Court of Missouri, Division No. 2. May 13, 1974. Almon H. Maus, Monett, for respondent. Glenn A. Burkart, Mann, Walter, Burk-art & Weathers, Springfield, for appellant. HOUSER, Commissioner. Fern Weisman sued Herschend Enterprises, Inc. for $50,000 damages for personal injuries sustained when she? fell on a step as she was leaving the ice cream parlor at Silver Dollar City, an amusement park possessed and operated by defendant in Stone County. A trial jury returned a verdict for defendant. The circuit court sustained plaintiff’s motion for new trial. Defendant appealed prior to January 1, 1972. The negligence pleaded was failure to construct and maintain the step in a reasonably safe condition for customers in that it was uneven, not level; that it “sloped or tilted to the north and to the east” so that a person stepping thereon “was caused to become unbalanced.” Plaintiff’s verdict-directing instruction submitted negligence in that the step “was sloped to the north and to the east and as a result the step was not reasonably safe for customers” and that defendant failed to use ordinary care to make the step reasonably safe or warn of it. Defendant pleaded contributory negligence in ' general terms. Defendant’s verdict-directing Instruction No. Ill follows: “Your verdict must be for the defendant if you believe: First, plaintiff failed to use the handrail, and Second, plaintiff’s conduct submitted in paragraph First was negligent, and Third, such negligence of plaintiff directly caused or directly contributed to cause the injuries and damage plaintiff may have sustained.” Plaintiff fell as she used this step: The fall occurred at 2 p. m. It had been raining that morning. At trial plaintiff did not remember whether the step was wet. In her deposition she said she presumed it was wet. Plamtitt was wearing bifocal glasses. If she looked through the bifocal (lower) portion of the lens the ground look blurred, so she dropped her chin and looked through the upper portion of her glasses. The step was 112½ inches long from north to south and 18 inches wide. It was constructed of wood. At the north end the step was 7 inches lower than the porch floor. At the south end it was 3[4 inches lower than the porch floor. Thus it sloped 3½ inches in 112½ inches, which is a grade of 3.1%. At the north end the step's east edge was 1 inch lower than at its west edge. The step was 18 inches wide. The east-west slope therefore was a grade of 5.6% at the north end. At the south end the step was level from east to west. Defendant’s personnel director testified that the step was built “slanted away from the building” to drain off the water; that all of defendant’s boardwalks were built “sloped down” to keep them from holding water, cupping and becoming slippery. A handrail or bannister was provided at the north end of the step, running east-west from the porch to the surrounding terrain. While there is no evidence that plaintiff had previously used this step, she had been at Silver Dollar City before and knew the location of the restaurant (down the hill) and the general route to take to get there from the ice cream parlor. She testified as follows: As she walked across the porch, in a normal way, she observed the step on the other side. When she came to the step she looked down, saw that the step was slanted, stepped on the step with her left foot at the point marked “X” on Exhibit 7, and as she looked down she was “thrown forward to the pavement” because of “the way the step was.” Acknowledging that she saw the step before she stepped on it, she said she “didn’t realize it was that bad. It didn’t look that bad from where I was standing.” She knew the step sloped, but could not tell “how much” it sloped. She did not expect to be thrown down prior to the time she stepped on the step. There was no warning of any kind, sign, or anything of that nature to give her a warning about this particular step. This followed: “Q When you stepped onto the step, did you think it was safe? A I saw it was slanting. Q At the time you stepped on it, the step, did you think it was safe? A No. Q You did not? A Well, I saw the pictures in your office after that and it looked like a ten or twelve inch drop and that isn’t safe. Q When you stepped on it, stepped on the step, did you have any warning at that time that it was dangerous? A No, I never.” Plaintiff saw the handrail before she fell but did not touch the handrail before stepping off the porch, for the stated reason that she was “not close enough” to it. There was no one between her and the railing to prevent her from taking ahold of the railing, but neither was there “anything to warn [her] or to tell [her] to take ahold of it.” When she “went down” she tried to grab for the railing. The circuit court set aside the verdict and granted plaintiff a new trial on two grounds, the first of which was that Instruction No. Ill erroneously failed to require “a finding that plaintiff knew or, in the exercise of ordinary care, could have known the step in question was not reasonably safe, which would require plaintiff in the exercise of ordinary care, to use the ‘handrail’ referred to in such Instruction.” Ordinarily in situations where one’s knowledge of general conditions from which danger arises is not necessarily knowledge and appreciation of that danger, in order to convict him of contributory negligence there must be a finding that he acted with knowledge and appreciation, actual or constructive, of the danger of injury. Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 221 (Mo.1971), and cases cited. On the other hand, it is not error for an instruction to assume an uncontroverted fact, Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522, 532 [8] (Mo.1964); it is not necessary to hypothesize facts about which there is no dispute, and no finding of knowledge and appreciation of danger is required where plaintiff’s own testimony admits the fact. In Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102 (Mo.1973), the converse situation was presented. Defendant’s liability under a charge of negligence depended upon its knowledge and appreciation of a situation involving danger to persons using machinery. Defendant’s own employees testified without contradiction that defendant’s representatives were apprised of the dangerous situation. Plaintiff’s verdict-directing instruction failed to include the requirement of a finding of defendant’s knowledge and appreciation of the danger. This Court held that such a finding was unnecessary; that where essential facts are really not in dispute it is unnecessary to affirmatively require the jury to find such facts. The rule works both ways and applies equally and for the same reasons in a case such as this where the propriety of an instruction submitting the contributory negligence of a plaintiff is at issue. In its ruling on the instruction the circuit court convicted itself of an error of which it was not guilty. Reasonable minds may not differ on the fact that plaintiff actually had the knowledge which the circuit court ruled had to be submitted to and found by the jury before a verdict for defendant could be returned under Instruction No. III. Plaintiff admitted that she knew the physical conditions confronting her and appreciated the danger involved in using the step. She says she saw the step; observed it prior to stepping upon it; knew it was sloped; saw that it was slanting; did not think it was safe; knew there was a handrail and that there was nothing to keep her from using the handrail, but used the step, at point “X”, without using the handrail. Her statement that she didn’t realize that the step was “that bad” must be taken in connection with the other positive testimony of plaintiff that she did not think it was safe. Reddy v. Joseph Garavelli, Inc., 232 Mo.App. 226, 102 S.W.2d 734, 738 (1937). Although she did not know “how much” the step sloped, i. e., did not know the full extent of the danger and did not expect to be thrown down, she knowingly exposed herself to whatever danger did exist by using the step which she considered unsafe, without availing herself of the handrail provided to enable patrons to avoid injury. We are not holding that plaintiff was contribu-torily negligent as a matter of law. We are holding that as a matter of law plaintiff knew the step was unsafe; that her knowledge that the step was unsafe was an admitted, uncontradicted, uncontested fact. That being true there was no necessity of requiring a finding that plaintiff knew the step was not reasonably safe. The circuit court gave as a further reason for sustaining the motion for new trial that the court erroneously sustained an objection to final argument by counsel for plaintiff, as follows: “She is there as a customer, a person to whom they have a duty to make the premises safe for. She is entitled, as an invitee on those premises, to presume that they will have something safe for her to walk on — .” In sustaining the objection and ordering the jury to disregard the statement of plaintiff’s counsel the court did not err. Defendant’s duty as the operator of a place of public amusement is to exercise ordinary or reasonable care for the safety of patrons and invitees commensurate with the particular conditions and circumstances involved in a given case but defendant is not an insurer of their safety. Gold v. Heath, 392 S.W.2d 298 [3] (Mo.1965), citing numerous authorities. By telling the jury that defendant’s duty is to make the premises safe for plaintiff and that she could presume that defendant would provide a safe place for her to walk on counsel misstated the extent of defendant’s obligation, and in effect advised the jury that defendant’s duty was that of an insurer. “Safe” is an absolute term, while “reasonably safe” is a relative term. Jager v. First Nat. Bank, 125 Conn. 670, 7 A.2d 919, 922 (1939). If counsel had qualified his language with the word “reasonably” before the word “safe” his argument would have been unexceptional but the argument actually made was subject to objection and the court properly ruled in directing the jury to disregard it. Further contentions are made and briefed with respect to whether plaintiff made a submissible case of actionable negligence and whether plaintiff was guilty of contributory negligence as a matter of law, but in view of our ruling that the court erred in sustaining plaintiff’s motion for new trial these other issues need not be explored. Order granting new trial reversed. Cause remanded with directions to reinstate verdict for defendant and enter final judgment thereon. STOCKARD, C., concurs. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court. All of the Judges concur.

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STATE of Missouri, Respondent, v. Oscar Lee CASTON, Appellant. No. 56963. Supreme Court of Missouri, Division No. 1. May 13, 1974. John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent. Walter L. Metcalf, Jr., Armstrong, Teasdale, Kramer & Vaughn, St. Louis, for (defendant) appellant. BARDGETT, Presiding Judge. Oscar Lee Caston appeals from a conviction of robbery in the first degree by means of a dangerous and deadly weapon, a felony. He was sentenced by the court to ten years in the department of corrections under the second offender act, section 556.280, RSMo 1969, V.A.M.S. The appeal was filed prior to January 1, 1972. This court has jurisdiction, Mo.Const., Art. V, Section 31, V.A.M.S. Appellant’s point on this appeal is: “The trial court committed prejudicial error in denying appellant the right to inquire of his witnesses as to the drinking done by the victim and his condition just prior to the time the robbery occurred, because such testimony was relevant on the issue of the credibility of the victim’s identification testimony and the victim’s capacity for observation, recollection and the like.” The victim identified appellant as one of two men who robbed him. There was no other evidence connecting appellant to the crime. The victim had been to two taverns over a period of six hours during the day and evening of October 21, 1970, and testified he had two or three drinks before going to the third tavern — Le Jazz Hot. As he left Le Jazz Hot and approached his car, he testified that appellant and another man asked for a ride. He was apprehensive and thought the best thing to do was let them get into the car. The men said they wanted to go to Sarah and Manchester. The victim asked if they would like to stop for a drink and they agreed. The three went into the Knot Hole bar at Sarah and West Pine. The victim testified he bought them one drink each and he drank half of one highball. The bill for the drinks was between one and two dollars. He didn’t remember how long they were in the Knot Hole but guessed that they were there from two to four minutes — long enough to converse with the two men. The victim left the Knot Hole but the two men followed him and again asked for a ride. He agreed. Appellant rode in the front and the other man in the back seat. When they got to Sarah and Newstead the men told him to pull over and let them out. When he stopped, the man in the back seat put a pistol to the victim’s neck and the two men proceeded to rob the victim and then escaped. The victim returned to the Knot Hole where he borrowed a dime from the bartender, whom he knew, and called the police. About one week later he identified appellant’s photograph out of numerous ones given him by the police. The defense called one witness, the bartender from the Knot Hole, to testify. He knew the victim and remembered him being in the Knot Hole with two colored men on the night of the robbery and that the victim purchased drinks for them. Appellant’s attorney asked the bartender if the victim had any drinks himself. The state objected on the grounds that it was improper to attempt to impeach a witness (the victim) on a collateral matter — whether the victim had any drinks. Appellant’s attorney stated, “The important issue here is identification.” The court said: “All right, you can go into the identification, but your question as to the number of drinks is a collateral issue and I will sustain the objection.” The witness was then asked, “Were they drinking the entire time”, and he answered, “Yes, they had several — two or — ”. The court sustained the state’s objection and struck the answer, stating to the jury that “the Court sustained the objection to the number of drinks and so forth because it is a collateral issue to the charge in this case.” Defense counsel requested and obtained a short recess. Thereafter, when the witness resumed the stand, defense counsel asked him if there was anything unusual about the victim’s conduct that night. The state’s objection was overruled and the witness responded, “Not especially, no.” Appellant contends it was error to sustain the state’s objection to the question pertaining to the number of drinks the victim drank because the intoxication of the identifying witness (victim) was relevant and material on the issue of his ability to see, remember, and identify the appellant as the robber. The general rule as to evidence of intoxication at the time of the event about which the witness testified is stated in 8 A.L.R.3d 749, 755, as follows: “It is widely recognized that evidence of an intoxicated condition at the time of the matters about which the witness has testified is admissible to affect the credibility of his testimony, such evidence being properly elicited either by the independent testimony of another witness, or by cross-examination of the witness sought to be impeached. Although some of the courts applying this principle are unwilling to let the introduction of such testimony be denominated technically as ‘impeachment,’ the practical effect of its application is the same, as is its underlying rationale, which is that it is always proper to show matters affecting the condition of the witness at the time of the matters testified to, as affecting his ability to observe or recollect them.” The foregoing is the rule in Missouri. Sanders v. Armour & Co., 292 S.W. 443 (Mo.App.1927); State v. Clinkenbeard, 185 S.W. 553 (Mo.App.1916); Winn v. Modern Woodmen of America, 138 Mo.App. 701, 119 S.W. 536 (1909). The intoxication of a witness as of the time the events took place which are the subject of the witness’s testimony is not a collateral issue but bears directly upon the ability of the witness to accurately describe those events. In this case it would bear upon the credibility of the vie-. tim’s witness’ credibility as to the identification of the defendant. The number of alcoholic drinks a person consumes during the time, or immediately prior to the time that the events take place, which are the subject of the witness’s testimony, is proper evidence for the jury to consider when assessing the accuracy of the witness’s testimony. In short, testimony as to the number of drinks consumed is one method of proving intoxication or an impaired ability to accurately describe an event or identify a person. The court erred in sustaining the objection to the question asked of the bartender witness concerning the number of drinks the victim consumed at the Knot Hole tavern. Having decided the court erred in sustaining the state’s objection, the question remaining is whether or not, in this case, the error requires reversal and remand for new trial. Defense counsel did not make any offer of proof as to what the witness would say if permitted to answer the question even though he was a witness called by the defense and there is no contention that defense counsel did not know what the answer would be. In answer to another question pertaining to drinks, the witness answered that the victim and the other two men had. “two or —” drinks. Although this was improperly stricken from the record, it appears that the witness would have testified the three men had two drinks. The difference between the testimony of the victim as to the number of drinks he consumed and what appears to be what the bartender’s testimony would have been is one and one-half drinks. The same witness was then asked if there was anything unusual about the victim’s conduct that night and the witness answered in the negative. Additionally, the victim saw appellant and the other man on the street, was with them in his car, went into the Knot Hole with them, and conversed with them before any drinks were consumed. The court is convinced that the error in the trial court’s refusal to permit the witness to answer as to the number of drinks the victim consumed, in view of the other testimony by the same witness that there was nothing unusual about the victim’s conduct that night, the prior opportunity for the victim to view the appellant for some period of time, and the difference as to the number of drinks consumed being merely one and one-half drinks, could not and did not prejudice the appellant nor affect the verdict in this case. The judgment is affirmed. All of the Judges concur.

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KANSAS CITY, Missouri, Plaintiff-Appellant, v. Joseph B. BOTT, Defendant-Respondent. No. 58455. Supreme Court of Missouri, En Banc. May 13, 1974. Aaron A. Wilson, City Counselor, Louis W. Benecke, City Prosecutor, Kansas City, Attorneys for Appellant. Roger J. Barbieri, Leo C. Gotschall, Kansas City, Attorneys for Respondent. Jack L. Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, Attorneys for Amicus Curiae, City of St. Louis. James L. Muller, Kansas City, of counsel for respondent on the additional brief. HENLEY,'' Justice. The respondent, Joseph B. Bott (hereinafter the defendant), was charged by information filed in the municipal court of the city of Kansas City (hereinafter the city), with careless driving in violation of a municipal ordinance. He was tried in that court without a jury, found not guilty, and ordered discharged. The city appealed from that judgment to the circuit court of Jackson county. On motion of defendant, the city’s appeal was dismissed for the reason that to try him again would be to twice put him in jeopardy for the same offense in violation of the double jeopardy clause of the federal and state constitutions. The city appealed from that judgment to the Missouri Court of Appeals, Kansas City district. That court determined that it did not have appellate jurisdiction, because the case involves construction of the constitution of the United States or of this state and ordered it transferred to this court. As indicated, the basic issue presented is whether on appeal by the city from a judgment of acquittal of a defendant of violation of a municipal ordinance a trial de t novo required in circuit court subjects a defendant to being twice put in jeopardy within the meaning and therefore in violation of the double jeopardy clause of the Fifth Amendment, U.S. Constitution, or the double jeopardy clause of the Missouri constitution. The Charter of Kansas City, a constitutional charter city, its Ordinances, and Rules of this court provide that either the defendant or the city may appeal to the circuit court from a judgment of the municipal court in cases involving alleged violations of municipal ordinances and provide that upon such appeal the case shall be tried and determined de novo. The city contends that its appeal from the judgment of its municipal court acquitting defendant of the offense of careless driving and a trial de novo of that charge in circuit court are not prohibited by the double jeopardy clause of either constitution, because (1) a prosecution for an offense against a municipal ordinance is a civil case despite its resemblance to a criminal case; (2) the appeal had the effect of nullifying the judgment of acquittal and a trial de novo is not a second prosecution for the same offense but is only a continuation of the original prosecution; (3) the violation of a municipal ordinance is 'a mere “petty offense” to which the constitutional guarantee against double jeopardy is not applicable. The city also contends, and defendant seems to agree, that the double jeopardy clause of Mo.Const. Art. I, § 19, does not afford defendant any protection, because his acquittal was by a judge and not by a jury, whereas that clause protects only against being put again in jeopardy after being acquitted “by a jury.” The double jeopardy clause of the Missouri constitution does not prohibit a trial de novo in circuit court of a charge of violation of a municipal ordinance after an acquittal thereof in municipal court in a trial before the judge without a jury; it is only after being acquitted by a jury that the state double jeopardy clause is applicable. See and compare Ward v. State, 451 S.W. 2d 79, 81 [4] (Mo.1970); Kansas City v. Henderson, 468 S.W.2d 48, 52 [1] Mo. 1971); Kepner v. United States, 195 U.S. 100, 128 and 133, 24 S.Ct. 797, 49 L.Ed. 114. Thus, the question is confined to whether such de novo trial on appeal after acquittal would violate the Fifth Amendment double jeopardy clause held by the Supreme Court of the United States in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) to be applicable to the states through the Fourteenth Amendment. To put this question another way, is Rule 37.84 (the only authority in this case for de novo trial in circuit court on appeal from an acquittal in municipal court) unconstitutional ? The courts of this state have said, as the city contends, that a prosecution for violation of a municipal ordinance is a civil action, despite its resemblance to a criminal action. The city asserts that for this reason its appeal is permissible. In Stevens v. City of Kansas City, supra (48 S.W. at 659), the court said: “A proceeding in a police court to punish a violation of a municipal ordinance by a fine or imprisonment is civil in form, and quasi criminal in character. * * * It is governed by the rules of pleading applicable to civil cases, but, if it was solely civil, no fine or imprisonment could be inflicted. It is, therefore, a quasi civil and criminal action. Partaking of some of the features of each, its similitude to either is not complete. In pleading it is more nearly like a civil action, but in its effects and consequences it more nearly resembles a criminal proceeding.” Discussing the sufficiency of a complaint charging violation of a municipal ordinance, the court said in City of St. Louis v. Ameln, supra (139 S.W. at 431), that “[generally it is sufficient to charge the offense in the language of the ordinance, and with such certainty of time, place, and manner as to reasonably notify defendant of the charge preferred, thereby enabling him to prepare his defense and subsequently to plead res judicata, or, if criminal terminology is to be used, autre-fois convict, or autrefois acquit.” We might conclude from all that has been said by the courts on this subject that a prosecution for violation of a municipal ordinance is a legal hybrid, neither “civil” nor “criminal,” and entitled to another designation, but we shall not quibble over a choice of labels; certainly, the resolution of whether or not, under the facts here, a second trial to determine guilt or innocence violates the Fifth Amendment double jeopardy clause may not be permitted to turn on whether the proper label is “civil” or “criminal” or another. The significant fact in the context of this case is that the possible effect and consequence of the action is a deprivation of liberty. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), referred to by both the city and defendant, decided the same day as Benton v. Maryland, supra, the court was presented with questions regarding the results of a new trial which had been secured by and at the request of the defendant after a conviction. Therein lies a significant distinction between that case and this; in this case the appeal which would result in another trial to again determine guilt or innocence was taken by the city after an acquittal of defendant. Discussing the problems presented in that case, the court pointed out “that the Fifth Amendment guarantee against double jeopardy * * * has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” 395 U.S. at 717, 89 S.Ct. at 2076. We are concerned here with the first protection. In connection with that protection the court in Pearce, supra, referred to Green v. United States, supra, in which it had said at 187-188: “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. * * * Substantially the same view was taken by this Court in Ex parte Lange, 18 Wall. 163, at page 169, 21 L.Ed. 872: ‘The common law not only prohibited a second punishment for the same of-fence, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.’ “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. “In accordance with this philosophy it has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Here the defendant was tried and acquitted. His trial in municipal court for an offense against a city ordinance put him in jeopardy. To try him again would be to put him in jeopardy twice' for the same offense. Unlike the situation where there is a conviction in municipal court and an appeal by the defendant, as in Kansas City v. Henderson, supra, and State v. Fields, 487 S.W.2d 560, 561 (Mo.1972), an appeal by the city does not have the effect of setting aside and nullifying a judgment of acquittal, a judgment in favor of an opponent who has a constitutional right to hold and stand on that determination. What was said in Henderson (468 S.W.2d at 50-51) and Fields (487 S.W.2d at 562), supra, to the effect that a de novo trial in circuit court is but a continuation of the original prosecution by the city and had the effect of setting aside and nullifying the municipal court judgment was said in comparing those cases with Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and in the context of those cases where the defendant had by his appeal succeeded in getting his first conviction set aside. As stated by the court in North Carolina v. Pearce, supra, the Fifth Amendment guarantee against double jeopardy “imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.” 395 U.S. at 720, 89 S.Ct. at 2078. It does not follow from that statement that no limitations are imposed by the Fifth Amendment on the power of the city to retry for the same offense a defendant who has been acquitted; that is exactly what the double jeopardy clause does. In the first instance no limitations are imposed, because by seeking and securing his retrial defendant voluntarily waives the protection of the constitutional guarantee. In the second instance there is no waiver by defendant of the protection of the Fifth Amendment right to stand on his acquittal, even though it be of a municipal offense and by a municipal court. There is no substance to the city’s contentions that the double jeopardy clause of the Fifth Amendment is not applicable to offenses proscribed by municipal ordinances for which the maximum penalty does not exceed imprisonment for six months, so-called “petty offenses,” and that this constitutional guarantee is not applicable to “our two-tier court system.” We find nothing in this protection of the individual against double jeopardy which makes any distinction between offenses or court systems. In State ex rel. Cole v. Nigro, supra, the court discussed Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed. 2d 437 (1970) and their effect on the Sixth Amendment right to trial by jury in criminal cases, some of which might be considered to be “petty” offenses. In Baldwin, the Supreme Court of the United States held that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” 399 U.S. at 69, 90 S.Ct. at 1888. In State ex rel. Cole v. Nigro, supra, we followed a long line of Missouri cases holding that there is no constitutional right to trial by jury in municipal ordinance prosecutions, but noted that the Baldwin decision required that a jury be provided upon demand in such prosecutions where the imprisonment authorized is more than six months. Even though the offense with which defendant was charged in this case may be characterized as “petty” so that today the Sixth Amendment guarantee of trial by jury is not applicable, that does not affect or change the ■ fact that defendant was in jeopardy at his trial in municipal court and would be put in jeopardy again if tried now for the same offense in circuit court. Colten v. Kentucky, supra, relied on by the city in its argument that the guarantee against double jeopardy should not be applied to our two-tier court system for the disposition of municipal ordinance violations, is not applicable to the facts of this case. It involved a conviction of a misdemeanor in a lower court and an appeal by Cplten to circuit court where he had a trial de novo, resulting in punishment greater than that imposed in the lower court. The only part of the decision in the Colten case which has even the remotest relation to this case is that the enhanced punishment which could be and was imposed in the circuit court on trial de novo in Kentucky’s two-tier system, was held to be not prohibited by the double jeopardy clause, and, incidentally, that such punishment did not contravene the due process requirements of North Carolina v. Pearce, supra. It necessarily follows from what we have said that Rule 37.84, insofar as it authorizes an appeal by the city and another trial to determine guilt or innocence after an acquittal, violates the Fifth Amendment double jeopardy clause and is unconstitutional. The judgment of the trial court is affirmed. All concur. .The ordinance, § 34.112(a) (b), Revised Ordinances of Kansas Oity, is, in pertinent part, as follows: “(a) Violations. Any person who drives any vehicle . . . upon a street carelessly and heedlessly, in disregard of the rights or safety of others; or without due caution and circumspection; or at a speed and in a manner so as to endanger any person or property, shall be guilty of careless driving, (b) Penalties. Every person who is convicted of careless driving shall be punished by imprisonment in the [Municipal Farm] for a period of not less than three (3) days nor more than ninety (90) days, or by a fine of not less than fifteen dollar ($15.00) nor more than five hundred dollars ($500.00), or by both such fine and imprisonment . . . . ” . Mo.Const. Art. Y, § 3, V.A.M.S. . Mo.Const. Art. Y, § 11, V.A.M.S. . The double jeopardy clause of the Fifth Amendment is : “ * * ⅜ nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * . The double jeopardy clause of Mo.Const. Art. I, § 19, is: “ * * * nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury * * . References to Rules are to Missouri Supreme Court Rules and V.A.M.R. . Article XIII, § 396.5, Charter of Kansas City, provides that appeals may be taken from municipal court to the circuit court by either the defendant or the city “in the manner and upon the conditions prescribed by law and rules of the Missouri Supreme Court.” Rule 37.78 provides “A defendant and the municipality shall be entitled to appeal from a judgment to the circuit court of the county or such other court having jurisdiction of such appeals within the time and in the manner provided by law.” Section 22.18, Revised Ordinances of Kansas City, as amended in 1969, provides that “[w]ithin ten (10) days from a judgment acquitting or discharging any defendant, the city counselor may appeal such case to the court having jurisdiction of the appeal * * * . Rule 37.84 provides that “[a]fter an appeal from a judgment rendered in a municipal court has been entered upon the docket of the circuit * * * court * * *, the case shall be heard, tried and determined de novo in such * * * court as though the prosecution had originated in such court.” . City of St. Louis v. Penrod, 332 S.W.2d 34, 35-36 [2-4] (Mo.App.1960) ; Kansas City v. Plumb, 419 S.W.2d 457, 460 [7-10] (Mo.App.1967) ; City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935, 937-938 [3-4] (1942) ; Stevens v. City of Kansas City, 146 Mo. 460, 48 S.W. 658, 659 (1898) ; City of St. Louis v. Ameln, 235 Mo. 669, 139 S.W. 429, 431 [1-2] (1911) ; City of St. Louis v. Von Hoffman, 312 Mo. 600, 280 S.W. 421, 423 (Banc 1926) ; State ex rel. Cole v. Nigro, 471 S.W.2d 933, 935 (Mo.banc 1971) and cases therein cited. . Other cases referred to by the parties involving the double jeopardy clause where the first conviction was set aside at the behest of the defendant-are: Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) ; Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ; Benton v. Maryland, supra; Kansas City v. Henderson, supra; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

MISSOURI REAL ESTATE COMMISSION, Appellant, v. Thomas W. STEGER and Realty Exchange of Kansas City, Inc., Respondents. No. 58431. Supreme Court of Missouri, En Banc. May 13, 1974. John C. Danforth, Atty. Gen., Leland B. Curtis, Harvey M. Tettlebaum, Daniel P. Card, II, Asst. Attys. Gen., Jefferson City, for appellant. Martin Anderson, Kansas City, Michael P. Riley, Carson, Inglish, Monaco & Coil, Jefferson City, for respondents. FINCH, Judge. Pursuant to § 161.272, the Administrative Hearing Commission (hereafter Hearing Commission) held an evidentiary hearing on a complaint filed with the Missouri Real Estate Commission (hereafter Real Estate Commission) which sought revocation or suspension of respondents’ real estate brokers licenses on the basis of alleged violations of the provisions of § 339.100. The Hearing Commission made findings, conclusions and recommendations, after which the Real Estate Commission entered an order suspending for six months the real estate brokers licenses held by respondents herein. Thereafter, pursuant to Art. V, § 22, Mo.Const., V.A.M.S., and § 536.140, the implementing statute, judicial review was sought in the Circuit Court of Cole County. That court reversed the findings and decisions of the Hearing Commission and the order of the Real Estate Commission suspending respondents’ brokers licenses. An appeal was taken by the Real Estate Commission to the Missouri Court of Appeals, Kansas City District, which affirmed. We then ordered the case transferred to this court and we now decide it as though here on direct appeal. We reverse and remand with directions. At the outset we note the well established rule that judicial review of administrative decisions pursuant to § 536.140 is such that “ * * * We may not substitute our judgment on the evidence for that of the Commissioner and we may not set aside his decision, unless it is not supported by competent and substantial evidence on the whole record, or it is not authorized by law, is arbitrary, capricious or involves an abuse of discretion. State ex rel. Favazza v. Ketchum, Mo., 367 S.W.2d 542, 546 [2, 3] ; Pinzino v. Supervisor of Liquor Control, Mo., 334 S.W.2d 20, 26 [4]; Baker & Theodore, Inc., v. Quinn, Mo.App., 400 S.W.2d 477, 479-480 [1].” Tom Boy, Inc. v. Quinn, 431 S.W.2d 221, 225 (Mo. banc 1968). We apply that rule in our review herein. The decision of the Hearing Commission included these findings of fact: “Respondent Thomas W. Steger is a real estate broker licensed by petitioner, and is also president of Realty Exchange of Kansas City, Inc. (hereinafter referred to as Realty Exchange). Respondent Realty Exchange is a Missouri corporation, and is also licensed by petitioner as a real estate broker. “On July 7, 1968 Joseph Wilkins, Jr. of Kansas City, Missouri telephoned Realty Exchange and advised he was interested in buying a house. The same day Robert Greenwell, salesman for respondents, showed houses to Wilkins and his wife. The Wilkins told Greenwell they would like to buy one of the houses, at 2118 East 50th Street, but needed to sell the house they were living in at 4449 South Benton, as they could not afford to make two house payments. Greenwell referred the Wilkins to respondent Steger, who had Greenwell prepare an Offer to Purchase Real Estate, which the Wilkins signed. Written into the document were the words: ‘R.E.K.C. to assume liability of home located at 4449 S. Benton as of Sept. 1, 1968.’ “On July 24, 1968 Wilkins met with respondent and Greenwell and signed a Real Estate Contract to buy the house at 2118 East 50th Street. The contract was conditioned upon Wilkins obtaining a Federal Housing Administration (FHA) insured loan in the amount of Thirteen Thousand Five Hundred Dollars ($13,500). At the meeting respondent told Wilkins that the Mid-America Mortgage Company would assume liability on Wilkins’ house at 4449 South Benton. The same day Wilkins and respondent met with Orson Abbott, President of Mid-America Mortgage Company. Abbott’s office was in the same building as respondent’s, and Steger was a vice-president of Mid-America Mortgage Company at the time. Abbott and the Wilkins signed a typewritten Addendum to the Real Estate Contract, which stated: ‘In connection with the above transaction it is hereby agreed by all parties that MID AMERICA MORTGAGE COMPANY will assume liability of buyers home located at 4449 South Benton as of September 1, 1968. Buyers agree to repair all screens on said property and patch the living room and kitchen ceilings.’ “On July 29 the Wilkins signed a firm commitment for mortgage insurance with the FHA. The commitment stated in part: ‘A note and mortgage described above or as modified below will be insured under the National Housing Act provided one of the mortgagors will be an owner-occupant and all conditions appearing in any outstanding commitment issued under the above case number and those set forth below are fulfilled.’ Typed on as an additional condition was the following: ‘Submit evidence prior to insurance that mortgagor has been released from all liability under outstanding mortgage on property at 4449 South Benton, Kansas City, Missouri, or consent to substitution of mortgagor, FHA Form 2210, be approved and evidence furnished that the property has been conveyed to and the mortgage obligation assumed by the substitute mortgagor; except when the mortgage is insured under escrow commitment procedure; or evidence is submitted that the property is being conveyed to an owner-occupant.’ “On July 30, 1968 the Wilkins signed a Missouri Warranty Deed deeding the property at 4449 South Benton to Ver-ries Hall. The deed was notarized by Carolyn Abbott who is the wife of Or-son Abbott, and warranted that the property was free and clear of any incum-brance. The following day Verries Hall signed an affidavit that ‘she has purchased the property located at 4449 South Benton, Kansas City, Missouri and will be an owner-occupant.’ Respondent testified that Verries Hall was a welfare recipient whose house was being condemned. Verries Hall subsequently occupied the house at 4449 South Benton. Wilkins made his last payment on this house in August, 1968 to CityWide Mortgage Company. “Thereafter, in September, 1968 the Wilkins moved into the house at 2118 East 50th Street and began making house payments on this house. In November, 1968 the City-Wide Mortgage Company, mortgagee of the house at 4449 South Benton, telephoned the Wilkins and advised that they were delinquent on house payments. Mrs. Wilkins called respondent, and he stated that there was nothing to worry about. “In December, 1968 the Wilkins received a letter from City-Wide Mortgage Company demanding house payments for the 4449 South Benton property. Mrs. Wilkins called respondent and read him the letter. Respondent told Mrs. Wilkins that in some cases the previous owners of a house are billed by mistake and that she had nothing to worry about. In March, 1969 City-Wide Mortgage Company foreclosed on the property at 4449 South Benton and the property was subsequently sold. Thereafter the Wilkins were refused credit when they attempted to purchase a washing machine and dryer and were informed that their credit was inadequate. The Wilkins retained an attorney and filed a civil suit against,, respondents and others. The suit was dismissed upon payment of a Five Hundred Dollar ($500) settlement to the Wilkins. Respondent himself paid Two Hundred Fifty Dollars ($250) toward the settlement. Wilkins filed a complaint with petitioner.” An examination of the transcript on appeal discloses that there was competent and substantial evidence to support the foregoing findings. Hence, we should not and do not disturb them. From the foregoing facts the Hearing Commission then found and concluded in part as follows: “The competent and substantial evidence upon the whole record does not support a conclusion that respondent Ste-ger individually, or in his capacity as president of respondent Realty Exchange violated subparagraph (1) of § 339.100. The evidence indicates that Steger initially on July 7, 1968 planned to have Realty Exchange assume the liability on the 4449 South Benton property. Then subsequently on July 24, 1968 Abbott and the Wilkins signed the Addendum which provided that Mid-America Mortgage Co. would assume the liability of the property at 4449 South Benton. The FHA firm commitment specified that the Wilkins had to be released from liability on the 4449 South Benton property to qualify for mortgage insurance on the property at 2118 East 50th Street. “However, the firm commitment also provided in the alternative, that conveyance of the 4449 South Benton property to an owner-occupant would also meet the conditions for mortgage insurance. The firm commitment was signed by the Wilkins on July 29, 1968, and the following day Verries Hall signed the affidavit that she would be an owner-occupant. It is the conclusion of this Commission that the Wilkins thereafter knowingly conveyed the 4449 South Benton property to Verries Hall. This evidence does not support a conclusion that respondent Ste-ger made a substantial misrepresentation or false promise to the Wilkins in violation of § 339.100(1), RSMo 1969, V.A. M.S. “Respondent Steger in his capacity of president of respondent Realty Exchange violated subparagraph (7) of the § 339.-100, RSMo 1969, V.A.M.S., when he failed to adequately inform Wilkins of his continuing liability for this outstanding obligation on the 4449 South Benton property. Respondent also violated sub-paragraph (7) when he assured the Wilkins that they had nothing to worry about after they had been contacted by the mortgagee demanding payments on their mortgage obligation. Of course, only City-Wide Mortgage Company, the true holder of the note secured by a deed of trust on the 4449 South Benton property, could release Wilkins’ obligation and satisfy the record. Cf. Simon [Simmon] v. Marion, 227 S.W.2d 127, 133 (K.C.App., 1950). “A real estate broker is in a confidential and fiduciary relationship with his customer. The broker is obligated to make a frank disclosure of all material facts concerning a real estate transaction, and the broker must exercise utmost fidelity and good faith towards his customer. Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201, 206 (St.L.App., 1951). Respondent Steger’s conduct in this regard was improper and demonstrated bad faith or gross incompetence on his part in violation of § 339.100(7), RSMo 1969, V.A.M.S. However, the evidence does not support a conclusion that respondent Steger prepared the warranty deed, or caused the Wilkins to falsely swear that the 4449 South Benton property was free and clear of any incumbrance.” In the foregoing paragraphs the Hearing Commission not only arrives at certain conclusions of law but also makes additional findings of fact. It finds that various representations and commitments made by respondent Steger which in fact were affirmative in nature did not constitute substantial misrepresentation or false promises to the Wilkins. The commissioner who heard and observed the witnesses was entitled to make such a finding. There was evidence to support it. However, recognizing the nature of the relationship between a real estate broker and his customer, with the resulting obligation on the broker to make a frank disclosure of all material facts concerning the real estate transaction, the Hearing Commission expressly found that even though Wilkins had knowingly deeded the South Benton property to Verries Hall after he had signed the commitment for FHA insurance, respondent Steger had failed to adequately inform Wilkins of his continuing liability on the mortgage on the South Benton property. This involved a failure by Steger to tell Wilkins that Mid-America Mortgage had not assumed liability on the South Benton property even though the signed contract addendum had provided that it would. Secondly, the Hearing Commission found that Steger incorrectly informed the Wilkins that they had nothing to worry about by the demands on them for delinquent payments on the South Benton mortgage. Again, the transcript contains evidence which was adequate to support these findings by the Hearing Commission. Wilkins had testified that he did not know until several months later following employment of an attorney that Mid-America had not assumed liability for the mortgage and Mrs. Wilkins told of the oral and written demands on them by the holder of the South Benton mortgage and of Steger’s assuring her that there was nothing to worry about and that such billings of prior owners are sometimes mistakenly made. As a result, the Wilkins ignored the demands. Having concluded that Steger failed to inform Wilkins of the fact that Mid-America had not assumed the mortgage and also had erroneously informed them that they had nothing to worry about as a result of the demands for delinquent payments on the South Benton property, the Hearing Commission concluded that these constituted bad faith or gross incompetence in violation of § 339.100(7). This, however, was a legal conclusion, not a finding of fact, and this court is not bound by the Hearing Commission’s interpretation of the statute and its applicability. Tom Boy, Inc. v. Quinn, supra, 431 S.W.2d 221 [2], We conclude and hold that the above recited occurrences (found by the Commission) constituted misrepresentations and were violations of § 339.100(1) rather than § 339.100(7). As such, they provide a basis for the suspensions recommended by the Hearing Commission and ordered by the Real Estate Commission. The order entered by the Circuit Court reversing the findings and decision of the Hearing Commission states that such findings would require a real estate broker to furnish a legal opinion and continuing legal advice concerning real estate transactions to which he is not a party. We do not agree and by this opinion do not intend to hold that a real estate broker should or may furnish legal advice. The Hearing Commissioner simply recognized that since Wilkins had emphasized that he wanted to avoid liability on two houses and since the contract of sale expressly provided that Mid-America Mortgage would assume the mortgage on the South Benton property, Steger was obligated to disclose the fact that Mid-America Mortgage had not assumed the South Benton mortgage and that Wilkins had not been relieved thereof. The judgment of the circuit court is reversed and the cause is remanded with directions to enter judgment consistent with the views herein expressed which affirms the order of suspension made by the Real Estate Commission. All concur. . Unless otherwise indicated, all statutory references are to RSMo 1969, V.A.M.S. . The portions of that section with which we are concerned on this appeal are as follows: “339.100. Power to suspend or revoke licenses. The commission may upon its own motion, and shall upon written complaint filed by any person, investigate the business transactions of any real estate broker or real estate salesman and shall have the power to suspend or revoke any license obtained by false or fraudulent representation or if the licensee is performing or attempting to perform any of the following acts or is deemed to be guilty of: “(1) Making substantial misrepresentations or false promises in the conduct of his business, or through agents or salesmen or advertising, which are intended to influence, persuade or induce others “(7) Any other conduct which constitutes untrustworthy or improper, fraudulent or dishonest dealings, or demonstrates bad faith or gross incompetence .While failure of Steger to inform Wilkins that Mid-America Mortgage had not assumed liability as it had contracted to do was in the nature of misrepresentation by silence rather than by affirmative misrepresentation or false promises, nevertheless, such silence amounted to false representation on Steger’s part, particularly in view of his knowledge that Wilkins had emphasized in his negotiations that he wanted to be completely relieved of any liability on the South Benton property so as to avoid any possibility of having two payments to make. .This court had held previously that a real estate broker may not give advice or opinions as to the legal rights of the parties, even in transactions in which he is acting as a broker. Hulse v. Criger, 363 Mo. 26, 247 S.W.2d 855 (1952).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Zoe Ella LIESER, a/k/a Margie Lieser, Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS METROPOLITAN DISTRICT, a body corporate and politic, Defendant-Appellant. No. 58446. Supreme Court of Missouri, En Banc. May 13, 1974. Luke, Cunliff, Wilson, Herr, Chavaux & McCluggage, Paul H. Chavaux, Terry A. Bond, St. Louis, for plaintiff-respondent, Zoe Ella Lieser, a/k/a Margie Lieser. Boas, Schneider & Walsh, Paul B. Hunker, Jr., St. Louis, for defendant-appellant, Bi-State Development Agency. Robert C. McNicholas, City Counselor, James J. Gallagher, Associate City Counselor, for defendant-appellant, the City of St. Louis. FINCH, Judge. Plaintiff obtained a verdict for $2,000.00 for personal injuries against Bi-State Development Agency of the Missouri-Illinois Metropolitan District (Bi-State) and the City of St. Louis (City). Both defendants appealed but subsequently the City dismissed its appeal. Thereafter, the Missouri Court of Appeals, St. Louis District affirmed the judgment as against Bi-State. We then sustained its application to transfer and we now decide the case as though it came here on direct appeal. Mo.Const., Art. V, § 10, V.A.M.S. The single issue presented is whether plaintiff made a submissible case against Bi-State for injuries suffered when, although she descended from the bus without injury onto a regularly designated bus stop located immediately adjecent to the street curbing, she stumbled and fell over a somewhat raised concrete slab after she had walked 15 to 18 feet from the point of debarkation along an asphalt walkway located on city property. Plaintiff had been employed for six years as a practical nurse by a woman who lived near the intersection of Pershing and DeBalivere in St. Louis. Most of the time she rode Bi-State’s Union bus in going to and from her work. That bus discharged and picked up passengers at its regularly scheduled bus stop on city property located adjacent to the north curb of Pershing approximately 90 feet east of DeBalivere. On the morning of June 14, 1968 plaintiff rode a Union bus to work and at approximately 7:20 a. m. she, along with other passengers, alighted therefrom at the Pershing bus stop. The weather was clear and the pavement .dry. Some of the passengers left the bus by the front door and others, including plaintiff, disembarked through the rear door. Plaintiff stepped from the bus onto a blacktopped strip adjacent to the north curb of Pershing. That strip, which had been there at least since 1962, extended west along the curb all the way to the sidewalk which ran along the east side of DeBalivere. No witness testified as to the width of this blacktopped strip but a photograph introduced into evidence would indicate that it was perhaps three feet wide. This blacktopped strip was separated from the sidewalk on the north side of Pershing Avenue by a dirt strip on which grass and weeds were growing. These had not been cut and passengers, including this plaintiff, generally walked along the blacktopped strip until they reached the DeBalivere sidewalk. After disembarking plaintiff walked west along the blacktopped strip. After she had gone a distance of 15 to 18 feet she tripped over the edge of a concrete slab which surrounded a manhole cover located in the middle of the blacktopped walkway. She struck her face against the bus stop post, located just west of the concrete slab and adjacent to the street curb, causing injuries for which she brought this action. The concrete slab in question covered a sewer inlet from the street into a storm sewer and appears from the photograph to be approximately four feet square. It appears to be almost level whereas the blacktopped walkway slopes gradually with the terrain toward the edge of the curb. As a result, at the north edge of the concrete slab the blacktop appears to be almost flush with the concrete, but as the blacktop slopes toward the curb, there is a gradual difference in height between the slab and blacktop of up to two or three inches. The walkway where plaintiff and the other passengers were discharged and where they were walking at the time plaintiff fell was located on city property. Plaintiff submitted her case against the city on the basis of its failure to use ordinary care to remedy the condition caused by the raised concrete manhole which allegedly made the walkway not reasonably safe when the city knew or should have known of the dangerous condition. She submitted her case against Bi-State on the theory that in stopping its bus at such a point in relation to the raised concrete slab it failed to select a reasonably safe place for plaintiff to alight from the bus. It is well established that a carrier is required to exercise the highest degree of care to avoid injury to passengers alighting from its vehicle and that such duty continues at least until the passenger has left the vehicle and is on the ground in safety. The question which arises from time to time is whether (and to what extent) the passenger-carrier relationship and the duties incident thereto continue thereafter, thereby creating a jury issue as to whether the presence of some condition such as the higher manhole cover results in the point of debarkation not being a safe place to alight. Bi-State’s application to transfer to this court was predicated on the assertion that the opinion of the court of appeals in extending the zone of Bi-State’s obligation to its passenger beyond the point of safe debarkation relied on the decision of this court in Gott v. Kansas City Rys. Co., 222 S.W. 827 (Mo.1920) and its own decision in Feldotto v. St. Louis Public Service Company, 285 S.W.2d 30 (Mo.App.1955) but overlooked this court’s decision in Lacks v. Wells, 329 Mo. 327, 44 S.W.2d 154 (1931) even though it was subsequent to the decision in Gott. Bi-State’s position was that the court of appeals decision in this case was inconsistent with a rule announced in Lacks to the effect that a carrier’s liability for injury to passengers does not extend beyond the immediate area of debarkation on public property. While not specifically delineating the point at which she would recognize that the carrier-passenger relationship should terminate, plaintiff asserts that in the instant case it continued as she walked along the walkway adjacent to Pershing and that a jury issue existed as to whether in view of the raised manhole and the attendant danger Bi-State had selected a reasonably safe place for her to alight. This view was adopted in the opinion of the court of appeals. The case of Gott v. Kansas City Rys. Co. and Feldotto v. St. Louis Public Service Company, both supra, deal with factual situations which differ materially from that presented in this case. In Gott, a streetcar discharged its passenger one block beyond the station at which she had told the motorman she wanted to alight. The motorman told her to walk back to the station where she had intended to alight. While doing so on defendant’s right-of-way, she was struck by another streetcar. Saying that in this situation the carrier-passenger relationship did not terminate at the spot where plaintiff alighted without injury, the court held that since the streetcar operator was familiar with the surroundings and plaintiff was not, the injury received would be a reasonable expectation of the act of putting plaintiff off beyond her announced destination. In Feldotto the plaintiff was descending from the bus on the exit steps and had placed her foot on the pavement when she was struck by an automobile passing the bus on the right. She- had not completely alighted when she was hit. Hence, the carrier had not actually discharged plaintiff in a place of safety. If in the instant case there had been a hole or substantial unevenness immediately beneath the steps by which plaintiff descended and she had stepped there and fallen, we would have a situation comparable to that in Feldotto in that plaintiff then would have been injured in the act of alighting. This would have been before the carrier-passenger relationship terminated and a jury issue would exist as to whether the carrier had selected a safe place for debarkation. This would be true even though the defective spot onto which plaintiff stepped was located on city-owned property. Actually, such a situation was presented in the case of Beahan v. St. Louis Public Service Co., 213 S.W.2d 253 (Mo.App.1948). In that case, the bus on which plaintiff was a passenger stopped at a regular bus stop at the southeast corner of 14th and Washington in the city of St. Louis. At that point there was a broken place in the sidewalk variously estimated at from 1 to 2½ inches in depth and 8 to 10 inches square. The bus driver stopped at a point which resulted in this defective sidewalk being immediately below the steps by which passengers would be discharged. Plaintiff failed to discover the break in the surface and when she stepped into the hole in the sidewalk, she fell and was injured. The court of appeals recognized the general rule that the carrier has an obligation to select a reasonably safe place to discharge passengers and that the carrier-passenger relationship continues until the passenger has left the car or bus and descended to the sidewalk in safety. The court then said: “Nor is it any the less the street railway or bus company’s duty to exercise the highest degree of care to select such reasonably safe place that the street or sidewalk where it must discharge its passengers is outside its own control. If there is a defect in the street or sidewalk which is likely to cause injury to an alighting passenger, the company must stop its car or bus at a point beyond or short of the defect, or it must warn the passenger unless the danger confronting him is so glaring as to be as obvious to him as to the operator; and where it stops its car or bus at such a place that a passenger must alight at a point on the street or sidewalk which is defective and likely to result in injury, the company is guilty of negligence, and if the passenger is injured while so alighting, the company is liable for the damages incurred. Caley v. Kansas City, 226 Mo. App. 934, 48 S.W.2d 25; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538; Senf v. St. Louis & Suburban Ry. Co., 112 Mo.App. 74, 86 S.W. 887.” 213 S.W.2d 1. c. 255. Neither Gott nor Feldotto is analogous to the factual situation presented by Mrs. Lieser’s case herein where she did alight in safety and was injured subsequently during the time she was walking on the city-owned and maintained walkway enroute to her ultimate destination. Reference has been made to Lacks v. Wells, supra, and the failure of the court of appeals opinion to discuss or distinguish it. In that case plaintiff was a passenger on a streetcar which regularly stopped at the corner of Allen and Jefferson in St. Louis. On this particular morning the streetcar stopped midway between Geyer and Allen streets rather than at the regular stop. Plaintiff disembarked safely but while still on the street was struck by an automobile attempting to pass the streetcar. She sought recovery on the basis that the streetcar, in depositing her where there was no safety zone or platform, did not provide a reasonably safe place for her to alight. In ruling against plaintiff, this court said: “But there is a well-recognized distinction between railroads and street railways as to the status of a passenger after alighting from a carrier’s vehicle. It is thus noted in 4 R.C.L. p. 1047: ‘The general rule just considered that in the case of a carrier having exclusive control or occupation of its tracks and stations, one traveling may still retain the status of a passenger after alighting from the carrier’s vehicle, is from the nature of things not applicable to carriers not so situated, as for instance in the case of persons traveling on street railway cars. While a person attempting to alight from a street car remains a passenger until he has accomplished the act of alighting in safety, and the carrier owes to the passenger attempting to alight that very high degree of care and attention which the law puts upon it generally to the end of promoting the safety of its passengers, and will be liable for negligent injury to the passenger while so alighting, it is the generally accepted view that one who has alighted from a street car and is in safety upon the highway is no longer a passenger, but is thenceforth a traveler upon the highway, and subject to all the duties and obligations imposed upon such travelers, and the railway company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the sidewalk.’ ” 44 S.W.2d 1. c. 156. Although Lacks has never been overruled and has been followed subsequently, plaintiff attacks it as being wrong and out of harmony with the modern trend in cases. We need not and do not consider the factual situation presented in Lacks or whether the rule therein announced is the proper one to govern a factual situation comparable to the one presented in that case. That is not the issue before us. However, the rule announced in Lacks is, we conclude, a proper one to apply in the factual situation here presented. It is the rule which was applied in the comparable case of Meyer v. St. Louis Public Service Co., 253 S.W.2d 525 (Mo.App.1952). In that case plaintiff alighted from defendant’s bus at a regular stop on St. Charles Rock Road. He then walked to some steps located on public property and started to descend them from St. Charles Rock Road to the old right-of-way formerly used by defendant when it had operated streetcars. These steps had been built 15 or 20 years earlier during the time when streetcars were operating and had been used by persons to go from the streetcar right-of-way (which was lower in elevation) to St. Charles Rock Road. Plaintiff used these steps regularly in going between his home and the bus stop on St. Charles Rock Road. On the day in question, the steps were covered with leaves and mud plus ice from a storm the preceding day. The evidence indicated that the leaves and mud had been there for some time and the steps also had been icy that morning when plaintiff used them when coming from his home to catch the bus. As plaintiff descended the steps on the afternoon in question, he fell and was injured. He then sought recovery from the defendant on the basis that it had failed to provide him with a reasonably safe place to alight. In holding that the trial court should have directed a verdict for defendant, the appeals court cited and relied on Lacks v. Wells, supra, and on Smuzynski v. East St. Louis Ry. Co., 230 Mo.App. 1095, 93 S.W. 2d 1058 (1936) which case had followed the rule announced in Lacks. In so holding, the court said: “In the case before us plaintiff was safely discharged upon the public highway and the relationship of passenger and carrier was thereupon terminated. “Plaintiff contends that the aforesaid cases and the rule announced in them, relied on by the defendant, to the effect that once a passenger has alighted he is no longer a passenger, are not applicable to the issues here involved. He points out, that since the defendant’s right-of-way was adjacent to the State’s right-of-way, the defendant had a right of ingress and egress to its property, and this right of ingress and egress could be used and had to be used by its passengers. We are not impressed with this contention. It must be remembered that the steps on which plaintiff fell were located on the public highway and were not on the property of the defendant. To hold that it is the duty of the defendant to keep in repair all steps, streets, sidewalks and any other facility leading to and from its right-of-way, would be to impose on the defendant an unreasonable and impossible burden. Ordinarily, the duty to keep these facilities in good repair and free from obstructions is imposed upon the municipality or other public body entrusted with their care. Nimmo v. Perkinson Bros. Const. Co., Mo., 85 S.W.2d 98; Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35.” 253 S.W.2d 1. c. 529 As the court observed in the foregoing quotation from Meyer, to impose an obligation on a carrier to be responsible for and maintain sidewalks, walkways, steps or other comparable facilities located on public property would impose an unreasonable and impossible burden. The testimony in this case indicated that Bi-State has approximately 10,000 bus stops, most of which are located on publicly-owned sidewalks or walkways. Furthermore, if the carrier-passenger relationship were to be continued during the period in which passengers are leaving the point of safe debarkation and going elsewhere by way of public sidewalks, the question arises as to the distance or length of time such relationship would be continued. Would it be for 25 feet, 50 feet, a quarter of a block or for some other distance ? We conclude that where the passenger has alighted in safety at the edge of the street onto a regular bus stop located on a publicly-owned sidewalk or walkway and the passenger can exit therefrom by means of the public sidewalk or walkway, the carrier-passenger relationship terminates once the passenger has alighted in safety and the carrier is not liable for injury to passengers received as a result of defects in the publicly-owned sidewalk or walkway in the course of traveling from the point of debarkation to the passenger’s ultimate destination. In the court of appeals opinion the court, in holding that the carrier-passenger relationship should not terminate simply because the passenger stepped safely onto the ground, undertook to demonstrate the correctness of that conclusion by posing a hypothetical situation wherein the carrier would discharge a passenger on a 2'x2' concrete slab surrounded on all sides except the street by quicksand. We do not consider that hypothetical situation to be comparable because there the passenger is marooned and has no way to go in safety except to go out into the street. That was not the situation in this case nor in the usual case wherein a passenger, after alighting at a regular bus stop, proceeds over a public sidewalk to his destination. In the situation with which we deal, passengers regularly used the walkway from the bus stop to the sidewalk on DeBalivere and the plaintiff herself had done so several times a week over a period of six years. We reverse the judgment against Bi-State and remand with directions to enter judgment in favor of Bi-State. DONNELLY, C. J., and SEILER, MORGAN, HOLMAN and HENLEY, JJ., concur. BARDGETT, J., concurs in result in separate concurring opinion filed. BARDGETT, Judge (concurring in result) . I concur in the result reached in this case but not upon the authority of Lacks v. Wells, 329 Mo. 327, 44 S.W.2d 154 (1931), and Smuzynski v. East St. Louis Ry. Co., 230 Mo.App. 1095, 93 S.W.2d 1058 (1936). Those two cases involved factual situations in which the carrier discharged a passenger into a moving lane of traffic at a place not designated and marked as a regular boarding and alighting zone. The injuries resulted from being struck by a moving automobile and not from the condition of the premises. To some extent Feldotto v. St. Louis Public Service Co., 285 S.W.2d 30 (Mo.App.1955), has modified the literal application of Lacks and Smuzynski with respect to the liability of a carrier where the passenger is discharged into a moving traffic lane. The question of whether or not this court would hold that discharging a passenger into a moving traffic lane satisfied the carrier’s obligation to provide a reasonably safe place to alight just because the passenger was not injured by reason of the terrain is recognized by the principal opinion as not necessary to the decision in this case and I agree with that observation. It appears to me that Meyer v. St. Louis Public Service Co., 253 S.W.2d 525 (Mo.App.1952), cited in the principal opinion, and the instant case are somewhat factually analogous. Although the court in Meyer held that the carrier-passenger relationship had terminated, that holding was not the basis upon which recovery was ultimately denied. The court held that Meyer still held the status of an invitee of the St. Louis Public Service Co. at the time he was injured even though the St. Louis Public Service Co. was neither the owner nor occupant of the premises nor did it control those premises. The court said, loe. cit. at 530: “In this case the defendant was neither owner, nor occupant of the premises on which the steps were built, nor could it be said that it had any control whatever over these steps. Nevertheless, we are of the opinion that its act of building the board barricade constituted an invitation to its passengers to use the steps, and, although not in control of the steps, used them for its own purposes and may be held liable to any passenger, using due care for his own safety, who is injured thereon by reason of its failure to warn him of any unsafe condition existing on said steps, known to it and not known to the passenger. “In 48 C.J.S. pages 762 and 763, an invitation is defined to be the act, not only of requesting or bidding, but that of alluring or attracting and may include not only express invitation, but the invitation that may be implied from conduct. In 65 C.J.S., Negligence, § 43(3), page 510, we find the following: ‘An invitation may be implied from any state of facts on which it naturally and reasonably arises. An invitation may be implied from dedication, enticement, allurement or inducement to enter, * * * and it may be manifested by the arrangement of the premises * * (Emphasis ours.)” The court then went on to deny recovery to Meyer on the basis that Meyer’s own testimony demonstrated that he knew that the steps were full of mud, dirt, and ice— the very condition which caused his fall— and consequently a warning would not have given him anymore information than he already had. While the evidence does not show that Bi-State did maintenance work on this particular zone, it does show that Bi- State did undertake to keep asphalt boarding and alighting areas in proper condition, and the photographs of this loading zone show an arrangement of the premises whereby passengers are invited or induced to use the asphalt strip mentioned in the principal opinion in walking from the bus after they have alighted. High weeds were permitted to grow in the space between the asphalt strip and the regular sidewalk so that a passenger, in attempting to reach the sidewalk or street corner, is impliedly invited to use the asphalt strip and is channeled along the asphalt strip immediately upon alighting from the bus. For the reasons set forth in Meyer v. St. Louis Public Service Co., supra, I believe that Bi-State was not, as a matter of law, relieved of all liability simply because plaintiff did not fall in the act of alighting. However, I concur in the result reached in the principal opinion because under Meyer and other Missouri cases the relationship of carrier-passenger, under the facts of this case, had terminated prior to plaintiff’s fall. . None of the outstate eases cited by plaintiff (and footnoted in the court of appeals opinion) as extending the zone within which the carrier-passenger relationship continues beyond the point of debarkation deal with factual situations comparable to that herein presented. In Peterson v. City of Seattle, 51 Wash.2d 187, 316 P.2d 904 (1957), the bus was sliding on an icy pavement and the driver stopped with the front end of the bus near the center line of the street and the rest angled across the two traveled lanes for traffic going in that direction. The driver told passengers that that was it and that they should alight. He gave plaintiff no assistance and she slipped and fell on the street while trying to get to the curb. In Texas, New Mexico & Oklahoma Coaches, Inc. v. Williams, 191 S.W.2d 66 (Tex.Civ.App.1945), the driver, on a foggy, misty day, pulled the bus to the left curb of a two-way street, discharging plaintiff from the right side of the bus onto the street where he also placed her four pieces of luggage. The bus then left and plaintiff was struck while trying to move her luggage to the sidewalk. In German v. Muskingum Valley Transit Co., 94 N.E.2d 52 (Ohio Com.Pl.1950), the plaintiff was carried past her destination and was discharged in darkness on a busy highway to walk back to where she intended to alight. While walking along the road, she was struck. In Sykes v. Langley Cabs, Incorporated, 211 Va. 202, 176 S.E.2d 417 (1970), a taxi cab took two men to a pier. It drove onto the pier and plaintiff’s evidence indicated it stopped within one foot of the edge of the pier. The cab driver then discharged one of the passengers from the right hand door and when he stepped out of the cab, he fell into the water and was drowned. In Jaxon v. City of Detroit, Department of Street Railways, 379 Mich. 405, 151 N.W.2d 813 (1967), plaintiff fell while alighting from the bus which had stopped with the exit door 4 to 5 feet out in the street instead of next to the curb as was usually the case and as she had expected. In Brewer v. City of Detroit, Department of Street Railways, 11 Mich.App. 465, 161 N.W.2d 410 (1968), plaintiff was discharged at the curb at a regular bus stop. It was very icy and slippery, and after the bus pulled away and while plaintiff was still at the curb, she fell and was injured. The court held there was a jury issue as to whether the driver should have known that the spot where he discharged plaintiff was so slippery as not to be reasonably safe. . The court in Meyer went on to discuss the effect of certain barricades erected by the defendant and the implied invitation resulting but concluded that this would only obligate the defendant to warn plaintiff of the condition of the steps, that under evidence the plaintiff was shown to have used the steps regularly and be thoroughly familiar with them and, hence, there was no basis for recovery on that theory either. In this case plaintiff sought to recover on the basis of failure to provide a safe place to alight, not on a theory of a failure to warn. In any event, as in Meyer, the evidence shows that the plaintiff regularly used this bus stop and had observed and was familiar with the concrete slab encasing the manhole. Hence, a warning would simply have advised her of that which she already knew. . See generally 5 Blashfield Automobile Law and Practice 440 § 221.7 and 611 § 234.8 (3d ed. 1966) ; 4 Blashfield Cyclopedia of Automobile Law and Practice 136 § 2172 (Perm. ed. 1946).

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STATE of Missouri, Appellant, v. Carl Eugene KERR, d/b/a Kerr IGA Market, Defendant, and The Bank of Atchison County, Respondent. No. 57594. Supreme Court of Missouri, Division No. 1. April 8, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied May 13, 1974. John C. Danforth, Atty. Gen., Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, for appellant. Walter L. Mulvania, Rock Port, for respondent. BARDGETT, Presiding Judge. The state has appealed from a judgment of the circuit court which awarded the proceeds derived from a sheriff’s sale of defendant Kerr’s equipment and inventory to respondent Bank of Atchison County in the amount of $3,025.77. This case involves a construction of portions of chapter 144, RSMo 1969, V.A.M.S., (sales tax), a revenue law of the State of Missouri, and construction of portions of chapter 400, RSMo 1969, V.A.M.S., (Uniform Commercial Code). Because the case involves a construction of the revenue laws of Missouri, this court has jurisdiction. Mo. Const., Art. V, Sec. 3, V.A.M.S. As of December 31, 1969, defendant Kerr owed the state sales taxes in excess of the sum later derived from the sale of Kerr’s equipment and inventory. On April 9, 1970, the state, through the director of revenue and pursuant to sec. 144.380, RSMo 1969, V.A.M.S., filed a sales tax lien with the recorder of deeds of At-chison County covering periods up to December 31, 1969. On April 7, 1970, the director of revenue made a jeopardy assessment for sales tax in the amount of $26,343.44 against defendant Kerr pursuant to sec. 144.290, RSMo 1969, V.A.M.S. On April 21, 1970, plaintiff state filed in the circuit court of Atchison County a petition for delinquent sales tax under jeopardy assessment together with an affidavit for attachment pursuant to sec. 144.390, RSMo 1969, V.A.M.S. Or or about May 22, 1970, respondent Bank of Atchison County moved for and obtained leave to intervene in the suit by the state against Kerr. The bank alleged that on June 15, 1966, it, as a secured party, filed a financing statement in the office of the recorder of deeds of Atchison County covering all of the equipment and inventory of defendant Kerr in accordance with chapter 400, RSMo 1969, V.A.M.S. (Uniform Commercial Code — U.C.C.) ; that on September 27, 1968, Kerr executed a security agreement under the U.C.C. as debtor to the Bank of Atchison County as creditor in which Kerr listed as security certain equipment and inventory; that the items attached by the state pursuant to the writ of attachment and held by the sheriff were items covered by the financing statement filed June 15, 1966, and the security agreement executed September 27, 1968. Under the U.C.C. the bank asserted a prior lien to the items seized and prayed that the attachment be dissolved and the items seized by released and delivered to the bank. Subsequently, and apparently by agreement, the sheriff sold the seized items producing a net of $3,025.77. ■ The parties agree that the property seized by the sheriff was property covered by the financing statement and security agreement referred to supra; that Kerr was in default on his obligation to the bank and that Kerr owed sales tax to the state in excess of the amount derived from the sale of the seized items. The financing statement in question was filed only in the recorder of deeds office of Atchison County, the county where Kerr lived and conducted business as Kerr IGA Market. It was not filed with the secretary of state of Missouri. The parties are in agreement that the nature of the personal property which was the subject of the financing statement required that the filing of the financing statement be done pursuant to sec. 400.9-401 (1) (c) if the filing itself was to perfect the security interest of the bank. Sec. 400.9-401(1) (c) requires that the financing statement be filed in the secretary of state’s office and in this case in the office of the recorder of deeds of Atchison County. One of the questions on this appeal is whether the court erred in overruling appellant’s objection to certain testimony of a Mr. Corken, president of respondent bank; of Mr. Kerr, the defendant; and of Mr. Mulvania, attorney for respondent bank. The testimony was for the purpose of establishing facts from which the court could find that the state had knowledge of the contents of the financing statement under sec. 400.9-401(2), RSMo 1969, V.A.M.S. infra, prior to April 9, 1970, the date the sales tax lien was filed. A portion of the testimony is as follows : “BY MR, MULVANIA: Q Your name is William C. Corken? A Yes. Q What is your official - A William H. Corken. Q William H. Corken. What is your official position, Mr. Corken? A President of the Bank of Atchison County, Rock Port. Q How long have you held this position? A Since January of 1970. Q Mr. Corken, did you have an occasion to have a conversation with Mr. E. O. Kirchhofer? A I am not certain. I am not cer- tain about that, about that name. Q As to the name. A I couldn’t be sure. Q Do you remember talking to any representative of the Department of Revenue? A Yes, I have talked several times with them. Q To whom, do you remember? A Well, of course, Mr. Richard Upton is the sales tax - state sales tax representative in this area, and I had several conversations about this particular situation with him. Q Can you fix a time when this was done when you have had these conversations with respect to the date of April, 1970 ? A Yes, within sixty days previous to that was the times that I was talking with Mr. Upton. Also I had conversations with the state sales tax legal department, a Mr. Park, and another man in that office. Q Prior to- A Yes. Q -April of 1970? A Yes. Q What was the sum and substance of those conversations? MR. ALMSTEDT: Your Honor, I am going to object to that as being hearsay, and also there has been no definite date set as to when the conversation took place for the purpose of effective cross examination. MR. MULVANIA: How it could be hearsay when it is with the parties themselves I don’t know. THE COURT: Objection is overruled. Take one at a time. Q (By Mr. Mulvania): Yes, let’s take the first representative you spoke to. A Mr. Upton. Q Mr. Upton. A Mr. Upton came into the bank on several occasions and we discussed this situation, and he informed me of the sales tax delinquency. Q Of whom? A Of Kerr’s IGA. Eugene Kerr, Kerr’s IGA Market. I informed him of the lien we had on the property, and he told me, ‘Yes,’ he said, T knew about it because I checked the record at the courthouse.’ Q You talked to Mr. Park. Is he with the Attorney General’s office? A Yes, that’s right. The sales tax division, I think, referred me to him, as I remember. * * The state’s first point on this appeal is that the court erred in entering judgment for respondent because “(a)ll monies collected by defendant, Kerr IGA Market, as sales tax pursuant to Sections 144.010 to 144.510, RSMo 1969 [V.A.M.S.], constitute a debt owing to the State of Missouri, and upon their misappropriation by defendant, by the latter’s failure to remit said monies to the Director of Revenue, the monies or their equivalent value are held in trust by defendant for plaintiff.” State taxes due and unpaid under the provisions of chapter 144, RSMo 1969, V. A.M.S. (sales tax), constitute a debt owed to the state by the taxpayer-merchant, Kerr in this case. See sec. 144.390, RSMo 1969, V.A.M.S. The state contends that if the merchant fails to remit when due the sums required under the sales tax law, the merchant becomes a trustee for the state of the monies due; that money, equipment, and inventory, equivalent in amount to the tax owed in the hands of the merchant become the trust fund; that the establishment of such a trust is retroactive to the initial withholding by the merchant (failure to pay over the sales tax when due) of the state’s funds (the amount of money equal to the sales tax). The state then reasons that in this case intervenor bank has no claim to any funds so held in trust, whether represented by the funds themselves, property, or proceeds from property belonging to defendant Kerr, the merchant. Various sections of chapter 144, RSMo 1969, V.A.M.S., set forth the method whereby the state can collect the tax due under this law. Nowhere is there any reference to a trust fund theory nor is it anywhere stated that the merchant is a trustee for the state nor that the monies owed by the merchant as sales tax constitute the corpus of a trust for the benefit of the state. Sec. .144.390(1), RSMo 1969, V.A. M.S. provides that the tax due constitutes a debt due the state. It does not provide that monies equivalent to the tax due constitute the corpus of a trust for the benefit of the state. Sec. 144.380, V.A.M.S., supra, gives the state a lien against the person named in the notice for unpaid sales taxes and states that the lien so specified is effective from the time of filing of the notice in the proper recorder’s office. The effect of the trust fund theory which is proposed by the appellant would be to give a lien to the state against the taxpayer from the date sales taxes were due but not paid. And this would be so even though there had been no notice given by the state to others that there were unpaid sales taxes due from the merchant and that the state claimed a lien upon the merchant’s property. It would appear that, under this theory, no private creditor of the taxpayer — the bank in this case — could ever acquire a perfected security interest in any personal property of the taxpayer superior to the claim of the state for sales tax even though the creditor had complied with all of the provisions of chapter 400, RSMo 1969, V.A.M.S. The legislature specifically designated the manner by which, and the date upon which, a sales tax lien would be effective. Sec. 144.380, RSMo 1969, V.A.M.S. There is no statutory authority nor any persuasive case authority which would authorize this court to hold that the state can acquire a sales tax lien in any manner other than that provided for in Chapter 400, RSMo 1969, V.A.M.S. The point is overruled. Appellant’s next point is that respondent bank had not perfected its security interest under sec. 400.9-401 (l)(c), RSMo 1969, V.A.M.S. because respondent did not file its financing statement with the secretary of state. It is agreed between the parties that in order for the filing of the financing statement in this case to result in a perfected security interest the provisions of sec. 400.-9-401(1) (c) would have to be satisfied. Sec. 400.9-401(1) (c) requires that financing statement to be filed in the secretary of state’s office and in the office of the recorder of deeds in the county where the debtor has his place of business. Respondent did not file the financing statement in the office of the secretary of state, and therefore, it did not have a perfected security interest under the provisions of sec. 400.9-401(1) (c). However the fact that the respondent did not file the financing statement in the secretary of state’s office is not dispositive of this case but rather requires a resolution of appellant’s last point. Appellant’s last point is that “(t)he trial court erred in finding that the appellant, State of Missouri, had knowledge of the contents of the financing statement and that said knowledge was acquired prior to the filing date by the Director of Revenue of the notice of the lien with the Recorder of Deeds of Atchison County, Missouri, such finding being against the greater weight of the credible evidence in the case.” Sec. 400.9-401(2), RSMo 1969, V.A.M. S., provides: “(2) A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this article and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.” (emphasis supplied.) Appellant acknowledges that under sec. 400.9-401(2) that “(n)otwithstanding the fact that respondent failed to file a financing statement in the required two places under applicable Missouri law, supra, if, in fact, the State of Missouri had knowledge of the contents of such financing statement then the appellant did not possess a superi- or interest in the proceeds under dispute.” Whether or not the state had knowledge of the contents of respondent’s financing statement prior to April 9, 1970, the date the state filed its notice of sales tax lien with the recorder of deeds of Atchison County, was a question of fact which, in this court-tried case, was a matter to be determined by the trial judge under the evidence in the case. The trial court found that respondent’s filing of the financing statement in the recorder of deeds’ office of Atchison County was done in good faith; that the state had knowledge of the contents of the financing statement so filed prior to April 9, 1970, and of the security agreement by which respondent had a lien upon the chattels subsequently seized and sold. It was upon the foregoing findings of fact, among others, that the trial court held that, as between appellant and respondent, the respondent’s lien was superior to appellant’s sales tax lien and accordingly entered judgment for respondent. The state’s contention that there is no credible evidence to support the trial court’s finding of prior knowledge is premised upon the state’s contention that the trial court erred in overruling certain objections made by the state during the testimony of respondent’s witnesses Cor-ken, Kerr, and Mulvania. A portion of Mr. Corken’s testimony and the objections made by the state’s attorney has been set forth supra and the initial question is whether the trial court erred in overruling the objections made by the state to Mr. Corken’s testimony. It is noted that Mr. Corken testified without objection that Mr. Richard Upton was the sales tax representative of the department of revenue and that the witness had several discussions with Mr. Upton about Kerr’s situation prior to April 1970. He also testified without objection that he had conversations with a Mr. Park in the state’s sales tax legal department prior to April 1970. When the witness was asked to give the substance of those conversations, the state for the first time objected “to that as being hearsay, and also there has been no definite date set as to when the conversation took place for the purpose of effective cross examination.” (emphasis supplied.) Nowhere during the course of Mr. Cor-ken’s testimony does it appear that the state objected to the witness testifying to the status of Mr. Upton — that Mr. Upton was the sales tax representative of the department of revenue at the time Mr. Upton and the witness conversed concerning defendant Kerr’s situation and when Mr. Upton acknowledged that he knew of the contents of the financing statement because he checked it at the recorder of deeds’ office. On this appeal the state appears to contend that the trial court should have understood the state’s general objection of “hearsay” to mean that the state was objecting to Mr. Corken’s testimony that Mr. Upton was the sales tax representative of the department of revenue and that Mr. Upton visited Mr. Corken in that capacity with respect to Mr. Kerr’s situation. The transcript does not support the contention that the trial court should have so understood the state’s objection. To the contrary, the transcript indicates that during Mr. Corken’s testimony the state was not contesting the status of Mr. Upton as testified to by Mr. Cor-ken. It further appears that the state never made any motions to strike any part of Mr. Corken’s testimony. Nor does the record indicate that the state contended in the trial court that knowledge on the part of the department of revenue’s sales tax representative would not constitute knowledge to the department of revenue — the state. This is not a situation where the transaction or event had been completed at the time Mr. Upton was speaking to Mr. Cor-ken. Rather it is reasonably inferrable from all the evidence that Mr. Upton was, at the time of his conversation with Mr. Corken, acting in his capacity as a sales tax representative of the department of revenue. It is the department of revenue that is charged with the responsibility of administering and enforcing the sales tax law and collecting the sales taxes due the state. Chapter 400, RSMo 1969, V.A.M.S. In State ex rel. John Hancock Mutual Life Ins. Co. v. Hughes, 152 S.W.2d 132, 134 (Mo.1941), the court said: “It is quite true that an insurance company, being a corporation and therefore an artificial legal person, can have no knolwedge of any facts save and except as the knowledge of its various officers and agents is imputed to it. It is therefore established law, as held by the Court of Appeals, that where certain false or incorrect statements are made in an application for insurance and the falsity of the same are known to the insurer’s soliciting agent, the company will be held to be bound by the agent’s knowledge.” Likewise the state can act only through its agents and knowledge of an agent acting within his authority constitutes knowledge to the state. In view of the unobjected-to testimony of Mr. Corken that Mr. Upton was the sales tax representative of the department of revenue, it was not error for the trial court to overrule the state’s objection to the question which elicited the response that Mr. Upton had checked the recorder of deeds’ records and knew of the financing statement. The trial court having properly admitted this evidence could, of course, consider it in reaching its findings and judgment in the case. The testimony of witnesses Kerr and Mulvania was basically cumulative. The case was tried to the court and it cannot be said that the judgment was clearly erroneous. Rule 73.01. The point is overruled. The judgment is affirmed. All of the Judges concur.

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STATE of Missouri, Respondent, v. Jerry Lynn PARKER, Appellant. Nos. 57512, 57513. Supreme Court of Missouri, Division No. 1. April 8, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied May 13, 1974. John C. Danforth, Atty. Gen., Neil Mac-Farlane, Asst. Atty. Gen., Jefferson City, for respondent. Shaw & Howlett, Charles M. Shaw, Clayton, for appellant. WELBORN, Commissioner. Appeals from consecutive life sentences on jury verdicts of guilty on two charges of murder in the first degree. By stipulation, both charges had been tried together. Shortly after 8:00 A.M. on September 4, 1970, the bodies of Hazel Kimberlin and her 11-year-old son Michael were discovered in the store portion of a combination country-store-residence operated and occupied by the Kimberlins and located at the junction of Routes W and N, near the western edge of Washington County. Each of the victims had been shot through the head. Clyde Kimberlin, the husband and father, had left the store and residence on the morning of September 3 and had taken a load of hogs to Illinois. He stayed overnight there and was preparing to leave for home the next morning with a load of feed when he was notified of the deaths. A neighbor, Mrs. Dace, had seen Mrs. Kimberlin at around 6:30 P.M. on September 3. Mrs. Kimberlin had walked approximately 14 mile to Mrs. Dace’s residence and the two of them had walked about ¼ mile farther when Mrs. Kimberlin returned home. At about 9:30 P.M. Mrs. Dace received a telephone call from Mrs. Kimber-lin. When Mrs. Kimberlin’s body was found, she was dressed as she had been when she and Mrs. Dace had been walking. At 9:30 P.M., September 3, a telephone call had been placed from the Kim-berlins to the residence of Paul Parker in Sullivan. Paul is the father of appellant, Jerry Lynn Parker. Mrs. Kimberlin was a school teacher. Her body and that of Michael were discovered by a teacher with whom Mrs. Kimber-lin rode to work. The teacher had gone to the Kimberlin residence when Mrs. Kim-berlin failed to appear at the usual time to go to the school where they taught. Jerry Lynn Parker, then 17 years old, testified , that he heard of the killings at school on the afternoon of September 4. At around 7:30 P.M., Jerry Lynn called the Franklin County Sheriff’s office and told a deputy that he had been at the Kimberlins at around 9:30 P.M. the night before. He told the deputy that he had run out of gasoline and had gone into the house and called his* parents’ residence. He said that Mrs. Kimberlin had let him siphon three gallons of gasoline from her vehicle which he put in !his and returned to his parents’ residence at Sullivan. After the telpehone call, the sheriffs of Franklin and Washington Counties and Sergeant Anthony Viessman of the State Highway Patrol went to the Parker residence and interrogated Jerry Lynn. He repeated the story that he had reported by telephone. He also told the officers that while he was at the Kimberlins Mrs. Kim-berlin had called a neighbor to inquire if she had any gasoline. He told the officers that when he left, Mrs. Kimberlin and Michael were standing on the porch. Jerry Lynn denied that he had a gun at the Kim-berlins and denied any involvement in the deaths. There was no evidence of forced entry and nothing appeared to have been taken from the store. The cash register drawer was partially open, but its contents had not been disturbed. Three spent .45 caliber shell casings were found at the site of thfe killings. In April, 1970, a .45 caliber automatic had been stolen from the residence of Thomas Stout, Jr., 2½ to 3 miles east of Sullivan. After talking to Parker on the evening of September 4, Sergeant Viessman went by Stout’s house and got the spent casing of a shell Stout had fired from the gun on January 1, 1970. That casing and one found in Mrs. Kimberlin’s hair were sent to the Highway Patrol laboratory for study. Jerry Lynn had gone “steady” with Shirley Brand during the summer of 1970. She had seen Jerry with a .45 caliber weapon which he called “Jimmy.” She had seen him fire the weapon in August of 1970. On September 5, the Washington County sheriff and other law enforcement officers took Jerry Lynn to the Kimberlin store and he repeated his prior story. Charles Gray, Jr., a friend of Jerry Lynn’s, was interrogated by police officers on Sunday, September 6. He told them that Jerry had come by the place where he worked on the afternoon of September 4 and asked to borrow a car because he wanted to get rid of the gun. He refused to lend his auto to Jerry. At around 6:00 P.M., Jerry came by the store and told Gray that he had scattered the parts of the gun from Sullivan to Stanton. Sunday afternoon, September 6, Jerry Lynn was again taken into custody by law enforcement officers and questioned about the .45 caliber automatic. Several officers accompanied Jerry to various places, looking for the weapon. At around 6:30, Officer Brand of the Sullivan Police Department and father of Shirley told Jerry that he was suspected of the murders and that if he was innocent he would have to have the gun to prove it. Jerry told Brand he would talk to him and the two of them rode around. Jerry told Brand that he had been at the Kimberlins and the gun had been there, but that he didn’t murder anyone. Jerry directed Brand to drive to the cemetery. While they were going through the cemetery, Jerry asked Brand for a file to file the firing pin of the gun. Brand took Jerry to Brand’s house where he got a file and gave it to Jerry. They returned to the cemetery and Jerry went to some brush and lifted a flower pot from a drain pipe and reached in and brought out the trigger and firing pin part of a weapon. Jerry took that part back to the car and used the file on the firing pin. He then directed Brand to another place in the cemetery where he pulled the handle, minus the grips, from under some cedar debris. The two parts fit. Jerry said he had “stomped” the barrel part in the ground and they looked for it but it got too dark. He told Brand that he had thrown the other pieces of the gun away. Before they left the cemetery, Jerry dropped the pieces into some water in a rut in the road, saying “Let’s make it look like it’s been out here quite a while.” The serial number on one of the parts corresponded with the number on the gun stolen from Stout. Ballistic tests by a Highway Patrol technician led him to conclude that the shells found at the scene and in Mrs. Kimberlin’s hair had been fired from a weapon of which the pieces found in the cemetery were a part. At Jerry Lynn’s trial, his parents testified in support of his testimony which repeated his original story. His father testified that Jerry had taken a Chevrolet convertible without permission; that when he learned of the call about being out of gas, he drove out Route N as far as the Kim-berlin store and didn’t see his son. He went by the store at about 10:00 P.M. His mother testified to receiving the telephone call from Jerry while he was at Kimber-lins, to driving to Kimberlins to take gas to Jerry and not finding him, and to calling her residence and finding Jerry home, with the explanation that Mrs. Kimberlin had let him siphon gas from her auto. Mrs. Mary Ivy, who knew Mrs. Kimber-lin, testified for the defense that she drove past the store at around 9:45, September 3, 1970, en route to Bourbon from Cape Gir-ardeau. She noticed four or five young men near the driveway to the store, 200 to 300 feet from the store. She saw two cars at the store and another near where the boys were. None was a convertible. On the basis of evidence of the facts as above outlined and other evidence not here alluded to, the jury found Jerry Lynn guilty of first degree murder in both deaths. In this court, the first assignment of error is based upon the admission into evidence of three photographs of the scene taken shortly after the first law enforcement officers arrived on the morning of September 4. The photographs depicted the bodies of the victims, lying where they had been found. Appellant objects that the photographs were “macabre” and “gruesome” and that they did not tend to connect appellant with the crime, prove deceased’s identity, show the nature of the fatal wound or throw any relevant light on a material matter in issue and therefore they should have been excluded. The recent case of State v. Johnson, 486 S.W.2d 491, 494-495 [1-2] (Mo.1972) fully sets forth the law on this issue. Admission in evidence of a photograph taken at the scene of a crime is not precluded because a dead body is pictured. The trial court has discretion in the admission of such evidence which will not be disturbed when the photographic evidence throws light on relevant issues. Here the photographs depicted the scene. Such a picture was of probative value in this case because it corroborated the state’s witnesses’ testimony. They also were of value in demonstrating the nature of the killing, significant in view of the contention of appellant that a second degree murder instruction should have been given. The admission of the photographs was not error. State v. Johnson, supra; State v. Strong, 484 S.W.2d 657, 661-662 [13, 14] (Mo.1972). In the cross-examination of Officer Brand, he was asked whether or not he told Parker that if he knew where the gun was, it would prove he was innocent if he in fact was. Brand replied: “No, sir. I said if that gun didn’t kill them it would prove that the gun he stole was not the murder weapon.” Counsel for defendant moved for a mistrial on the grounds that the answer was not in response to any question to the witness by defense attorney. The trial court refused to declare a mistrial, but promptly advised the jury that the statement relating to the theft of the gun should be disregarded. The trial court’s action was all that the circumstances required. Failure to grant a mistrial was not error. State v. Mallory, 423 S.W.2d 721, 723 [2] (Mo.1968). The only ground urged at the trial was that the statement was not responsive. It was not wholly unresponsive, inasmuch as the inquiry to the witness was whether or not he made a certain remark to Parker about the pistol and the witness’s response stated what in fact the remark was. Appellant now raises the further objection that the remark brought in evidence of another crime. No such objection was voiced in the trial court. There is no necessity to consider the admissibility of evidence of the theft of the weapon as within one of the recognized exceptions to the rule prohibiting evidence of other crimes. The statement was not permitted to stand in evidence and the trial court’s conclusion that a mistrial was not called for will not be disturbed. State v. Camper, 391 S.W.2d 926 (Mo.1965); State v. Smith, 431 S.W.2d 74, 82-83 [21-24] (Mo.1968). Appellant’s next assignment of error is based on the trial court’s sustaining an objection by the state in the examination in chief of the appellant. Sergeant Viessman testified that he was present when appellant and Officer Brand returned to the Sullivan City Hall, after the discovery of the parts of the .45. According to Viessman, appellant at that time said “that I had no evidence against him except a serial number; the barrel and the firing pin were gone.” On questioning by defense counsel, appellant denied having made such a statement. His version of the conversation was:' “Well, he [Sergeant Viessman] — he told me that it — if I was innocent that I would go with him and take a lie detector test. And I told him that — that—of course, they didn’t have any reason to hold me and that I would take a lie detector test.” Defense counsel’s next question was interrupted by an objection by the prosecutor after the words “Did you — ” had been uttered. Out of the hearing of the jury, the prosecutor objected to any testimony with reference to polygraph tests. Defense counsel responded that he was not trying to get in the results of a polygraph test and was trying only to get in the conversation with Sergeant Viessman. The trial court stated that any evidence of polygraph tests would be inadmissible and told defense counsel that he would know how to ask questions designed to refute Viess-man’s testimony. A request for mistrial at that point was overruled. There was no error in the trial court’s ruling that calls for reversal. The trial court did not rule that defense counsel could not produce further testimony by the appellant of his version of the conversation with Sergeant Viessman. Defense counsel dropped the matter, despite the invitation of the trial court to continue as to the conversation, and there is no showing, in any event, whether or not there was evidence of further conversation which might have been produced. On this record, there is no basis for concluding that appellant was precluded from testifying to the whole conversation with Sergeant Viessman and no basis for concluding that the trial court’s ruling was erroneous. The trial court did not err in refusing the motive instruction offered by appellant. State v. Stevens, 467 S.W.2d 10, 26 [29] (Mo.1971); State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 737 [6] (1947); State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260-262 [12]-[17] (1939); State v. Koch, 322 Mo. 106, 16 S.W.2d 205, 210-211 [7, 8] (1929); State v. Glenn, 262 S.W. 1030, 1033 [8, 9] (Mo.1924); State v. Hulbert, 299 Mo. 572, 253 S.W. 764, 767 [8] (1923); State v. Clinton, 278 Mo. 344, 213 S.W. 841, 843 [10] (1919); State v. Santino, 186 S.W. 976, 977-978 [2-4] (Mo.1916); State v. Aitken, 240 Mo. 254, 144 S.W. 499, 503 [6] (1912). The statement in State v. Henderson, 301 S.W.2d 813, 816-817 [1] (Mo.1957), to the effect that a defendant is entitled to a motive instruction if he requests it is dictum and contrary to the law expressed in the above-cited cases. Henderson relied upon State v. Brown, 181 Mo. 192, 217, 79 S.W. 1111 (1904), as authority. In State v. Logan, supra, the court had previously rejected Brown as authority for the proposition for which it was cited in Henderson. The evidence in this case did not require an instruction on murder in the second degree. The evidence showed that at least three shots were fired inside the store from the .45 weapon. A spent slug was found in the ground beneath the floor on which the body of each victim was found. This evidence showed that the fatal shots were fired at the victims while they were lying on the floor. The evidence that Mrs. Kimberlin had placed a telephone call while appellant was in the store would support the conclusion that she was thereafter forced to lie on the floor and that she and her son were shot while they were lying on the floor. Such circumstances adequately supported a charge of murder in the first degree and did not call for a second degree murder instruction. State v. Cuckovich, 485 S.W.2d 16, 26 [19] (Mo. banc 1972); State v. King, 433 S.W.2d 825, 827-828 [5-7] (Mo.1968); State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245, 249-250 [3, 4] (1938). State v. Johnson, 505 S.W.2d 94 (Mo.1974), does not control on this issue. The circumstances in that case pointing to deliberation were ambiguous and therefore a second degree instruction was required. State v. Cuckovich, supra, cited in Johnson, and decided by the Court en banc in 1972, holds that the fact that the evidence in a homicide case is circumstantial does not require an instruction on lesser degrees in a first degree murder case. Appellant attacks the burden of proof and presumption of innocence instruction because of the inclusion of the phrase that a reasonable doubt to authorize an acquittal should be a “substantial doubt.” This complaint has been voiced against such an instruction in many cases and found without merit. State v. Scott, 491 S.W.2d 514, 520 [11] (Mo. banc 1973). MAI-CR No. 2.20 does eliminate such language, but in view of the repeated approval of the instruction given, the trial court is not to be convicted of error. Neither Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968) nor United States v. Atkins, 487 F.2d 257 (8th Cir. 1973), requires a holding that the language of the instruction given in this case produced an infringement upon federal constitutional rights of the appellant. The circumstantial evidence instruction given in this case was in the conventional form which has received prior approval of this court. State v. Holt, 434 S.W.2d 576, 578-579 [2] (Mo.1968); State v. Regazzi, 379 S.W.2d 575, 579 [3] (Mo.1964). The requirement that the circumstantial evidence, in order to warrant a conviction, must be “inconsistent with any reasonable theory of the innocence of the defendant” does not impose upon the defendant the burden of producing evidence of a theory of innocence. Under the instruction the burden of disproving “any reasonable theory of the innocence” remains upon the state. Johnson v. Bennett, supra, in which an instruction requiring a defendant to establish his alibi defense by a “preponderance of the evidence” was held bad is not here in point. Judgment affirmed. HIGGINS, C., concurs. PER CURIAM: The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court. SEILER and HOLMAN, JJ., concur. BARDGETT, P. J., concurs in result.

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Jack Mervyn JONES, Appellant, v. James E. SCHAFFNER, Director of Revenue, Respondent. No. 57673. Supreme Court of Missouri, Division No. 1. April 8, 1974. Motion for Rebearing or to Transfer to Court en Bane Denied May 13, 1974. Richard E. McFadin, Jefferson City, for appellant; McFadin, Spooner & McFadden, Jefferson City, of counsel. John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent. HIGGINS, Commissioner. Appeal from judgment affirming revocation of license to operate a motor vehicle because of refusal to submit to a chemical test. §§ 564.441-564.444, V.A.M.S. Appellant asserts denial of due process of law and questions involving construction of the Constitutions of the United States and of Missouri. Section 564.441 provides: “Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 564.441, 564.442 and 564.444, a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while intoxicated.” Section 564.444 provides: “1. If a person under arrest refuses upon the request of the arresting officer to submit to a chemical test, which request shall include the reasons of the officer for requesting the person to submit to a test and which also shall inform the person that his license may be revoked upon his refusal to take the test, then none shall be given. In this event, the arresting officer, if he so believes, shall make a sworn report to the director of revenue that he has reasonable grounds to believe that the arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition and that, on his request, refused to submit to the test. Upon receipt of the officer’s report, the director shall revoke the license of the person refusing to take the test for a period of not more than one year; * * *. “2. If a person’s license has been revoked because of his refusal to submit to a chemical test, he may request a hearing before a court of record * * *. At the hearing the judge shall determine only: (1) Whether or not the person was arrested ; (2) Whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and, (3) Whether or not the person refused to submit to the test.” On June 22, 1971, Officer Phillip M. Putnam of the Jefferson City, Missouri, Police Department, made a sworn report (Section 564.444 subd. 1) to the Director of Revenue that: “On June 22, 1971, at 10:12 p.m. in the county of Cole, did arrest Jack Mervyn Jones * * * and that I have reasonable grounds to believe that said arrested person was driving a motor vehicle upon the public highways of this state while in an intoxicated condition, and I did then and there request said arrested person to submit to a chemical test of his breath for the purpose of determining the alcoholic content of his blood, and that said arrested person did in fact then and there refuse to take the test.” On June 24, 1971, the Director of Revenue, through Peter W. Scott, Supervisor, Drivers’ License Unit, formally notified Jack Mervyn Jones by mail that his license to operate a motor vehicle “is revoked for one (1) year effective July 9, 1971. “This revocation is mandatory under the provisions of paragraph 1, Section 564.444 * * * because of your refusal to submit to a chemical test on June 22, 1971.” On July 2, 1971, Jack Mervyn Jones filed his Petition to Review Revocation of License Under Section 564.444, RSMo 1969, V.A.M.S., and prayed for an order requiring the Director of Revenue to reinstate his operator’s license and for a stay of the revocation pending determination of his petition. On July 8, 1971, petitioner filed his First Amended Petition and prayed additionally that Section 564.444 be declared unconstitutional and void. Also on July 8, 1971, the court ordered the Director of Revenue to “cease and desist and stay the execution” of the revocation order pending final determination of the petition. On September 23, 1971, following continuances granted petitioner on July 7 and September 17, the matter came on for trial to the court. Peter W. Scott, Supervisor, Drivers’ License Unit in the Department of Revenue, brought with him the records regarding the revocation of the operator’s license issued to Jack Mervyn Jones, and described the revocation procedure. The notice of revocation is issued upon receipt of a sworn statement from a police officer that a licensee refused to submit to a chemical test. Mr. Scott was unaware of any revocations for less than a year. He was of the opinion that the law was susceptible to a construction that the period of revocation was not mandatory for one year; however, the Department of Revenue views and applies the statute as providing a mandatory one-year revocation. This is consistent with automatic revocation for one year in the event of conviction of driving while in an intoxicated condition in violation of state law. The department has no procedure for hearing cases involving refusal to submit to a chemical test. The department does not determine whether the licensee refused the test, whether he was arrested, or whether the arresting officer had reasonable grounds to believe the motorist was driving a motor vehicle in an intoxicated condition. This particular revocation was accomplished in the normal course of proceedings in the department upon receipt of the sworn statement of Officer Putnam. Officer Phillip M. Putnam, the arresting officer, stopped Jack Mervyn Jones at Expressway (U.S. 50 and 63) and Jefferson Street in Jefferson City at 10:12 p.m., June 22, 1971. “I was near the intersection of Monroe and McCarty when I saw * * * a car come down the Monroe Street hill from High Street at an excessive rate of speed. I didn’t trink he was going to get stopped at McCarty and Monroe, but he did. He proceeded on across McCarty Street down toward the Expressway. * * * At Monroe and the Expressway Mr. Jones ran the red light, making a right turn and he proceeded down Expressway to Jefferson Street and went in the left-hand lane. The light was on yellow. * * * Mr. Jones decided to make a left turn and the light turned red before Mr. Jones was even halfway through the intersection there. * * * I followed him around and turned my red lights on and got Mr. Jones stopped just off the Expressway on Jefferson. * * * and Mr. Jones opened his door and got out of the car, and staggered back to my police car as I was getting out. * * * He was unstable on his feet. He weaved when he walked. * * * we got in the car and I asked Mr. Jones if he would submit to the breathalyzer * * * and he said, ‘Yes.’ ” Officer Putnam and Mr. Jones proceeded to the police station and Mr. Jones decided to call his lawyer. After his lawyer arrived Mr. Jones refused to take the test. Officer Putnam “couldn’t swear to it” that he informed Mr. Jones that his license might be revoked upon his refusal to take the test; he did not give any advice with respect to the rights to counsel or that anything he said could be used aaainst him. Officer Putnam identified his sworn statement that Mr. Jones refused to submit to the chemical test and explained that he signed and acknowledged it in the presence of Officer Forest Clark. He further described Mr. Jones at the time of arrest: His speech “was partially slurred. He wasn’t inaudible. And he had a sort of a slobberish tone to him.” His eyes were bloodshot. “There was a smell of intoxicating beverages on his breath.” Officer Putnam observed and heard Officer Clark inform Mr. Jones that if he refused to submit to the chemical test he would lose his license. The lawyer was also present. He recalled Officer Clark’s information to Mr. Jones: “If you refuse to take the breathalyzer you know you automatically lose the license for a year. But if you take the test and you prove out to be intoxicated all you can get is six points and $50 fine” (in violation of a city ordinance). He felt Mr. Jones’s intoxication was indicated by “the speed he used coming from High to Monroe. I think if he had been straight, sir, or hadn’t been drinking, I don’t believe he would have used that speed * * Jack Mervyn Jones also gave his version of the arrest and subsequent events. “ * * * I stopped the car, and I noticed in my rear view mirror the patrol cruiser had pulled in behind me. I rolled down the window. Officer Putnam came up and asked if I would submit to a breath test * * * and I said I would. He asked me to get out of my car * * * I went back to the police car. I was under the impression the test would be administered at a portable unit. * * * Officer Putnam advised me we were going to the police station where the test would be administered.” Officer Putnam did not advise that if he refused the test he might lose his license. Neither did he advise, after the arrest was made, that anything he said could be used against him in court, nor that he had a right to counsel. In his opinion, he was not intoxicated. Corporal Clark, at the police station, did advise that if he refused to take the test he might lose his driver’s license. He called his lawyer and “he arrived at the station and interviewed Officer Putnam at some length. * * * [he] indicated to me he felt the arrest was improper * * * [and] I was under no application [obligation] under the circumstances to submit to the test, and he advised me not to take it.” He refused to submit to the test. Mr. Jones acknowledged receipt of the notice of revocation; he was never afforded an opportunity to testify or have a hearing before the Department of Revenue. Mr. Jones was aware at the time he refused to submit to the test that he would lose his license for a year if he so refused. He said the policeman did not tell him why he was stopped. Twenty or thirty minutes elapsed before he learned anything about running the red light. The officer did make it obvious that he thought he was intoxicated. Mr. Jones remembered having two drinks prior to his arrest. Officer Forest Clark saw Jack Mervyn Jones at the Jefferson City Police Station on June 22, 1971, at 10:19 p.m. “Officer Putnam brought Mr. Jones in for a test on the breathalyzer. It takes approximately 20 minutes to get the breathalyzer warmed up. At that time I asked Mr. Jones if he would submit to the test and he said, no, he would like to have his counsel present before he took the test.” When the lawyer arrived, and in the presence of the lawyer and Officer Putnam, “I told Mr. Jones if he refused to take the test he would lose his license. And then I asked [counsel] to also notify his client that if he took the test and failed it that he would only lose six points, in our court, and possibly a $50 fine.” Mr. Jones was under Officer Clark’s observation from 10:19 p.m. until 1:23 a.m. and, in his opinion, Mr. Jones was intoxicated. The court found the issues required to be determined by Section 564.444, subd. 2(1) (2) (3) in the affirmative, and that the proceedings did not violate petitioner’s rights to due process of law. The court then ordered the revocation to remain in effect and terminated the order to cease and desist from enforcing the revocation. Appellant, by Point III, attacks the sufficiency of evidence to support the required findings, contending the court erred in upholding the revocation of his license “since the procedures set forth in Sections 56Í.440-56Z.444 [564.440-564.444] * * * were not followed.” Specifically, he asserts “that he was never placed under arrest and that if he was under actual arrest, the requisite procedure was not followed in accordance with * * * Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L. Ed.2d 694] * * * [which] required an arresting officer to advise the accused of * * * the right to remain silent; the right to an attorney; * * * and the warning that anything he said could be used against him.” He argues also that the arresting officer did not inform him, as required by Section 564.444, that his license might be revoked upon his refusal to submit to the test. Finally, he complains that the notice of revocation did not bear the signature of the Director of Revenue, “the party charged by law with the authority” to revoke. The record has been stated in some detail to demonstrate support for the necessary findings and that appellant’s charges are without merit. The testimony of Officer Putnam is that he stopped Mr. Jones for driving at excessive speed and failure to heed a red light traffic signal; and he felt that Mr. Jones would not have so driven his vehicle had he not been drinking. The stop was accomplished by use of his red patrol car light, and Officer Putnam then got Mr. Jones into his patrol car and took him to the police station. These circumstances show that an arrest was made when the officer signaled Mr. Jones to stop and, in obedience to that command, he stopped. State v. Dunivan, 217 Mo.App. 548, 269 S. W. 415, 417[4] (1925); State v. Stokes, 387 S.W.2d 518, 522[7] (Mo.1965). Mr. Jones was not prejudiced in these proceedings by any failure to have received the warnings he attributes to Miranda v. Arizona, supra. First, no incriminating statement was taken or used against him in these proceedings. Second, he was not denied counsel and actually had his lawyer present when he made the refusal which was the subject of this proceeding. Third, the privilege against self-incrimination protects an accused only from being compelled to testify against himself in a testimonial or communicative manner, and use of the test or analysis in question does not involve compulsion to those ends. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; Blydenburg v. David, 413 S.W.2d 284, 288 (Mo. banc 1967). The record shows that the arresting officer informed Mr. Jones at the site of arrest that he thought Mr. Jones was intoxicated; that Mr. Jones was aware of that opinion; that Mr. Jones first consented to the test; that subsequently he was fully informed by Officer Clark in the presence of Officer Putnam of the consequences of a refusal to submit to the chemical test; and that he had the benefit of consultation with his lawyer in refusing to submit to the test. Section 564.444 requires only that the court determine whether the licensee has refused to submit to the chemical test after a request that he submit and a subsequent refusal. The decisive question is not so much who gives the warning, but whether the statutory warning was given. In these circumstances, appellant is in no position to argue that his refusal to submit to the test was made without adequate knowledge of the facts and consequences. Of the last complaint, suffice to say that the notice of revocation shows that it was sent to Mr. Jones at the direction of the Director of Revenue over the signature of the Supervisor of the Drivers’ License Unit of the department. The veracity of the supervisor’s action was not questioned when called as a witness by petitioner at the review hearing in the circuit court. By Point I appellant contends that Section 564.444 is unconstitutional “in that it violates the Fourteenth Amendment * * * to the extent that it allows the Director of Revenue to revoke, without a hearing, a driver’s license for a period of one year.” He argues “there is no opportunity prior to the notice of revocation for the defendant to present evidence * * * or to cross-examine witnesses regarding the issue of whether or not his license should be revoked. * * * The defendant in such a case is deprived of the opportunity to determine * * * what facts the Director took into consideration in revoking his license for the one-year period. * * * the procedure * * * places the burden upon a defendant to initiate his own lawsuit * * *, retain counsel and challenge the order of revocation which has already become effective.” By citation of Blydenburg v. David, supra, appellant recognizes that his contention and supporting arguments have been denied previously by this court: “A license to operate a motor vehicle may be suspended or revoked by an administrative agent authorized by law to do so without prior notice or a hearing since due process of law is satisfied if there is provision for an administrative hearing subject to judicial review or the right to have a hearing in a court which may adequately review the administrative decision. Section 22, Art. 5, Constitution of Missouri; State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, 358[3] * * *. “Sections 564.441 through 564.444 are civil in nature. They provide a method whereby an operator’s driving license may be suspended or revoked for refusal to submit to a sobriety test and for a judicial review of such administrative action. These Implied Consent Laws, as they are sometimes called, originated and were further developed in the State of New York. What appears to have been the first sobriety test statute was held unconstitutional in Schutt v. Macduff, 205 Misc. 43, 127 N.Y. S.2d 116, because the statute was not limited to situations where there had been a lawful arrest of the motorist and there was no provision for a hearing at some stage of the proceedings. The New York statute was amended and the new law, in Anderson v. Macduff, 208 Misc. 271, 143 N.Y.S. 2d 257, was found not to be violative of due process of law or the right against self-incrimination. The essential elements of the New York statutes have been embodied in the Implied Consent Law of Missouri and other states. In such form, courts have generally approved the statutes and rejected claims of unconstitutionality and objections to the administrative procedure provided. [Cases cited and see] a comprehensive annotation in 88 A.L.R.2d 1064.” Blydenburg v. David, supra, 413 S.W.2d 1. c. 290[7]. Section 564.443 provides that an arrest without a warrant for a violation of •Section 564.440 is lawful whenever the arresting officer has reasonable grounds to believe that the person to be arrested has violated that section, and it has been demonstrated that Officer Putnam had the required reasonable ground to arrest this licensee. Section 564.444, subd. 2 provides that a person whose license is revoked may have a hearing before a court of record and authorizes the reviewing court to order the Director of Revenue to reinstate the license upon proper findings, and the record shows that such hearing was accorded this licensee. In these circumstances, the Missouri statutes satisfy the requirements of due process generally and specifically with respect to this licensee; and they are not unconstitutional under any of appellant’s quoted arguments. Blydenburg v. David, supra. Appellant also cites Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), to argue that it requires Missouri to veer from the position established by Blydenburg v. David, supra; however, that decision does not compel a different result. It involved constitutionality of and due process under the Safety Responsibility Law of Georgia. The question was whether the Director of the Georgia Department of Public Safety could constitutionally suspend a motorist’s license upon finding that he had been involved in an accident, had not complied with any of the provisions for security to injured parties, and did not come within any of the exceptions provided. Bell was a clergyman who was.required to travel by automobile. He was involved in a personal injury incident when a small child rode her bicycle into collision with his car. An accident report was filed with the Director and he informed Reverend Bell that unless he was covered by liability insurance, he would have to present security for or a release from liability. Reverend Bell requested an administrative hearing before the Director, asserting he was not liable, that the accident was unavoidable, and that he would be handicapped if he could not operate his automobile. The hearing was accorded, but the Director denied all offers of evidence as to liability and gave Reverend Bell thirty days to comply or suffer suspension. Upon review de novo in Superior Court, the evidence showing petitioner’s lack of liability was received, and the license was ordered to remain in force. This order was overruled by the Georgia Court of Appeals, the Supreme Court granted certiorari, and its holding demonstrates the distinction between the situations of Mr. Jones and Reverend Bell: “ * * * looking to the operation of the State’s statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act. If prior to suspension there is a release from liability executed by the injured party, no suspension is worked by the Act. * * * The same is true if prior to suspension there is an adjudication of nonlia-bility. * * * Even after suspension * * *, a release from liability or an adjudication of nonliability will lift the suspension. * * * Moreover, other of the Act’s exceptions are developed around liability-related concepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing.” Bell v. Burson, supra, 402 U.S. 1. c. 541, 91 S.Ct. 1590. Appellant would have Bell v. Burson applied in Missouri to require an administrative hearing prior to an order of revocation to determine whether the party was arrested, the existence of reasonable grounds for the arrest, and whether the party refused to submit to the test. In this connection Bell v. Burson provided Georgia with alternatives: “Georgia may decide merely to include consideration of the question [of liability] at the administrative hearing now provided, or it may elect to postpone such a consideration to the de novo judicial proceedings in the Superior Court. Georgia may decide to withhold suspension until adjudication of an action for damages brought by the injured party.” 402 U.S. 542-543, 91 S.Ct. 1591. The distinction between the suspension of an operator’s license for failure to comply with the Georgia Safety Responsibility Law where liability is the crucial factor is not akin to the revocation of an operator’s license for failure to submit to a sobriety test as required by Missouri’s Implied Consent Law. The prescribed action of the Director .of Revenue under Section 564.444 involves no discretion; it is ministerial only. Under Section 564.444 any motor vehicle operator in Missouri has given his consent to a chemical test of his breath; and, as stated by appellant, “the purpose of the law is to compel submission to the breathalyzer test * * * ” when certain conditions exist. Section 564.444 does not provide for determination of a fact which, if established to the satisfaction of the Director of Revenue, would permit him the discretion to refuse to revoke the license of the nonconsenting operator. Upon receipt of the prescribed officer’s sworn report, the Director has no discretion and must revoke the license of the offending motorist. There is no adjudication to make; the cause for revocation exists by reason of the arresting officer's sworn statement. It should be noted also that appellant is in no position to claim a lack of due process within the meaning of Bell v. Burson, supra. He was given a full hearing in the circuit court prior to the actual loss of his license by reason of the revocation. It is not necessary to review cases similar to Bell v. Burson where the petitioner has been accorded procedural due process prior to any loss of license of which he complains. Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146 (1971). By Point II appellant contends the court erred in not holding Section 564.444 void for the reason that its provisions are vague and uncertain and that it fails to provide adequate standards “coincident with the delegation of power to the Director of Revenue.” Appellant’s argument is not clear; however, it appears he is asserting (1) that there is a lack of standard for the Director to consider in determining the length of revocation; and (2) that the warning provision deceives the motorist into thinking there is only a possibility his license will be revoked in that it requires the officer to inform the motorist that refusal to take the test may involve revocation. Insofar as this record is concerned, the Director of Revenue has universally and uniformly construed his duty to be that of revoking a motorist’s license for a year in every case in which he receives the required sworn report of the officer involved. Similarly, it shows that Mr. Jones was told, in connection with the warnings given him, that the Director would revoke for a year in the event of his refusal and the subsequent filing of the officer’s sworn statement. Consequently, appellant is in no position to make argument (1) in this case. Contrary to appellant’s second argument, the refusal of a motorist to submit to a chemical test upon request of the arresting officer does not amount to an automatic loss of license. Revocation occurs only if the arresting officer believes the motorist was driving while in an intoxicated condition, that upon his request the motorist refused to submit to a test, and the officer subsequently so swears in a report filed with the Director. At the time of arrest and warning, the officer is not under compulsion to file the statement. The warning required, and here given, is sufficient to insure that the motorist is aware of the chemical test and the possible consequences of his refusal to submit to it. Judgment affirmed. WELBORN, C., concurs. PER CURIAM: The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court. BARDGETT, P. J., and HOLMAN, J., concur. SEILER, J., concurs in result in separate concurring opinion filed. SEILER, Judge (concurring in result). The argument which appellant raises in his brief is that the statute authorizing forfeiture of a driver’s license for refusal to take an intoxication test is invalid, because it allows the director of revenue to revoke a license for “not more than one year” but contains no standards to guide the director of revenue in deciding whether or not to revoke a license or for what period to revoke the license. In other words, as appellant reads the statute, the director of revenue, on proper certification, has the arbitrary power to revoke a driver’s license for one year, for a period less than one year, or not to revoke the license at all. The problem is there are no standards in the statute to guide the director in determining which drivers should have their licenses revoked and for what period. Thus, the statute is subject to arbitrary and discriminatory application by the director of revenue and under the terms of the statute it is impossible to determine if it has been properly applied; that is, to determine whether under the statute this appellant’s license should have been revoked for one year. See Davis, Administrative Law, Sec. 2.10 (1958). The proposed opinion states that appellant has no standing to raise this argument because appellant was told his license would be revoked for one year and it was. However, the fact that appellant knew how long his license would be revoked does not answer the point raised, and does not cure the objection that the statute contains no standards for determining whether appellant’s license should have been revoked for a year, even though he knew that it would be. See Annot., Automobiles: Validity and Construction of Legislation Authorizing Revocation or Suspension of Operator’s License, etc., 9 A.L.R.3d 756. Respondent takes the, position that the statute requires an automatic one year revocation. This contention finds support in Bolling v. Schaffner, 488 S.W.2d 212, 217 (Mo.App.1972) which says that one of the purposes of Sec. 564.444, RSMo, is “to punish those guilty of the offense of driving while intoxicated by revoking such offender’s license and privilege to operate motor vehicles upon the highways of Missouri for a period of one year.” Under this view the decision to revoke for one year is made by the statute and is not left in the director’s hands. For this reason I concur in the result recommended by HIGGINS, C.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Roland E. BEDWELL, Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, a corporation, Appellant. No. 57292. Supreme Court of Missouri, Division No. 1. April 8, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied May 13, 1974. C. Marshall Friedman, Gray, Friedman & Ritter, St. Louis, for (plaintiff) respondent. Voorhees & Summers, Alphonso H. Voorhees, Saint Louis, for (defendant) appellant. Laurance M. Hyde, Special Commissioner. Action for damages under the Federal Employers Liability Act for personal injuries. Plaintiff had verdict and judgment for $94,000. We have jurisdiction because notice of appeal was filed September 2, 1971. Plaintiff was injured in April 1969 while working as a car inspector for defendant in their Latta yards at Jasonville, Indiana. While plaintiff was inspecting a train and stepped backward his foot was caught in a steel band imbedded in the ground near the track. Plaintiff landed on his tailbone, experienced numbness from the waist down and severe pain. He was unable to complete his work shift and went home. No issue of defendant’s liability for negligence is presented on this appeal and defendant's only claim is that the judgment is excessive. Defendant says a substantial remittitur should be ordered. Plaintiff had the evidence of three doctors, Dr. Schoedinger of St. Louis at the trial, Dr. Buell, plaintiff’s home town family doctor, and Dr. Rosene of Terre Haute, by deposition. Dr. Rosene examined plaintiff for defendant. Defendant had Dr. Conrad who testified at the trial. All agree that plaintiff sustained a fracture of the first lumbar vertebra. Plaintiff’s evidence also supported a finding of a fracture of the twelfth dorsal vertebra directly above the first lumbar although Dr. Conrad said it was a minor compression. Plaintiff’s evidence also showed a ruptured disc there with degenerative arthritis of the spine and nerve injury affecting his legs. Plaintiff’s evidence (Dr. Schoedinger) also was that a portion of the disc between the fourth and fifth lumbar vertebrae bulged forward into the spinal canal. There was some corroboration of this in Dr. Rosene’s findings. Nerve root injury was indicated by leg raising tests producing pain and by calf atrophy. Plaintiff’s height was five feet eight inches and he weighed 245 pounds. He received from $7,500 to $8,000 per year for his work for the railroad. His age was 41 years at the time of his injury and he had been in railroad employment since his discharge from the armed forces at age of 19 after the end of World War II. Prior to his injury his physical condition was excellent and he thought he could lift a car wheel weighing 750 to 800 pounds. Since his injury plaintiff has not been free from pain and takes eight to ten Darvon and aspirin per day. He cannot drive his wife’s small car but can drive a larger car he owns. He tried to use some tools and do some welding but could not. He also tried to mow his yard but could not finish. After plaintiff notified his foreman of his injury he gave him a slip to see Dr. Rotman (who did not testify) but after having X rays told him the X rays showed a broken vertebra and made a hospital reservation for him. However, plaintiff would not go to the hospital but went back to his family doctor, Dr. Buell, who had more X rays taken. Plaintiff continued under Dr. Buell’s care for about six months, wearing a Jewett back brace and taking aspirin and Darvon. Dr. Buell also had plaintiff obtain a firm mattress with a board. Later plaintiff wore a smaller back brace after going without one for some time. Plaintiff’s weight made it difficult for him to wear the Jewett brace. Dr. Buell first thought plaintiff would be able to return to work. However, he examined plaintiff every two weeks until June of 1969 and thereafter every three or four weeks until April of 1971. His opinion was that plaintiff would not be able to do gainful work without having a lot of pain. Dr. Buell wanted plaintiff to see an orthopedic surgeon and got him to see Dr. Rosene at Terre Haute in September 1969. Dr. Rosene had plaintiff go to Indianapolis for an electromyogram in February 1970. In March 1970, plaintiff’s attorney had plaintiff come to St. Louis to see Dr. Schoedinger who recommended plaintiff be hospitalized and have a lumbar myelogram but plaintiff refused to do that. In May 1971 Dr. Schoedinger saw plaintiff again and plaintiff had an electromyogram which among other things showed abnormalities in the large muscle in the back of left calf. Dr. Conrad examined plaintiff at the request of defendant’s attorney in May 1971. Dr. Conrad said a myelogram was necessary to definitely determine the disc condition. Dr. Schoedinger said procedures of treatment of enzyme injection and a myelogram, which he recommended, involve certain hazards including danger of infection and a danger from anesthesia. His opinion was that plaintiff’s condition is permanent but later said that meant permanent without further treatment. He also said plaintiff would not be able to engage in any activity which is going to require excessive bending, pushing, pulling and probably excessive walking. There could be an operation to remove a ruptured disc which required peeling away muscles from the backbone, removal of spinus processes cutting out the disc with a knife. Concerning danger from such an operation, he said one or two per cent might not survive operations requiring general anesthesia. Plaintiff’s wage loss at the time of the trial was more than $16,000. As noted plaintiff refused to he hospitalized and went to hospitals only for examinations. Plaintiff also refused to have a myelogram but did have an electromyo-gram. There is some disagreement in the evidence concerning such tests as affecting diagnosis and the risks from taking them. As to the duty of a person claiming damages for personal injuries to risk injuries from operations, see King v. City of St. Louis, 155 S.W.2d 557, 565 (Mo.App.1941). See also Stipp v. Tsutomi Karasawa, 318 S.W.2d 172 (Mo.1958); Brown v. Kroger Co., 358 S.W.2d 429 (Mo.App.1962). In this case, we find nothing in the evidence to show that anything plaintiff did or failed to do aggravated his injuries. Moreover, the evidence did not show what further treatment was meant or what other treatment could accomplish. Defendant cites five cases in support of its claim that the judgment is excessive. Beard v. Railway Express Agency, Inc., 323 S.W.2d 732 (Mo.1959); Breland v. Gulf, Mobile and Ohio R. Co., 325 S.W.2d 9 (Mo.1959); Harp v. Illinois Central R. Co., 370 S.W.2d 387 (Mo.1963); Johnson v. Missouri-Kansas-Texas R. Co., 374 S.W.2d 1 (Mo.1963); Russell v. Gulf, Mobile and Ohio R. Co., 397 S.W.2d 583 (Mo.1965). Plaintiff says these cases (two 13 years old, one 9 years, one 8 years, and one 6 years) should be considered as authority in support of his judgment in view of the court’s present recognition of the increase in cost of living and the decline in the purchasing power of the dollar. Defendant says these are the most recent cases involving injuries in any way similar to plaintiff’s injuries. Plaintiff cites Schutt v. Terminal R. Ass’n of St. Louis, 79 Ill.App. 2d 69, 223 N.E.2d 264 (1967), in which a judgment of $125,000 for a 38-year-old switchman was affirmed, where the injury was to a disc between L-5 and S-l caused by a fall,’ preventing him from doing work requiring walking, stooping or bending. That plaintiff walked with a cane and had worked as an insurance salesman. Plaintiff also cites Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145 (1969), in which the plaintiff had a verdict for $80,000 for a wrist injury requiring his wrist to be fused into an immovable joint, which caused him to develop a stomach ulcer. Remittitur ordered by the trial court was set aside and judgment ordered entered for $80,000. Plaintiff also cites Grunenthal v. Long Island R. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), in which the United States Supreme Court set aside a remittitur of $105,000 ordered by the court of appeals and directed entry of the judgment of the trial court for $305,000. The injury was a badly crushed foot in which serious infection developed and operations were required. In Beard (323 S.W.2d 1. c. 745) plaintiff, 54 years old, received $350 per month as a carman and had a loss of wages at the time of trial of $10,150. He was struck by a baggage wagon causing the fifth lumbar vertebra to be “slightly forward of its normal seat on the sacrum.” It was found: “He will be able to work, but not ‘heavy manual labor involving his back’ * * * such as does the manual labor of lifting, bending and stooping in performing the duties of a carman.” A verdict of $60,000 was reduced to $48,000 by remittitur in the trial court and to $38,000 by remittitur on appeal. In Breland (325 S.W.2d 1. c. 15) plaintiff, 48 years old, received less than $5,000 per year as a fireman. In a derailment his head and back were injured. He had a breaking of the transverse process of the fifth lumbar vertebra and muscle and nerve injuries which made him unable to return to his occupation as a fireman. A verdict of $75,000 was not reduced by the trial court but on appeal a remittitur of $25,000 was required. One judge dissented on the ground that the remittitur should be only $15,000. The judgment was affirmed for $50,000. In Harp (370 S.W.2d 1. c. 397) plaintiff, 44 years old, a locomotive engineer “was thrown and bounced around in the cab” when his engine was struck from the rear by freight cars. His injury was a ruptured disc in the cervical area at the level of C-5-6 which would require a painful operation. The evidence was that plaintiff could not perform the work of a locomotive engineer but was “by no means totally incapacitated.” Disc injury cases were reviewed showing verdicts affirmed from $37,500 to $45,000. Plaintiff’s judgment of $86,000 was reduced to $50,000 by requiring a remittitur of $36,000. In Johnson (374 S.W.2d 1. c. 5) plaintiff, 43 years old, a railroad maintenance worker was injured carrying a 300-pound tie with another section man. His testimony was that his body was suddenly and violently ■twisted. There was evidence of a ruptured intervertebral disc or “a displacement of the vertebrae so that they are not in line.” The trial court required a $10,000 remit-titur from a $70,000 verdict. This court saying it had not been conclusively demonstrated that there was a ruptured disc required a further remittitur of $15,000, affirming judgment for $45,000. In Russell (397 S.W.2d 1. c. 589) plaintiff 61 years old oiled trains and claimed injury from a violent jerk caused by coupling to a car under which Russell was working. Russell had no broken bones or other visible signs of injury. This court found that Russell sustained soft tissue or muscle injuries to his back on either side of the lumbar vertebrae. The verdict was for $45,000 and this court required a remittitur of $20,000 affirming the judgment for $25,000. The plaintiff’s evidence in Johnson and Russell did not show injuries comparable to those shown by plaintiff’s evidence in this case. In neither was there proof of a fractured vertebra or of a ruptured disc although that was claimed in Johnson. Likewise in Beard, the injury was not a fracture but a displacement. In Breland there was a fracture of a transverse process and in Harp a ruptured disc. Here plaintiff had evidence from which the jury could find fractures of two vertebrae and a ruptured disc. Thus his evidence shows greater injuries than those in any of the cases on which defendant relies. This court in considering claims of excessive verdicts has noted the constantly eroding purchasing power of the dollar and in Zipp v. Gasen’s Drug Stores, Inc., 449 S. W.2d 612, 623 (Mo. 1970), said this had amounted to 20% between 1965 and 1970. The Kansas City Court of Appeals in Shaffer v. Kansas City Transit, Inc., 463 S.W.2d 606, 610 (1971), estimated the decline between the 1957-1959 period and 1971 as in excess of 30%. We, of course, know there has been a further decline since 1971. See also Helming v. Dulle, 441 S.W.2d 350, 354 (Mo.1969), and McWilliams v. Wright, 460 S.W.2d 699, 707 (Mo.1970). The amount of damages is primarily for the jury and here it had the approval of the trial judge. The judgment is affirmed. PER CURIAM: The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the court. All of the Judges concur.

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Caselaw Access Project

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STATE ex rel. Honorable Timothy D. O’LEARY, Presiding Judge, 16th Judicial Circuit, et al., Relators, v. MISSOURI STATE BOARD OF MEDIATION et al., Respondents. No. 58336. Supreme Court of Missouri, En Bane. April 8, 1974. Rehearing Denied May 13, 1974. Harry P. Thompson, Jr., Richard W. Noble, Kansas City, for relators; Shug-hart, Thomson & Kilroy, Kansas City, of counsel. William A. Jolley, Jolley, Walsh, Gordon & Staab, Kansas City, Daniel C. Rogers, Chairman, Missouri State Board of Mediation, Jefferson City, for respondents. MORGAN, Judge. In this original proceeding, relators seek to prohibit the Chairman of the Missouri State Board of Mediation from entertaining, either voluntarily or in compliance with an alternative writ of mandamus issued by the Circuit Court of Cole County, Missouri, a petition filed by a union, the Western Missouri Public Employees Local 1812, wherein said union seeks to establish that it has majority representative status with certain employees of the Juvenile Division of the Jackson County Circuit Court and is entitled to be designated as the appropriate bargaining unit for said employees under the provisions of Sections 105.500 to 105.530, RSMo 1969, V.A.M.S. Jurisdiction is in this court by virtue of an order of transfer, entered after opinion, by the Kansas City District of the Court of Appeals. Mo.Const. Art. V, § 10, V.A.M. S. Relators include the Presiding Judge of the Sixteenth Judicial Circuit of Missouri (Jackson County), the designated Juvenile Judge of said circuit and the employed Director of Juvenile Court Services for said county. Respondents include the Missouri State Board of Mediation, the Chairman thereof, and the Judge of the Circuit Court for Cole County. The statutory sections noted are captioned, generally, with the designation: “Labor Organizations.” Section 105.510, provides, in part, that: “Employees * * * of any public body [with certain exceptions not of interest herein] shall have the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing.” Section 105.500(3), under definitions, provides that “ ‘Public body’ means the state of Missouri, or any officer, agency, department, bureau, division, board or commission of the state, or any other political subdivision of or within the state.” Section 105.520 provides: “Whenever such proposals are presented by the exclusive bargaining representative to a public body, the public body or its designated representative or representatives shall meet, confer and discuss such proposals relative to salaries and other conditions of employment of the employees of the public body with .the labor organization which is the exclusive bargaining representative of its employees in a unit appropriate. Upon the completion of discussions, the results shall be reduced to writing and be presented to the appropriate administrative, legislative or other governing body in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.” Section 105.530, in part, provides that the rights conferred shall not “be construed as granting a right to employees covered in sections 105.500 to 105.530 to strike.” Factually, it appears that on January 1, 1969, the Juvenile Judge entered an “Order” establishing detailed personnel practices and policies for the employees of Juvenile Court Services for Jackson County. “Courtroom” employees were not covered by said order nor is it suggested that they, as well as others specified, are to be affected by the outcome of this litigation. The order is before us as an exhibit, and, in so far as of interest here, it established a Personnel Practices Committee composed of eleven employees of Juvenile Court Services, elected by the employees. The agreed function of the committee was to receive, review and present grievances of staff members, relative to employer-employee relations, to the Director of Juvenile Court Services. Thereafter, Local 1812 began an organizational campaign among the employees and on February 3, 1972, asked for recognition as the exclusive bargaining representative for them under the statutory provisions noted. Whether or not the success of the campaign was due to the organizational skill of the union representative or the dissatisfaction of the employees with the court’s personnel plan is not reflected in the record. In any event, the request was denied and Local 1812 filed a petition with the respondent board of mediation seeking a designation of said employees as an “appropriate bargaining unit” and certification of Local 1812 as the “bargaining representative.” Upon the board’s failure to act, Local 1812 sought and was granted an Alternative Writ of Mandamus by the Circuit Court of Cole County requiring the board to process the petition or show cause why it had not done so. Relators, thereafter, initiated the present action in the Court of Appeals, Kansas City District, and the opinion of that court includes a finding that: “The majority of this court are of the opinion that it is within the jurisdiction of respondent State Board of Mediation to adjudicate the issues presented by the petition of Local 1812 and that the writ of mandamus of respondent judge which directs such action should be given effect * * * We are troubled, however, by the anomaly of a procedure which would subject courts, trial and appellate alike, to adjudications of a subordinate tribunal. It offends the common law concept of ordered jurisdiction — firmly embedded in our jurisprudence by constitutional provision (Art. V, §§ 1, 2 and 4) — that the State Board of Mediation should be empowered to determine rights of courts which supervise the judgments and jurisdiction of that administrative tribunal.” Such conclusions were reached after consideration had been given to a question— which the court framed as follows: “The single legal issue posed by the pleadings is whether the mandate of respondent judge directs an exercise of jurisdiction by respondent State Board of Mediation which is an encroachment by the legislative branch upon the separate magistracy of the judicial department of government in violation of Article II, § 1 of the Missouri Constitution.” The parties by written briefs and oral arguments have tended to focus on that issue to sustain their respective positions. We are convinced that any approach to the problem initially must give recognition to that fundamental issue which stems from one question, i. e., are public employees who work within the judicial department of government to be accorded those constitutional rights enjoyed by other public employees? Absent some compelling reason to the contrary, the answer must be “yes.” In so far as of interest here, this court has considered such “rights” in several cases involving public employees. Prior to the enactment of the statutory provisions being considered, this court in City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (1947), clearly delineated the distinction between the right of all citizens “to peacefully assemble and organize for any proper purpose, to speak freely and to present their views and desires to any public officer or legislative body” and the right of “collective bargaining” as that term is usually understood in the private sector and which contemplates a binding contractual obligation being placed on the employer. (1. c. 542). Therein, the court found no prohibition against public employees exercising the first right noted — to organize and present their views — through union membership, subject, however, “to some regulation for the public welfare.” (1. c. 542). See also King v. Priest, 357 Mo. 68, 206 S.W.2d 547 (1947), and Glidewell v. Hughey, 314 S.W.2d 749 (Mo. banc 1958). Thereafter, the statutory provisions now in question were enacted and later considered in light of City of Springfield v. Clouse, supra, and found to be constitutional in State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969). Therein it was said, 1. c. 41: “Relator and plaintiff employees of Ca-bool are also protected in the rights granted by and sought under Sections 105.500 to 105.530, supra, by constitutional principles recognized in Missouri prior to enactment of the statute in that ‘All citizens (public officers included) have the right, preserved by the First Amendment to the United States Constitution and Sections 8 and 9 of Article I of the 1945 Missouri Constitution * * * to peaceably assemble and organize for any proper purpose, to speak freely and to present their views and desires to any public officer or legislative body.’ City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539, 542 [1], See also Shelton v. Tucker, 364 U.S. 479, 481-487, 81 S.Ct. 247, 5 L.Ed.2d 231. “[2-5] Sections 105.500 et seq., supra, do not purport to give to public employees the right of collective bargaining guaranteed by Section 29, Article I, of the 1945 Constitution to employees in private industry and in the sense that term is usually known with its attendant connotation of unfair labor practice for refusal by the employer to execute and adopt the agreement produced by bargaining, Brotherhood of Painters, etc., Local 1385, 143 NLRB 678, 680, and the use of strike as a bargaining device constitutionally protected to private employees, Div. 1287 Amalgamated Assn. of St. Elec. Ry. and Motor Coach Emp. of America v. State of Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763, but expressly denied by Section 105.530, supra, to public employees. The act does not constitute a delegation or bargaining away to the union of the legislative power of the public body, and therefore does no violence to City of Springfield v. Clouse, supra, 206 S.W.2d 1. c. 543 [4], 545-546 [8, 9], because the prior discretion in the legislative body to adopt, modify or reject outright the results of the discussions is untouched. The public employer is not required to agree but is required only to ‘meet, confer and discuss,’ a duty already enjoined upon such employer prior to the enactment of this legislation. City of Springfield v. Clouse, supra, 1. c. 542-543 [1-3]. The act provides only a procedure for communication between the organization selected by public employees and their employer without requiring adoption of any agreement reached. For discussion of similar enactments, see Kurt L. Hanslowe, The Emerging Law of Labor Relations in Public Employment, New York State School of Industrial and Labor Relations, at Cornell University, ILR Paperback No. 4, October, 1967. “[6, 7] The general assembly is presumed to be aware of existing declarations of law by the supreme court when it enacts law on the same subject, Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697, 701 [5] ; Jacoby v. Missouri Valley Drainage Dist., 349 Mo. 818, 163 S.W.2d 930, 938 [8]; and, without indication to the contrary the general assembly must have had the intent to enact this legislation in accord with constitutional principles previously enunciated in City of Springfield v. Clouse, supra, and reiterated in Glidewell v. Hughey, Mo., 314 S.W.2d 749. For these reasons, it is constitutional.” In view of the continuing and rather exhaustive consideration heretofore given this subject by this court, little could be gained by seeking to compare or distinguish the many out-of-state cases cited by the parties. Nevertheless, we do observe that the conclusions reached by this court are consistent with those in American Federation of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (C.C.A. 8th Cir. 1969), wherein the court, reference public employment, said at 1. c. 139: “Union membership is protected by the right of association under the First and Fourteenth Amendments.” See also Peters et al. v. Board of Education of Reorganized School District No. 5 of St. Charles County Missouri, 506 S.W.2d 429 (Mo.1974) — (handed down February 11, 1974). Furthermore, it would appear fair to mention with favor that the chief legal officer for the state, the Attorney General, has during the period of interest noted issued several advisory opinions consistent with the cases cited and the conclusion reached herein. May such rights be accorded employees of the judicial department under the procedures outlined in Sections 105.500 to 105.-530? Relators contend they cannot because the Board of Mediation has no jurisdiction to designate a “bargaining unit” or a “representative” for such unit within the judicial department. Arguments to sustain this contention are detailed at length in the briefs offered, but they may be summarized fairly as follows: (1) Section 105.-525 “on its face does not apply to courts or their functions,” and (2) Processing of the petition by respondent board would constitute an invasion and interference with the powers of the judicial department in violation of the doctrine of separation of powers contained in the 1945 Mo.Const., Art. II, § 1. In this connection, relators rely generally on State on inf. Danforth v. Banks, 454 S.W.2d 498 (Mo. banc 1970) and State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo. banc 1970). Respondents, in answer thereto, submit that the designated employees of the Juvenile Court Services are employed by a “public body” as that term is used in Section 105.510; and, that compliance with the statutory procedure now challenged would not cause an encroachment upon the powers of the judiciary nor violate the doctrine of separation of powers because: “It could not be clearer from this language [Section 105.520] that the power of the public employer, in this case the court, is left totally unfettered by the public employee labor statutes. What more pówer to control its employees could the court want than the power to adopt, modify or totally reject the proposals presented to it by its employees ?” As to the first point, we believe that the questioned employees are employed by a “public body” as that term is used in Section 105.510. As heretofore set out, Section 105.500(3) first declares that the term — public body — means the state of Missouri. Thereafter, in the disjunctive, the statute lists “any officer, agency, department, bureau, division, board or commission of the state” plus “any other political subdivision” of the state. The employees of the Juvenile Court are paid compensation either by the state of Missouri or county of Jackson (a political subdivision), and we cannot ignore the plain language of the statute which includes such employees in either event. If that governmental unit which pays the compensation of such persons is ignored, and they are in a strict sense considered solely employees of the judiciary, the same result would prevail. This, for the simple reason that the state of Missouri — in so far as the “powers of government” are concerned — is divided into three distinct departments, of which the judicial department is one. Art. II, § 1, Const.Mo.1945. Compare Hawkins v. Missouri State Employees’ Retire. Sys., 487 S.W.2d 580 (Mo.App.1973). Since the statutory provisions, facially, do apply to the employees in question, we next consider whether or not implementation of the same would constitute an invasion of the judicial department so as to be constitutionally violative of the separation of powers doctrine. We do not believe that it would. In reaching this conclusion, we have sought to anticipate, from a practical and admittedly somewhat mechanical standpoint, what the statutory scheme in question will call for any or all of the parties doing. First, the statute allows the employees to exercise their recognized constitutional right to organize and select a representative to present their views to their employer. The record indicates that they have selected Local 1812 to perform that task. Failure of relators to accept that fact left the employees and their supposedly chosen representative two alternatives, i. e., (1) abandon the constitutional right delineated in Clouse, supra, or (2) adopt the approach now statutorily outlined. They selected the latter, and there are only two questions before the board of mediation at this time: One is an issue as to whether or not Local 1812 has been designated by a majority of the employees as their representative. On this point, relators could have little legitimate interest. The second issue involves whether or not the employees have such mutual and related interests that they properly can be designated as an appropriate bargaining unit. As to the latter issue, re-lators could have some interest. For instance, “courtroom” employees, and others we need not specify, could perform such unique and specialized duties that issues and rights pertaining to the “bargaining unit” might not be relevant or available to them. However, in the case before us no such objection has been made by relators reference the employees in question. Nevertheless, if such had been true Section 105.525 provides for an appeal from any decision of the board of mediation to a judicial body — including the Circuit Court of Jackson County. It requires a rather strained approach to classify such a procedure as an “invasion” of the judicial department, since it can make the final decision in the first instance, or at such later date, if changed circumstances might call for adding or withdrawing a particular employee from the designated bargaining unit. Of the three departments of government, the judicial certainly cannot evidence less interest in protecting the constitutional rights of citizens — including its own employees — than do the other two departments of government. To those who would suggest that such a worthy objective was met and satisfied by relators when they created the grievance committee in the order noted, it is sufficient to point out that the employees apparently did not agree. Second, a question arises as to whom the designated representative will present the employees’ cause. Section 105.520 allows for the selection of a “designated representative” by and for the employer. Although it is not for this court to make such a selection, and we do not, it appears that the Director of Juvenile Court Services is presently performing such duties under re-lators’ original order and the statute would allow him to continue in that capacity. Upon “completion of discussions” between the two representatives, the “results” are to be reduced to writing and presented to the appropriate governing body for adoption, modification or rejection. Third, a question arises to what governing body such “results” should be presented. The answer, relative to the employees with whom we are now concerned, may be found in State ex rel. Weinstein v. St. Louis County, supra, wherein this court said, 1. c. 102 of 451 S.W.2d: “We are of the opinion that within the inherent power of the Juvenile Court of St. Louis County, subject to the supervisory control of the Circuit Court of St. Louis County (Art. V, §§ 4, 15 and 28, Const, of Mo., 1945, V.A. M.S.; § 478.063, RSMo 1959, V.A.M.S.; and State ex rel. MacNish v. Landwehr, 332 Mo. 622, 60 S.W.2d 4), is the authority to select and appoint employees reasonably necessary to carry out its functions of care, discipline, detention and protection of children who come within its jurisdiction, and to fix their compensation. In order that the Court may administer justice under the Juvenile Code, it is essential that it control the employees who assist it.” Nothing in the statutory procedure herein considered has the ultimate effect of challenging or detracting from that holding; and the Juvenile Judge, subject to the supervisory power of the Circuit Court, qualifies as the governing body relative to the employees herein involved. Lastly, we do comment on the difference of opinion, expressed by the parties, as to the extent, if any, this court limited its holding in Weinstein, supra, in State ex rel. Judges, Etc. v. City of St. Louis, 494 S.W.2d 39 (Mo. banc 1973). This writer as the author of the latter opinion is free to say the answer is — absolutely none. In Weinstein, supra, the court said, 1. c. 102 of 451 S.W.2d: “Of course, such inherent power in the judicial department should be exercised only on occasions where necessary personnel and facilities are not provided by conventional methods.” (Emphasis added.) The question in Judges, Etc., supra, was limited solely to whether or not conventional methods had failed in that particular instance. Of greater importance is the fact that both cases reflect an appreciation of one ultimate truth, i. e., that “government” can be more efficient and responsive when the three departments thereof realize that a cooperative approach to problems of mutual concern is not per se violative of the separation of power doctrine. We do not believe that the statutory scheme herein considered justifies the apprehension expressed by the Court of Appeals. Judicial concern of possible abuse does not warrant striking down a statute otherwise constitutional. However, if experience shows otherwise, the problem can be solved at that time. Our preliminary writ of prohibition heretofore issued should be quashed, and it is so ordered. DONNELLY, C. J., and SEILER, BARDGETT, HENLEY and FINCH, JJ., concur. HOLMAN, J., dubitante.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Roy F. HOLLAND, Respondent, v. Robert J. HOLLAND et al., Appellants. No. 57148. Supreme Court of Missouri, Division No. 2. May 13, 1974. Powell, Ringer & Baker, Dexter, for respondent. Robison & Blanton, James Robison, Sik-eston, Briney, Welborn & Spain, Joe Wel-born, Bloomfield, Elvis A. Mooney, Bloomfield, for appellants. MORGAN, Judge. Plaintiff, Roy F. Holland, sought to have the trial court ascertain and adjudge title to certain lands and for an accounting of the rents therefrom. Judgment was entered in favor of plaintiff wherein it was declared that he had fee. simple title to an undivided one-half interest in the same (which followed a finding setting aside a certain warranty deed), and that defendants, Robert J. Holland and Elizabeth Holland, were indebted to plaintiff for rents in the amount of $16,566.66. Defendants have appealed. We reverse and remand. Jurisdiction is in this court by virtue of title to real estate being involved and the appeal having been filed prior to January 1, 1972, to-wit: June 19, 1971. Prior to relating the chronology of events we identify the parties and their relationship. W. F. Holland and Effie Holland were husband and wife and had one child, Roy F. Holland — the plaintiff. Roy F. Holland had a son, Robert J. Holland, who was married to Elizabeth Holland— two of the defendants. From the age of two years, Robert J. Holland lived with and was reared by his grandparents — W. F. Holland and Effie Holland. For at least a portion of that time plaintiff lived in the state of California. Other defendants are Travelers Insurance Company and the Bank of Advance which had made loans to Robert J. Holland and Elizabeth Holland and accepted as security for the same certain deeds of trusts affecting said land. The tract of land in dispute was part of a farm owned solely by W. F. Holland. On March 10, 1964, he had his wife, Effie, join with him as a named grantor in the execution of the first deed now challenged. Therein, it appears that an effort was made to (1) vest title in W. F. and Effie as tenants by the entirety, (2) convey a remainder interest to Roy and Robert, as tenants in common, subject to (3) a life estate and power of sale in both W. F. and Effie. This rather prodigious undertaking was consummated on an ordinary printed warranty deed form. In the usual space left for the designation of the grantors the names of W. F. and Effie were inserted; while the names of Roy and Robert were inserted in the usual space left for grantees, with the following typed immediately thereafter: “IN REMAINDER, as tenants in common, following the estates for life reserved in each grantor, and also subject to the power (1) to mortgage any part or all and (2) to sell any part or all of the above described real estate and thereby defeat the conveyance to the second party, said power reserved for and to be exercised by either grantor Further in the deed and immediately after the granting clause and the description is the following: “It is the intention of the grantors to reserve (and if need be to create) an estate for life vested in each of the grantors, said estates for life to be measured by the natural life of each of the grantors, respectively; the grantors intend to reserve the power (and if need be to create the power) vested in each of the grantors, together or after the death of one of the grantors to be vested in the survivor from among the grantors, (1) to mortgage any part or all, of the described real estate and thereby partially or totally defeat the interest created hereby in the grantees, and (2) to sell any part, or all of the described real estate and thereby partially or totally defeat the interest in the grantees; and to vest the remainder, following the estates for life and said powers to grantees as tenants in common with equal shares between them.” After the habendum clause, the following language is found: “It is further the intention of the grant- or, W. F. Holland, that the title of the above real estate be vested in W. F. Holland and Effie Holland, husband and wife, as tenants by the entirety and in the event such title has not heretofore been accomplished, then, and in that event this conveyance is thus intended to create such tenancy by the entirety vested in the said W. F. Holland and Effie Holland, husband and wife.” Soon thereafter, on May 23, 1964, W. F. Holland died, and his widow, Effie, on June 17, 1964, executed the second deed now challenged. Therein, she was designated as the sole grantor and sought to convey the land in question to Robert and Elizabeth. The expressed consideration was the “Grantees’ promise to care for the ‘Grantor’ during her lifetime, to furnish Grantor Christian burial and pay to the Grantor One Thousand and No/100 Dollars on each and every December 1st hereafter . . . ” Following the description, ten additional typed lines expressed the intent of the grantor to exercise her power of sale presumably created in the first deed described herein, and the consideration noted was repeated. After the habendum clause, the consideration was again typed in and declared to be a “charge” upon the “real estate” conveyed. Effie Holland died on June 20, 1969, and this suit was filed on May 13, 1970. Roy, in essence, claimed a one-half interest in the land by virtue of the first deed; and thereafter, asserted that the second deed was a nullity because Effie had no interest to convey. The latter contention, generally, was based on the theory that Effie had no interest when she joined as a grantor with her husband in the first deed, and that “there could be no reservation of any title or interest in the wife” because she had nothing to reserve. Reliance is placed on Lemon v. Lemon, 273 Mo. 484, 201 S. W. 103 (1918) and Meador v. Ward, 303 Mo. 176, 260 S.W. 106 (1924) plus the commentary by Professors Eckhardt and Peterson, in Section 26, on Page 24 of Volume 23, V.A.M.S., that: “The deed fails as a conveyance of any interest to the wife, and creates a life estate pur autre vie in the husband.” In answer thereto, Robert submits that: “In apparent limitation of the general rule, various cases lend more or less support to the idea that a ‘reservation,’ so-called, in favor of a stranger will operate to vest in him the designated right or interest where the deed includes plain and unmistakable words to that end. In England, the general rule has been abrogated by statute.” 23 Am.Jur.2d, Deeds, Sec. 279. Furthermore, it is submitted that in the first deed may be found “words of grant” in favor of Effie, and that this case need not turn on consideration of the suggestion that so-limiting a “reservation” is archaic and artificial. If the latter suggestion has merit, the Lemon and Meador cases, supra, are distinguishable for the reason explained in Petty v. Griffith, 165 S.W.2d 412 (Mo.1942) at l.c. 415, that both involved a question as to “what estate, if any, was reserved to the grantors, or either of them, not who were the grantees and what estate was created in them.” Was there a grant of any interest to Effie as a grantee in the first deed ? Attention is called to the typed words following the habendum clause in the first deed, heretofore quoted, that “ . . . title to the above real estate be vested in W. F. Holland and Effie Holland . . . ” as well as the effort in those words typed immediately after the description seeking not only to “reserve” a life estate but to “create” one. As said in Kluck v. Metsger, 349 S.W.2d 919 (Mo.1961) at 921: “Our long established rule is: ‘The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it; and the court will enforce it no matter in what part of the instrument it is found.’ See Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641, 643, and cases cited. Therefore, we should hold that a deed creates the interest which the parties clearly intended it to create, without regard to purely formalistic practices, arbitrary distinctions and niceties derived from the feudal common law, in the absence of contrary public policy or prohibitory legislation. Sec. 442.025 RSMo 1959 (adopted 1953, Laws 1953, p. 615,) V.A.M.S., as well as our rule of construction in accordance with the grantor’s intent, indicates a public policy in accord with this view and with our ruling in Creek v. Union National Bank, supra [266 S.W.2d 737 (Mo.1954)].” Although Effie was not a named grantee in the precise blank left on the form for purposes of designating the same, we are convinced that she is sufficiently identified in the deed as such. As said in Petty v. Griffith, supra, 165 S.W.2d at 415: “It does not necessarily follow from the fact that one is not mentioned in the places or clauses of a deed in which grantees are usually named or indicated that he may not be or become a grantee. It is immaterial in what part of the conveyance the grantees’ names appear as long as the parties’ intention is clearly and plainly manifest as to who they are and the estate they are to receive. 26 C.J.S. Deeds § 99; 16 Am.Jur., Secs. 66-88 ; 4 Tiffany, Real Property, Sec. 967. The rule as to the repugnant designation of parties is that ‘All the language of a grant should be considered and effect given to it unless so repugnant or meaningless that it cannot be done, in which case the repugnant or meaningless portion may be rejected.’ 18 C.J., Sec. 326; 26 C.J.S. Deeds § 128. “Neither do we agree with the respondents’ contention that the clause following the descriptions is necessarily contradictory of the estate previously conveyed and, therefore, void for repugnancy. If repug-nancy or irreconcilable conflict exists, of course, the clause in which estates are usually defined and granted would prevail over a subsequently conflicting clause. But, as the case is with the grantees so is it as to repugnancy in other respects, even if various clauses do conflict, yet if the intention of the parties may be gathered from the whole instrument, rather than from particular, segregated clauses, that intention will prevail and be given effect if possible and if it is not contrary to some positive rule of law. 26 C.J.S. Deeds § 90; 2 Devlin, Deeds, Sec. 843a; Utter v. Sidman, 170 Mo. 284, 70 S.W. 702; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 133 A.L.R. 586; Keller v. Keller, 338 Mo. 731, 92 S.W.2d 157. ‘In accordance with the modern rule, which is to ascertain the grantor’s intention from all the terms of a deed in all cases where it is possible so to do and to consider all the clauses together without undue reference to their location in the deed, where two clauses are inconsistent, the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collected from the whole instrument. The primary or dominant intent expressed in the instrument, when ascertained, will control.’ 16 Am.Jur., Sec. 173, p. 536.” Certainly, in so far as any interest of Effie is concerned, it would have been better not only to have listed her with other grantees in the usual place but to have used more customary operative words of conveyance; but, as was said in Monroe v. Lyons, 339 Mo. 515, 98 S.W.2d 544 (1936) at 1.c. 546: “We recognize that a deed must contain operative words of conveyance, but it is not indispensible that any particular words or phrases be employed. Any words which indicate a clear intention to convey, and are sufficient to effectuate that purpose will suffice. Speaking to that question in Long v. Timms, 107 Mo. 512, 519, 17 S.W. 898, 900, we said: ‘The time has long since passed when the tenure of lands by deed, if it ever existed in this country, was dependent upon the technical meaning of words or construction of sentences in use among old English conveyances. The controlling canon for the construction of deeds, as of wills and other instruments of writing to-day, is to ascertain the meaning of the grantor from the words he uses, in the light of the circumstances which surrounded, attended, and waited upon his use of them.’ ” To further sustain his position, Roy contends: (1) that the words typed on the deed are confusing, inconsistent and repugnant; (2) that W. F. Holland sought to make a testamentary disposition of the land; and (3) that even if Effie in fact had a power of sale “[s]he could only sell for cash or money.” As to the first, an argument that provisions in an instrument are confusing, inconsistent and repugnant is relevant and persuasive only in those cases where the intention of the parties is not clear and discernible. Such is not true in this case. As to the second argument, the existence of a power of sale in one party which, if exercised, will terminate an existing but defeasible interest of another party does not dictate such a power be classified as testamentary. St. Louis County National Bank v. Fielder, 364 Mo. 207, 260 S.W.2d 483 (Mo. banc 1953); Julius v. Buckner, 452 S.W.2d 139 (Mo.1970). As to the third argument, we need not comment on the historical reasoning which established some general limitation on the consideration for which a power of sale could be exercised, but it is sufficient to point out an applicable exception, i. e.: “Where the instrument conferring a power to sell does not prescribe the terms on which sale is to be made, the donee is authorized to sell on such terms as will carry out the intention of the donor . . .”72 C.J.S. Powers § 25e. A case factually comparable wherein the exception noted was approved is Edwards v. Payne, 307 S.W.2d 657, 660 (Mo.1957). Effie Holland in the second deed sought to secure her support for life from a source upon which she knew from experience she could depend. The fact that she did not require support for a longer period is of no significance since fortune could just as easily have dictated an opposite result. With both deeds being valid, questions as to an accounting for rentals become moot. The judgment is reversed and the cause is remanded for entry of judgment in favor of defendants Robert J. Holland and Elizabeth Holland, and for reinstatement of the liens of the defendant lending institutions if the loans secured thereby still exist. All of the Judges concur. . Townsend v. Cable, 378 S.W.2d 806 (Ky.1964) — rule abandoned. Board of Missions of M. E. Church South v. Mayo, 81 F.2d 449 (6th Cir. 1936) — held that the inchoate dower of the wife was a sufficient interest to remove the case from the realm of a reservation of a naked power not coupled with an interest.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

John G. BURTON, Plaintiff-Respondent, v. PET, INCORPORATED, a corporation, Defendant-Appellant, St. Louis Lithographing Company et al., Defendants. No. 57168. Supreme Court of Missouri, Division No. 1. May 13, 1974. Lon Hocker, St. Louis, and Raymond F. McNally, Jr., St. Louis, for respondent. Lashly, Caruthers, Rava, Hyndman & Rutherford, John H. Lashly, Albert J. Stephan, Jr., St. Louis, for appellant. SEILER, Judge. Pet, Incorporated, a Delaware corporation (hereinafter referred to as Pet), purchased the business of St. Louis Lithographing Corporation, a Missouri corporation (hereinafter referred to as Litho) by exchanging 56,000 shares of Pet’s stock, then selling at 44% per share, for all the outstanding stock in Litho. The controversy is whether plaintiff, John G. Burton, who was in the business of finding buyers for and negotiating the sale of businesses, was entitled to a fee on the sale. Burton sued Pet, Litho, and the four individual defendants who owned the capital stock of Litho, claiming he was entitled to a fee of $105,000. Specifically, Burton alleged that Litho and the individual defendants orally employed him to procure a buyer. As to Pet, Burton alleged that in consideration of his agreement to limit his activities in finding another competing purchaser, defendant Pet promised that if they purchased Litho, they would see that he was paid his fee, and that, with the knowledge and consent of Litho and the individual defendants, he did so limit his activities. Trial before a jury resulted in a verdict in favor of Litho and the individual defendants and against Pet, with plaintiff’s damages being assessed at $45,000 plus interest. No appeal was taken by plaintiff as to Litho or the individual defendants, but Pet appealed from the adverse judgment against it. On appeal, as at trial, Pet contends the contract between Burton and Pet was against public policy because it called for Burton to violate the duty he owed Litho and that the agreement being void, the law should leave the parties where it found them and deny any recovery to plaintiff. Plaintiff responds that the contract was not against public policy, but that even if it were, plaintiff is entitled to recover because the parties were not in pari delicto. We are of the opinion that plaintiff’s own evidence, as set forth below, shows that he cannot recover and that the court should have sustained Pet’s motion for a directed verdict at the close of the case. Looking only to plaintiff’s case and disregarding the contrary testimony from the defendants, these facts appear: Since 1948, plaintiff had been in the business of negotiating sales and mergers of businesses. His office was in St. Louis. In August 1967, Ralph Thomsen, president of Litho, talked to plaintiff about selling the company. Litho was considered a specialty company. It specialized in making liquor and wine labels for bottlers and distillers. The business was well established, made a good profit, and the stock was closely held. Plaintiff expressed the opinion, after examining financial statements, that the company should bring between two and two and a half million dollars on an exchange of stock basis, with the possibility of an arrangement for additional compensation after the sale, if the earnings of the business increased in the first four or five years after the acquisition. Plaintiff also informed Thomsen of his fee schedule. No definite employment was. agreed upon at this first meeting, but thereafter plaintiff wrote various corporations, saying he was in touch with a company which might be of interest and describing in general terms Litho’s specialty, annual sales, net profits, stock ownership, and stating an asking price. One of the first companies plaintiff talked with was Pet. This was on November 21, 1968 at Pet’s St. Louis headquarters. Pet’s response, however, was negative and plaintiff had no further contact with Pet until events described later herein. One company which showed strong interest was Bemis Company of Minneapolis, Minnesota (hereinafter referred to as Be-mis) and Thomsen gave written authorization for plaintiff to represent Litho in the Bemis negotiations. Plaintiff testified he had some 15 to 20 contacts with the Bemis people on behalf of Litho. On April 29, 1969, the Bemis vice-president called plaintiff to make arrangements to meet with Thomsen. Plaintiff arranged a meeting in St. Louis for May 12, 1969. He suggested to Thomsen that they get together to “review the procedure” before the Bemis people arrived and also furnished Thomsen with figurep as to net sales, net profits and earnings per share on Bemis for the first quarter of 1969. While plaintiff did not know what Bemis was prepared to pay for Litho, he testified he had been talking price with them and they were coming to St. Louis knowing that the asking price for Litho was between three and a quarter to three and a half million dollars. It was plaintiff’s expectation that the May 12 meeting would result in the “two boss men” shaking hands on an agreement, which in his usual experience, meant that the deal would close. In the course of two or three telephone calls with Thomsen about this time, plaintiff was told by Thomsen that “Pet was very, very hot at that moment”, that the Litho people were much interested in making a deal and he (Thomsen) was anxious to get Bemis to St. Louis if Bemis was interested. Plaintiff told him about the May 12 meeting. Plaintiff testified that Thom-sen told him to “stay away from Pet”, that he (Thomsen) was handling that and would keep plaintiff informed. Plaintiff instead, however, telephoned the person at Pet to whom he had talked in his original contact with Pet on November 21, 1968, reminded him about it, and that if Pet made a deal he expected a finder’s fee. Plaintiff confirmed this by letter, reiterating that he brought Litho to Pet, that in the meantime he had been trying to place Litho elsewhere, and that in case Pet acquired Litho he wanted a reserve set up in the closing contracts to cover his fee. On cross-examination, plaintiff testified he had no conversation with Pet since his original contact of November 21, 1968, had done nothing about selling Litho to Pet in the interim and that the Pet-Litho negotiations were getting “hotter and hotter” without him. Two days later, on May 1, 1969, plaintiff had a telephone call from Richard S. Jones, senior vice-president of Pet and a former practicing lawyer. Jones and plaintiff were long time friends and frequently lunched at the same table at a luncheon club. Plaintiff gave the following testimony in relating the telephone conversion : “When he called he said, ‘Jack, we have got your letter,’ and he said that, ‘We are in deep negotiations,’ and he said ‘We recognize you in this particular deal. We also know you have got another contact,’ and I said ‘Yes’, and he said, ‘Can you hold him off?’ I said, ‘He will be down here on the 12th, and if you can get your homework’ — or some remark made like that I made — ‘done, get the deal wrapped up by then. That is the situation.’ He said, ‘Okay, I will get to work’ and I did not do anything from then on.” On cross-examination as to what his attitude toward contacting Bemis would have been had Pet not agreed to pay him a fee, plaintiff said: “A. If Jones had called up and said, T am not paying you any fee ... or something like this ... I would certainly have had a lot different attitude toward the Bemis Company. I’d have gotten them down here and gotten them going a lot faster. “Q. Do you think you could have closed that deal in five days ? “A. I would have done a lot more than I did ... I know I would have tried.” The next day, May 2, 1969, Thomsen called plaintiff to see when they would meet in advance of the scheduled meeting with Bemis. Plaintiff dictated an office memo about this telephone conversation as follows: “On May 2nd at 2:15 PM, Ralph Thom-sen called to find out when I want to see him about the meeting with Bemis when they come to St. Louis. He was under the impression that they were coming this week but I told him he had apparently not read my letter correctly as they are not coming until Monday, the 12th. He received a copy of my April 29th letter to Bemis and I also wrote a note to him, stating that they would be here on the 12th but I assume the pressure has been put on him by Pet, Inc. for a meeting next week and he wanted to hold them off until we have had a meeting with Bemis. He told me he did not want to play one against the other. Apparently, he is not aware of my arrangement with Pet, Inc. JOHN G. BURTON” There is no evidence in the record that Thomsen or anyone at Litho knew of the arrangement by Pet to pay plaintiff a commission. ' Plaintiff testified in accord with this, saying in response to the question, “Did you tell Mr. Thomsen, Mr. Burton, that you had an understanding with Pet through Mr. Jones that you wouldn’t pursue Bemis any more until May 12?”, “I did not. No.” Nor did plaintiff get any aid on this from defendants’ side of the case. Thomsen, president of Litho, testified he knew nothing of the Burton-Pet arrangement and did not authorize plaintiff to limit his activities with Bemis; Jones, vice-president of Pet, said he did not disclose the arrangement to Litho. Plaintiff testified there was an error in the second paragraph of the above memorandum, that “What I meant to say here was the opposite. My secretary made the error, got the Bemis and Pet crossed here .” Plaintiff did not elaborate on this. Some way Bemis learned that Pet was about to make a deal with Litho and notified plaintiff that they were postponing the May 12th meeting until it was clarified whether Litho was going to make a deal elsewhere. On May 7, 1969, Litho and Pet entered into a memorandum agreement whereby Pet was to acquire all the stock and assets of Litho for 56,000 shares of the common stock of Pet. The transaction was completed on May 26, 1969 and at the current price of Pet stock on the New York Stock Exchange amounted to $2,513,000. Plaintiff testified he had some “feel” as to what the price would be had Bemis bought Litho; that it would “go” somewhere between two and three-quarters to three million dollars; that he was going to propose two and a half million to be paid right away with a bonus arrangement coming out of future earnings if generated as projected, “which would run the final price up to around three million dollars”; that if these suggestions could be worked out, it would have been more than Litho got from Pet. In the first part of June 1969, plaintiff and Jones met to discuss plaintiff’s fee and agreed on an amount, subject to approval by Jones’ associates. Plaintiff asked Jones to confirm this by letter, which Jones did with the following: “Dear Jack: This will confirm our discussion yesterday as to the fee which you should receive from us in connection with our acquisition of St. Louis Lithographing Company. Since you had done considerable work over a period of several years, and had a buyer at a potentially higher price which you were able to discourage during our negotiations, we agreed we owed a fee. You and I agreed on a compromise fee of $80,000, which is tentative until agreed to by my associates. I shall obtain their reaction as soon as they return from a business trip.” Jones’ associates at Pet refused to authorize $80,000, but agreed to pay $50,000, which plaintiff rejected and the present action followed. Plaintiff denied telling Jones that he had a buyer at a potentially higher price which plaintiff was able to discourage during the Pet negotiations. Plaintiff said those were Jones’ words, not his; that Jones wrote the letter, not plaintiff. On the legal issues, we first note the difference in plaintiff’s claims against Litho on one hand and Pet on the other. As to Litho and its individual stockholders, plaintiff took the position by the allegations in his petition and by the instruction on which he submitted the case against Litho, that plaintiff was Litho’s agent to find a buyer and that he was the procuring cause of the sale to Pet and for that reason Litho owed him a fee. Under this pleading and submission, plaintiff was Litho’s agent. As to Pet, a prospective purchaser of Litho, plaintiff’s claim was much different. It was based on the allegations contained in the petition and faithfully tracked in the instruction by which plaintiff submitted him claim against Pet, that in consideration of plaintiff’s agreement to limit, during Pet’s negotiations, his activities in finding a competing purchaser for Litho, Pet, on or about May 1, 1969, agreed that if Pet purchased Litho, Pet would see that plaintiff was paid a fee and plaintiff did so limit his activities, but Pet refused to pay. Plaintiff also alleged in his petition that his limiting of his activities was with the knowledge and consent of Litho. No such proposition was submitted to the jury, however, nor could it have been, because as seen from the facts, the evidence was undisputed that plaintiff did not inform Litho of his agreement with Pet and that Litho did not know of it. It is a well-settled rule of law that an agent employed to negotiate a sale, purchase or exchange of property may not make a contract for compensation with the other party to the transaction. Annot. Agency — Compensation from Third Person, 14 A.L.R. 464. An agent is subject to a duty to his principal not to act on behalf of an adverse party in a transaction connected with his agency without the principal’s knowledge. Restatement of Agency 2nd, Sec. 391, p. 212. “. . . There is scarcely a rule of law which has received more uniform approval than that an agent cannot serve the opposing party without the knowledge and consent of his principal. The law, recognizing that, in general, human nature is too weak to assure faithful service in such circumstances, has absolutely forbidden such dual position, and, if it be taken, the agent is denied any redress .” Winter v. Carey, 127 Mo.App. 601, 106 S.W. 539 (1907). The case closest on the facts seems to be Rabinowitz v. Pizer, 108 N.Y.S. 994 (1908). Plaintiffs’ petition there alleged that they were hired by Fred Schmonsees to procure a buyer for his premises at a one percent commission. Plaintiffs contacted defendant and offered Schmonsees’ property for sale. Defendant requested plaintiffs not to interfere further in the matter and not to procure any other customer for the property, in exchange for which he would pay plaintiffs one percent of the price he paid for the property. After defendant purchased the property plaintiffs sued to recover the one percent commission. The New York court sustained a demurrer to the petition for the reason that the agreement attempted to be made was void as against public policy. Atlee v. Fink, 75 Mo. 100 (1881) is an old case, but still good law. There defendant Fink agreed with plaintiffs’ salesman, O’Sullivan, that defendant would receive a commission on sales of plaintiffs’ lumber to Fink’s employers through Fink’s influence with them. Fink never informed his employers that he was to get a commission on lumber purchased by them from plaintiffs. In a suit by plaintiffs on account for lumber sold, Fink recovered on his counterclaim for his commission and plaintiffs appealed. This court held that Fink could not recover because the commission contract was against public policy. The court said at 1. c. 103: “ . . . That agreement was a temptation to him to certify as correct, bills for lumber which might be incorrect, both as to the amount of lumber and prices charged. His compensation could be increased by such conduct, and it is no answer, that nothing of this kind occurred In the case before us, Pet corresponds to Atlee, Burton to Fink, and Litho to Fink’s employer. In return for a guarantee by Pet that it would see that his fee was paid, plaintiff was in a position where he could be tempted to wrong his employer, Litho, by refraining from pursuing the prospect, Bemis, until Pet had first had a chance to purchase Litho. It can never be known whether the Bemis deal, had it materialized, would have been at a higher price than that paid by Pet. What is known is that plaintiff admits that had Mr. Jones said Pet would not pay him a fee, plaintiff would have bestirred himself and gotten Bemis “going a lot faster” and would “have done a lot more” than he did. Nor does the fact that Pet knew Burton was acting as a dual agent and was therefore not mislead by Burton’s dual role, entitle Burton to recover from Pet. The reasoning behind this principle is set forth in Mechem, Outlines of Agency, Sec. 502, p. 347 (4th Ed.1952). “. . . [I]f I knowingly induce or permit the agent of the other party to the transaction to enter into my service, I would ordinarily he doing that other party an injury . The guilty agent would also be implicated, and could ordinarily recover no compensation from either principal: Not from the first principal, because he had betrayed him, nor could he ordinarily recover from me, because both he and I were parties to an illegal contract. Even if I were innocent he would be guilty.” Plaintiff contends that even if his contract with Pet is against public policy, he should be allowed to recover because he is not in pari delicto with Pet. The cases on which plaintiff relies, while stating the general rule that there are instances where a party to an illegal contract who is not in pari delicto will not be denied relief, are distinguishable on the facts. In the case before us, plaintiff was not an innocent victim of a scheme to defraud in a footrace promotion, as in Hobbs v. Boatright, 195 Mo. 693, 93 S.W. 934 (1906), or a widow overreached by one on whom she was relying, as in Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731 (banc 1950), or one coerced into entering an unlawful agreement under threat of foreclosure of his home, as in McAllister v. Drapeau, 14 Cal. 2d 102, 92 P.2d 911 (1939), or a shipper whose machinery was damaged by the negligent unloading of an unlicensed hauler, as in Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372 (1945), or an investor who was relying on his confidential adviser, as in Judson v. Buckley, 130 F.2d 174 (2d Cir.1942), cert. den. 317 U.S. 679, 63 S.Ct. 161, 87 L.Ed. 545. The plaintiff in the case at bar was not a bystander. Plaintiff was to hold off and that is what he did. Plaintiff argues further that he is a layman who did not understand the meaning of the phrase “against public policy”, while Jones “. . . has had a truly distinguished career in the legal profession as well as the closely aligned field of corporate acquisition . . . ” and is a person to whom “. . . the phrase ‘against public policy’ and all its nuances are well understood . . .” Plaintiff argues that the agreement to restrict his activities was Pet’s idea, that since Jones knew the agreement was against public policy he had a duty to disclose this fact to Burton, and that because of Jones’ superior knowledge in this regard Burton should be allowed to recover. Plaintiff had been in the business of working out the sale and merger of corporations since 1948. He described himself as having wide experience, with negotiations running into many millions annually. He must have known he owed a duty to act in his client’s best interest. Any lay person would recognize that the Burton-Pet agreement put plaintiff in a questionable position as to his client, at best, and could see that the agreement was not in furtherance of Litho’s best interest, but of plaintiff’s. Plaintiff was looking out solely for his own interest in attempting to “insure” a commission on the sale of Litho to Pet and now is complaining because this “insurance” agreement is unenforceable. Even if Jones should have and had told plaintiff the commission agreement was against public policy, plaintiff would be in no better position to recover against Pet than he is now. This because plaintiff’s petition cites his promise to make no further efforts to advance the sale of Litho to Bemis as the only consideration for Pet’s promise to pay him a commission. Had plaintiff known the commission agreement was against public policy he might not have made the promise to limit his activities, in which case there would have been no consideration for Pet’s promise to pay a commission; or he might have gone ahead and made the promise anyway, despite knowledge. Either way, receipt of knowledge from Jones (accepting plaintiff’s assertion he did not know the commission agreement was against public policy), would not help plaintiff against Pet. The judgment is reversed. BARDGETT, P. J., and MORGAN, J., concur. HOLMAN, J., not sitting. . Thomsen and two other officers of the company owned approximately 98 percent of the Litho stock. The remaining 2 percent was owned by Litho’s star salesman

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2024-08-24T03:29:51.129683

Bertha E. WALKER and Viola Koch, Respondents, v. Oscar WALKER and Flora Walker, Appellants. No. 56689. Supreme Court of Missouri, Division No. 1. May 13, 1974. Fred Roth, Clayton, for respondents. Robert A. Hampe, J. Martin Hadican, St. Louis, for appellants. Madigan, Hadican & Maloney by J. Martin Hadican, St. Louis, for defendants-appellants. HIGGINS, Commissioner. Action, inter alia, to establish and quiet title to real estate by adverse possession. (Appeal taken prior to January 1, 1972.) Plaintiffs’ petition was in three counts. Count I was for temporary and permanent injunctions to enjoin defendants from obstructing plaintiffs’ free use and enjoyment of a 3-foot strip of land which they used as a driveway; Count II was for actual and punitive damages; and Count III was to quiet title in plaintiffs to the strip in dispute by adverse possession. Defendants counterclaimed for damages for trespass on the disputed strip, and answered in denial of plaintiffs’ petition. Prior to trial, plaintiff Bertha Walker died and plaintiff Viola Koch conveyed plaintiffs’ tract to William H. Seebold, Jr. and Lynne G. Seebold. At conclusion of trial to the court, the court entered judgment and decree for plaintiffs as follows: “Count I — Injunction made permanent. “Count II — One dollar actual damages, no punitive damages. “Count III — Pits, are the owners of the three foot parcel of land lying between Tracts A and B contained in the area of Pits’ driveway; and that Pits, are owners thereof in Fee Simple; “Defts. and each of them have have no right to, title or interest in and to said three foot parcel of Real Estate; and that Defts. and each of them are forever enjoined and restrained from asserting or claiming any right, title or interest in and to said Real Estate.” Under Rule 73.01(d), V.A.M.R., this judgment shall not be set aside unless it is clearly erroneous. Appellants make but one attack upon the judgment. In their original brief they assert the court erred in its judgment “in that elements of preemptive prescriptive right were not proven by plaintiffs.” In a supplemental brief they assert the judgment is erroneous and “cannot be sustained upon plaintiff’s pleaded ground of acquiring title by adverse possession for the reason that the elements of adverse possession were in issue and that plaintiffs failed to prove by any evidence the presence of all of the elements of adverse possession.” According to George Tripp of St. Paul Title Insurance Corporation, plaintiffs’ predecessors in title commenced with Mor-ritz and Maria Walker, who, in 1918, purchased Lots 2 and 12 of W. F. Musick’s Subdivision, U.S. Survey 1994, Sections 21 and 28, Township 44 North, Range 6 East. They conveyed a portion of this realty described as “All of Lot 2 in U.S. Survey 1994, Sections 21 and 28, Township 44 North, Range 6 East and being part of Lot 12 of W. F. Musick’s Subdivision and lying along the Tesson County Road, containing 75.81 feet [frontage]” to defendant Oscar Walker in June 1936. This was designated Tract B in plaintiffs’ petition and in the judgment. In 1938 Morritz and Stephanie Walker conveyed another portion of Lots 2 and 12 of W. F. Musick’s Subdivision described as “beginning at a point 55.86 feet Northeast of the intersection of the Northeast line of Sappington Road as widened and the Northwest line of Tesson Ferry Road, thence running north 18° 18' West 141.40 feet to a point, thence running north 67°A2' East 40.091 feet to a point in the Southwest line of a one acre tract conveyed to Margaret Heimberger, by deed in Book 562, page 114, thence running along the Southwest line of said one acre tract South 18° 18' East 144.18 feet to a point in the Northwest line at Tesson Ferry Road, thence running Southwest along the Northwest line of said Tesson Ferry Road 40 feet to the place of beginning,” to plaintiff Bertha Walker. This was designated Tract A in plaintiffs’ petition and in the judgment. Bertha Walker, a widow, conveyed Tract A to her daughter, Viola Koch, subject to a life estate in Bertha Walker. Bertha Walker died while this suit was pending, and Viola Koch, a single person, conveyed Tract A to William H. and Lynne Seebold. The parcel conveyed to Oscar Walker, Tract B, and the parcel conveyed to Bertha Walker, Tract A, adjoined. There was a 3-foot discrepancy between the lot number and metes and bounds descriptions in the deeds when compared to a survey made by Elbring Survey Company in 1926, but the parcels have been correctly identified and described except for an error in the description of Tract A conveyed to Bertha Walker, which should have been described as Lot 1. The parcel deeded to Oscar Walker, Tract B, contained a frontage of 75.81 feet, but the Elbring survey showed it to be 78.81 feet. It also showed frontage of the property conveyed to Viola Koch, Tract A, to be 40 feet. John Bergh, a land surveyor for Thatcher and Patient, Inc., made a survey of plaintiffs’ property, Tract A, in August, 1969. It showed front and rear lines of 40 feet and 40.09 feet, and side lines of 144.81 feet and 141.40 feet. He identified a 3-foot high chain link fence erected by defendants in July, 1969, as located approximately one foot inside plaintiffs’ property at the boundary between plaintiffs’ property and defendants’ property to the west. He found an old fence along the boundary three feet west of the western boundary line of plaintiffs’ property. Karl Wagner, a land surveyor for El-bring Survey Company (for defendants), identified surveys made of the parcels in question in 1926, on April 10, 1962, and on September 5, 1969. It was reflected that the original 78.81 feet of frontage of defendants’ property had been reduced by 20 feet by the widening of Lindbergh (Sap-pington) Road; that defendants were left with a frontage of 55.86 feet; that plaintiffs had a frontage of 40.09 feet; and that plaintiffs’ driveway was on defendants’ land. Plaintiff Viola Koch recalled that her parents, Frank and Bertha Walker, purchased their property, Tract A, in 1938 from her grandparents, Morritz and Stephanie Walker. Her uncle, defendant Oscar Walker, owned the property adjacent on the west. Her property was improved by a house but her parents never lived in it. She moved into the house February 3, 1947, and lived there continuously for eleven years. There was a driveway on the west side of the property leading to a garage in the rear. An old fence built by Morritz Walker separated the two parcels, and her father, Frank Walker, replaced the old fence in April or May, 1947. Her Uncle Oscar told him to “put the fence back in the same damn place Cap [Morritz] had it.” The replacement fence is still standing. The old fence was not exactly straight and may have extended as much as half a foot either way from the boundary line. If it was right on the boundary line, it would be in plaintiffs’ driveway. When she vacated the premises, she was followed by a Greenwald family, and then by Mr. and Mrs. Eli Janis and family. All used the driveway, as had she and her husband, without objection by defendants except for some bickering. In July, 1969, plaintiff Viola Koch discovered a chain link fence built in her driveway. Photographs show the driveway as two tracks covered with chat, placed there by her father, with grass in the center and on each side of them. The chain link fence was in the middle of the westernmost track. It was the same fence described by Mr. Bergh. It remained in her driveway for two months during which she lost $180 rent and paid $269 for surveying and $250 to retain counsel. She erected a “No Trespassing — Keep Out” sign in September, 1969, after she found the fence in her driveway. Defendants, through their lawyer, informed her two or three months before that they were going to erect the fence; she did not consent to its erection. According to Viola, defendants did not use the driveway in question from 1938 to 1970; they had their own driveway west of plaintiffs’ property. The driveway was used only by her and her tenants. Defendant Oscar Walker had never told her to get off the driveway, nor did he ever tell her father to do so in her presence. Oscar and Frank did bicker over the driveway, but Oscar never did anything about any claim he ever made until July, 1969. Eli Janis rented plaintiffs’ property, Tract A, from September, 1957, to December, 1968. He identified the driveway in question to have been the same as it is at present, and that the old wire fence west of the driveway was in the same location as it had been when he was renting. No one other than him and his family used the driveway during his occupancy of plaintiffs’ property. Defendants used their own driveway located on their property west of the old fence. He never heard any objections from defendants about his use of the driveway in question. Defendants’ version came from defendant Flora Walker and her daughter Jacqueline Burgess. According to Mrs. Walker, plaintiff Viola Koch took down the old fence and placed it one foot further onto defendants’ property; however, she made no complaint about it until she had the chain link fence erected in 1969. She told Viola’s father, Frank Walker, to move the old fence, but allowed it to remain on her property for thirty-two years. She justified this on the ground that the parties were related. Her counterclaim was based upon the occupation of her land by plaintiffs for that period. She took credit for caring for the area on both sides of the fence by removing poison ivy and weeds and by planting flowers and bushes on plaintiffs’ side of the fence. She said that in 1942, before Mrs. Koch moved to plaintiffs’ property, a Greenwald family lived there and defendants parked their car in plaintiffs’ driveway; they had parked there between 1942 and 1947 on a weekly basis by occasional use of the driveway. Frank Walker never cared for the property around the old fence, nor did Bertha Walker care for the area. Mrs. Walker admitted they erected the chain link fence in the driveway in 1969 after sending a notice to plaintiffs that she intended to do so. She had the fence taken down in September, 1969, because part of it was on plaintiffs’ side of the line as defendants located it. When she attempted to have the fence reinstalled, plaintiffs blocked the driveway. Defendants paid $184 for the Elbring survey and $150 counsel retainer. She wanted to get all her ground back into her possession. She had no idea how the deed from Mor-ritz Walker to her father, Oscar Walker, called for a seventy-five foot frontage as compared to the seventy-eight foot frontage determined by the Elbring Survey. She was aware that plaintiffs owned a forty-foot frontage. Jacqueline Burgess lived with defendants on Tract B from 1937 until she married at age 21 in 1951. She and her family cared for the property on both sides of the old fence; Bertha Walker never cared for the property along the fence. She used part of the disputed strip a few times to park her car east of the old fence. The elements of prescription and adverse possession are virtually the same, George v. Crosno, 254 S.W.2d 30, 34 [5] (Mo.App.1952). These parties, by their citations, e. g., Hamburg Realty Co. v. Walker, 327 S.W.2d 155 (Mo.1959); Krumm v. Streiler, 313 S.W.2d 680 (Mo.1958); Shore v. Baumbach, 310 S.W.2d 901 (Mo.1958); Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1 (Mo.1970); Miller v. Warner, 433 S.W.2d 259, 262, [1, 2] (Mo.1968), agree that five elements are essential to acquisition of title by adverse possession under Section 516.010, V.A.M.S. The possession must be (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action to perfect title by adverse possession. Appellants concede the sufficiency of evidence to show that plaintiffs’ use of the driveway strip was actual, open, and continuous, elements (2), (3), and (5); and they do not question the time of plaintiffs’ possession. They contend only that the possession by plaintiffs was neither hostile nor exclusive. Appellants argue that plaintiffs’ possession cannot be deemed hostile because a family situation existed between the owners of the adjoining lots and they tolerated each other until 1969 when defendants erected the chain link fence. They argue that plaintiffs’ possession cannot be deemed exclusive because defendants’ daughter parked her car in the disputed strip and Flora Walker cared for the strip. They assert, without authorities, that “members of a family cannot be said to acquire title by adverse possession against one another in the absence of a clear showing of a positive, continued disclaim or disavowal of title by the person claiming adverse possession against the true owner.” A more accurate statement of appellants’ position is that in the circumstances of this case plaintiffs’ use of the disputed strip was by defendants’ permission; ergo, no adverse possession. See Bollinger v. Henry, 375 S.W.2d 161 (Mo.1964); DeBold v. Leslie, 381 S.W.2d 816 (Mo.1964). “Exclusive possession” means that the claimant must hold the possession of the land for himself, as his own, and not for another. “Hostile possession” means possession opposed and antagonistic to the claims of all others, and imports the occupation of land by the possessor with the intent to possess the land as his own. Gates v. Roberts, 350 S.W.2d 729, 732 [2, 3] (Mo.1961). The statement demonstrates evidence upon which to find that the three-foot strip of land lying along the boundary between the parties’ tracts had been in constant use by plaintiffs and their predecessors for thirty-two years after 1938 when Morritz Walker conveyed Tract A to Bertha Walker until subsequently conveyed to the Seebolds in 1970. The evidence also shows that there was a dispute going back to 1947 between plaintiffs’ predecessor, Frank Walker, and defendant Oscar Walker, concerning location of the fence and driveway on defendants’ property. Defendants’ occasional use of the driveway, if so, would not alter their knowledge and notice of plaintiffs’ use and claim of the strip, and that the fence and driveway were within the description of defendants’ land. Frank Walker placed the chat on the driveway; and any use of the driveway by defendants from 1947 was without permission of Bertha Walker. Of value also in support of the court’s findings was the judicial admission by Flora Walker that respondents had occupied her land for 30 years. The evidence showed that plaintiffs believed the 3-foot strip was part of their land; that they occupied it openly, notoriously, exclusively, and continuously in that belief. Only in 1969, when defendants gave their notice and built their fence was there any realization by plaintiffs that their right, use, and title were in dispute, Plaintiffs’ situation is similar to that in Miller v. Warner, 433 S.W.2d 259, supra, where plaintiffs believed they had title to all the land they occupied for more than ten years, but their deed did not convey all of the land to them. In upholding plaintiffs’ title by adverse possession, the court said: “‘If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs.’ ” 433 S.W.2d 1. c. 263. Note again that evidence shows that plaintiffs’ possession of the driveway area was exclusive from 1938 to 1970, particularly so from 1947 to 1970; and that no other person occupied the area except by plaintiffs’ permission. Miller v. Warner, supra, 433 S.W.2d 1. c. 264 [8]. See also Mooney v. Canter, 311 S.W.2d 1 (Mo.1958) ; Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo.1973). And, with respect to acquisition by prescription in these circumstances, see Detert v. Lefman, 407 S.W.2d 66 (Mo.App.1966); Walters v. Tucker, 308 S.W.2d 637 (Mo.1958); Joplin Brewing Co. v. Payne, 197 Mo. 422, 94 S.W. 896 (1906). Most of appellants’ citations are concerned with the elements and proof of an adverse possession; however, three cited in their argument should be and are distinguished. Grimes v. Armstrong, 304 S.W. 2d 793 (Mo.1957), is not in point because it dealt with a driveway jointly used by the parties. White v. Wilks, 357 S.W.2d 908 (Mo.1962), dealt with lack of hostility in the possession of a life tenant in a 40-acre tract. Bach v. Standard Oil Co., 345 S. W.2d 144 (Mo.1961), held that a possession was not adverse where claimant recognized that defendants owned the tract in question when she tried to purchase it. Judgment affirmed. WELBORN, C., concurs. PER CURIAM: The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court. All of the judges concur. . A stipulation filed October 30, 1969, provided that defendants would not interfere with plaintiffs’ use of the driveway and none of the parties would take any action with respect to erecting any new fence or taking down any old fence until after the suit was determined.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Richard B. HOKANSON, Respondent, v. JOPLIN RENDERING COMPANY, INC., Appellant. No. 57259. Supreme Court of Missouri, Division No. 2. March 11, 1974. Motion for Rehearing or for Transfer to Court en Banc for Modification of Court’s Opinion Denied May IS, 1974. Joseph W. Amick, Kansas City, John R. Martin, Joplin, for respondent; Jackson & Sherman, Kansas City, Martin, Burden & Richart, Joplin, of counsel. Ross T. Roberts, Malcolm L. Robertson, Joplin, for appellant; Blanchard, Van Fleet, Robertson & Dermott, Roberts & Fleischaker, Joplin, of counsel. HOUSER, Commissioner. Action by Richard B. Hokanson against Joplin Rendering Co., Inc. for $100,000 damages for personal injuries. A jury trial resulted in a verdict and judgment for plaintiff for $67,000. Defendant filed a notice of appeal prior to January 1, 1972. Plaintiff was employed by Ed Hokanson & Sons, Inc., an independent contractor, with which defendant had a contract to provide labor and equipment to install, revise and make operable a continuous process rendering machine. Defendant’s business is that of rendering animal by-products and offal into high protein animal feed concentrates. The machinery with which plaintiff was working at the time of his injury, and which he, his employer and associates were attempting to perfect, was located in defendant’s plant at Joplin. Plaintiff, alone in the “cook” room of the plant, ascended a 10-foot wooden ladder in connection with his work. Five to 10 minutes after he climbed up on the ladder the base of the ladder slipped. Plaintiff grabbed for an adjacent beam to keep from falling. Instead of reaching the beam plaintiff’s gloved left hand went into the valve box. Rotating machinery engaged his glove and hand and pulled his hand into the machinery, resulting in the loss of his left hand. Plaintiff testified that prior to the time the base of the ladder slipped he made no unusual movement. Plaintiff’s theory of liability, submitted to the jury by Instructions Nos. 5 and 6, was (1) that there was grease on the floor so that the floor was not reasonably safe for workers, a condition known to defendant but not known to plaintiff and that defendant failed to use ordinary care to remove the grease, and (2) that defendant furnished plaintiff with a ladder with greasy feet, dangerous for the intended use, a condition known to defendant but not known to plaintiff, and that defendant failed to warn plaintiff of the dangerous condition. Defendant’s first point is that plaintiff, an employee of an independent contractor and business invitee, failed as a matter of law to make a submissible case against defendant, a possessor of land charged with causing bodily injury as a result of an artificial condition thereon. The applicable rules governing this case appear in Restatement of the Law of Torts, Second (1965), §§ 343 and 343A(1). § 343: “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.” § 343A(1): “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” “Fundamentally, the basis of a proprietor’s liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. Gruetzemacher v. Billings, Mo., 348 S.W. 2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a proprietor knows, or in the exercise of ordinary care should know, of a dangerous condition of his premises which involves an unreasonable risk of harm to his invitee, and of which the invitee, in the exercise of ordinary care, does not or should not know, a recovery will be permitted against the proprietor. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. But if the dangerous condition is obvious and known, or in the exercise of ordinary care should be known, by the invitee, actionable negligence is not established and the invitee will not be permitted to recover. Heine v. John R. Thompson Co., Mo., 330 S.W.2d 867; Wilkins v. Allied Stores of Mo., supra [Mo., 308 S.W.2d 623]; Schmoll v. National Shirt Shops of Mo., 354 Mo. 1164, 193 S.W.2d 605.” Wilburn v. Southwestern Bell Tel. Co., 382 S.W.2d 49, 53 (Mo.App.1964). Under the record in this case we declare as a matter of law that there was no legal duty resting upon defendant to exercise reasonable care to protect plaintiff against danger, for the reason that there is no evidence of superior knowledge by defendant of the allegedly dangerous condition of the premises or the appliance. On the contrary, there is an abundance of evidence, including plaintiff’s personal testimony, demonstrating beyond any possibility of difference of opinion on the question, that the dangers involved were open, obvious and apparent for all to see and that plaintiff’s personal knowledge and realization of the risk of harm was equal to (if not greater than) that attributable to defendant. In gauging defendant’s duty or lack of duty to this invitee we apply these rules: “ ‘ “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.” ’ 65 C.J.S. Negligence § 50, p. 541. [Citing Missouri decisions.] * * * ‘ “These decisions mean that an inviter is under no duty to protect an invitee who is in an equal position to protect himself. Where the danger is obvious or known to the invitee he consents to the risk and the inviter owes no duty.” ’ ” Sellens v. Christman, 418 S.W.2d 6, 8 [2] (Mo.1967) ; Coleman v. Buehner, 444 S.W.2d 16 (Mo.App.1969); Dixon v. General Grocery Co., 293 S.W.2d 415, 418 [2] (Mo.1956). The conditions of the floor and ladder were not in the nature of hidden dangers, traps, snares, pitfalls, etc. The existence of these conditions was either testified to by plaintiff and therefore conclusively shown to have been known to plaintiff, or unquestionably under the evidence was as readily apparent to him as to the representatives of defendant corporation. The general conditions of the employment; the prevalence and distribution of grease throughout the plant, on the machinery, on the clothes of the men, on the appliances and floor, arising out of the regular operations of the plant, as well as in the course of trial runs of “product” made by employees of the independent contractor, were well known to plaintiff. The particular condition of the ladder and that portion of the floor of the cook room where the ladder was set and used on the morning of May 17, 1968, and the dangers and risks involved in using the ladder at that time and place, were obvious to plaintiff and were not only reasonably apparent to plaintiff but were as well known to him as to defendant. Plaintiff had worked in this plant as early as January, 1967. He worked there again intermittently during the summer of 1967. He began working there on a regular basis (several times a week) in the fall of 1967. He had been working there regularly for six months prior to May 17, 1968, the date of accident. He worked there on Monday, Tuesday, Wednesday and Thursday before the Friday on which the accident occurred. Plaintiff’s personal testimony reveals his intimate knowledge of the entire situation. He could trace the plant operation from the time the animal offal was unloaded at the dock, through the feather room, the cookers, presses, etc. to the final feed concentrate. He knew that defendant’s product was greasy. He was constantly working around defendant’s large vats full of fatty grease. He knew that when the men shoveled cooked meat into the presser they sometimes spilled it on the floor; that hot steam containing grease arose from the cooker and vats; that it condensed and the condensate would gather in cool places; that the concrete floor was a cool surface; that occasionally the product would spill or fall on the floor. He had seen grease “pop out and go across the room.” He knew that grease was there; that it was “all over”; that one worked around grease “all time”; that grease was on the machinery all around him; that grease was on the floor, including the place where the ladder was placed; that.everybody worked in it; that grease was “simply one of the conditions which you worked in out there”; that the grease “was a factor out there,” against which he “took precautions.” He testified to the trackage of grease; stated that if you walked around in the cook room you would get it on your feet. He was aware of the regular weekly cleaning of the plant by defendant’s employees. He knew that in this cleaning operation they were cleaning up “all this condensate stuff on the floor” and “whatever they would spill.” As to the ladders, his coemployee and witness Harold Smith testified that he and plaintiff used the ladders “at least once a day.” The ladders belonged to defendant, were kept around the plant, and their use by employees of the independent contractor was known by defendant’s manager and acquiesced in; plaintiff and Smith had permission from defendant to use the ladders. Plaintiff was thoroughly experienced in the use of ladders. He knew that a ladder could slip, with or without grease on the floor. He knew “that any ladder could slip on a greasy floor.” He knew that “if there were grease on the floor it might tend to be more slippery.” Asked if he would “get the ladders and use them and get grease on the ladders” plaintiff answered “All right,” and when asked if he knew the ladder used had “worn feet” he said “No” but testified “All right” when asked “You could have known that?” He testified the same with reference to whether he knew the ladder had safety shoes. Neither plaintiff nor Smith braced or secured the ladder. With reference to the particular day in question, plaintiff was asked “And do you say there was grease on the floor on the day of the accident?”, to which he answered, “I think that there was, yes.” When asked whether he looked “at the condition of the floor in the cook room before [he] got up on the ladder” he answered in the negative, saying that he “didn’t have time,” and also answered in the negative when asked whether he felt anything unusual on the floor as he walked across it where the accident occurred. When inquired of with particular reference to the time he ascended the ladder plaintiff testified that he “just looked at the floor casually” and did not inspect it, but conceded that he could have inspected the floor and the feet of the ladder at the time; that it would have taken only a second or two to do so. While stating that the light in the cook room was dim he admitted that you could see where the feet of the ladder were placed “if you wanted to look down and inspect it,” but he did not have the time. Plaintiff’s testimony relating to the plant, the theory and practice of the defendant’s operation, the grease, its prevalence in the plant, and the condition of floor and equipment, together with his admitted acquaintance with and experience in the use of the ladders, reveals such a detailed and thorough knowledge of the conditions under which he worked, and of the dangers involved as a result of the grease, as to put plaintiff as a matter of law in a position to protect himself equal to that of defendant. See Reddy v. Joseph Garavelli, Inc., 232 Mo.App. 226, 102 S.W.2d 734 (1937). Harold Smith, called by plaintiff, set the ladder in place that morning and worked on the ladder 10 or 15 minutes just prior to the time plaintiff mounted the ladder. Smith testified that the ladder was the ladder they used “the main part of the time.” He said he did not pay any attention to the floor where he set the ladder other than to glance at it to see that he had a clean spot to set it; to be sure “there wasn’t any loose stuff I would set it on. Set it down, move it to where it was level, solid, and got up and tried it, then went up and started working. * * * I felt in my own mind that it was safe and solid. * * * I felt assured in my own mind that it wasn’t going to slip while I was on it.” While Smith did not “get down and actually examine the floor” the prevailing conditions were open and available for examination, as attested by his testimony concerning the presence or absence of objects, debris and material on the floor within a 4-foot radius of the ladder, and that to his knowledge the floor “wasn’t greasy or slick.” Smith testified that the machinery and its operation was under the control of Hokanson employees, who were in charge of the area where he and plaintiff were working at the particular time. Plaintiff’s witness Harry Trussell testified positively that “there was grease on the floor”; that “the foot of the ladder had oil and grease on it” and that there was “grease over the entire floor”, when he returned to the scene an hour and a half after the accident. He had no difficulty at that time in seeing the grease or oil on the surface of the floor. He said you could see “the general condition very easily”; that it was “just a matter of opening your eyes.” Plaintiff, Smith and Trussell all testified to the lighting conditions, and clearly demonstrated that the condition of the floor and of the ladder (i. e., whether there was grease on either or both) was open for view, obvious and ascertainable by the slightest effort to look. These conditions patently were not hidden, concealed or incapable of being seen because of insufficient lighting or other impediments to viewing. Considering plaintiff’s personal witness to the prevailing conditions; what he testified to having actually seen, and what obviously he could have seen by simply looking, it is conclusively shown that the danger was “known or obvious” to plaintiff within the meaning of § 343A(1), supra, and that reasonable minds could not conclude that defendant should expect that plaintiff would not discover or realize the danger, within the meaning of § 343(b), supra. Turning to the knowledge possessed by defendant, through its managers and employees, there is no evidence that they knew any more about the condition of the floor or ladder, in general, than plaintiff. As to the conditions prevailing on fhe particular day in question: Defendant’s manager was out of town that day. William McBride, defendant’s assistant manager, was in the office when the accident occurred. After plaintiff was taken to the hospital, some 30 minutes after the accident, McBride observed Hokanson “product” on the floor, right beside the ladder. (Hokanson product is the mixture or substance put through the manufacturing process by plaintiff and Smith in their continuing effort to improve and perfect the operation. The material would go through various units of machinery, be augered into a valve box and dropped from the valve box into a barrel which sat on the floor. The ladder would be placed next to the barrel for use by the Hokanson employees in climbing up to get in position to dig out the product when it would clog the valve. “Product?’ was produced by Hokan-son men, not by any of defendant’s operations.) Defendant’s maintenance man Stott testified that he saw “product” on the floor on the morning of the accident, and prior to the accident; that it was near the feet of the ladder and possibly around the feet of the ladder. There was nothing to indicate that McBride’s or Stott’s knowledge of the condition of the floor was superior to that of plaintiff or that the condition to which they testified to was not as readily apparent to plaintiff as to them. In any event, there was no duty on defendant’s assistant manager or other employees to warn plaintiff about a condition created by plaintiff and his coemployee Smith. Employee Fleming was in the cook room at the time of the accident but did not see it happen and was not asked about the condition of the floor. Employee Bettes saw plaintiff working that morning, before the accident, and when asked whether the floor “is” greasy answered “No, sir.” Defendant’s nightman James paid no particular attention to the floor that morning. In view of the parity of knowledge of the general conditions existing at the time and place of this accident, as between invitee and inviter, and of the superior knowledge of the particular circumstances possessed by the invitee, there was no legal duty owing to plaintiff by defendant with respect to potential dangers, and the trial court erred in overruling defendant’s motion for a directed verdict. The ordinary care which an invitee must exercise to know and apprehend danger confronting him on premises to which he is invited must be considered in the light of the unusual circumstances surrounding cases such as this, where the invitee is actually in charge of the operation in which he is engaged, has control over the area of the premises where he is injured, is an experienced and skilled workman following his own devices in performing the work he has undertaken, and knows and appreciates the dangers involved in the use of ladders on a greasy floor, and the dangers involved if his hand should enter the valve box with its revolving parts — a unit of machinery he helped to build, and the construction and operation of which he fully understood. In such case he is “expected to employ his superior skill and knowledge to avoid injury to himself.” Feldewerth v. Great Eastern Oil Co., 149 S.W.2d 410, 414 (Mo.App.1941). And see Stein v. Battenfield Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345, 351 [12-14] (1931), wherein this Court said, “The deceased, in going to the respondent’s plant as an independent contractor to do work, was an invitee. The respondent would be liable for injury to him occasioned by any unsafe condition of the premises encountered in the work, which was known to it but unknown to him; but was not liable for injuries resulting from conditions obviously dangerous and known by the deceased to be so. * * * He knew the belt was unguarded, he knew the motor was running ‘at great speed and with terrific force,’ as the petition says, and yet he took a position 3 feet above the floor with one foot upon the rounded flange of the motor and the other on a cross piece against the wall about 3 feet away, with his legs astride the rapidly moving belt and his body twisted, while he worked. He was not a servant ordered by the respondent to go where he did; he was an expert following his own devices. He knew the conditions he would have to cope with. Under the authorities the respondent cannot be charged with liability for the unfortunate result. [Citing four Missouri cases.]” (Our italics.) Judgment reversed and cause remanded with directions to set aside the verdict and judgment and enter judgment for defendant in accordance with its motion for a directed verdict. STOCKARD, C., concurs. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court. HENLEY, P. J., and FINCH, J., concur. MORGAN, J., concurs in result. . Missiouri courts have frequently applied the statement of this rule which appeared in the first Restatement of the Law of Torts (1934) § 343. Dixon v. General Grocery Co., 293 S.W.2d 415 (Mo.1956) ; Dean v. Safeway Stores, 300 S.W.2d 431 (Mo.1957) ; Wilkins v. Allied Stores of Mo., 308 S.W.2d 623 (Mo.1958) ; Harbourn v. Katz Drug Co., 318 S.W.2d 226 (Mo.1958) ; McElroy v. S. S. Kresge Co., 244 S.W.2d 425 (Mo.App. 1951) ; Brophy v. Clisaris, 368 S.W.2d 553 (Mo.App.1963) ; Wilburn v. Southwestern Bell Tel. Co., 382 S.W.2d 49 (Mo.App.1964) ; McClure v. Koch, 433 S.W.2d 589 (Mo.App. 1968) ; 22 Mo.Dig. Negligence @=>32 and 48.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

FLORIDA REALTY, INC., Appellant, v. Honorable James C. KIRKPATRICK, Secretary of State, and Honorable Nathaniel B. Rieger, Commissioner of Securities, Respondents. No. 57848. Supreme Court of Missouri, Division No. 2. March 11, 1974. Motion for Rehearing or for Transfer to Court en Banc for Modification of Court’s Opinion Denied May 13, 1974. Richard W. Miller, George T. O’Laugh-lin, Miller & O’Laughlin, P. C., Kansas City, for appellant. John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for defendants-respondents. HOUSER, Commissioner. Florida Realty, Inc. brought this action against the Commissioner of Securities and the Secretary of State to obtain a judgment (1) declaring that in engaging in its business of offering for sale and selling homesites in Florida plaintiff is not engaged in the business of selling securities and therefore is not amenable to the provisions of the Missouri Uniform Securities Act, Chapter 409, RSMo 1969, V.A.M.S.; not subject to the jurisdiction of the commissioner; not required to comply with rules, regulations or orders issued by the commissioner; or that plaintiff is exempt from the provisions of the Act; or, in the alternative, that the classifications provided in § 409.401(Z) of the Act are arbitrary, unreasonable, discriminatory and for other reasons unconstitutional, invalid and unenforceable, and (2) granting injunctive relief. Tried to the court the circuit judge made findings of fact and conclusions of law and entered judgment adverse to plaintiff’s contentions both as to the applicability to and enforceability of the Act against plaintiff and as to the constitutionality of the classifications in § 409.401 (Z). Plaintiff has appealed. We have jurisdiction because this case involves the construction of the Constitutions of the United States and of Missouri. The owner of the land is General Development Corporation, hereinafter “General.” Acting as General’s agent Florida Realty, Inc., hereinafter “plaintiff,” advertises, publicizes, offers to sell and sells to Missouri residents homesites located in the State of Florida. When an agreement is reached with a purchaser the latter is required to sign an instrument in writing denominated “Acceptance & Guarantee Purchase Agreement” (hereinafter “A & G”) by which he agrees to purchase from General a specified lot or lots at a designated place in Florida. Appearing on the face of the instrument is the purchase price, amount of initial payment, balance due, payment plan (annual, semiannual or monthly), the amount of the monthly payment and a guarantee by General to pay the taxes, convey title, and provide a policy of title insurance and complete street paving adjacent to the property, without additional charge as per the conditions of the agreement. Ten conditions of purchase are provided for on the reverse side of the A & G, the principal of which are the following : A warranty deed and a title policy are to be delivered upon payment in full of regular installments, but if the purchaser prepays the entire amount the obligation to deliver the warranty deed is not accelerated. Possession and use of the property is retained in General until the purchase price is paid in full and warranty deed delivered. Upon default in a payment due General may terminate the agreement and retain all payments. General is to pay all taxes on the property during the term of the agreement, or until the recording of the A & G, or until delivery of the deed, whichever occurs first. The agreement is to be effective and binding upon General when it has been signed by the purchaser and by General at its Miami, Florida office. Some sales of homesites are for cash but usually the A & G provides for the completion of purchase by payments on an installment basis over a period of approximately eight years. Section 409.401 (Z), Laws 1967, p. 611, provides as follows: “(Z) ‘Security’ means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or any contract or bond for the sale of any interest in real estate on deferred payments or on installment plans when such real estate is not situated in this state or in any state adjoining this state; or, in general, any interest or instrument commonly known as a ‘security,’ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. ‘Security’ does not include any insurance or endowment policy or annuity contract under which an insurance company promises to pay money either in a lump sum or periodically for life or for some other specified period.” (Our italics.) Plaintiff’s first point is that the court misconstrued the italicized words of § 409.-401 (l) by holding that plaintiff is engaged in the business of offering to sell and selling securities within the meaning of the section, without a showing that the transactions have the attributes of “investment contracts,” or involve any of the instruments listed under the definition of “Security” in the section, because the italicized language applies to the debt obligation instrument (A & G) arising out of the purchase of real estate, and neither the real estate nor the A & G is at any time negotiated, sold, discounted or otherwise dealt with by plaintiff or by General. In short, the first question is whether plaintiff’s mo-dus operandi constitutes offering to sell or selling a security within the italicized language. Plaintiff claims that it is selling land; that the purpose of the italicized language is not to regulate land sales but to regulate the sale of debt securities created by the sale of land on deferred payments outside Missouri and adjoining states; that an A & G is a specialized type of debt security which, only after execution by both parties, is subject to regulation as a security, but which cannot be sold to anyone in the course of a sale of land since a sale within the meaning of § 409.-301 refers to something in existence at the time of the sale and not to something created by or resulting from the sale. Generally it may be said that the purpose of Blue Sky Laws is to protect the public against the imposition upon the public of unsubstantial schemes and the securities based upon them. Hall v. Geiger-Jones Co., 242 U.S. 539, 550, 37 S.Ct. 217, 61 L. Ed. 480 (1917). We believe that the salutary purpose of including the italicized language in § 409.401 (l) was to avoid the evils referred to in Statutes of California 1963, “Out-of-State Land Promotions Act,” Vol. 2, Chapter 1819, § 2, p. 3755, which, adapted to Missouri, would read as follows: “The offering of subdivision land to residents of the State of Missouri which is situated in distant and inaccessible areas of the United States and foreign countries where standards of subdivision development have not been established by local authorities, * * *, has created an opportunity for the exploitation of Missouri residents. Our citizens who are denied immediate access to examine the property are placed in the position of an investor in securities where the risks are clearly beyond the control of the individual and dependent upon the managers of the capital investment or the developers of the real estate promotion. The Legislature therefore finds that this type of an investment requires the protection and supervision of laws designed to protect security investors.” Considering the “evidence in this case in the light of the obvious legislative purpose we are of the opinion that plaintiff’s operation comes within the ambit of the italicized language of § 409.401(f); that plaintiff is subject to the jurisdiction of the Commissioner of Securities and to the rules, regulations and orders properly issued by that office; that it was the intention of the legislature to regulate the issuance, sale and purchase of written evidences of debt employed in certain specified types of land sales and to recognize the kinship between offerings of contracts such as A & G and offerings of other more conventional securities such as common stocks ; that such offerings were intended to he brought within the controls of the Act by legislatively declaring that the instruments employed in such transactions are “securities”; that an A & G is a “security” within the meaning of the italicized language ; that the Act, taken as a whole, comprehends not only sales and purchases of such securities to third parties after execution, issuance and delivery (as plaintiff argues), but also embraces offers by sellers’ agents to prospective purchasers to sell such a contract (see §§ 409.101 and 409.-301 RSMo 1969, V.A.M.S.); that giving the statutory definition of a security the liberal construction to which by the weight of authority it is entitled, Securities and Exchange Commission v. Joiner Leasing Corporation, 320 U.S. 344, 353, 64 S.Ct. 120, 88 L.Ed. 88 (1943), plaintiff’s solicitation of a prospective purchaser to sign an A & G is an offer to sell a contract or bond on an installment plan for the sale of an interest in real estate not situate in this state or in any state adjoining this state, within the meaning of the italicized language; that certain specified types of out-of-state land sales to Missouri residents are subject to the abuses (fraud, deception, misrepresentation, high-pressure selling tactics) which the Act was intended to prevent in connection with offerings, sales and purchases of more conventional types of securities; that the italicized language in § 409.401 (Z) gives the commissioner jurisdiction to regulate operations such as those conducted by plaintiff without a showing that the instruments employed have all of the attributes of conventional investment contracts (a separate category of securities under § 409.401), and that the italicized language is not a catch-all generalization under the rule of ejusdem generis (as plaintiff contends) but is a separate, distinct and independent category of security. Plaintiff’s second point is that the Act and the commissioner’s rules deny plaintiff equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States and grant special rights, privileges and immunities to its competitors in violation of Article I, § 13 and Article III, § 40, par. (28) of the Constitution of Missouri, V.A.M.S. Plaintiff contends that the classification of a deferred payment sale of land lying outside Missouri and states adjoining Missouri as a regulated security, while allowing a deferred payment sale of land lying in Missouri and states adjoining Missouri to go unregulated, is arbitrary, artificial and unreasonable. This contention is sustained, and the words “or in any state adjoining this state” are declared unconstitutional. There is good reason for making a distinction between the sales of lands within the State of Missouri and lands located in faraway places. A Missouri resident might reasonably be expected to have the ability and opportunity to personally view lands lying within the state of his residence or in close proximity thereto and therefore have the opportunity to inspect the land at first hand and make inquiries with reference thereto in the vicinity, whereas it might be difficult or impossible for the prospective purchaser to travel long distances for these purposes. It would be reasonable to require the regulation of security agreements arising out of offers to sell or sales of faraway lands, as a protection against imposition upon residents of this State who are prospective purchasers. To fix the perimeter of such protection at the outer limits of the eight states surrounding Missouri, however, is arbitrary, unreasonable and artificial. The way the subsection is written there is no reasonable relation between the distances from points in Missouri to points in adjoining states, and points in Missouri to points in next adjoining states. For instance, such a rule would require regulation of security agreements relating to land sales in Batesville in northern Mississippi, 150 miles distant from a prospective purchaser in Hayti, Missouri, but would not require regulation of such securities involving a sale of land in Crawford in northwestern Nebraska, 830 miles distant from Hayti. A security agreement with respect to a sale of land in Sioux Falls, South Dakota, 236 miles from Craig, Missouri, would be regulated, whereas that involved in a sale of land at Bristol in eastern Tennessee, 740 miles from Craig, would be free from regulation. The language now held unconstitutional and unenforceable is severable. When separated from the rest of the italicized language it leaves a law in all respects complete and susceptible of constitutional enforcement. Both by the provisions of the general statute, § 1.140, RSMo 1969, V.A. M.S., and § 409.417 of the Missouri Uniform Securities Act we are authorized to rule thus, for it is reasonable to presume that the legislature would have enacted the valid provisions without the void words if it had known that the exscinded portion was invalid, since the valid provisions are not essentially and inseparably connected with and dependent upon the void provision. The words stricken do not enter into the life of the Act itself, are not essential to its being and may be disregarded, leaving the rest to remain in force. See State ex rel. Enright v. Connett, 475 S.W.2d 78, 81 [1] (Mo. banc 1972). Plaintiff also contends that the classification based upon the distinction between cash sales and deferred payments sales is a denial of equal protection of the laws and otherwise invalid. We disagree. A sale for cash to a Missouri resident of land lying outside Missouri may logically and reasonably be a proper subject for regulation by Missouri in a land sales regulation act, but this subject matter would be inappropriate in an act regulating securities. A cash sale ordinarily results in the execution of a warranty deed or other conveyance transferring title to the land at the time the consideration is paid. A cash sale could not in any sense be construed as a security transaction, such as that represented by an A & G, which is a contractual agreement providing for the eventual transfer of land, years later, after the completion of payment of the full purchase price, the expiration of the agreed time period, and the completion of agreed-to improvements. There is a reasonable basis for regulating A & Gs as securities, and in not regulating cash sales which by their very nature are not “securities.” No constitutional provision is violated by this differentiation. The Act treats alike all persons similarly situated. The classification is practical and rests on grounds relevant to the achievement of the objective of the legislature. The distinction between cash sales and deferred payment sales is logical. Plaintiff’s third point, that the definition of a security in § 409.401 (1) of the Act unreasonably discriminates against it by burdening plaintiff’s rights to engage in interstate commerce by the sale in Missouri of interests in Florida real estate, contrary to the provisions of Article I, Section 8 of the United States Constitution, is overruled. The Act is a legitimate and reasonable exercise of the reserved police power of the State of Missouri in respect of a matter of local concern. Congress not having exercised its authority in this field has left this State free to impose an indirect or incidental burden upon interstate commerce to this extent. Bank of Bernie v. Blades, 215 Mo.App. 459, 247 S. W. 806, 807 (Mo.App.1923); Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S.Ct. 227, 61 L.Ed. 498 (1917); Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917); Auslen v. Thompson, 38 Cal.App.2d 204, 101 P.2d 136 (1940); Wrigley Pharmaceutical Co. v. Cameron, 16 F.2d 290 (D.C.Pa.1926). In Head v. New Mexico Board of Examiners, 374 U. S. 424, 83 S.Ct. 1759, 10 L.Ed. 983 (1963), the constitutionality of a state statute prohibiting advertising by the quotation of prices or terms for the sale of eyeglasses was challenged on the ground that it imposed an undue burden on interstate commerce. In upholding the statute, and ruling that a state law may not be struck down on a mere showing that its administration affects interstate commerce in some way, the United States Supreme Court said, 374 U. S. 1. c. 428, 83 S.Ct. at 1762: “In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when ‘conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.’ ” See also Borden Company v. Thomason, 353 S.W.2d 735 (Mo. banc 1962), holding that Missouri’s Unfair Milk Sales Practices Act does not unlawfully burden interstate commerce, and State v. Rodgers, 364 Mo. 247, 260 S.W.2d 736 (1953), holding that Missouri may reasonably regulate the transportation of liquor through the state and the Liquor Control Act is not unconstitutional as an undue burden upon interstate commerce. Plaintiff’s fourth point is that even if its transactions could be deemed sales of “securities,” which it denies, such “securities” are exempt from §§ 409.301 1 and 409.403 because of the provisions of § 409.402(a)(8) which, in addition to exempting therefrom any security listed on the New York Stock Exchange, exempts “any other security of the same issuer which is of senior or substantially equal rank, * * Plaintiff claims that its A & G is a security of senior or substantially equal rank as its common stock. Section 409.402(d), Laws 1967, p. 630, provides that “in any proceeding under this Act, the burden of proving an exemption or an exception from a definition is upon the person claiming it.” Plaintiff’s burden of proving the exemption has not been met. Plaintiff has not demonstrated that the A & G transaction involves a security of senior or substantially equal rank as the listed common stock of General. Plaintiff makes its contention on the basis of an opinion of the Attorney General of Missouri rendered January 21, 1943, holding that a contract selling an interest in an oil lease, guaranteeing that starting on a named date a test well would be drilled to a certain depth, was a security senior to the capital stock of the seller, exempt from registration with the Commissioner of Securities. The capital stock of the issuer was listed on an approved stock exchange. It was reasoned that the obligation to drill the test well had to be performed before stockholders were entitled to receive any of the assets of the corporation by reason of their being stockholders. Section 409.-402(b) now specifically excludes such transactions from exemption, and the attorney general’s opinion has been withdrawn. Plaintiff has failed to prove that holders of A & G agreements would participate ahead of stockholders in the assets remaining after payment of debts and expenses. The Bankruptcy Act, 11 U.S. Code Anno. § 110(b), allows the trustee in bankruptcy to assume or reject any executory contract. Decisions of the federal courts such as In re New York Investors Mutual Group, Inc., 143 F. Supp. 51 (S.D.N.Y.1956), deny the right of a purchaser of a contract similar to A & G to specific performance against the trustee in bankruptcy, and uphold the latter’s right to reject or assume such an executory contract “so as to achieve the overriding purpose of the bankruptcy law to secure an equitable distribution of the assets of the bankrupt.” 143 F.Supp. 1. c. 54. And see In re Philadelphia Penn Worsted Company, 278 F.2d 661 (3rd Cir.1960). Furthermore, the word “security” as used in the Act is to be employed as defined in § 409.401, “unless the context otherwise requires.” The context patently requires otherwise in this connection, for the simple reason that to ascribe to the word “security” in the exemption section the meaning plaintiff would give it (thereby excluding A & G transactions from the operation of the Act) would completely nullify the legislature’s purpose in regulating this type of activity. We read the exemption provided for in § 409.402(a)(8) in the light of the rule that a negation in or exception to a statute will be construed so as to avoid nullifying or restricting its apparent principal purpose and the positive provisions made to carry it out, “and no conflict will be found unless the same is clear and inescapable * * *.” 82 C.J.S. Statutes § 382 a., p. 890. Exceptions m a statute should be strictly construed. City of Nevada v. Bastow, 328 S.W.2d 45 (Mo.App.1959). The exemption provision may not reasonably be construed to cover A & G transactions. The judgment of the circuit court is amended and modified by striking from the italicized language the words “or in any state adjoining this state” for the reason that this clause is unconstitutional; the judgment as thus modified is affirmed, and the cause is remanded to the circuit court for the entry of an order amending the judgment to conform with this opinion. STOCKARD, C., concurs. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court. All of the Judges concur. . “It is unlawful for any person to offer or sell any security in this state unless (1) it is registered under this act or (2) the security or transaction is exempted under section 409.402.” . See Paulson, “The Great Land Hustle,” (1972), “[Eight] states take the admirable position that subdivision offerings sold as speculative investments should be regulated like sales of stocks, bonds and other securities because they resemble security offerings and many people invest their savings in them. In some states land sales people must be licensed as securities salespeople.” . Other states which classify out-of-state subdivision offerings as securities include: Kansas, K.S.A. § 17-1252 (j) ; Maine, Maine R.S., Title 32, Oh. 13, § 751; Ohio, Ohio Rev.Code Anno., §§ 1707.01-1707.45; Tennessee, Tenn. Code Anno., Title 48, Ch. 16, § 48-1602 (J) ; Vermont, Vt.Stats.Anno., Title 9, Ch. 131, § 4202; Washington, Rev.Code of Wash., Ch. 2120, Securities Act, § 21.20.005. . “If any provision of this Act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.” Laws 1967, p. 637, effective January 1, 1968 (prior to the occurrence of the facts out of which this case arose). . “The Commissioner may by rule or order require the filing of any prospectus, pamphlet, circular, form letter, advertisement, or other sales literature or advertising communication addressed or intended for distribution to prospective investors, including clients or prospective clients of an investment adviser, unless the security or transaction is exempted by section 409.402.” Laws of Mo.1967, p. 630. . The common stock of General Development Corporation is listed on the New York Stock Exchange.

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SEVENTY-NINTH STREET IMPROVEMENT CORPORATION, Respondent, v. James G. ASHLEY, Jr., Olive J. Ashley, Executrix of the Estate of James G. Ashley, Sr., Partners dba Kansas City Public Service Freight Operation, Appellants. No. 57493. Supreme Court of Missouri, Division No. 2. May 13, 1974. Russell S. Noblet, Shook, Hardy, Mitchell & Bacon, Kansas City, for plaintiff-respondent. L. R. Magee, Hines & Magee, Kansas City, for defendant-appellant. STOCKARD,1 Commissioner. Plaintiff’s action was for a declaratory judgment that a deed dated in 1923 conveyed only an easement to the grantees. Judgment was for plaintiff and defendants have appealed. The facts were stipulated. In 1923 the predecessors of defendants acquired a strip of land 19 feet in width across various lots of land including adjoining lots 394 and 402, now owned by plaintiff. The deed provided the acquisition was “for railroad purposes and right-of-way,” and also that “The property herein conveyed is to be used for railroad (steam, electric or otherwise) purposes, and the parties of the second part [grantees] agree to immediately construct a switch track extending the entire length of the said land herein conveyed.” The switch track so constructed terminated about 330 feet south of plaintiff’s two lots, and “defendants have conveyed all of the 19 feet strip south of the plaintiff’s property to the end of the switch track.” To the north of lots 394 and 402 the switch track joins the main track of defendants. The defendants “have conveyed parts of said 19 foot strip north of plaintiff’s property, and the track over the two lots immediately to the north of lots 394 and 402 have been covered with concrete. Effective September 1, 1968 the defendants “did * * * embargo operations on all of its tracks including the switch track in question.” Defendants assert that the deed conveyed to their predecessors a fee simple title. They cite and rely on Powell v. St. Louis County, 446 S.W.2d 819 (Mo.1969). In that case the deed of conveyance contained no specific limitation on the quantum of title conveyed. The court held that under those circumstances the deed conveyed a fee simple title although the conveyance was for railroad purposes. We agree with the rationale and result of that case. However, in Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649 (1941), the deed conveyed to a railroad company “the right of way for said Railroad one hundred feet in width * * * over and through” property there described. It was there held that “The law is settled in this state that where a railroad acquires a right of way whether by condemnation, by voluntary grant or by a conveyance [purportedly] in fee upon a valuable consideration the railroad takes but a mere easement over the land and not the fee.” See also Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666 (Mo.1969). In the Brown case, it was also said: “the term ‘ “right of way” has two meanings in railroad parlance — the strip of land upon which the track is laid — and the legal right to use such strip,’ ” but where the interest conveyed is “limited to right of way or for right of way the estate conveyed is an easement only.” (Italics added). Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666 (Mo.1969). The deed of conveyance of the 19-foot strip of land was “for railroad purposes and right of way.” We consider this case to be governed by the rule set forth in Brown v. Weare, supra, and that the predecessors of defendants received an easement for right of way only. Defendants argue that the deed was conditioned upon the grantee constructing a switch track, and that when this was done the “transfer of the fee became complete.” This provision may have constituted a condition, an issue we need not decide, but if it was, then when it was met the transfer of the right of way, not the fee, became complete. The remaining issue is whether defendants have abandoned the use of the right of way for railroad purposes. Such easement for right of way “is extinguished when the railroad ceases to run trains over the land, * * ' * and, upon that occurrence, the use of the land is again in the original owner or his grantees, free of the burden of the easement.” Schuermann Enterprises, Inc. v. St. Louis County, supra. The trial court found from the facts, as previously outlined, that defendants had ceased to use the right of way for railroad purposes, and we agree with its findings. We consider it most important as bearing on this issue that defendants stipulated that they had offered to sell the 19-foot strip of land across lots 394 and 402 to the plaintiff. This offer was made on the basis that they owned the fee, and we have concluded they do not. An offer to sell is totally inconsistent with any position other than that the use of the strip for railroad purposes has been abandoned. Defendants argue that they are subject to the regulation of the Interstate Commerce Commission and the Missouri Public Service Commission, and that they cannot abandon the railroad facility without the consent of these agencies. This argument is inconsistent with the admission in the stipulation that they “conveyed” the entire strip south of plaintiff’s lots. In addition, 49 U.S.Code, Sec. 1, par. 22 provides that “The authority of the Commission conferred by paragraphs (18) to (21) of this section, both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or side tracks, located or to be located wholly within one State * * Defendants make no reference in their brief to any statutory provision pertaining to the Missouri Public Service Commission which prohibits the abandonment of the type of facility here involved. We are concerned in this case only with whether there has been an actual abandonment for railroad purposes in a legal sense of that portion of the spur track which crossed lots 394 and 402. We do not purport to rule any matter between defendants and the Missouri Public Service Commission. The judgment is affirmed. HOUSER, C., concurs. PER CURIAM: The foregoing opinion by STOCKARD, C., is adopted as the opinion of the court. All of the judges concur.

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Cecil LEFFERT et al., Administrators or Representatives of Jordan Leffert, Deceased, Appellants, v. Carla Jean SUMNER, Respondent. No. 57444. Supreme Court of Missouri, Division No. 1. April 8, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied May 13, 1974. Morgan M. Moulder, Camdenton, for appellants. Hendren & Andrae, by Kelly Pool, Jefferson City, for respondent. LAURENCE M. HYDE, Special Commissioner. Action by administrators of estate of Jordan Leffert, deceased, for $50,000 damages for personal injuries. Verdict and judgment for defendant. We have jurisdiction because notice of appeal was filed on December 15, 1971. We affirm. Jordan Leffert was struck by a car (Volkswagen Coach) operated by defendant on U.S. Highway 54 in Camdenton. He was deceased at the time of the trial but his death did not result from injuries caused by being struck by defendant’s car. The case was submitted under the humanitarian doctrine on failure of defendant to avoid injury to Leffert “by either slackening her speed or swerving or sounding a warning” after defendant “first knew or could have known” Leffert was in a position of immediate danger. All evidence was from plaintiffs’ witnesses, which included defendant called by plaintiffs’ counsel. Defendant was driving east into Camdenton at 40 miles per hour (50 miles per hour speed zone) and saw Leffert standing in his driveway about 630 feet away. There was a truck across the highway from Leffert’s driveway and it was shown that Leffert had arranged with its driver to go into town with. him. Lef-fert started to walk across the highway soon after plaintiff first saw him in his driveway. She sounded her horn and applied her brakes, slowing to 25 to 20 miles per hour. She said when Leffert got to the center of the highway he stopped, looked in her direction and took a step or two backward. She said she again sounded her horn. She was then about 165 feet from Leffert and was continuing to apply her brakes. She said that when she got about 60 feet from Leffert, he started to run across her lane of traffic and she swerved her car to the left but the right fender of her car struck him. At that time she said she had slowed to 15 to 20 miles per hour. It was agreed that at 15 miles per hour a car goes 22 feet per second and can be stopped in 28 feet; that at 20 miles per hour a car goes 29.4 feet per second and can be stopped in 43 feet; that at 25 miles per hour a car goes 36.7 feet per second and can be stopped in 58.7 feet; and that at 30 miles per hour a car goes 44 feet per second and can be stopped in 79 feet. It was also agreed that ordinary walking speed of an average man is 2.9 to 3.4 feet per second. Plaintiffs’ brief states only two points. Their first point is that the verdict is against the greater weight of the evidence and contrary to the law under the evidence. Plaintiffs recognize “that this assignment of error does not ordinarily present anything for review” because it is usually a matter to be decided by the trial court which saw and heard the witnesses and observed their demeanor. However, they ask for suspension of Rules 84.08 and 84.14, V.A.M.R. and that we consider this contention, claiming it was not decided by the trial court. Defendant points out that plaintiffs’ motion for new trial did raise this issue; that it was taken under advisement by the trial judge; that briefs were submitted to the trial judge by plaintiffs and defendant; but that the motion for new trial was denied under Rule 78.04 because not passed on within 90 days. Under these circumstances, it certainly does not appear that the trial judge found any merit in plaintiffs' contentions. Thereafter, plaintiffs were granted a special order of appeal. Plaintiffs’ request for suspension of our rules must be denied. Furthermore, defendant’s testimony, which the jury could properly believe, shows a very narrow zone of immediate danger, which the jury could properly find began only when Leffert (after stopping and stepping back from the center of the highway) started to run across defendant’s lane of travel. See Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694 (banc 1951); Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47 (1937); Redden v. Boehmer, 223 S.W.2d 127 (Mo.App.1949). Plaintiffs’ other claim of error is concerning the following statement and ruling during their counsel’s argument to the jury: “[By Mr. Moulder] Now, some people think when they get on the highway with an automobile they have a right to run up and down over anybody and anything that is in the way, you know. “Now, a pedestrian walking upon the highway has just as much right out there as a person in an automobile. “MR. POOL: I object to that, Your Honor. It is a misstatement of law. “THE COURT: The objection is sustained, but you may argue your case and stay within the record. The Court has instructed the jury as to the law in the case. You may proceed.” Since this case was submitted only on negligence under the humanitarian doctrine, plaintiffs’ argument about right of way was improper. In Grout v. Central Electric Ry. Co., 151 Mo.App. 330, 131 S. W. 891, 892 (1910), a plaintiff's judgment was reversed where the case was submitted solely on negligence under the humanitarian doctrine but plaintiff got an instruction to the effect that he had equal right of way with defendant at the intersection involved. The court said it was error to pronounce a rule of law unrelated to the issue involved and “was the injection of a false issue into the case.” See also Murphy v. St. Louis Public Service Co., 362 Mo. 772, 244 S.W.2d 31 (1951). The judgment is affirmed. PER CURIAM: The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court. All of the Judges concur.

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STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. CITY OF ST. LOUIS et al., Respondents. No. 57959. Supreme Court of Missouri, Division No. 2. May 13, 1974. Robert L. Hyder, John H. Gladden, Paul Tochtrop, Jefferson City, for appellant. Robert C. McNicholas, City Counselor, Murphy & Schlapprizzi and Albert Lebo-witz, St. Louis, for respondents. MORGAN, Judge. The State Highway Commission of Missouri (hereinafter referred to as the commission) sued the City of St. Louis, the Mayor and Comptroller thereof, and the Travelers Indemnity Company that had issued the performance bond of the comptroller (all hereinafter referred to as the city) for $3,553,613.60 alleged to have been due and payable under certain contracts between the commission and the city, whereby the latter had agreed to pay a percentage of the cost of acquiring right-of-way for certain Inter-State Highways traversing the city. Thereafter, the city answered by denying any obligations under the contracts and filed a counter-claim to recover all payments previously made to the commission under said contracts in the amount of $16,973,006.33. A motion for summary judgment filed by the city was sustained by the trial court and judgment was entered thereon in the amount of $13,568,625.94. The commission has appealed. We reverse and remand. The contracts between the commission and city were executed in that period of time between the years 1955 and 1968, and each called for a cooperative effort by the parties in acquiring the necessary lands required for right-of-way upon which to construct certain highways within and across the city. Although the percentage varied, each contract called for the city to reimburse the commission for a portion of the expenditures occasioned thereby. Throughout the years the city made payments as indicated but failed to make those for which the commission sued. The judgment entry was limited to the order sustaining the motion of the city for summary judgment on the commission’s petition and the city’s counter-claim. As was said recently in Pitman Mfg. Co. v. Centropolis Transfer Co., 461 S.W.2d 866 (Mo.1970), at l.c. 872: “Summary judgment procedure being an extreme and drastic remedy, must be utilized with great care. A summary judgment is authorized only where ‘the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.’ Civil Rule 74.04(h), V.A.M.R. It may be rendered only where the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue of material fact.” Several factual issues have not been resolved, on the record, in this case.. For instance : 1.As to one of the contracts, dated September 16, 1966, and set out in Count IV of the petition, the commission prayed judgment for $2,227,327.18. The city asserted that the contract was ultra vires and violative of Section 26(a) of Article 6 of the 1945 Missouri Constitution, V.A.M.S., which provides: “No county, city, incorporated town or village, school district or other political corporation or subdivision of the state shall become indebted in an amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years, except as otherwise provided in this constitution.” However, the city submitted that: “During said fiscal year of 1966, the total income of the City was $92,062,430.00 . which entire income was appropriated in the City’s Budget for current expenses of the City’s Government for fiscal 1966 ... No funds were available or budgeted for the aforesaid right-of-way costs of over two million . . . ” Obviously, the validity of the legal argument made would depend on a factual determination as to whether the city expenditures made during the year all had a “priority status” over the amount allegedly due the commission, or whether some of the expenditures made were to deplete revenues and avoid any obligation under the contract. Relevant thereto would have been a factual showing as to what, if any, “unencumbered balances from previous years” were available. 2. As to each contract, the city contended that it did not enter into the same freely and after negotiations, but that the city executed all of the contracts under duress and threats of penalties by the commission. A factual basis to resolve the legal implications of the argument made is not established in the record. 3. Facts to establish the contention of the city that the commission breached the contracts by acting unreasonably and arbitrarily in the exercise of its power to locate and construct highways are not resolved in the record. Other arguments by both the city and the commission can not be reviewed or resolved by this court absent an effort to develop relevant facts. Since there are genuine issues as to material facts unresolved in this case, it was error to sustain the city’s motion for summary judgment. Elliott v. Harris, 423 S.W.2d 831, 834[3] (Mo. banc 1968). The judgment is reversed and the cause is remanded. BARDGETT, J., and FINCH, Acting P. J., concur. HENLEY, P. J., not sitting.

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NAEGELE OUTDOOR ADVERTISING COMPANY, INC., Respondent, v. KANSAS CITY, Missouri, Appellant. No. 57996. Supreme Court of Missouri, Division No. 2. May 13, 1974. Charles C. Shafer, Jr., Howard Cham-berlin, Kansas City, for respondent. Aaron A. Wilson, City Counselor, Robert D. Munro, Associate City Counselor, for appellant. MORGAN, Judge. The Naegele Outdoor Advertising Co., Inc., herein referred to as plaintiff, sued the city of Kansas City for a refund of a portion of the merchants and manufacturers tangible personal property tax paid by plaintiff to the city for the year 1968. After trial to the court on a stipulation of facts, judgment was entered in favor of plaintiff in the amount of $1,815.03 and the city has appealed. Disposition of the case requires construction of Article X, Section 11(a) of the 1945 Missouri Constitution, V.A.M.S. and the revenue laws of this state. Jurisdiction is in this court. Mo. Const. Art. 5, § 3. We affirm. Stipulated facts, among others, were: 1. The city assessed property of plaintiff at $266,.340.00 for the year 1968 and mailed a tax notice to plaintiff based on said valuation. The notice declared that penalties would be assessed on the amount due ($4,048.37) if not paid prior to August 31, 1968. The plaintiff paid said amount on August 22. 2. Thereafter, plaintiff received a tax notice from Jackson County, for state and county purposes, for the year 1968 based on an assessed valuation of $146,930.00. This tax was paid by plaintiff when due during the month of December, 1968, and it immediately notified the city that the $266,340.00 assessed valuation was constitutionally invalid, and that the city tax based on the constitutional maximum valuation ($146,930.00 assessed by the county) should have been $2,233.34 instead of $4,048.37, or a difference of $1,815.03 for which judgment was entered by the trial court. In its Answer, the city admitted that the city and county had assessed the “identical property” owned by plaintiff. At this point, for simplicity of reading, we do note that after entry of judgment on March 1, 1972, the city did on March 2, 1972, file an affidavit of the city assessor that the boundaries of the city and county of Jackson were not co-extensive in that the city extended into both Platte and Clay Counties. This fact, of course, was not a new discovery but was known to the parties at the time pleadings were filed and the cause was tried. Nevertheless, it is significant that in this belated effort the city made no effort to establish that plaintiff, in fact, did own taxable property in that part of the city extending into Platte and Clay Counties and which property could not have been included in the assessment of Jackson County. Plaintiff relies primarily on Article X, Section 11(a) of the 1945 Missouri Constitution, which provides: “Taxes may be levied by counties and other political subdivisions on all property subject to their taxing power, but the assessed valuation therefor in such other political subdivisions shall not exceed the assessed valuation of the same property for state and county purposes.” The city relies primarily on Section A5.-25 of its Administrative Code, which provides : “Duty of taxpayer. Whenever any payment under protest is offered for general property taxes, special taxes or license taxes, before such taxes are delinquent, the city treasurer shall accept such payment only when the tender of payment is for the full amount of the taxes billed and is accompanied by a written statement from the taxpayer setting forth his protest, his grounds for the protest, a declaration as to the portion of the total payment being protested, supported by the assessment and tax rate factors involved, and a statement as to the nature of the proceedings he intends to institute or has instituted to resolve the question in issue.” The record includes trial briefs submitted on behalf of both parties, and the arguments therein revolve around the admission by the city that it makes no effort at all to limit its assessed valuations of property to those of the county. In fact, it is rather bluntly suggested that the constitutional mandate limiting valuations by the city is of no concern to its assessor, and that compliance with the dictates of the constitution of this state will result only if a taxpayer complains formally by a protest made in accordance with Section A5.25 of its Administrative Code. The city, in obvious recognition of the fact that city taxes become delinquent prior to receipt by a taxpayer of the county tax notice, suggests that a “formal protest” could be made in August because: “The taxpayer could ascertain the County valuation for tax purposes simply by checking same with the County assessor and need not wait until he received the County tax statement * *■ * The assessor’s books are public records, available to all interested taxpayers, and were available some two months prior to the time plaintiff paid the City tax.” We refrain from commenting, as did the city, on the obvious turmoil that would result if taxpayers of a city of approximately one-half million people converged on the county assessor during August to determine whether or not the city had respected the constitutional limitation noted. The argument, at best, is fallacious because it seeks to shift to the taxpayer the sole burden of seeing that the city complies with the law — a duty placed on the city by the constitution of this state and which is self-enforcing. State ex rel. Van Brown v. Van Every, 75 Mo. 530 (1882); Brooks v. Schultz, 178 Mo. 222, 77 S.W. 861 (1903); State ex rel. Emerson v. Mound City, 335 Mo. 702, 73 S.W.2d 1017 (1934). The trial court in a memorandum opinion, after expressing its dismay at the city’s contentions, found that the plaintiff had protested at the earliest possible time and that payment during August to avoid penalties was, in fact, an involuntary payment made under duress. The holding was based primarily on the opinion of this court in State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247 (1947), wherein it was said, 1. c. 250, that: “. . . courts are now taking a more liberal view as to whether certain types of taxes are ever in fact voluntarily paid since the urgent and immediate payment of them is compelled in order to avoid the harsh penalties imposed for non-payment. The compulsion brought about by such penalties creates what the writers have termed technical or implied duress sufficient to make the payment of such taxes involuntary. We adopted the modern view of greater liberality in recognizing such duress in tax payments in Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710 (1946), where we declined to follow the stricter view of some of our earlier decisions.” The trial court also found that reliance by the city on Section A5.25 of its Administrative Code was ill founded, and that it was not available as a defense, because: “That section of the City Ordinances merely prescribes a procedure by which a taxpayer may pay city taxes under protest and sets forth administrative steps concerning how the protest must be made, the portions protested, the grounds for protest, et cetera. It does not purport, even by inference, to condition the right to refund of illegal or improper taxes on the filing of such a protest.” We, as was the trial court, are confronted by a novel situation, i. e., a taxing authority that makes no pretense of following the constitutional law of this state. An admission of such a purpose threads throughout the brief submitted by the city, as well as being a concession made in oral argument before this court — the latter being confirmed recently by playing, again, the tape made of the oral argument. The parties have not cited a case factually in point, nor has our own research divulged a comparable situation. Nevertheless, it is apparent that the city has failed to heed the admonition which Tiberius Caesar gave to some of his over-reaching taxing officials that: “It is the part of a good shepherd to shear his flock, not flay it.” (Suetonius, Lives: Tiberius, Ch. XXXII, sec. 2. A proper disposition of this case does not require resolution of whether or not plaintiff “voluntarily” or “involuntarily” paid the questioned taxes, upon which the right to a refund would turn under the general rules exhaustively considered in the cases cited, although “. . . each case of alleged duress stands on its own heels ...” Brink v. Kansas City, supra, 198 S.W.2d at 715. To do so would not reach the fundamental issue in this case, which stems from one question. Is the constitution of this state to control the taxing power of the city? In answering the question posed, we do not confirm or reject the conclusions of the trial court made in light of the rules applied by it, but do affirm the judgment entered under a different but recognized rule of law, seldom needed, applicable to the facts of this case. “The broad principle that the decisions of administrative officials relating to the assessment of taxes are final and conclusive so as to prevent judicial redress for an excessive or illegal assessment is subject to a limitation or qualification with respect to the manner in which the officials acted in arriving at the challenged assessment; this conclusion is supported by numerous cases in which the view was taken that the courts may act to nullify a tax assessment arrived at in a particular manner, variously described but always in terms indicating a belief that it was essentially unconscionable. Thus, it has been indicated that a valuation for tax purposes made by an administrative agency in a capricious or whimsical way, through chance or guess and without the exercise of any judgment, should be annulled by the courts. The precise terms used to describe the kind of conduct by administrative officials which will result in a holding that their action is not conclusive and final but is subject to review by the courts are many and various, those most frequently invoked being fraudulent, or disclosing or resulting in fraud, arbitrary, capricious, unwarrantable, corrupt, discriminatory, and inequitable.” 51 Am.Jur., pp. 699-700, § 771, Taxation. We exercise a sufficient amount of restraint to rule only that the action of the city was “arbitrary.” Compare Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710 (1946). The judgment is affirmed. All of the Judges concur. . State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878 (1917) ; Simmons Hardware Co. v. City of St. Louis, 192 S.W. 394 (Mo.1917) ; American Mfg. Co. v. City of St. Louis, 192 S.W. 399 (Mo.1917) ; and, Standard Oil Co. v. City of Moberly, 33 S.W. 2d 157 (1930). See also: Lamar Tp. v. City of Lamar, 261 Mo. 171, 169 S.W. 12 (Mo.1914) ; Manufacturer’s Casualty Ins. Co. v. Kansas City, 330 S.W.2d 263 (Mo.App.1959) ; Gas Service Company v. Morris, 353 S.W.2d 645 (Mo.1962) ; and, McGraw-Edison Company v. Curry, 485 S.W.2d 175 (Mo.App.1972). . Stevenson, The Home Book of Quotations, Third Edition, Taxation, p. 1968.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Earl MOULDER and Grace M. Moulder, Respondents. No. 57209. Supreme Court of Missouri, Division No. 1. May 13, 1974. Robert L. Hyder, Jefferson City, Wm. T. Powers, Springfield, for plaintiff-appellants. Wm. P. Sanford, Miller, Fairman, Sanford, Carr & Lowther, Springfield, Mayte B. Hardie, Ozark, for respondents. WELBORN, Commissioner. Appeal by State Highway Commission from judgment on condemnation proceeding. Commissioners awarded Earl and Grace Moulder $47,717 for property taken. Both plaintiff and defendants excepted to award and jury fixed damages at $80,000. (Notice of appeal filed prior to January 1, 1972.) The Moulders were owners of a 200-acre tract of land near the south city limits of Springfield. By taking as of January 10, 1967, State Highway Commission condemned 21.17 acres of the Moulder land for the construction of Route 65 By-Pass. The taking left the Moulder property in two separated tracts, one of 36.05 acres on the east of the north-south highway and 142.78 acres on the west side. At the jury trial, defendant Earl Moulder testified to damages of $116,311.10, made up of $52,500 for the 21.17 acres taken, a reduction in value of the remaining east tract of $45,000, of the west tract of $15,000 and $3,811.10 for fencing. Expert appraisal witnesses for defendants testified to damages of $92,210 and $93,500. Expert witnesses for plaintiff testified to damages of $33,000 and $52,910. The issues on this appeal relate to Moulder’s testimony that in arriving at the damage to his property he took into consideration that the construction of the highway project had resulted in an increased flow of drainage water across the 36.05-acre tract on the east side of the highway. Counsel for appellant objected to any testimony about the effect of the project on the drainage on the grounds that damage on that score was speculative because the project was incomplete and that the effect of the project on the drainage could not properly be assessed until the construction had been completed. After extensive colloquy between counsel, the court concluded that the witness should be permitted to testify regarding the change in drainage, with the suggestion that the state could produce evidence that the completion of the project might affect the drainage pattern observed by Moulder. Moulder was then permitted to testify that the construction to that time had resulted in the flow of water in the two natural drainage channels across the eastern tract in greater volume and over a wider area through each of the drainage paths. He then testified that he considered such increased drainage as one of several factors in concluding that the value of the east tract was reduced from $2,500 to $1,250 per acre. The witness acknowledged that he was unable to put a dollar figure on the extent to which each of the elements which he considered contributed to the reduced value. Appellant, in its brief in this court, acknowledges that drainage damage may affect the market value of the remainder of a tract from which a portion has been severed in condemnation. See State v. McMurtrey, 300 S.W.2d 521, 527[8, 9] (Mo.1957). The claim of error is based upon the noncompletion of the project at the time Moulder observed the increased drainage. The roadway had been graded and the pavement laid. The roadway at a ramp had not been paved and the seeding work had not been done. A plat of the defendants’ property, showing its contours, the proposed highway and drains to be constructed in connection with it, was in evidence. The project had proceeded to the extent that consideration of the plans, together with what had occurred (see State ex rel. State Highway Commission v. Ellis, 382 S.W.2d 225, 233 (Mo.App.1964)) could reasonably lead to the conclusion that the drainage then observed would probably be the pattern upon ultimate completion of the project. The fact that Moulder was unable to place a dollar value on the effect of the drainage did not cause his testimony to be speculative. Cities Service Gas Co. v. Peak, 227 Mo.App. 515, 54 S.W.2d 482, 484[4-6] (1932). The evidence was not of such remote and speculative nature as to require the trial court to exclude it. The drainage change was a “prospective use” factor “reasonably apparent at the time of appropriation and which a purchaser would normally consider in determining the value of the remaining property.” State ex rel. State Highway Commission v. Vesper, 419 S.W.2d 469, 473 (Mo.App.1967). An objection such as that here raised might lead the trial court to conclude that the inquiry such as that suggested by the court would enter the realm of collateral matters to such a degree that an exercise of discretion would result in the exclusion of testimony such as that under consideration. That problem did not develop in this case, inasmuch as the plaintiff did not see fit to pursue the line of inquiry suggested by the trial court. The trial court’s suggestion in this regard did not have the effect of shifting to the plaintiff the burden of showing no damages in this regard. The colloquy with respect to the burden of proof instruction given the jury (MAI No. 3.02 prior to amendment, with modification) shows merely that the trial court was aware of the deficiency in original MAI No. 3.02 and sought to supply that deficiency. See State ex rel. State Highway Commission v. Sams, 484 S.W.2d 276 (Mo.1972); MAI No. 3.02 (1973 Revision). Inasmuch as plaintiff’s objection in the trial court related solely to the admissibility of the testimony as affected by the stage of construction, no consideration will be given to the contention, based upon Skaggs v. City of Cape Girardeau, 472 S.W.2d 870 (Mo.App.1971), that Missouri’s modification of the “common enemy” doctrine precludes a claim for damages by reason of the condition testified to by Moulder. Review in this court is limited to the grounds presented below. Dyer v. Globe-Democrat Publishing Co., 378 S.W. 2d 570, 582 (Mo.1964). Appellant also objects to the trial court’s ruling admitting in evidence three photographs showing, according to appellant, “ ‘mud and dirt’ accumulating in the natural drainage area running to the landowners pond and fields on his remaining property.” The objection overruled by the trial court was that the photographs showed “drainage damages on a project that has not been completed.” The court overruled the objection. The argument here is practically the same as that directed at the court’s ruling on Moulder’s oral testimony. The answer to that objection adequately answers the same argument as related to the photographs. Appellant acknowledged that the claim of error based upon Moulder’s testimony about consideration of “circuity of travel” as a factor in his damage testimony was not properly preserved in the trial court and no consideration of that assignment is called for. Judgment affirmed. HIGGINS, C., concurs. PER CURIAM: The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court. All of the Judges concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

HOME BUILDERS ASSOCIATION OF GREATER KANSAS CITY et al., Plalntiffs-Appellants, v. KANSAS CITY, Missouri, Defendant-Respondent. No. 58424. Supreme Court of Missouri, En Banc. April 8, 1974. Rehearing Denied May 13, 1974. James E. Grier, R. Dennis Wright, Kansas City, for plaintiffs-appellants; Hillix, Brewer & Myers, Kansas City, of counsel. Aaron A. Wilson, City Counselor, Carrol C. Kennett, Associate City Counselor, Kansas City, for defendant-respondent. SEILER, Judge. This is the third appeal in this suit for declaratory judgment. Plaintiffs are the assignees of 89 water main extension contracts with the city of Kansas City under which various contractors, builders, and plaintiffs furnished money for extension of water mains and were to receive refunds on their advances from revenues derived from customers who connected into the extensions installed. The present judgment is for $47,478.1Í on count II and $156,148.-53 on count III. The first two appeals went directly to this court, under the jurisdictional provisions then in force. The present appeal went first to the court of appeals, Kansas City district, under the revised jurisdictional provisions of the 1970 amendment to Art. V, 1945 Constitution, V.A.M.S. but was then transferred here by pur order from the court of appeals, before opinion, pursuant to rule 83.06, V.A.M.R. We affirm, with certain modifications. On the first appeal, Home Builders Association of Greater Kansas City v. Kansas City, 431 S.W.2d 111 (Mo. banc 1968), hereinafter referred to as Home Builders I, we upheld the validity of the water main extension contracts against a challenge that they overextended the city’s debt limit. We held that refunds under the contracts were contingent on the water main extensions producing net revenues from which refunds could be paid. We remanded to the trial court for determination of the net revenues available for refunds to plaintiffs under the contracts. In the course of our opinion we said, 1. c. 115: “. . . [I]t should be noted that Sec. 48 of the city charter provides that all revenue from the waterworks must be devoted first to payment of operating expenses, maintenance and repair charges, costs due to obsolescence or other causes, and such sums as are required for interest and principal on bonds. The remainder of such revenue then is available for enlargements and extensions. The contracts here involved fall within this latter category. “. . . [T]he reimbursement to which plaintiffs are entitled under their contracts is to be from net revenue from customers connected to the particular extension in accordance with their contracts and the requirements of Sec. 48 of the charter . . .” In the trial following Home Builders I, the trial court entered judgment for plaintiffs in the amount of $391,909.05, the total amount which they had advanced to the city for the water main extensions, holding that the refunds could be paid from the net revenue available in the city’s water fund, which contained net revenues from the entire water system for extension and better-ments of the city’s water plant as determined and required by Sec. 48 of the city charter. The city appealed and this court, in Home Builders Association of Greater Kansas City v. Kansas City, 464 S.W.2d 5 (Mo. banc 1971), hereinafter referred to as Home Builders II, held that payments of refunds could not be made out of the general water fund, which includes net revenues from operation of the entire water department, but that the reimbursements to which plaintiffs are entitled under their contracts were to be from net revenues from customers connected to the particular extensions. This court’s opinion said in part, 1. c. 9: “. . . [I]t appears that the revenue derived from particular extensions can be shown with reasonable accuracy. “When this is shown in evidence, the net revenue will be the gross revenue from the extensions less the applicable deductions required by Sec. 48. The city asserts it does not maintain any records relating to the operating expenses assigned to particular water main extensions. Nevertheless, the burden of evidence with respect to the amount of money expended on the priority items is on the city and, consequently, the final figure of net revenue of a particular extension will depend on the city’s ability to prove expense items directly attributable to that extension, and the sum remaining, if any, is the net revenue from the particular extension from which refunds can be paid.” The cause was remanded to the trial court for determination of the funds available for payment of refunds under the method prescribed. The case was again tried and the present appeal followed. The parties stipulated that the average yearly water use per residential customer on the water main extensions in issue was 12000 cubic feet per year and that the total gross revenues derived from the water main extensions was $386,465.28. The city then proceeded to prove the net revenue by first establishing the expenses which could be deducted from gross revenues from the water main extensions. This the city did by prorating the operating expenses and debt service of the entire water system based on the stipulated amount of water used by the water main extensions in issue. The procedure was to divide the operating expenses and debt service of the water department (excluding obsolescence) by the number of 100 cubic feet units of water sold. This varied from year to year, from a low of $0.1646 to a high of $0.2986 per unit. The trial court accepted the city’s proof of expenses by this averaging or prorating method, and deducted the expenses thus shown from the stipulated gross revenues, thereby determining the net revenues of the water main extensions in issue, the fund from which refunds on the water main extension contracts are payable to plaintiffs. The trial court filed a written opinion which clearly sets forth the positions of plaintiffs and defendant on appeal as follows: “. . . [T]he plaintiffs have insisted that the city must prove expenses directly attributable to each water main extension, and failing or being unable to do so, has failed to bear the burden of proof imposed upon it by the Supreme Court to prove its costs and net revenues and therefore plaintiffs are entitled to be paid from the gross revenues to the extent of those revenues. The City maintains that it cannot segregate from its overall expenses of supplying water to its customers the expenses directly attributable to supplying water to a small number of customers connected to a water main extension that constitutes only a small fractional part of the City’s water system because, it says, a water main extension is just that, a small extension of the whole system, and when water for the whole system is taken from the Missouri River at one point, run through the purification plant, pumped through transmission mains, through distribution mains, and infinitesimal portions of the whole finally delivered to customers connected to one of the main extensions in issue it is impossible to isolate the costs directly attributable to supplying water through any particular water main extension and the only way that such costs can be allocated is by averaging. The parties have stipulated to the volumes of water consumed by the customers connected to the main extensions in issue and the gross revenues derived by the City from these customers. The City has introduced evidence of its average costs per 100 cubic feet of water of serving water to its residential customers to determine its net revenues realized from the subject main extensions.” The trial court accepted the city’s contentions as to deductible expenses and method of proof of those expenses. We agree with the trial court’s treatment of this problem. Plaintiffs contend that the trial court’s opinion did not follow the law of the case as established in Home Builders II and contend the city did not satisfy the burden of evidence placed on it by this court in that opinion; that under this court’s opinion in Home Builders II, the city had the burden of evidence to prove Sec. 48 expenses, “directly attributable” to the water main extensions in issue; that the city’s method of proving those expenses by prorating or averaging the expenses of the entire water system based on the stipulated water consumption from the water main extensions in issue was specifically rejected by this court in Home Builders II and does not satisfy the city’s burden of proof. Plaintiffs basically are arguing that defendant’s proof of expenses is lacking in two respects: First, because it is based on a prorating or averaging method rather than itemized proof of the Sec. 48 expenses of the water main extensions in issue and second, because the expenses thus prorated contain indirect expenses, not just those “directly attributable” to the water main extensions in issue. As to this second point, plaintiffs seem to be arguing that expenses can only be deducted which “but for” the water main extensions would not have been incurred. The city argues that in addition to these added expenses which result from the water main extension, the extensions must share in the expenses of maintaining the entire water system by which they are served. As to this point, plaintiffs are somewhat in the position of the boy who wanted to share his friend’s soda, but rather than pay a nickel for half of the drink, only wanted to pay the additional penny it cost for the extra straw. Plaintiffs’ position is not supported by a careful reading of Home Builders II. There, in addition to the language quoted earlier which is cited by plaintiffs referring to “expense items directly attributable to that extension”, the court said (464 S. W.2d 1. c. 8) the proper method of computation of refunds was established in Home Builders I, which held “. . . that the total fund out of which refunds could be paid to any particular contractor was limited to the total revenue derived from customers connected to the particular extension covered in the contracts as reduced by charges against that fund of the priority items set forth in Sec. 48 of the city’s charter . . This court in Home Builders I and II held that there was no money available for payment of refunds until after payment of Sec. 48 expenses. Section 48 expenses include operating expenses, maintenance and repair charges, costs due to obsolescence, payment of interest on bonds — many expenses which under plaintiffs’ argument are not directly attributable to the water main extensions, if it is true that to be “directly attributable” an expense cannot be one related to other parts of the water system, but must be an expense confined exclusively to these particular extensions. Plaintiffs do not give examples of what they consider to be expenses directly attributable to the water main extensions, but no doubt repairing a break in one of the extension mains would fit their concept. However, we do not read the language of Home Builders II as limiting deductible expense so narrowly. In our opinion, whatever is the proportionate share for the water consumed from these mains of what it cost to gather, make ready, and deliver the water in fit condition for human consumption, is expense directly attributable to the water main extensions. Their only justification for existence is to serve as the final link in delivering the water. The court’s decision in Home Builders II did not hold that the water main extensions did not have to share in the expense of maintaining the system by which they are served and that a share of such expenses, could not be deducted in determining their net revenue. In fact, a careful reading of Homebuilders I and II shows that such expenses not only can, but must be deducted under Sec. 48 of the city charter, before there is any revenue from which refunds can be paid. As set forth earlier, the court said in Homebuilders II, 1. c. 9: “When this is shown in evidence [referring to the revenue derived from the particular extensions], the net revenue will be the gross revenue from the extensions less the applicable deductions required by Sec. 48 . . .” Thus it is clear that it was intended that the water main extensions bear a share of these expenses. If plaintiffs are correct, and the city can only deduct expenses from gross revenues which would not have been incurred “but for” the water main extensions, then arguably the city could be liable for refunds where, as to the water main extensions in issue there were net revenues, but where no net revenues resulted from operation of the water department as a whole. This result would violate Sec. 48 of the city charter and this court’s holding in Home Builders I and points up the inescapable fact that expenses directly attributable to the water main extensions necessarily cannot be limited to what it cost to maintain the water main extensions in question after the water was in situ, even if the city could produce such cost figures. This leads to plaintiffs’ first point mentioned above — their objection to the city’s proof of expenses by an averaging or prorating method. Since, as we have held, the water main extensions in issue must bear their share of the Sec. 48 expenses, some averaging or prorating is necessary, as it would be impossible to show, in any other way, the costs and expenses required to convert these extensions from empty, useless pipes buried in the ground to the means of delivering water to customers at the end of the water treatment process. This process began with the intake of the water to the plant followed by treatment, purification, storage, pumping and distribution, all requiring substantial capital or operating expenditures by the city which are as directly attributable to the water main extensions in question as to any of the other city mains. The trial court’s decision does not conflict with our decision in Home Builders II. There we held that the burden of evidence was on the city to prove deductible expenses, that is, the water main extensions’ share of Sec. 48 expenses. The city has satisfied this burden of proof by an averaging method reasonably calculated to achieve a fair determination of the expenses directly attributable to the water main extensions in issue and which is the best evidence available of those expenses. There is one other matter before concluding. The trial court referred to two exhibits in arriving at the amount of its judgment. These exhibits each contained three columns relevant to this discussion. The first column, entitled “Amount of Refund Due”, contains the total amounts due under the contracts. The second column is entitled “Previous Payments” and shows refunds which have already been paid on the contracts. Plaintiffs’ original petition admits and the parties stipulated that the city had made prior refunds in amounts to-talling at least the total amount of refunds shown in the previous payments' column of the exhibit. The third column, “Net Refund Due”, shows the amount still owing on the various contracts after subtracting the previous payments or refunds already made on those contracts. The trial court’s judgment recites that plaintiffs are entitled to the unrefunded balances of the deposits made pursuant to the water main extension contracts and the court’s findings of fact state, “The refunds due each plaintiff under each . . . Water Main Extension Contract in issue . . . less refunds already paid, are shown on [the] Exhibit . attached hereto in the column entitled ‘Amount of Refund Due’ ”. This language shows that the trial court intended to give the city credit for refunds already paid, but erroneously entered judgment for the total amount shown in the “Amount of Refund Due” column rather than the amount shown in the “Net Refund Due” column, which reflects credit for the prior refunds. We note, also, that plaintiffs admitted in oral argument that the trial court forgot to subtract the amounts previously paid. We accordingly correct the trial court’s judgment under rule 84.14, so as to give the city credit for refunds previously paid on these contracts. Judgment is therefore affirmed in the amount of $11,909.05 on count II and in the amount of $100,150.94 on count III, and the trial court is ordered to amend its judgment accordingly. All of the Judges concur.

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Caselaw Access Project

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STATE of Missouri, Plaintiff-Respondent, v. Leroy John HAMPTON, Defendant-Appellant. No. 35327. Missouri Court of Appeals, St. Louis District, Division One. April 23, 1974. Robert E. Heisler, Donald L. Schmidt, Christopher T. Hexter, Legal Aid Society, St. Louis, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Ellen S. Roper, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent. WEIER, Judge. A jury found defendant, Leroy John Hampton, guilty of first degree robbery by means of a dangerous and deadly weapon. Upon failure of the jury to determine the sentence, the court assessed punishment at fifty years imprisonment. Defendant raises four points of error on appeal: First, that the trial court erred in denying his motion to suppress certain in-court identification testimony; Second, the court erred in refusing to grant a mistrial when a witness for the state testified that defendant refused to make a statement concerning the crime; Third, the court erred in denying his motion to suppress incriminating statements he made when in custody; and Fourth, the evidence was insufficient to support one of the essential elements of robbery. We affirm. In the afternoon of November 24, 1971, two men entered Car Parts, Inc. in the City of St. Louis and ordered parts for a brake job. Both men produced weapons when the parts were brought to the counter. One of the men, subsequently identified as the defendant, ordered the employees to the back of the store where he bound the hands of some of them with wire. A customer, Anthony McColl, entered the store and saw one of the men, subsequently identified as Eddie Brown, standing behind the counter. Brown revealed a sawed-off shotgun to McColl and announced a “stick-up”. McColl was taken to the back room where he noticed some of the employees lying on the floor with their hands tied and defendant who was holding a pistol. While this was happening, one of the employees who was in another part of the store managed to get word to the police. When the officers arrived, they surrounded the store and ordered the men to come out. However, defendant and Brown managed to get out of the building by taking and holding one of the employees as a hostage. Defendant, Brown and the hostage then got into a car, but before it pulled away, Officer Bell shot and wounded defendant with his shotgun. Shortly thereafter, Officers Waggoner and Med-dlin discovered the two men not far from the scene of the robbery, and after a short chase, they captured and arrested defendant. Defendant’s first point attacks the legality of certain pretrial identification procedures. He claims that these procedures gave rise to the possibility that the witnesses who viewed them made “irreparable mistaken identifications.” Defendant enumerates the following circumstances in support of his claim: (1) his appearance in a lineup with three other black men; (2) his appearance in a photograph of this lineup; ánd (3) his appearance in a hospital room confrontation. Three days after the robbery, defendant was placed in a lineup with three other black men. A portion of his head had been shaved to facilitate treatment for bullet wounds. Three witnesses to the robbery identified him in the lineup as one of the robbers and gave identification testimony at the trial. Another witness, Officer Jesse Lloyd, subsequently identified defendant when shown a photograph of the lineup and gave identification testimony at the trial. Defendant contends that the lineup was a suggestive confrontation because he was the only person appearing in it who had a portion of his head shaved. He argues that since the witnesses identifying him at the lineup and from a photograph of it were well aware of the fact that one of the robbers had been shot during the robbery, the witnesses’ identification may have been impermissibly influenced by his shaved head. Whenever an in-court identification is attacked upon the ground that pretrial identification procedures violated due process, our inquiry extends to a determination of whether the procedures were unduly suggestive, and, if unduly suggestive, whether there is an independent source of the identification which would nonetheless support its admissibility. State v. Jackson, 477 S.W.2d 47, 51 [4] (Mo.1972). Thus, even though a pretrial identification procedure may have been unduly suggestive, if the identification is otherwise reliable the procedure does not so offend due process as to make the subsequent in-court.identification inadmissible. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The suggestiveness of the lineup in this case either stands or falls upon the observation by the witnesses of defendant’s shaved head. Of the witnesses who viewed the lineup and gave identification testimony at the trial, only witness Ronald Williams noticed that defendant’s head was shaved when he appeared in the lineup. The record in this case does not indicate whether Officer Lloyd noticed that defendant’s head was shaved when he made his out-of-court identification from the photograph of the lineup. Thus, the lineup could have only been suggestive insofar as witness Williams was concerned and, possibly, Officer Lloyd. In any event, the out-of-court identifications of defendant by Williams and Lloyd were, otherwise reliable. Williams and Lloyd had an independent source of identification sufficient to admit their in-court identifications. Both witnesses had an ample opportunity to view the defendant during the robbery and both specifically stated at the trial that his in-court identification was based upon such independent observation. Out-of-court identifications of defendant were also made by two police officers who viewed defendant while he was in the hospital, and both officers gave identification testimony. Again, however, the record in this case indicates that both officers’ in-court identification testimony had a source independent of the hospital confrontations. Under these circumstances, the trial court neither erred in denying defendant’s motion to suppress identification testimony nor in admitting this testimony at the trial. Moreover, we are confident that there is no reasonable basis which could possibly lead to the conclusion that defendant was or may have been misidentified since there were at least nine witnesses who gave positive identification testimony in this case. See State v. McIntosh, 492 S.W.2d 843, 846 (Mo.1973). Defendant’s second point is that his fifth amendment right to remain silent was denied by the trial court’s overruling his motion for a mistrial based upon an investigating officer’s testimony on direct examination. He relies on the rule that the silence of a person under arrest or in custody who is being interrogated about a crime may not be used in evidence against him because he is under no duty to speak. As authority for this rule, defendant correctly refers us to State v. Phelps, 384 S.W.2d 616, 621 [8] (Mo.1964) and State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755 [4, 5] (1941). However, we are of the opinion that the trial court did not abuse its discretion in refusing to declare a mistrial. It is true, just as defendant states, that at the trial the circuit attorney asked one of the investigating officers whether defendant, after being advised of his constitutional rights, had said anything about the robbery. After the officer related two statements the defendant had made about the robbery, the circuit attorney asked, “Did you talk to him any further at that point?” To which the officer replied, “No, he refused to make any further statement.” After the officer volunteered this latter testimony, defendant objected and asked the court, out of the jury’s hearing, to declare a mistrial. Based solely upon the above sequence of events, defendant invokes the rule of the Phelps and Dowling cases. The difficulty with defendant’s argument is that the above set of facts is not all that occurred at the trial regarding the officer’s testimony. After the court overruled defendant’s motion for a mistrial, defendant’s counsel asked the court, “Are you going to admonish the jury? Is" my request for a mistrial overruled?” To counsel, the court replied, “Right.”, and then immediately stated: “Members of the jury, you are instructed to disregard the last response of the witness regarding the alleged statement or failure to make a statement by this Defendant.” Under these circumstances, the rule of the Phelps and Dowling cases was not violated, and the court did not abuse its discretion in overruling defendant’s motion for a mistrial. State v. Humphrey, 462 S.W.2d 804, 806 [1] (Mo.1971). Defendant next contends that the trial court erred in denying his motion to suppress confessions and in admitting into evidence certain inculpatory statements he made to police officers. He argues that there was insufficient proof that he voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officers Ronald Meddlin and Walter Waggoner testified at the pretrial hearing on defendant’s motion to suppress. Officers Meddlin and Waggoner arrested defendant on the day of the robbery after chasing him on foot for some distance. While they were chasing him, Officer Meddlin fired a shot. The defendant then “hit” the ground, and as the officers approached him, he blurted out, “ T give up. I’ve been shot.’ ” The officers immediately placed defendant under arrest, and Officer Meddlin advised him of his constitutional rights under Miranda, supra. Defendant was then taken to City Hospital No. 1, where he was again advised of his rights — this time by Sergeant Antoon. According to Officers Meddlin and Waggoner, Sgt. Antoon asked defendant if he wanted to waive his rights, and defendant said “yes”. Then, again according to Officers Meddlin and Waggoner, defendant admitted his participation in the robbery; stated that he had been shot by a policeman; and revealed the name of another person involved in the robbery. The court, in overruling defendant’s motion to suppress, determined that the defendant’s statements were voluntarily made. At the trial, both Officers Meddlin and Waggoner testified concerning defendant’s statements made at both the scene of arrest and the hospital. Defendant made no objection to this testimony. In fact, defendant pursued this line of inquiry on cross-examination in some detail. Only when Sgt. Antoon testified concerning defendant’s statements made at the hospital did defendant object on the grounds stated in his pretrial motion to suppress. Accordingly, defendant has not preserved this issue for appellate review, and absent plain error under Rule 27.20(c), V.A.M.R., the issue should not be considered. State v. Stevens, 467 S.W.2d 10, 19 [7] (Mo.1971), cert. den., 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). Defendant’s statements, “I give up. I’ve been shot.”, made to Officers Meddlin and Waggoner at the scene of arrest, did not constitute plain error when admitted into evidence at the trial. The statements were not made in response to any process of interrogation, but rather were spontaneously volunteered by defendant when he apprehended his situation. The fifth amendment does not prohibit “volunteered statements of any kind” from being used as evidence against a defendant accused of a crime. Miranda v. Arizona, supra at 478, 86 S.Ct. 1602; State v. Stevens, supra at 467 S.W.2d 20 [8]; Gregg v. State, 446 S.W.2d 630, 632 [1] (Mo.1969). The admission of defendant’s incriminating statements made to Sgt. Antoon in the presence of Officers Meddlin and Waggoner at the hospital did not constitute plain error as the record supports the trial court’s finding that defendant had voluntarily waived his Miranda rights. Contrary to defendant’s claim, the fact that he was in the hospital awaiting treatment when he made the incriminating statements does not preclude the finding that his waiver was voluntary where there is no evidence that his physical condition in any way inhibited his understanding of the Miranda rights. See McDuffie v. State, 12 Md.App. 264, 278 A.2d 307, 310 [3] (1971). Nor is this the kind of case where the record is barren of testimony relating to the waiver issue as was the situation in State v. McGee, 447 S.W.2d 270 (Mo. banc 1969) on which the defendant relies. Defendant was given the required Miranda warnings twice before the incriminating statements were made. Once these rights were stated to defendant for a second time, the record shows not only that defendant understood these rights, but that he also wanted to waive them and make a statement concerning the robbery. The trial court properly overruled defendant’s motion to suppress. State v. Hamilton, 490 S.W.2d 96, 98 [2] (Mo.1973); Burnside v. State, 473 S.W.2d 697, 700 [4] (Mo.1971). Defendant’s final contention challenges the sufficiency of the evidence. He argues that since the circumstantial evidence was insufficient to prove that either he or Brown took any money from Car Parts, Inc., his conviction for robbery must fail because “taking” is an essential element of the crime. While there was no direct testimony that either defendant or Brown took money from Car Parts, Inc., there was testimony that the cash drawer contained money before the incident and that it was found empty about a half hour after the incident. The treasurer of the company testified it contained between three hundred and four hundred dollars. Moreover, there was direct testimony that defendant and Brown entered Car Parts, Inc. with the intent to take money. Brown was seen standing behind the counter near the cash drawer. Both defendant and Brown were armed with weapons they used to threaten and subdue the employees and occupants of the store. Thus, the jury had before it substantial evidence from which to infer that defendant took money from Car Parts, Inc. State v. Elam, 485 S.W.2d 100, 102 [1] (Mo.1972). Judgment is affirmed. DOWD, C. J., and SIMEONE, J., concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE of Missouri, Respondent, v. John CROMWELL, Appellant. No. 35153. Missouri Court of Appeals, St. Louis District, Division One. April 23, 1974. Frank R. Fabbri, III, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant. John C. Danforth, Atty. Gen., Ellen S. Roper, Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, St. Louis, for respondent. KELLY, Judge. This appeal from a conviction of robbery in the first degree by means of a dangerous and deadly weapon presents three allegations of error by the trial court: 1) the overruling of appellant’s motion to suppress certain evidence seized from his person and the use of said evidence in the course of the trial; 2) the overruling of appellant’s motion to suppress certain evidence seized from the interior of an automobile subsequent to appellant’s arrest and the use of said evidence in the course of the trial; 3) the overruling of a certain objection to comments made by the assistant circuit attorney during argument. We find no error in these rulings of the trial court and therefore affirm. The amended information charged the appellant with robbery in the first degree by means of a dangerous and deadly weapon, to-wit, a pistol, and also contained allegations that appellant had been previously convicted of three felonies. Prior to trial appellant filed a motion to suppress evidence seized from his person and from the automobile he was driving at the time he was arrested. An evidentiary hearing was had and his motion to suppress overruled. During the course of the trial an eviden-tiary hearing on the prior convictions was conducted out of the presence of the jury, by the trial court and a finding was made that the appellant had been previously convicted of felonies on three occasions as alleged in the amended information. The sufficiency of the evidence to sustain the conviction is not challenged. From the evidence the jury could have found that on April 25, 1972, at approxi-mazely 2:45 p, m. appellant by means of a revolver robbed Sam Briggs, a licensed security guard, at a public housing project at 1240-1250 Chouteau Avenue in the City of St. Louis, Missouri, and took from him a wallet containing three dollars and a .38 caliber Colt revolver and holster. At the time the robbery occurred another security guard, a Mr. Henderson, and an employee of an elevator company, Mr. Smith, were with Mr. Briggs. The robber ran from the scene and made good his escape. On April 28, 1972, at approximately 3:50 a. m. two police officers of the City of St. Louis were cruising in the vicinity of 11th and Chouteau Avenues when one of them, Officer George Anderson, observed through the rear view mirror an automobile proceeding eastwardly along Chouteau Avenue violate the traffic signal at Twelfth and Chouteau Avenues. Officer Anderson, who was driving the police vehicle, slowed and permitted the automobile he had observed violate the electric signal pass him and then activated the red lights on the police cruiser and fell in behind the automobile which was brought to a stop in front of 810 Chouteau Avenue. As the police officer was proceeding behind the automobile he observed the appellant, who was driving, remove something from his clothing and place it under the front seat of the car he was driving. There were two passengers in the motor vehicle, both seated in the front seat with the driver. After bringing the automobile to a stop, the appellant alighted from the driver’s side of the car and walked to the rear of the auto he had been driving; the two passengers remained seated in the car. Officer Anderson got out,of the police car, approached the appellant and advised him that he was being stopped for a traffic violation. The police officer then asked to see appellant’s driver’s license and appellant produced a driver’s license stub bearing the name “Leon Strauss,” but when questioned further about the license stub it was determined that appellant could not spell the name “Strauss” and he admitted to Officer Anderson that it was not his license stub but that he had found it. The officer placed appellant under arrest for operating a motor vehicle without a driver’s license and then proceeded to search his person. This search produced two .38 caliber special cartridges from appellant’s right pants pocket and ten .38 caliber special cartridges and one .38 caliber automatic cartridge from his right rear pants pocket. Officer Anderson thereupon ordered the two passengers out of the automobile appellant had been operating and upon searching the car found a .38 caliber revolver and brown leather holster concealed under the front seat of the auto where appellant sat while he was operating the motor vehicle. At the trial Mr. Briggs identified the revolver and holster recovered from under the seat of the automobile as the revolver and leather holster taken from him in the robbery of April 25, 1972. Both Mr. Briggs and Mr. Henderson identified the appellant as the man who perpetrated the robbery on Chouteau Avenue in the public housing project on that date. The jury found the appellant guilty of robbery in the first degree by means of a dangerous weapon. A motion for new trial was filed and overruled and the trial court granted the appellant allocution and sentenced him to twenty years in the custody of the Missouri Department of Corrections. This appeal followed. Appellant’s first point is directed to the search of his person and his contention that the incriminating items seized as a result of this search were the fruit of an illegal search and seizure and therefore should have been suppressed. We do not agree. It is permissible for an arresting officer to conduct a full search of the person as an incident to an arrest for a traffic violation, Gustafson v. Florida, 414 U. S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) ; United States v. Robinson, 414 U. S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), unless the arrest was merely a pretext for conducting a search. State v. Moody, 443 S.W.2d 802, 804 [2] (Mo.1969). The record in this case does not support appellant’s contention that his arrest was merely pretextual. He was stopped for running a red traffic light and when required to produce a driver’s license, he produced a driver’s license stub which admittedly was not his own and he so stated to the police officer. It was only then that he was placed under arrest and his person searched by the arresting officer. This was then a lawful arrest and a lawful search incident thereto. Gustafson v. Florida, supra; United States v. Robinson, supra. We rule this point against appellant. Appellant’s second point is that the search of the automobile was illegal and therefore the evidence seized from the car should have been suppressed. He relies on State v. Meeks, 467 S.W.2d 65 (Mo.banc, 1971). Here again we do not agree with appellant’s contention. While an arrest for a traffic offense may not, in and of itself, authorize a search of the motor vehicle, the right to search the vehicle following a valid arrest of the driver thereof depends upon reasonable cause, if any, the arresting officer has to believe that the contents of the vehicle may “offend against the law.” State v. Whitnah, 493 S.W.2d 32, 34 [1, 2] (Mo.App.1973). Because of their mobility, automobiles are subject to search without a search warrant upon facts which would not justify the search of a residence or office. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Edmonds, 462 S.W.2d 782, 784 [2, 3] (Mo.1971); State v. Smith, 462 S.W.2d 425, 426 (Mo.1970). Probable cause for the search of an automobile exists where the facts and the circumstances in the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant one of reasonable caution to form the belief that an offense has been or is being committed or that the contents of the automobile “offend against the law.” Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); State v. Hornbeck, 492 S.W.2d 802, 805 [1] (Mo.1973). On the basis of the record before us this appellant was lawfully arrested for running a red traffic light and for operating a motor vehicle without a valid operator’s license. As an incident to the arrest the police officer searched the appellant’s person and discovered a number of .38 caliber cartridges in appellant’s pants pockets. The uncovering of these cartridges when viewed in the light of appellant’s suspicious movements observed by the arresting officer as he proceeded behind the automobile being operated by the appellant indicating an effort to conceal something under the front seat of the car was, in our opinion, sufficient to afford the arresting officer probable cause to believe that the weapon for which the appellant possessed the cartridges found on his person might be cached under the front seat of the automobile. United States v. Jones, 452 F.2d 884, 888 [6] (8th Cir.1971); United States v. Pointer, 384 F.Supp. 600, 605 [8] (W.D. Mo.1972). The facts of this case which support probable cause for the search of the car were missing in Meeks, supra. There Meeks was stopped for operating a motor vehicle with an expired license plate; the driver remained erect behind the steering wheel, in clear view, and made no motion toward the center of the car. Meeks, the driver, produced his driver’s license and said the car was his; he was then ordered out of the car, was told he was under arrest for “expired state license plate” and when the officer searched his person nothing of any incriminating nature was found. It was after a fruitless search of defendant’s person that the search of Meeks’ auto was conducted and the marijuana was found in the closed console of the car, and a yellow paper containing a white powder (whose composition could not be determined after laboratory testing) was found in a closed glove compartment. As the court, 467 S.W.2d, 1. c. 66, said, . • . it is significant there was not a single . . . circumstance in evidence . to raise any suspicion that appellant had done, was doing, or was about to do any illegal act, other than driving his car with expired plates. There were no facts in evidence upon which anyone could believe the officer was in any danger from the contents of the car.” Having had probable cause to search the motor vehicle, the revolver and holster were lawfully seized and the trial court was correct in overruling appellant’s motion to suppress the evidence and admitting it into evidence. We rule this point against appellant. Appellant’s third and final point, is directed to the trial court’s overruling of his objection to argument by the assistant circuit attorney which, paraphrased, suggested to the jury that if, in their deliberations, they had any doubt about the identification testimony of Mr. Briggs and Mr. Henderson they should also consider the fact that the serial number of the revolver which had been taken in the robbery from Mr. Briggs had been filed off when the revolver was recovered by Officer Anderson from the car driven by the appellant. This fact, counsel argued, should be considered by the jury as some evidence that the appellant had good reason to file the serial number off the gun so that it could not be traced to the robbery and incriminate him. Appellant’s defense was alibi. The objection interposed by appellant’s counsel was that there was no evidence appellant had erased the serial number of the gun and therefore the assistant circuit attorney was inviting the jury to speculate. The trial court overruled this objection and said that the jury would have to weigh the argument. The assistant circuit attorney then continued his argument, pointing out that perhaps his opponent misunderstood him, and that the thrust of his argument was that if someone other than the appellant perpetrated the robbery and then gave possession of the revolver to the appellant there would be no reason for the appellant to erase the serial number of the weapon since the only person who would want to eradicate the gun’s serial number would be someone who knew that it was the fruit of a robbery. Appellant’s contention on appeal is that this line of argument was error because it (1) accused the appellant of a crime not in evidence, and (2) it invited the jury to speculate on matters not in evidence. Appellant’s first contention under this point cannot be considered in this court because it was raised for the first time in his brief filed here and was not asserted at the time his objection was interposed at trial nor was it raised in his motion for new trial. Rule 27.20, V.A.M.R. With respect to appellant’s second contention under this point, questions of the propriety of oral argument are normally addressed to the discretion of the trial court, State v. Whitnah, supra, 493 S.W.2d 1. c. 35 [3], and an appellate court will not interfere unless the record demonstrates that the trial court abused its discretion and the appellant was thereby prejudiced. State v. Jewell, 473 S.W.2d 734, 741 [8] (Mo.1971). Counsel, in argument, may properly comment on matters in evidence and on any legitimate inferences to be drawn therefrom. State v. Baldwin, 358 S.W.2d 18, 27 [13] (Mo.1962). The record in this case contains evidence that Mr. Briggs testified without objection that the .38 caliber revolver was his gun and that the serial number had been filed off; a firearms identification expert, Detective Joseph Brasser, of the St. Louis Police Department Laboratory, testified that the serial number on the revolver identified by Mr. Briggs as the one taken from him in the hold-up had been obliterated and that he had restored it by a process known as the “acid etching process,” and that the serial number of the revolver was “D366021.” Mr. Briggs further testified that a “Federal Firearms Transaction Record” bearing his signature was filled out by him when he purchased the revolver, and this record showed the serial number of the gun he had purchased to be “D366021.” Officer Anderson, without objection, also testified that the gun marked and identified as Exhibit No. 2 was the .38 caliber revolver he found under the front seat of the car appellant was driving at the time of his arrest. With the record in this state, and in the absence of any evidence that the gun once taken from Mr. Briggs had been in anyone else’s possession prior to the time it was obtained from the motor vehicle under the seat appellant had occupied while he was driving the car through the red traffic light immediately prior to Officer Anderson’s apprehending him, we conclude that the assistant circuit attorney’s argument with respect to the inference which the jury might draw from the filing of the serial number from the gun was proper and the trial court correctly overruled appellant’s objection. We also rule this point against appellant. We have considered those portions of the record required by Rule 28.02, V.A.M. R. and find them to be in proper form. The judgment of the trial court is affirmed. DOWD, C. J., and SIMEONE and WEIER, JJ., concur. . The crime referred to by appellant is possession of a gun without a serial number, Sec. 564.640, RSMo 1969, V.A.M.S.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Eddie L. IVY, Movant-Appellant, v. STATE of Missouri, Respondent. No. 9505. Missouri Court of Appeals, Springfield District. April 23, 1974. Edward F. O’Herin, Malden, for mov-ant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, for respondent. TITUS, Judge. Eddie L. Ivy pled guilty in the Circuit Court of Pemiscot County April 6, 1971, to forcible rape (§ 559.260 RSMo 1969 V.A. M.S.) and was sentenced to ten years with credit for jail time served. His third Rule 27.26 V.A.M.R. motion was overruled without evidentiary hearing upon a finding that it presented nothing that had not been previously raised and determined adversely to movant. Rule 27.26(d). This appeal ensued. The December 4, 1970, complaint averred the rape had occurred December 2, 1970. Movant was arrested December 4, 1970, under a warrant issued that date and on December 7, 1970, Raymond A. Klemp was appointed to represent him. The preliminary hearing first set for December 14, 1970, was continued to and conducted on December 17, 1970. Movant was bound over to the circuit court where an information was filed December 22, 1970. Following arraignment and a plea of not guilty on January 19, 1971, appointed counsel moved for a mental examination. The motion was sustained and movant was sent to State Hospital No. 1 where the examination disclosed that he had “no mental defect.” As already stated, movant, with counsel, appeared April 6, 1971, pled guilty, was afforded allocution and sentenced. The grounds stated in movant’s first Rule 27.26 motion filed July 6, 1971, were: “Denial of Sixth Amendment right to effective assistance of counsel. Involuntary plea of guilty was entered in violation of Fifth and Fourteenth Amendment’s [sic] to the United States Constitution.” These grounds were sandwiched between two dif-fusions that appointed counsel had not once consulted with movant between the date of appointment and the guilty plea, and that the attorney made no effort “whatsoever to investigate the charge.” The unconcentrated indictment culminated with the averment that movant “can see little if any practical difference between his induced plea for reasons of ineffective assistance of counsel and a guilty plea induced by promises and or threats.” In other words, movant’s despair over counsel’s efforts and„services is what he claims caused his plea of guilty. Byron D. Luber was appointed to represent movant on this first motion. In November 1971 John R. Fowlkes was substituted as appointed counsel and hearing on the first motion was set for December 1, 1971. On the latter date, however, movant expressed a desire to secure counsel of his own selection and the hearing was continued for that purpose. Movant’s second pro se Rule 27.26 motion was filed January 13, 1972, wherein he asserted that the first motion should be “throwed [sic] out and the one Here used in its place.” In the second motion where movant was directed to “State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence,” he wrote: “See: Supplementary Page.” This page consisted of the description of a county jail that “is filthy and dirty, unfit for a pig to sleep in [or] for human habitation,” a purported jail menu for a week calling for “seven days of starch, puntive [sic] damage to the body,” and a declaration that “All of this goes in involuntary plea. . . . My rights have been violated in containing a line-up and a phone call. I am entitled to a time cut.” When no employed counsel appeared for movant, Mr. Fowlkes was reappointed. The two motions were ordered consolidated for hearing although the order recited a finding that the second motion “does not allege grounds requiring an Evidentiary Hearing [and] Hearing is granted only on issues raised in the original motion.” Nevertheless, and contrary to this order, mov-ant was given full rein at the March 27, 1972, hearing to testify on all subjects of his choosing. At the evidentiary hearing, and contradictory of the allegations in the first motion anent the utter dearth of contact between client and counsel from the time of appointment to the guilty plea, movant recounted that he had discussions with Mr. Klemp, his appointed attorney, in conjunction with the preliminary hearing, arraignment, the motion for mental examination and the plea. Albeit movant insisted “we didn’t discuss it enough,” he acknowledged that counsel came to see him in jail “when I called him”, that his lawyer had advised him of his right to a jury trial and explained the range of punishment provided by statute. Movant understood what “rape” meant when he pled guilty and was under the impression that the sentence was to be fifteen years rather than the ten imposed. When asked “Did anyone coerce you or threaten you in any way . . . beat you up or anything of that nature [to get you .to] enter a plea of guilty? Did the Sheriff’s office mistreat you in any way?”, movant answered: “Well, in one way, yes, . . . the living conditions [in the county jail] is one thing that caused me to plead guilty, . . . because I wanted to get out from . over there. ... ... and another one, my lawyer kept telling me . if I go to a jury trial ... I would get life and that they had all the evidence they wanted or needed against me . . Q. . . . isn’t the main reason that you filed this Motion was to get your time cut down ? A. . that is the main reason. Q. It wasn’t that you didn’t know what you were doing when you pleaded guilty but it was that you thought you had gotten too much time for it, isn’t that correct? A. Well, for something I didn’t do, yes it was.” Movant agreed that “one of the main reasons” for his motion was to obtain a “Time cut or either a parole.” Omitting details, Mr. Klemp, movant’s counsel on the rape charge, testified he had discussed the matter with movant several times during the preliminary phase of the case and several times thereafter. In addition, he conferred with movant at the time of each court proceeding, talked with two others who were said to have participated in the rape, conferred by telephone with movant’s mother, inspected the scene of the crime, attempted to locate possible witnesses suggested by movant, and discussed the matter of sentence recommendations with the prosecuting attorney. The transcript of the proceeding at the time the plea of guilty was entered was offered as an exhibit and attests that counsel had urged a parole as movant said he represented he would do. In this regard, movant testified that the attorney had admonished that although he would seek parole, “he didn’t think it would work.” When the hearing was concluded the court dictated, inter alia, the following findings: “Let the record show that the Court finds from an examination of the transcript of the proceedings in this cause, which includes the proceedings [on the motion for mental examination and at the time the plea of guilty was entered and] the Court files, the Court finds that the motion and the evidence produced, that the movant has totally failed to carry the burden of proof and convince this Court that he did have incompetent counsel. And the Court does find that Mr. Klemp, who acted as his Court appointed Attorney represented him in the preliminary hearing and in all proceedings in Circuit Court ., and that there is a total lack of any proof showing that Mr. Klemp was incompetent or failed to do anything that should have been done or did anything incorrectly in his representation of this Mov-ant . . . . [Movant was] entitled to competent counsel and the Court has found that he was afforded and did have competent counsel at all proceedings held in the original criminal case.” The motion was denied and no appeal was taken from the judgment entered in accordance with the denial. The third Rule 27.26 motion with which we are directly concerned was filed January 3, 1973. Grounds enumerated “for vacating, setting aside or correcting your conviction and sentence” were: “(a) Involuntary Plea (b) The Warrant of arrest was void (c) The Information was void on its face for the Words of Violently and fe-loniously. (d) The Preliminary hearing was set for more than ten days, at a time, (e) Ineffective counsel.” The motion acknowledged that “Involuntary Plea [and] Ineffective Counsel” were grounds which had been previously adjudicated in a prior motion. In explaining why the additional grounds “were not raised in the earlier proceedings,” the motion stated: “ (a) Warrant of Arrest, because the attorney would not amend the 27.26 motion and flat refused to help, (b) Preliminary Hearing —Same as above.” James A. Vickrey was appointed to represent movant on this motion. •» On February 6, 1973, the following entry was made: “Movant appears by . . ., his Court appointed attorney and State appears by . . . , Prosecuting Attorney and court takes up this third 27.26 Motion for Consideration and after careful consideration of the entire file in said cause and also study of previous 27.26 motions ., the Court finds no new matters in the instant motion not heretofore ruled on or now requiring an evidentiary hearing, and the Court does overrule the instant motion.” Edward F. O’Herin was appointed to represent movant on this appeal, which he has been permitted to pursue in forma pauperis. We are of the opinion that the court nisi correctly overruled movant’s third Rule 27.26 motion for the reasons that: 1. The third motion expressly states that two of the grounds alleged therein, i. e., involuntary plea and ineffective counsel, had been raised in a previous motion which was denied. Rule 27.26(d) prohibits the entertainment of successive motions “where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application.” In addition, and another reason why movant had no standing with respect to these two grounds in the instant motion, is that he exhausted his remedy thereto when his prior motion, based upon the same grounds, was overruled and he did not appeal. An order overruling a Rule 27.26 motion is a final judgment within the meaning of the rules relating to appeals. State v. Campbell, 307 S.W.2d 486, 490[7] (Mo.1957), cert. den., 356 U.S. 922, 78 S.Ct. 708, 2 L.Ed.2d 718. 2. Rule 27.26(e) does not require an evidentiary hearing on a motion where it “and the files and records of the case conclusively show that the prisoner is entitled to no relief.” The trial court may rule this point on the pleadings and the records of the court. Donaldson v. State, 493 S.W.2d 677, 679 (Mo.App.1973). Ground (b) in the third motion that the warrant of arrest was void, is supplemented with the averment that it “was void for not having the seal of the court on it as stated in Rule 21.08 ‘If such warrant is issued under the hand of the judge or magistrate, it need not be sealed but if it is issued under the hand of the clerk of the court, the seal of the court shall be attached thereto.’ ” The circuit court had access to and specifically declared that it had carefully considered “the entire file.” The file (which we have inspected) contains the warrant for arrest that was issued under the hand of the clerk and which,, contrary to movant’s suggestion, was issued under and bears the seal of the court. In such circumstances mov-ant was entitled to no relief on ground (b). As to ground (c) that “the information was void on its face for the [inclusion of the] words of violently and feloniously,” we need merely observe that the trial court had the information, as do we, and could determine without an evidentiary hearing that it was sufficient. An information charging that defendant “unlawfully, violently, and feloniously did make an assault in and upon one . . . , and her, the said . , then and there unlawfully, forcibly, and against her will feloniously did ravish and carnally know,” was held sufficient in State v. Goodale, 210 Mo. 275, 282 [1], 109 S.W. 9, 11[1] (1908). The information charging movant with rape, is in the exact same language. The facts set forth in the second paragraph of this opinion disprove ground (d) of the third motion upon the claim that “the preliminary hearing was set for more than ten days, at a time.” It is assumed this refers to Rule 23.06 which provides that the preliminary examination “may be adjourned from time to time as the occasion requires, not to exceed ten days at one time.” The record, available to and conned by the trial court, shows but a single adjournment for seven days. Also, and in addition to the foregoing, coupled with all that was available to the trial court from the transcript of the proceedings conducted when the guilty plea was entered and the transcript of the evidentiary hearing held on the prior Rule 27.26 motions, it could have reasonably found and concluded, without a further evidentiary hearing on the third motion that movant’s dissatisfaction with the conditions of the jail in which he was kept while awaiting trial is no ground for vacating a sentence following a guilty plea [Beach v. State, 488 S.W.2d 652, 655[6] (Mo.1972)], and that movant’s plea was made voluntarily with understanding of the charge. Pauley v. State, 487 S.W.2d 565, 566[3] (Mo.1972); Colbert v. State, 486 S.W.2d 219, 221 [2] (Mo.1972). Our consideration of this appeal is completed with two exceptions. In his appeal brief movant avers the third motion raised a factual issue on ineffective assistance of counsel because his court appointed attorney failed to appeal the adverse rulings on the prior Rule 27.26 motions. He also says the trial court failed to make findings of fact and conclusions of law as required by Rule 27.26(i). To the first contention we note the third motion did not set forth the ground that no appeal was taken from the rulings on the prior motions. Ergo, this point is not properly here on appeal. Moreover, such a claim is not pertinent to a Rule 27.26 motion which is limited to testing the validity of a sentence and not designed for exploring alleged errors of counsel in previous motions. Movant’s remedy in this regard was via appeal. Crosswhite v. State, 438 S.W.2d 11, 12[3] (Mo.1969). As to the second contention, and since, as we have held, no issues were presented to the trial court requiring an evidentiary hearing, there was no need for any findings of fact or conclusions of law other than those stated in the order overruling the motion. Huffman v. State, 487 S.W.2d 549, 554[6] (Mo.1972). The judgment is affirmed. HOGAN, C. J., STONE and BILLINGS, JJ., and DOUGLAS W. GREENE, Special Judge, concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Ex parte Gary Wayne BRIGGS, Petitioner, v. STATE of Missouri, Respondent. No. KCD 26985. Missouri Court of Appeals, Kansas City District. April 1, 1974. Motion for Rehearing and/or Transfer Denied May 6, 1974. William G. Mays, II, Acting Public Defender, 13th Judicial Circuit, Columbia, for appellant. John C. Danforth, Atty. Gen., David Ro-bards, Asst. Atty. Gen., Jefferson City, for respondent. Before DIXON, C. J., and SHAN-GLER, PRITCHARD, SWOFFORD, WASSERSTROM and SOMERVILLE, JJ. SOMERVILLE, Judge. ■ The crucial question in this habeas corpus action is whether petitioner is being unlawfully restrained of his liberty by the Director of the Division of Mental Diseases, State of Missouri, by incarceration in the Fulton State Hospital, Calloway County, Missouri, under an order of commitment issued by the Circuit Court of Clay County, Missouri, on April 14, 1972. The record in the Circuit Court of Clay County prefacing the order committing petitioner for care and treatment in a state mental hospital until discharged according to law is anemic at best. However, this much is known. On September 14, 1971, petitioner was charged in the Circuit Court of Clay County, with burglary and stealing. On October 8, 1971, after having been appointed counsel, petitioner was arraigned and entered a plea of not guilty to the charged offense. On the same date, appointed counsel orally moved the court to have petitioner examined to determine (1) “if he was competent to stand trial” and (2) “if he had been suffering from a mental disease or defect at the time the offense occurred.” The oral motion was sustained and the trial court ordered petitioner committed to the “Director of Division of Mental Diseases for evaluation and treatment by a physician or physicians on the staff of the Division of Mental Diseases” and the Sheriff of Clay County was ordered to transmit petitioner “to the State Hospital at Fulton, Missouri”, all obviously done pursuant to subsection 2 of Section 552.020, RSMo 1969, V.A.M.S., as amended Laws 1971. On or about December 7, 1971, a certified report of a psychiatric examination of petitioner pursuant to Section 552.020, supra, was filed with the Clerk of the Circuit Court of Clay County, Missouri, by C. E. Merrifield, D.O., Assistant Director, Maximum Security Unit, State Hospital, Fulton, Missouri. Under the caption “FINDINGS” therein, the following appears: “1] That the accused has a mental disease or defect within the meaning of Section 552.010, which existed at the time of the alleged offense. 2] That the accused has the capacity to understand the proceedings against him and can assist in his own defense. 3] That the accused, as a result of mental disease or defect, did not know or appreciate the nature, quality or wrongfulness of his alleged conduct and was incapable of conforming his conduct to the requirements of the law. 4]That the accused requires psychiatric hospitalization pending further proceedings.” Following filing of the above certified report of the psychiatric examination of petitioner, the next record entry in the Circuit Court of Clay County appears under date of March 13, 1972, and reads as follows: “Def. still in Fulton. State answers ready. Def appears by Atty. Cause set for trial on June 5, 1972 at 9 A.M.” On April 7, 1972, petitioner’s court appointed counsel, absent petitioner’s presence, knowledge or consent, obtained permission and filed of record in the Circuit Court of Clay County, Missouri a written “Notice of Intention to Plead Not Guilty By Reason of Insanity.” On April 14, 1972, again absent petitioner’s presence, knowledge or consent, the prosecuting attorney of Clay County “accepted” the “Notice of Intention to Plead Not Guilty By Reason of Insanity” without, as required by subsection 2 of Section 552.030, RSMo 1969, any written notice ever having been filed by petitioner or anyone on his behalf that he had no other defenses to the charged offense. The Circuit Court of Clay County, on the same date, without ever having made a de termination and finding of record that petitioner was mentally fit to proceed, entered of record an Order of Commitment reciting that the petitioner appeared by appointed counsel, the state appeared by the Prosecuting Attorney of Clay County, that the Prosecuting Attorney of Clay County had accepted said plea of innocent by reason of mental disease or defect excluding responsibility, and ordering, adjudging and decreeing that petitioner be acquitted of the pending charge of burglary and stealing by reason of mental disease or defect excluding responsibility and further ordering, adjudging and decreeing that petitioner be committed “to the custody of the Director of the Division of Mental Diseases for custody, care and treatment in a state mental hospital and to be held and treated therein until discharged according to law.” On September 26, 1973, Mr. F. Cullen Cline, Public Defender of Calloway County, Missouri, acting as counsel for petitioner, filed a petition for writ of habeas corpus in this court. The requested writ was issued by this court on October 9, 1973, and respondent filed its return thereto on November 13, 1973. On November 23, 1973, this court entered an order remanding custody of petitioner to the Director of the Division of Mental Diseases of the State of Missouri pending final adjudication of this case. Petitioner imputes broad, sweeping infringements of certain basic constitutional rights clothing him, thereby rendering the Order of Commitment issued out of the Circuit Court of Clay County, Missouri, on April 14, 1972, invalid and his present restraint unlawful. The constitutional infringements imputed by petitioner are characterized by him as denial of equal protection and due process (14th Amendment, Constitution of the United States and Article I, Section 10, Constitution of Missouri) and denial of the right to appear and defend in person, confront his accuser and consult with counsel (6th Amendment, Constitution of the United States and Article I, Section 18(a), Constitution of Missouri). It is unnecessary to reach these constitutional issues in order to properly dispose of this case. Disposition favorable to petitioner is susceptible on more narrow statutory grounds urged by him as hereinafter demonstrated. When the state initiates criminal charges against an accused, the accused and the state are immediately pitted against each other in the most grave adversary proceeding existent in our system of justice. Problems necessarily inherent in this most grave of adversary proceedings are legion. Nowhere, perhaps, is there encountered an area so fraught with basic procedural problems as those arising where an accused lacks the requisite mental capacity to knowingly and meaningfully understand' the import of the charges leveled against him and to viably consult with counsel and assist in his own defense. By dictate of the American conscience, long steeped in hallowed traditions of basic fair play and justice, judicial and statutory safeguards have been created to balance the adversary proceeding where it appears that an ac-. cused is suffering from a mental disease or defect. Chapter 552 RSMo 1969, V.A.M.S. represents Missouri’s statutory response to this dictate of conscience. Subsection 1 of Section 552.020, RSMo 1969, V.A.M.S., as amended Laws 1971, prescribes that “[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures”. Subsection 7 of Section 552.020, supra, commands that all proceedings against an accused “shall be suspended” if the court “determines that the accused lacks mental fitness to proceed.” Subsection 2 of Section 552.020, supra, requires the court, if “reasonable cause” exists to believe that the accused lacks mental fitness to proceed, either on its own motion, or that of the state, or that of or on behalf of the accused, to order a psychiatric examination of the accused. Subsection 6 of Section 552.020, supra, in plain and simple terms, requires the court to hold a hearing and determine accused’s mental fitness to proceed if the certified report of the psychiatric examination is contested, but provides that the court may hold a hearing and determine an accused’s mental fitness to proceed if the certified report of the psychiatrix examination is not contested by either the state or the accused. This statutory discretion possessed by the trial court of whether to hold a hearing and determine the accused’s mental fitness to proceed, when the certified report of the psychiatric examination has not been contested, is impressed with a basic constitutional dimension for determining whether the granted statutory discretion has been abused. In Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court of the United States held that a fair trial as envisioned by due process of law requires a trial court sua sponte to conduct a hearing and adjudicate the question of whether an accused is mentally fit to proceed, if the existing facts raise a “bona fide doubt” as to an accused’s “competence to stand trial.” The following expressed findings set forth in the certified report of the psychiatric examination of petitioner, that he “has a mental disease and defect within the meaning of Section 552.010, .which existed at the time of the alleged offense”, that he “requires psychiatric hospitalisation pending further proceedings”, and that “he has the capacity to understand the proceedings against him and assist in his own defense”, are irreconcilable and at war with each other and, standing alone, raised a “bona fide doubt” and cast substantial suspicion upon petitioner’s mental fitness to proceed. The trial court’s failure to conduct a hearing and determine petitioner’s mental fitness to proceed constituted an abuse of the discretion invested by subsection 6 of Section 552.020, supra, thereby so tainting all subsequent proceedings that the Order of Commitment issued out of the Circuit Court of Clay County, Missouri, under date of April 14, 1971, must be declared invalid. Compare McCormick v. State, 463 S.W.2d 789 (Mo.1971), Miller v. State, 498 S.W.2d 79 (Mo.App.1973) and State v. Stein, 504 S.W.2d 1 (Mo.1974), which, although recognizing the controlability of Pate v. Robinson, supra, held that the facts involved failed to raise a “bona fide doubt” regarding the mental fitness of the respective accuseds to understand the criminal proceeding against them and to assist in their own defense. Miller v. State, supra, and Jones v. State, 471 S.W.2d 223 (Mo.1971) do not constitute authority to resurrect the Order of Commitment dated April 14, 1972, from invalidity to validity simply because the trial court ordered the criminal charge pending against petitioner set for trial after receipt of the certified copy of the report of the psychiatric examination of petitioner. In both Miller and Jones, the certified copies of the respective examinations specifically set forth findings that neither accused was suffering from a mental disease or defect within the meaning of Section 552.010, RSMo 1969, V.A.M.S., and that each was mentally fit to proceed and knew and appreciated at the time of the alleged offenses the nature, quality and wrongfulness of their acts and each was capable of conforming his conduct to 'the requirements of the law. The April 14, 1972, Order of Commitment is invalid for the further reason that subsection 2 of Section 552.030, RSMo 1969, V.A.M.S., as amended Laws 1971, proscribes a prosecuting attorney from accepting a plea of not guilty by reason of mental disease or defect excluding responsibility, or a notice of intent to rely upon such defense, unless the accused “has no other defense and files a written notice to that effect.” A trial court’s power under subsection 2 of Section 552.030, supra, to order commitment of an accused “as provided in Section 552.040 in cases of persons acquitted on the ground of mental disease or defect excluding responsibility”, predicated upon such a plea or notice of intent to so plead, is dependent upon an acceptance thereof by the prosecuting attorney that is statutorily valid. The acceptance of the notice of intent, to plead not guilty by reason of mental disease or defect excluding responsibility filed by petitioner’s court appointed counsel in this case was not statutorily valid, since no written notice was ever filed by petitioner that he had no other defense to the charged offense. Noncompliance with the clear and explicit provisions of subsection 2 of Section 552.030, supra, is compounded by the fact that petitioner has contended that he has affirmative defenses, including that of alibi, to the charged offense. The Order of Commitment dated April 14, 1972, is therefore invalid for the further reason that the prosecuting attorney’s acceptance of the notice of intent to plead not guilty by reason of mental disease or defect excluding responsibility, filed by petitioner’s court appointed counsel, was statutorily invalid, although a statutorily valid acceptance was a prerequisite for the entry of a valid order of commitment by the trial court under subsection 2 of Section 552.-030, supra. See Ex parte Kent, 490 S.W. 2d 649 (Mo. banc 1973). For reasons heretofore assigned, petitioner is being unlawfully restrained by the Director of the Division of Mental Diseases at the Fulton State Hospital, Fulton, Missouri, and he must be remanded to the custody of the Sheriff of Clay County, Missouri. Subsequent proceedings in the trial court must comply with those spelled out in Ex parte Kent, supra, 1. c. 651, 652 (those deemed applicable are hereinafter fully set forth), wherein the Supreme Court of Missouri laid down procedural guidelines to conform to the following mandate laid down by the Supreme Court of the United States in Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972): “ . . . [A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. (Emphasis added.) Those guidelines laid down in Ex parte Kent, supra, 490 S.W.2d 1. c. 651, deemed applicable to further proceedings in the trial court on remand of petitioner, are as follows: “The trial court, upon its own motion, should order a psychiatric examination and should proceed so as to comply with V.A.M.S. § 552.020, and so as to comply with Jackson v. Indiana, supra, to ascertain whether there is a substantial probability that petitioner will attain the capacity to proceed to trial in the foreseeable future. (2) If it is determined that petitioner is mentally fit to proceed, the criminal proceedings may be resumed. (3) If petitioner is not mentally fit to proceed, and there is not a substantial probability that petitioner will attain such capacity in the foreseeable future, the charges against petitioner should be dismissed ‘and if he is then in custody of the director of the division of mental diseases, he shall not be retained in such custody or in any hospital unless proper proceedings have been instituted and held as provided in sections 202.783 to 202.875 RSMo, in which case these sections and no others shall be applicable to his continued retention, hospitalization and discharge’ (V.A.M.S. § 552.020, Subsec. 8). (4) If petitioner is not mentally fit to proceed but there is a substantial probability that petitioner will be able to stand trial in the foreseeable future, the trial court should enter the necessary order to assure that petitioner’s ‘continued commitment * * * [is] justified by progress toward that goal.’ (Jackson v. Indiana, supra, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858.)” This court suggests that the procedures outlined in Ex parte Kent, supra, be supplemented in this case as follows: (1) Upon receipt of a certified report of a current psychiatric examination of petitioner, the trial court, regardless of whether the state, petitioner or counsel for petitioner contest the report, in view of presently known existing facts (See Pate v. Robinson, supra), should hold a hearing at which petitioner should be permitted to attend in person, and make a determination and finding of record as to (a) whether petitioner, as a result of mental disease or defect, lacks the capacity to understand the criminal proceeding against him and to assist in his own defense and (b), if (a) is determined in the affirmative, whether there is a “substantial probability” that petitioner will attain the capacity to understand the criminal proceeding against him and to assist in his own defense “in the foreseeable future” (See Jackson v. Indiana, supra); (2) If upon such hearing the trial court determines that petitioner has the capacity to understand the criminal proceedings against him and to assist in his own defense, petitioner should appear in person and be allowed to withdraw all previous pleas to the criminal charge pending against him and plead anew thereto, and the criminal proceeding should thereupon continue as provided by law. Petitioner’s writ of habeas corpus is sustained and petitioner is remanded to the custody of the Sheriff of Clay County, Missouri, for further proceedings in that certain criminal cause pending in the Circuit Court of Clay County, Missouri, captioned “State of Missouri v. Gary Wayne Briggs”, same bearing case number CR 2611, and such proceedings therein should proceed in a manner not inconsistent with this opinion. All concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Regina HELMING, Respondent, v. John ADAMS, Appellant. No. KCD 26335. Missouri Court of Appeals, Kansas City District. April 1, 1974. Motion for Rehearing and/or Transfer Denied May 6, 1974. Woolsey & Yarger, Versaille, for appellant. Carson, Inglish, Monaco & Coil, Michael P. Riley, Jefferson City, for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. PER CURIAM: This is an appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff-respondent awarding her actual damages of $213.00 and punitive damages of $2,500.00, in an action for false imprisonment against defendant-appellant. The parties will hereinafter be designated, respectively, plaintiff and defendant. Defendant vies on appeal that the judgment should be reversed and the case remanded for a new trial for five reasons: I. The trial court erred in refusing to give either Instruction D-2 or D-3, requested by defendant, thus depriving defendant of the “defense of probable cause although evidence of probable cause and justification had been pleaded and proven.” II. The trial court erred in giving Instruction No. 5, a punitive damage instruction, absent evidence to support it, and absent the incorporation of or an accompanying definition of malice. III. The trial court erred in refusing to admit defendant’s Exhibits 1, 2, 3 and 4, photographs of the scene of an alleged assault pertinent to the issues drawn in the case. IV. The trial court erred in refusing to give Instruction D-l, a withdrawal instruction requested by defendant regarding damage to plaintiff’s nervous system, since all the evidence disclosed that any such damage resulted from causes other than acts of defendant. V. The verdict was excessive and resulted from passion, prejudice or bias on the part of the jury. The following facts are set forth, since they are indispensable to the proper resolve of defendant’s assignments of error. On June 27, 1971, between 8:00 and 8:30 P.M., defendant, a district supervisor, and Richard Schroeder, an agent, for the Missouri Conservation Commission, were seated in Schroeder’s state owned automobile, which was parked on a dirt side road in Cole County. More particularly, the automobile was parked in a general area described as “down in the Claysville Road area, down the upper Cole Junction bottoms”. This area was in the near vicinity of the Church Prison Farm, a unit of the Missouri Department of Corrections. At that time defendant and Schroeder observed an automobile containing three people drive past them, headed north, on the Claysville Road, which ran perpendicular to the dirt side road they were parked on. This automobile stopped and parked some forty to sixty feet from the dirt side road. Two males emerged from the automobile after it stopped, Calvin Huckabee, the driver, and Stanley Helming, one of the two passengers. Plaintiff, the other passenger, remained inside the automobile at all times. Defendant and Schroeder were on “routine patrol” at the time in question. When Huckabee got out of the car he was carrying a .22 caliber rifle. He walked over to a nearby mulberry tree in hopes of finding some squirrels to shoot. No squirrels appeared and no shots were ever fired by Huckabee. When Stanley Helming got out of the car, he proceeded down the road on foot, around a bend, for the purpose of viewing the scene of a recent fatal train accident. During the interim, defendant and Schroeder got out of their automobile, and defendant quietly followed and observed Stanley Helming from the wooded area that paralleled the Claysville Road, while Schroeder remained at the car and kept Huckabee under surveillance. After some ten or fifteen minutes, Stanley Helming and Huckabee returned to and re-entered their parked car, which plaintiff was still sitting in. Huckabee, as driver, with plaintiff sitting in the front seat, right hand side, and Stanley Helming seated in the rear, started the car up and drove forward a short distance down the road and then proceeded to turn the car around to proceed home. According to the plaintiff’s evidence it was “haze dark” at the time. On the other hand, according to defendant’s evidence, it was still light out. As the car driven by Huckabee started up the road, after turning around, the occupants of the car “heard a noise in the wooded area like somebody was walking.” Huckebee asked plaintiff if she heard the noise and she answered, “We are awfully close to the prison farm, it could be an inmate.” Plaintiff also said, “We better leave.” As the car proceeded on up the road, plaintiff for the first time observed agent Schroeder. She did not know who he was. According to plaintiff’s evidence neither she, nor any of the other occupants of the car, observed any badge or name tag on Schroeder indicating that he was an agent of the Missouri Conservation Commission. When plaintiff saw Schroeder she said, “There is one now, looks like á convict all right” and she thought he was a convict. Schroeder was walking toward the oncoming car on the shoulder (on the car’s left hand side of the road) at the time. Before the oncoming car driven by Huckabee reached Schroeder, Schroeder verbally and manually ordered the car to stop for the purpose of checking whether or not Huckabee had a “hunting permit”. Huckabee accelerated the car and speeded on past Schroeder. Defendant’s evidence was that in doing so the car swerved toward and struck Schroeder. Defendant’s evidence further disclosed that thereafter the car “continued to come back and forth across the road at a high rate of speed.” Plaintiff’s evidence was that the car merely fishtailed a bit when it was accelerated and at no time ever struck Schroeder. In any event, Schroeder was not hurt or injured. Immediately after the car passed Schroeder, he drew a Model 19, .357 Magnum, Smith and Wesson revolver issued to him by the Missouri Conservation Commission, and fired four shots into the rear of the departing car. One of the shots hit the gas tank of the departing car and another shot hit the back window and emerged through the windshield near the steering wheel. Fortunately, none of the shots struck any of the occupants of the departing car although glass from the windshield flew all over them and Huckabee and Stanley Helming were cut by the flying glass. The departing car did not stop when the shots were fired. Whereupon, defendant and Schroeder got into their automobile, turned on a red light the car was equipped with, and pursued the departing car. According to plaintiff’s evidence, she looked around after the shot was fired and observed a car behind them with its red light flashing and said, “There is a red light. You had better stop.” Huckabee stopped the car. The car occupied by Schroeder and defendant pulled up behind Huckabee’s car and stopped. According to defendant’s evidence Schroeder drew his .357 Magnum revolver and with gun in hand approached the left hand dr driver’s side of the Hucka-bee car, while defendant, with his holster unfastened and his hand on the gun still in the holster, approached the right hand side of the car. At gun point, Schroeder ordered Huckabee out of the car and “spread eagled” him on the side of the car and searched to see if he was carrying a weapon. Defendant ordered plaintiff and Stanley Helming out of the right hand side of the car. Plaintiff’s evidence was that defendant, as well as Schroeder, had his .357 Magnum revolver drawn and in his hand, and as defendant approached the car and ordered plaintiff and Stanley Helming out, defendant had his .357 Magnum revolver in his hand and pointed toward them. According to agent Schroeder, who was called as a witness by defendant, Hucka-bee, the driver, when he was ordered out of the car, said to Schroeder, “I am sorry, I know I should not have done what I did, but I thought you were a convict.” Schroeder proceeded to check Huckabee’s identification. Contemporaneously, defendant ordered plaintiff and Stanley Helming out of the car and proceeded to check their identification at which time plaintiff, without protest of any kind, submitted her driver’s license and fishing license to defendant for inspection. Agent Schroeder, during the course of cross-examination, was asked the following questions and gave the following answers: “Q. At the time you were down there, sir, you had not seen Regina Helming commit any violation whatsoever, had you? A. No, I hadn’t seen her.” “Q. . . . Now, you were aware at the time that you fired at the automobile that this woman was there and she had done absolutely nothing. Isn’t that correct? A. As far as I can remember we didn’t see her do anything.” “Q. I asked you: did she violate the rules and regulations of the commission? A. No, sir.” “Q. That wasn’t Regina Helming’s automobile ? A. She was in it. Q. She was in it? A. Yes. Q. And she didn’t do any hunting: right ? A. Not that we saw. Q. And you saw her fishing license? A. Yes, sir. Q. What else did you have to investigate Regina Helming for ? A. She was in this area with a car that apparently committed the act against me and we wanted to know, she might have been there against her will with these two men. So we had to hold them until we run a check on them through the Highway Patrol and these other agencies. Q. Mr. Schroeder, you are trying to tell me you were protecting Regina Helming by taking her to jail because these people might have her out there against her will? “A. We had no idea at that time who they were, what they were doing or why they were out there, why they would act like that. Q. Is that why you put her under ar-> rest, you wanted to protect her against her will ? A. We wanted to find out who she was and find out what was going on.” “Q. —because you didn’t have anything to investigate her for? She hadn’t violated any game laws, had she ? A. Not that I knew at that time.” Defendant himself testified: “Q. Did they commit any offense, Regina Helming? A. No, sir.” “Q. And we can certainly agree that there was no charge brought against them in any way ? A. No, sir.” “Q. We can also agree, can’t we, that you . didn’t have any warrant for their arrest ? A. No, sir. Q. And nobody else did that you know of? A. No, sir.” The evidence of both plaintiff and defendant disclosed that plaintiff was arrested by defendant, along with Huckabee and Stanley Helming, and all three were taken to the Cole County jail by defendant and agent Schroeder, where plaintiff was physically confined from 9:17 P.M. until between 11:03 and 11:25 P.M. the evening of June 27, 1971. No criminal charges of any kind were ever filed against plaintiff. At the time in question plaintiff was employed by a dry cleaning establishment in Jefferson City, Missouri. She worked ten hours a day at the rate of $1.75 per hour. According to her testimony, she missed three or four days of work following June 27, 1971, and subsequently missed “a few days” additional work because her “nerves was shot”. She also suffered humiliation and embarrassment because of her arrest and confinement. When defendant first ordered plaintiff out of the car at the scene, she told him she would “get out as soon as my legs quit shaking”. On cross-examination plaintiff testified that prior to the incident in question she was “some nervous but this made me a lot nervouser.” Further, on cross-examination, plaintiff testified that she became nervous as°a result of being arrested by defendant. Plaintiff also admitted on cross-examination that as she grew older it seemed like she became more nervous and that her present nervous condition “might be. I don’t know” the result of getting a little older each year. Defendant, in his amended answer to plaintiff’s petition, among other things, pleaded “that any restraint of plaintiff by defendant, which defendant denies, was by reason of plaintiff having been a companion and accessory to one Calvin Huckabee who had, immediately prior to said restraint, in the view of defendant, committed an apparent felony, to-wit, an assault with intent to do great bodily harm.” (Emphasis added.) In his motion for new trial defendant alleged that his motion for a directed verdict should have been sustained because at all times he acted “upon probable cause and in a reasonable manner.” In his brief on appeal defendant alleged “after these observations he certainly had reasonable cause to believe that the occupants of the vehicle had committed a crime.” The aforementioned indicate that defendant’s theory of the case, both during trial and on appeal, was that he was fully justified in arresting and confining plaintiff without a warrant if he had (1) probable cause to believe that a felony had been committed, and (2) probable cause to believe that plaintiff aided or abetted in its perpetration. It is impossible to judicially resolve Point I until several ancillary determinations have been made. First, was defendant legally empowered under the prevailing law and applicable facts to effect a war-rantless arrest of plaintiff? Second, what is the import of refused Instructions D-2 and D-3? In the context of this latter consideration, defendant will be given the benefit of the most favorable interpretation possible. D-2 directed a verdict for defendant if he had reasonable grounds to believe that a felony was committed and reasonable grounds to believe that plaintiff committed it. When D-2 was refused by the trial court, defendant obviously fell back on D-3, which was also refused. D-3 directed a verdict for the defendant if a felony was committed and plaintiff committed it. Defendant, in his capacity as district supervisor for the Missouri Conservation Commission, was statutorily endowed with a limited right to arrest without a warrant. Section 252.080, RSMo 1969, V. A.M.S. provides, in part, “Any such agent may arrest, without warrant, any person caught by him or in his view violating or who he has good reason to believe is violating, or has violated this law or any such rules and regulations, and take such person forthwith before a magistrate or any court having jurisdiction, who shall proceed without delay to hear, try and determine the matter as in other criminal cases.” A companion statute, Section 252.060, RSMo 1969, V.A.M.S. provides that agents of the Missouri Conservation Commission have authority to request persons holding a license or permit issued by the Missouri Conservation Commission to submit same to the agent for inspection and failure of such person to do so, after being requested, is a misdemeanor. Suffice it to say, all of the evidence in this case, that of defendant, as well as that of plaintiff, conclusively discloses that neither Section 252.080, supra, nor Section 252.060, supra, constituted authority for defendant to arrest plaintiff without a warrant. In view of the above, defendant necessarily retreated to the status of a private citizen in order to attempt to justify his warrantless arrest and confinement of plaintiff. Missouri cases espousing the right of private citizens to arrest without warrant constitute a labyrinth in Missouri law. In Pandjiris v. Hartman, 196 Mo. 539, 546, 94 S.W. 270, 272 (1906), an action for false arrest and imprisonment against a private citizen, the court held: “In such case it is no answer to the plaintiff’s demand for damages for the defendant to say: ‘I had reasonable cause to believe the plaintiff was guilty. I acted without malice. I took the advice of counsel learned in the law.’ The only plea of justification or excuse is that plaintiff was guilty of the crime for which he was arrested.” (Emphasis added.) For many years Pandjiris was recognized as standing for the proposition that a private citizen was not permitted to effect a warrantless arrest until an offense, in fact, had been or was in the process of being committed, and the person arrested was, in fact, the perpetrator of the offense. Probable cause or reasonable grounds to believe that an offense had been or was being committed by the person arrested was not sufficient to justify or authorize a war-rantless arrest by a private citizen. See also Leve v. Putting, Mo.App., 196 S.W. 1060 (1917) and Titus v. Montgomery Ward and Co., 232 Mo.App. 987, 123 S.W. 2d 574 (1938). Pandjiris, however, was qualified in Teel v. May Department Stores Co., 348 Mo. 696, 155 S.W.2d 74 (1941), a suit for false arrest and imprisonment arising from the plaintiff’s war-rantless arrest by an employee of defendant’s department store. In Teel, the court, relying upon a California case, Collyer v. S. H. Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936), held that the need for protecting one’s property outbalanced the need for protecting personal liberty to the extent that a private citizen could effect a war-rantless arrest on the existence of probable cause or reasonable grounds, both as to the offense and as to the person arrested, where the arresting party’s property was involved. The principle enunciated in Teel, with certain limitations, was codified by the Missouri General Assembly in 1961 and presently constitutes Section 537.125 RSMo 1969, V.A.M.S. Apparently Pand-jiris was additionally qualified in State v. Parker, 378 S.W.2d 274 (Mo.App.1964), which indicates that a private citizen has the right to effect a warrantless arrest to prevent a breach of peace or an affray taking place in his presence. The above has been presented essentially for' the purpose of laying a background in view of more recent cases such as State v. Keeny, 431 S.W.2d 95, 97 (Mo.1968); State v. Goodman, 449 S.W.2d 656, 659 (Mo.1970), and State v. Fritz, 490 S.W.2d 30, 32 (Mo.1973), cert. den., 411 U.S. 985, 93 S.Ct. 2282, 36 L.Ed.2d 962. In light of these decisions, the right of a private citizen to effect a warrantless arrest (assuming such does not fall within the authority granted merchants and their employees by Section 537.125, supra) now appears to fall somewhere between Pandjiris and Teel. As stated in State v. Fritz, supra, 490 S.W.2d 1. c. 32: “. . . (I)n Missouri a private citizen may make arrest on a showing of a commission of a felony and reasonable grounds to suspect the arrested party.” Thus it appears that the only affirmative defense that defendant could have relied on in this action for false imprisonment was that a felony, in fact, had been committed and the existence of reasonable grounds to believe that plaintiff was the perpetrator thereof. Reasonable grounds to believe that a felony was committed would not be sufficient, even though accompanied by the existence of reasonable grounds to believe that plaintiff perpetrated the suspected felony. Refocusing attention on Instruction D-2, in conjunction with the above, the court did not err in refusing Instruction D-2, since it constituted a positive misdirection to the jury, inasmuch as it directed a verdict for defendant if he had reasonable grounds to believe that a felony had been committed. It is basic that it is not error for a trial court to refuse to give a requested instruction which is incorrect. S. W. Bell Telephone Co. v. Chester A. Dean Co., 370 S.W.2d 270 (Mo.1963); Wors v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583 (Mo.1970), and Daniels v. Smith, 471 S.W.2d 508 (Mo.App.1971). The trial court’s refusal to give Instruction D-2 was free of error for an additional reason. Assuming, arguendo, that Instruction D-2 was legally correct, there was not sufficient evidence to support it. See Brassfield v. Sears, 421 S.W. 2d 321 (Mo.1967). Likewise, the trial court’s refusal to give Instruction D-3 (directing a verdict for defendant if a felony was committed and that plaintiff committed it) was free of error because there was not sufficient evidence to support it. Brassfield v. Sears, supra. In determining whether there was sufficient evidence to support the giving of either Instruction D-2 or Instruction D-3, the evidence is viewed “in the light most favorable to defendant” and defendant must be given “the benefit of all favorable inference reasonably deducible therefrom”. Underwood v. Crosby, 447 S.W.2d 566 (Mo. banc 1969). An analysis of the evidence in this case, accordingly, leads to the inescapable conclusion that plaintiff, in fact, committed no felony; analysis of the evidence, accordingly, leads to the further inescapable conclusion that no reasonable grounds existed for defendant to believe that plaintiff committed a felony. Defendant argues that when the car driven by Huckabee and occupied by plaintiff and Stanley Helming swerved and struck Schroeder, as testified to by Schroeder, a felony was committed in his presence, or he had reasonable grounds to believe that a felony was committed, namely, a violation of Section 559.190 RSMo 1969, V.A.M.S., (Felonious assault without malice aforethought). Granted that an automobile may constitute an instrumentality for committing an assault in violation of Section 559.190, supra, [See State v. Garner, 360 Mo. 50, 226 S.W.2d 604 (1950)], there is not the slightest scintilla of evidence in this case, viewed in the light most favorable to defendant and giving him the benefit of all reasonably deducible inferences, that plaintiff, who was a passenger in the automobile, aided, abetted, affirmatively participated with or encouraged Huckabee to swerve the automobile he was driving at or toward Schroeder. This lack of evidence to support the giving of either Instruction D-2 or D-3 is persuasively demonstrated by the holding in State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965): “. It is necessary that the accused ‘associate himself with the venture’ in some fashion, Mays v. United States, 8 Cir., 261 F.2d 662; that some form of affirmative participation be shown, State v. Butler, Mo.Sup., 310 S.W. 2d 952, 957, — participation in the crime as something that he wished to bring about; that he sought by his action to make it succeed, United States v. Peoni, 2 Cir., 100 F.2d 401, 402; that he ‘consciously shared’ in the criminal act. Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919. In every case we have examined holding one guilty as an aider and abettor there has been some evidence of an act or deed or circumstance other than mere presence at the scene. There is nothing here from which it can be inferred that Castaldi encouraged or excited the commission of the offense, or participated therein, before or during the occasion when the deputy arrived, by words, gestures, looks, signs, or that he otherwise countenanced, approved or associated himself with this criminal activity, or even that he knew that a crime was being or had been committed.” Plaintiff at no time took the wheel of the automobile she was in, thereby causing it to swerve, nor did she engage in any form of “affirmative participation”; there is nothing to indicate that she “wished to bring about” the swerving of the automobile or that she “consciously shared” in Huckabee’s swerving of the automobile (and the record is far from clear that such was done intentionally by Huckabee). At best the evidence merely shows plaintiff’s “mere presence at the scene”. The naked fact that plaintiff suggested to Huckabee that they leave the area and mistakenly believed that Schroeder was an escapee from the Church Prison Farm lacks sheet steel to spring an inference that she aided, abetted, affirmatively participated with or encouraged Huckabee to swerve the car.at or toward Schroeder. This analysis can be quickly abbreviated by pointing out that the positive testimony of defendant and his witness Schroeder heretofore quoted verbatim refutes any viable argument on defendant’s part that plaintiff aided or abetted in the commission of a felony or that he had any reasonable grounds to believe that she did. In support of Point I, defendant directs this court’s attention to five Missouri cases involving false imprisonment or arrest. Parrott v. Reis, 441 S.W.2d 390 (Mo.App.1969); Nelson v. R. H. Macy & Co., 434 S.W.2d 767 (Mo.App.1968); Vanneman v. W. T. Grant Company, 351 S.W.2d 729 (Mo.1961); Teel v. May Department Stores Co., 348 Mo. 696, 155 S.W.2d 74 (1941), and Frank v. Wabash Railroad Company, 295 S.W.2d 16 (Mo.1956). These cases must, however, be distinguished, either for the reason that they deal with “shoplifting”, an area in which a merchant is afforded special protections [Nelson v. R. H. Macy & Co., supra; Vanneman v. W. T. Grant Company, supra; and Teel v. May Department Stores Co., supra] or because the questioned detention was made by a person possessing, or clothed with, the authority of a police officer in performance of his official duties [Parrott v. Reis, supra, and Frank v. Wabash Railroad Company, supra.] Neither of these situations is present here. In Point II defendant claims that the trial court erred in giving Instruction No. 5, a punitive damage instruction requested by plaintiff, because (1) it failed to incorporate or be accompanied by a definition of malice and, further, (2) there was no evidence to support said instruction. Defendant’s bifurcated attack on Instruction No. 5 lends itself to almost summary disposal. Defendant at no time, either during trial or in his motion for a new trial, ever lodged an objection against Instruction No. 5 on the ground that it failed to incorporate or be accompanied by a definition of malice. This objection clearly was not within the ambit of defendant’s objection to Instruction No. 5 in his motion for a new trial. The objection was first leveled by defendant in his brief on appeal, thereby disregarding any semblance of compliance with Rules 70.02 and 79.03, V.A.M.R. Thus, the instant objection was not properly preserved for appellate review and will not be considered. Chambers v. Kansas City, 446 S.W.2d 833 (Mo.1969). Was there evidence to support the giving of an instruction (No. 5) on punitive damages ? The answer to this question lies both in the evidence and the law applicable to such evidence. As heretofore demonstrated, defendant’s warrant-less arrest of plaintiff constituted the intentional doing of a wrongful act because plaintiff, in fact, had committed no offense of any kind, either alone or as an aider or abettor in concert with Huckabee, and no reasonable grounds existed for defendant to believe that she had. Defendant argues that even if the jury found that he falsely imprisoned plaintiff, it was “committed unintentionally and was the result of the mistake directly resulting from the acts of plaintiff and her companions.” Under Missouri law submission of punitive damages is not limited to the existence of actual malice. Legal malice alone will support the submission of punitive damages. Peak v. W. T. Grant Company, 386 S.W.2d 685, 691 (Mo.App.1964); McGill v. Walnut Realty Co., 235 Mo.App. 874, 148 S.W.2d 131, 136 (1941), and Martin v. Woodlea Inv. Co., 206 Mo.App. 33, 226 S.W. 650, 653 (1920). The trial court did not err in submitting the issue of punitive damages to the jury under the facts and applicable law governing this case. In Point III defendant maintains that the trial court erred in refusing to admit defendant’s Exhibits 1, 2, 3 and 4, photographs of the scene of the alleged assault upon agent Schroeder by means of the automobile driven by Huckabee. These photographs in no way aided defendant in proving that plaintiff committed a criminal offense of any kind, either alone or as an aider or abettor in concert with Huckabee, or in proving that defendant had reasonable grounds to believe that she had. Assuming that the photographs were otherwise admissible, their exclusion was harmless error since they in no way proved, directly or by reasonably deducible inference, that plaintiff aided or abetted Huckabee in the alleged assault, or that reasonable grounds existed for defendant to believe that plaintiff aided or abetted Huckabee in the alleged assault. See Johnson v. Lee Way Motor Freight, 261 S.W.2d 95, 98-99 (Mo.1953); Boneau v. Swift & Co., 66 S.W.2d 172, 176 (Mo.App.1934), and Prindle v. Fidelity & Casualty Co., 233 S.W. 252, 255 (Mo.App.1921). Defendant’s Point IV is addressed to his requested, but refused, withdrawal instruction (No. D-l) whereby he sought to withdraw from the jury’s consideration any issue of damage to plaintiff’s nervous system. The gist of defendant’s position in this respect is if plaintiff “had such injury it resulted either from the aging process or the acts of agent Schroeder and not from any acts of Appellant.” Defendant’s position is untenable because it completely ignores plantiff’s testimony brought out during cross-examination, that she was nervous after she was arrested by defendant. The giving of a withdrawal instruction rests within the sound discretion of the trial court, and absent an abuse of such discretion, refusal to give a withdrawal instruction constitutes no basis for complaint. Statler v. St. Louis Arena Corporation, 388 S.W.2d 833, 837 (Mo.1965) and Kasper v. Helfrich, 421 S.W.2d 66, 71 (Mo.App.1967). Although defendant’s counsel in closing argument might have properly argued the effect on plaintiff’s nerves of agent Schroeder’s shooting into the car, and the effect of the “aging process” on plaintiff’s nerves, her testimony that she was nervous after she was arrested by defendant insulates the trial court from any charge of abuse of discretion in refusing to give defendant’s withdrawal instruction. Defendant’s final Point (V) on appeal is that the verdict was excessive and resulted from passion, prejudice or bias on the part of the jury. Plaintiff was awarded $213.00 as actual damages and $2,500.00 as punitive damages. This court concludes that under all the evidence the amount of damages awarded, both actual and punitive, were not excessive, thereby precluding defendant’s contention that the verdict of the jury was the result of passion, prejudice or bias. As to defendant’s allegation of ex-cessiveness regarding the actual damages awarded plaintiff, this court previously held in Nelson v. R. H. Macy & Co., 434 S.W.2d 767, 774 (Mo.App.1968), “that in assessing actual damages for false arrest the jury can properly consider such things as humiliation, embarrassment and disgrace and that the amount to be awarded is peculiarly within the province of the jury because they must weigh these imponderables and that appellate courts will not disturb such verdicts unless it appears the jury has abused its discretion.” In Nelson this court, with respect to the jury’s assessment of actual damages, treated false arrest and imprisonment cases as analogous to malicious prosecution cases, and, citing Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78, 99 (1907), prescribed to the view of the Supreme Court that “(t)he law concedes a wide latitude of discretion to the jury in actions of this class.” As to defendant’s allegation of excessiveness regarding the punitive damages awarded plaintiff, the court in Wehrman v. Liberty Petroleum Company, 382 S.W.2d 56, 66 (Mo.App.1964), very aptly stated that “(i)n view of the varigated nature of the factors to be taken into account, there is no hard and fast rule that can be adhered to” and “each case must turn more or less upon its own peculiar facts” and the amount of punitive damages “need not bear any relation” to the amount of actual damages awarded. See State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, 356 (1937) exemplifying the “varigated nature of the factors” to be considered by the jury in determining punitive damages. The cardinal purpose of punitive damages is to punish a wrongdoer so as to deter him from repeating his wrongful conduct in the future. Randol v. Kline’s, Inc., 330 Mo. 343, 49 S.W.2d 112, 119 (1932) and McGill v. Walnut Realty Co., supra. Having carefully reviewed all of the evidence in the light of the amount of actual and punitive damages awarded, this court is unable to say that the amounts awarded evince any indication of passion, prejudice or bias on the part of the jury. Judgment affirmed.

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2024-08-24T03:29:51.129683

FALCON ENTERPRISES, INC., Appellant, v. PRECISE FORMS, INC., et al., Respondents. No. KCD 26394. Missouri Court of Appeals, Kansas City District. April 1, 1974. Rehearing Denied May 6, 1974. Patrick R. Faltico, Paul Margolis, Jr., Kansas City, for appellant. William B. Teasdale, Jack Z. Krigel, Kansas City, for respondents. Before DIXON, C. J., and SHAN-GLER and WASSERSTROM, JJ. WASSERSTROM, Judge. Plaintiff, the appellant here, sued to recover the value of two signs located on leased premises which it alleged were misappropriated by the defendants after a default in the payment of rent. Four of the defendant, Mr. and Mrs. Trimmer and Mr. and Mrs. McKinley, as owners of the real estate, counterclaimed for the amount of unpaid rent, unpaid utilities, damages to the premises and the removal of certain equipment. Plaintiff in due time filed a reply to this counterclaim. The case was set for trial on July 3, 1972, and the defendants appeared in court on that date. However, no appearance was made by plaintiff. Defendants proceeded to introduce evidence, and the court entered judgment for the full amount claimed by the Trimmers and McKinleys in the sum of $4,590. Four days later, on July 7, 1972, plaintiff filed a Motion to Set Aside Judgment. In support of that motion, plaintiff set forth that depositions, including that of Mr. Patrick R. Faltico, had been set for June 28, 1972, just a few days before the trial date. The motion further stated that Mr. Faltico, one of the officers of the plaintiff corporation and also its attorney, was ill on that date and that Mrs. Faltico called the court reporter to arrange for a resetting of the deposition. An affidavit of Mrs. Faltico attached to the motion stated that she further advised the reporter that Mr. Faltico would be willing to agree to a continuance of the case in the event that the deposition could not be rescheduled before the trial date of July 3. The motion also set forth that on June 29, Mr. Faltico was served with a notice to take his deposition on July 5, 1972. Mr. Faltico stated in the motion that he understood this notice to reflect an agreement by the defendants’ attorney to reset the case for trial at some date subsequent to the taking of his deposition. Mr. Faltico further stated in the motion that he received no further word concerning the trial setting until he called defendants’ lawyer on July 5, 1972, to say he would be a few minutes late for the deposition, at which time he was informed that judgment had already been entered two days earlier. This motion by plaintiff was taken under advisement and was overruled by the court. Thereafter, plaintiff filed a Motion for Rehearing, supported by voluminous affidavits, and that motion was also overruled. Plaintiff assigns two points of error on this appeal: 1) that the counterclaim should have been dismissed for failure to state a claim upon which relief could be granted; and 2) that the judgment should have been set aside because of irregularity and mistake. I. If the after-trial proceedings instituted by plaintiff were, in fact, one to set aside the judgment for “irregularity” under § 511.250 RSMo 1969, V.A.M.S. and Rule 74.32, V.A.M.R., as indicated by the name attached by plaintiff to its motion and terminology employed therein, then plaintiff’s first point could not be considered. This is for the reason that the failure of a pleading to state facts upon which relief can be granted is not an “irregularity” within the meaning of this type of proceeding. State ex rel. v. Tate, 109 Mo. 265, 18 S.W. 1088 (1892); Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952). However, the name given by a party to his after-trial motion is not controlling. Under facts very similar to those here, the court in Hamm v. Hamm, 437 S.W.2d 449, 1.c. 452-453 (Mo.App.1969), treated the motion and proceedings as one for a new trial. So treating the motion, it was filed within time, and the appeal herein must be considered as an ordinary direct appeal from the judgment itself. Even though the motion in the trial court did not raise any point concerning the sufficiency of the counterclaim to state a cause of action, nevertheless, this question is not waived by failure to properly preserve it in the trial court and it may be raised for the first time on appeal. Harding v. State Farm Mutual Automobile Insurance Co., 448 S.W.2d 5 (Mo.banc 1969). Plaintiff contends that the counterclaim failed to state a cause of action basically because it did not set forth sufficient facts to tie plaintiff into the lease and to show any responsibility on its part for performance of the lease obligations. The facts alleged by the counterclaim are that the premises were originally leased by Charles T. and Cecilia Heaton to Kansas City Beef No. 1, Inc.; that the lease was thereafter assigned to Steakland, Inc.; that thereafter the Heatons sold the real estate to the Trimmers and McKinleys; that Kansas City Beef No. 2, Inc. and Steakland, Inc. had their charters forfeited on January 1, 1969, and January 1, 1971, respectively; and that Patrick R. Faltico was registered agent for the first of those companies and he was an officer and director of the other two. The pleadings as a whole show that the lease became in default sometime prior to January, 1971. The counterclaim further alleges that "the rent default, as well as default in payment of utilities, were the acts of all of the three named corporations and certain named individuals “jointly and severally.” The counterclaim further alleges that all these parties jointly and severally did designated damage to the premises and also “removed from the premises one (1) furnace and returned a furnace similar to the one removed, necessitating installation of an overhead blower type furnace with new wiring; removed another furnace from the premises; removed one (1) 5-ton central air conditioner which was bolted to the floor and hooked to a water tower; snipped wires on flourescent light fixtures, necessitating rewiring and reinstallation of said light fixtures; * * * disconnected a water heater, necessitating reinstallation; * * * left on the premises trash and debris which had to be hauled away; * * * left holes in the wall which had to be repaired and repainted; * * * Plaintiff contends that these allegations fail to allege any attornment by any tenant to the Trimmers and McKinleys subsequent to their purchase of the premises from the original landlord; fail to allege any assignment of the lease to or any assumption of lease obligations by the plaintiff; and fail to allege any agency or successorship by plaintiff to either the original tenant (Kansas City Beef No. 2, Inc.) or its as-signee (Steakland, Inc.). Plaintiff’s argument proceeds that absent these allegations, there is no basis upon which to hold this plaintiff liable for any breach of the lease obligations. It is unnecessary to decide whether that argument is sound, for the reason that the counterclaim seeks damages for acts which are wrongful and actionable wholly independent of any lease obligation. Whether or not plaintiff had assumed any of the duties of a lessee, it does have responsibility for going upon defendants’ premises and disconnecting and tearing out equipment. This is liability for which even a complete stranger can be held liable in damages. It is no answer for plaintiff to argue that the counterclaim is defective because it asks in part for recovery of defaulted rentals. It must be remembered that this case comes here without preservation of any claim of error concerning sufficiency of the evidence or the propriety of specific items of damage. As a matter of fact, no error is even assigned in those respects in plaintiff’s Points Relied Upon in its brief filed in this court. Plaintiff is therefore relegated to the narrow question of whether there are enough allegations in the counterclaim to make out a cause of action of any sort, to the extent of any damages whatever. In this respect, the counterclaim is sufficient. Nor may plaintiff prevail upon its argument that the counterclaim fails to allege that the items of equipment mentioned in the counterclaim were fixtures belonging to the real estate, as contrasted to trade fixtures which would be the property of the tenant. The only reasonable intendment of the counterclaim is that the defendants Trimmers and McKinleys were claiming the equipment in question as fixtures belonging to them. These allegations therefore meet the criteria specified in Barber v. Allright Kansas City, Inc., 472 S.W.2d 42, 1.c. 44 (Mo.App.1971), that a pleading in order to be sufficient need only advise the adverse party with reasonable certainty as to the cause of action it is called upon to meet and bar another action for the same subject matter. Furthermore, this argument by plaintiff is inconsistent with the allegation in the counterclaim that plaintiff disconnected certain pieces of equipment although leaving that equipment in place, thereby evidencing that plaintiff made no claim of ownership thereto. The counterclaim is sufficient to withstand the complaint that it fails to state facts upon which relief can be granted. II. Plaintiff’s second point of alleged error is that the judgment entered on July 3, 1972, should have been set aside because of irregularity and mistake. Although plaintiff uses the term “irregularity”, the entire thrust of its argument is that it did not appear on the date set for trial because of a mistake that the case had been set over, induced by the fact that defendants’ counsel had sent notice of deposition to be taken on July 5. One of the classical grounds for setting aside a judgment is excusable mistake on the part of a party who did not appear at the trial. However, in order for a mistake to qualify for this purpose, the mistake must be free of any admixture of negligence on the part of the party seeking relief. As stated in Hamm v. Hamm, 437 S.W.2d 449, 1.c. 454 (Mo.App.1969), relief is not available unless the mistake “occurred free of his negligence and could not have been averted through the exercise of ordinary prudence”. The key question to be answered on this branch of the case therefore is whether plaintiff and its counsel did exercise ordinary prudence in the situation presented. Plaintiff’s effort to justify its failure to appear in court on July 3 rests upon the evidence of Mr. and Mrs. Faltico concerning what happened on June 28. Their version of what happened is that Mrs. Fal-tico called the court reporter to advise of Mr. Faltico’s illness and in the course of that conversation she further advised the reporter that if there was not sufficient time to reset the deposition, then Mr. Falti-co was agreeable to a postponement of the trial setting. This version of events by the Falticos does not go without contradiction. At the court hearing on July 3, defendants introduced in evidence a letter dated June 29, 1972, from the court reporter with whom Mrs. Faltico had her conversation on June 28, and in that letter Martha Harris, on behalf of Myron Dupey & Associates, wrote to defendants’ attorney that the information conveyed in the telephone call was that “Mr. Faltico was ill and would not be able to appear for the deposition but would call you in a day or two regarding setting the deposition again.” If Harris’ version of the conversation be accepted, then very obviously Mr. Faltico did not use due diligence in even the most liberal interpretation of that concept and in fact failed to keep his own commitment to take the initiative in getting in touch with defendants’ counsel further. But even if the Falticos’ version of the conversation be accepted, even so, Mr. Faltico failed to exercise ordinary prudence. He had no right to draw an unsupported inference that defendants’ attorney had impliedly agreed to a continuance of the case, when all he had to do was to make a simple telephone call to verify whether such an assumption was true or false. The receipt by him of a notice to take depositions on July 5 did not necessarily signify an agreement by defendants’ attorney to a continuance of the trial. It was entirely possible, as indeed defendants now argue, that the notice for depositions on July 5 was purely precautionary to cover the very likely possibility that plaintiff would file application for a continuance, in which event defendants wanted to be in a position to proceed with a deposition at the earliest possible opportunity and then request a prompt trial resetting. Plaintiff’s attorney was not entitled to make with impunity his own assumptions as to the intention underlying the notice for depositions on July 5, and he made those assumptions at his own risk and that of his client. His mistake under these circumstances must be attributed at least in part to his own fault, thereby defeating any right to set aside the judgment on this ground. The situation here is clearly distinguishable from that in which a party is misled into not appearing at trial because of misrepresentations by his opponent. Cases of that sort are illustrated by Watkins v. Hubbard, 343 S.W.2d 189, 1.c. 192 (Mo.App.1961), and cases there collected. In contrast, the defendants here made no promise that the case would be set over nor any representation that plaintiff need not appear. What is more, defendants concealed nothing from the court, but on the contrary, spread the whole matter on the court record, including a copy of the notice to take depositions on July 5, 1972, the key point upon which plaintiff now relies as constituting some sort of implied representation. Under the facts in this case, plaintiff’s failure to appear was not due to any fault or misconduct by defendants, but rather was due to its own negligence. Relief by way of setting aside a judgment rests very largely in the broad discretion of the trial court. Allen v. Fewel, 337 Mo. 955, 87 S.W.2d 142 (1935); 46 Am. Jur.2d, Judgments, § 682, page 832. The exercise of that discretion has not been abused by the trial court under the facts of this case and will, therefore, not be subjected to interference. The judgment is affirmed. All concur. . It is of some interest that in its notice of appeal to this court, plaintiff changed its characterization of the after-trial motion to that of “Motion for new trial.” . The date stated in the counterclaim for the forfeiture of the Steakland, Inc. charter is January 1, 1961, but that is quite obviously a typographical error.

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2024-08-24T03:29:51.129235

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CENTRAL BANK OF CLAYTON, Plaintiff-Appellant, and Duane Pemberton, Commissioner of Division of Finance, State of Missouri, Defendant-Appellant, v. STATE BANKING BOARD OF MISSOURI et al., Defendants-Respondents, and Clayton Bank et al., Intervenors-Respondents. No. 34959. Missouri Court of Appeals, St. Louis District, Division 2. March 12, 1974. Motion for Rehearing or Transfer Denied April 8, 1974. Application to Transfer Denied June 10, 1974. Godfrey P. Padberg, Lloyd E. Boas, St. Louis, for plaintiff-appellant. Charles A. Blackmar, St. Louis, for defendant-appellant. Richard E. McFadin, North Kansas City, Robert F. Schlafly, John T. Murphy, Jr., St. Louis, Albert A. Michenfelder, Jr., A. H. Hamel, Clayton, for intervenors-re-spondents. , See e. g., Morey v. Doud, 354 U.S. 457, 469, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957) ; see also Davis, “Banking Regulation Today: A Banker’s View,” 31 Law and Contemporary Problems 639 (1966) ; Kreps, “Modernizing Banking Regulation,” Id. at 648; and Samuelson, Economics, 2d Ed., 323 et seq. (1951). . See Footnote 3, supra. McMILLIAN, Judge. This litigation grows out of an attempt to establish a new bank in downtown Clayton, Missouri, the commercial and governmental hub of St. Louis County and an area now served by several banking institutions. Plaintiff-Appellant, the Central Bank of Clayton (Central Bank), which has proposed the new bank, and Defendant-Appellant, the Commissioner of the Division of Finance of the State of Missouri (the Commissioner), appeal from an order of the Circuit Court of St. Louis County, affirming in part and reversing in part an order of Defendant-Respondent, the State Banking Board of Missouri (the Board). Also parties to the appeal are Intervenors-Respondents, the Clayton Bank, St. Louis County National Bank, and the First National Bank of Clayton, existing banks in downtown Clayton, and the Missouri Independent Bankers Association. The last-named party is interested solely in the question whether a multi-bank holding company violates Missouri statutes prohibiting branch banking. In October, 1971, five persons filed articles of agreement for the incorporation of a new bank, to be known as the Central Bank of Clayton and to be located in a new office building in Clayton, with the Commissioner. All five incorporators were and are officers of the Bank of St. Louis, a downtown City of St. Louis bank, and of the General Bancshares Corporation, a registered holding company which owns the Bank of St. Louis. The incorporators apparently have an agreement to transfer ownership of the stock of the proposed bank to General Bancshares upon receipt of a charter from the Commissioner. Following the application for a bank charter, the Commissioner ordered an investigation, pursuant to § 362.030, RSMo 1969, V.A.M.S., into the capital and management of the proposed bank, and into the convenience and needs of the community and the effects of the proposed bank on existing banks in the community. After a two month investigation, the Commissioner found that “all the requirements of Sections 362.020; 362.025 and 362.030 RSMo [V.A.M.S.] have been met,” and on February 28, 1972, issued a charter for the proposed bank. The Commissioner’s decision was made ex parte, without a contested hearing, but he did include in his record letters from officers of existing Clayton banks objecting to the proposed bank. Intervenors-Respondents, the existing Clayton banks, joined by the Trust Company of St. Louis County (which is not a party to this appeal), then appealed the decision of the Commissioner to the Board. Two notices of appeal were filed with the Board. Both recited that the convenience and needs of the community would not justify the granting of a new bank charter, but neither raised the issue of branch banking and multi-bank holding companies. The Board held a hearing on the appeal of April 5, 1972, at which the existing banks and the proponents of the new bank presented voluminous evidence relating to “the convenience and needs of the community to be served” by the new bank. Three expert witnesses testified, and two submitted reports, directed to that issue. In addition, the Board received the Commissioner’s investigation and report into evidence. Midway through the hearing, the expert witness for the existing banks, in a “slip of the tongue,” referred to the proposed bank as a “branch” of the Bank of St. Louis. Later, counsel for the existing banks questioned witnesses for the proposed bank about the nature of the agreement by the incorporators to sell their stock in the new bank to General Bancshares. The chairman of the Board also asked questions directed to this issue. On May 1, 1972, the Board issued a brief order revoking the charter of the Central Bank of Clayton. The findings of fact and conclusions of law were as follows: “1. That the record and evidence adduced by applicant does not support a finding that the convenience and needs of the community to be served justify and warrant the issue of a charter to the applicant Central Bank of Clayton. There was no evidence adduced by any public witness to indicate or show public need for the proposed bank and the examiner’s report of the investigation of the proposed charter fails to disclose any complaint or inadequacy with presently authorized banking services, or more than a token neea for the proposed bank. “2. That the Board further finds and concludes that the application by officers or agents of a bank holding company and their express agreement to sell all shares of stock, except qualifying shares, to said holding company upon receiving the charter is contrary to the intent and express restrictions against branch banking and other prohibitions contained in Sections 362.105; 362.107; 362.170; 362.415; 362.420 and 362.425, RSMo 1969 [V.A.M.S.] as amended.” A petition to review the decision of the Board was filed with the St. Louis County Circuit Court on May 10, 1972. After a hearing and submission of the entire record into evidence, the court found that the Board’s first finding — that the convenience and needs of the community did not justify the granting of a new bank charter —was supported by competent and substantial evidence on the record as a whole. However, the court reversed the second finding of the Board — that the proposed bank plan was contrary to Missouri branch banking laws — on the ground that this finding was not supported by competent and substantial evidence. An appeal from the judgment of the Circuit Court was taken to this court by the Central Bank and the Commissioner, and this opinion follows a rehearing of several issues presented by the case. Since we are asked to determine whether there is “competent and substantial evidence upon the whole record” to support the Board’s findings, Missouri Administrative Procedure Act, § 536.140 RSMo 1969, V.A.M.S., we will precis the evidence presented to the Board. Evidence presented by appellants, the Central Bank and the Commissioner, showed that the City of Clayton has experienced dramatic growth since 1960 and may soon rival downtown St. Louis as the regional commercial and financial center. Since 1959, when the last bank was chartered in the Clayton downtown area, thirteen high-rise buildings and sixteen medium and low-rise buildings have been built there. Clayton office space has grown from 1.3 million square feet in 1959 to 3.7 million square feet in 1971, and was estimated to climb to 4.4 million square feet in 1972. Further, 102 of the nation’s 500 largest industrial corporations listed by Fortune Magazine have one or more divisions in Clayton, and twenty-five of the fifty largest insurance firms have offices there. It was estimated that two percent of the nation’s effective buying power is concentrated in Clayton. Appellants’ evidence bearing more directly on the banking business showed that total bank deposits in Clayton grew from $95.4 million in 1959 to $280 million in 1971. Between 1966 and 1970, all existing banks in the Clayton area experienced a deposit growth rate of fifty-four percent, or 13.6 percent a year. In the single year between 1970 and 1971, deposits in the three existing banks, Respondents, grew approximately seventeen percent (St. Louis County National Bank), twenty percent (Clayton Bank), and thirty percent (First National Bank). Using these growth statistics, the senior examiner for the Commissioner estimated that the new bank would capture $9.25 million in deposits in its first year of operation, $15.5 million in its second, and $21.5 in its third. The examiner also estimated that the new bank would show a profit from its second year of operation. His estimates were supported by deposit projections made by another expert witness and by the Federal Deposit Insurance Corporation. It was stipulated that the establishment of the new bank would not affect the solvency of the existing banks. The examiner further testified that the new bank would be convenient both to the residents of Clayton and to persons who work in Clayton but live elsewhere (a work force estimated at 35,000-40,000 people). The proposed location for the new bank is in the immediate downtown area of Clayton, within two and one half blocks of the three existing banks. In opposing the new bank, Respondents, the three existing banks in Clayton, presented a report and testimony by an expert witness. To measure “convenience,” respondents’ expert employed what is called “isochronal analysis” of the Clayton area. This analysis is based on measurement of automobile driving time/distances to determine what area will be served by the new bank; the analysis is grounded in an assumption that the volume of business a new bank attracts will vary proportionately with the amount of driving time customers must expend to reach the new bank. The expert found, not surprisingly, that the “isochron,” or area within five minutes driving time, of the new bank was overlapped by isochrons of at least three, and in some places four, other existing banks. The expert concluded that the Clayton area was saturated with adequate banking services offered by the existing banks, and that the new bank would add little or nothing to public convenience since seventy-five percent of the people in the area could reach four or five other banks within four or five nimutes driving time. To determine the “need” for a new bank, respondents’ expert studied various economic and demographic statistics. He determined that the Clayton area was a predominantly residential neighborhood whose population and household growth rates had matured, that the residents of the area were largely upper-income families whose average age was increasing, and that the area lacked a major shopping center. The expert admitted that he did not consider the amount of growth in office space in the Clayton area and that he probably underestimated the size of the daytime work force in downtown Clayton. (The expert did estimate that about fifty percent of the persons who worked in Clayton also banked there, regardless of their household residence.) Assuming that the need for a new bank depended upon the growth of the number of households in the surrounding area compared with the growth of existing banks, the expert concluded that the existing banks were growing faster than the determinants of need for banking services, i. e., the number of residential households. The expert concluded further that: (1) the new bank would have to attract deposits from areas served by existing banks; (2) the new bank represented a definite threat to the growth rate of the existing banks; (3) establishment of the new bank would not impair the profits of the existing banks but would result in increased promotional activity with no gain to the public; and (4) the new bank could threaten the ability of the largest Clayton bank, St. Louis County National (Respondent), to compete among the larger banks in the St. Louis metropolitan area if the new bank was able to compete effectively for deposits in the Clayton area. Respondents’ expert estimated that the new bank would accumulate $3.8 million in deposits in its first year of operation, $5.8 million in the second, and $6.7 million in the third. In his report, the expert estimated the new bank would achieve profitable operations within two or three years, but in testimony before the Board he changed his mind and said that he did not think the new hank would prosper. He did not cite statistics to support this changed estimate. Respondents’ first point on appeal is jurisdictional. Respondents argue that the Board’s order terminated that corporate existence of the Central Bank and that the bank is therefore not a “person” capable of invoking the jurisdiction of the Circuit Court for review of the Board’s order. Respondents contend that the five in-corporators of the Central Bank are the aggrieved persons and real parties in interest in this case and they must bring the appeal. This point is without merit. The Missouri Constitution, Art. V, § 22, V.A.M.S., guarantees judicial review of “[a] 11 final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law . . . ” which affects private rights. The Board’s order in this case was a final decision which affected the private rights of the corporation, the Central Bank, and not the personal rights of the incorporators. The Board does not have the authority, in revoking the proposed bank’s charter, to extinguish the bank’s legal capacity to appeal the Board’s decision. To accept such an argument would defeat the very purpose of Art. V, § 22 of the Constitution and § 361.094(2), RSMo 1969, V.A.M.S. The Central Bank is the proper plaintiff-appellant to appeal the decision of the Board revoking its charter. We turn now to the questions raised in light of the central and underlying issue in this case, that of competition in the banking industry. We must consider what value of Constitution and laws placed on competition, under what circumstances and for what reasons can competition be stifled by regulation for the public good, and what type of evidence will justify interference with competition by regulation for a good reason. In responding to these considerations, we have concluded that: (1) the Board erred in its interpretation of § 362.-030, RSMo 1969, V.A.M.S. relating to whether “[T]he convenience and needs of the community to be served justify and warrant the opening of the bank or trust company therein ...” and (2) there is not substantial and competent evidence upon the whole record to support the Board’s finding concerning the convenience and needs of the community. With respect to the Board’s finding on the branch banking-holding company question, we have concluded that the Board lacked jurisdiction to decide that issue. The threshold difficulty encountered in this case is ascertaining the meaning of the statutory requirement that the Commissioner examine whether “ . . . [T]he convenience and needs of the community to he served justify and warrant the opening of the bank or trust company therein ...” (Emphasis supplied.) § 362.030, RSMo 1969, V.A.M.S., before he issues a new bank charter. This case has itself shown several possible interpretations of this portion of chartering act. The Board, in its order, apparently took the view that “need” should be read in an absolute sense. The expert witness for respondents sought to measure “convenience” by driving time /distances, and saw in the words “needs of the community” a public duty to protect the growth rate and competitive positions of existing banks. ' The bank examiner, on the other hand, eschewed any attempt at precise definition and thought that “convenience” lay largely in the eye of the beholder. It is not possible to give effect to the legislative intent expressed in this statute by construing “the convenience and needs of the community” in light of the plain and ordinary meaning of the words. Mashak v. Poelker, 367 S.W.2d 625, 626 (Mo. banc 1963). The words themselves speak of “nebulous concepts.” Bank of New Bern v. Wachovia Bank & Trust Co., N.A., 353 F.Supp. 643, 647 (E.D.N.C.1972). This statute is on its face written in vague and abstract language, and it will not suffice to say, as respondents suggest, that the legislature intended that the Board give precise meaning to the statutory working. Where words in a statute are on their face so abstract as to lack any limitation, as here, such an interpretation of legislative intent would give the Board the powers of roving commission, free in each particular case to pick and choose from among possibly endless categories of issues and evidence. In Missouri Pacific Railroad Co. v. Morris, 345 S.W.2d 52, 57 (Mo. banc 1961), our Supreme Court addressed the problem of vague statutory language. “ ‘When the language of an act appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate it is simply void; for if no judicial certainty can be settled upon as to its meaning, courts are not at liberty to supply the deficiency or make the statute certain. But legislation cannot be nullified on the ground of uncertainty, if susceptible of any reasonable construction that will support it.’ 26 Am. and Eng. Ency. Law, 2d Ed., 656.” It is our judicial duty, then, if possible, to construe this provision of the chartering act to give it reasonable meaning in light of the legislative intent. We must seek to place some reasonable limits on the meaning of the concept of “the convenience and needs of the community.” To do so, we must apply the ordinary processes of construction, inquiring into the circumstances and usages of the time when the statute was passed and considering the words in light of objects sought to be obtained and the evils sought to be remedied. Playboy Club, Inc. v. Myers, 431 S.W.2d 228 (Mo.1968); In re Tompkins’ Estate, 341 S.W.2d 866 (Mo.1960); Stewart v. Johnson, 398 S.W.2d 850 (Mo.1960) and St. Louis Southwestern Railway Co. v. Loeb, 318 S.W.2d 246 (Mo. banc 1958). The provision requiring an examination into “the convenience and needs of the community” was added to the bank chartering act, § 362.030, RSMo 1969, V. A.M.S., by the Banking Act of 1941. Laws 1941, pp. 670, 674. This provision has been construed only once before by a Missouri court, in Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183, 187 (Mo.App.1959), where the Kansas City Court of Appeals said that: “. . . [T]he purpose ... is not to prevent new banks from entering the field, but rather to insure the existence of a healthy banking system . . .” See also Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17 (Mo.App.1973). Even a brief inquiry into the history of the provision bears out the Kansas City Court’s observation. While there is nothing on the record that informs us of the legislative history of this specific amendment to the chartering act, it can and should be considered as a part of the spate of banking legislation passed during and after the Great Depression. See Townsend, “History of Missouri Banking Legislation,” 18 Vernon’s Annotated Missouri Statutes 321, 360-367 (1949) (hereinafter cited as Townsend). The principal concern with banking legislation during this period was protection of the public and the economy from the effects of bank failures. In Missouri alone, six hundred banks failed between 1920 and 1932, compared with thirty failures in the previous twenty years. In addition, twenty-six banks underwent voluntary liquidations, and there were 198 bank mergers. See Townsend, supra, at 360. On the national level, the calamity in the banking business was equally great. By one estimate, five thousand banks crashed between 1929 and 1933, wiping out nine million savings accounts. Leuchtenburg, Franklin D. Roosevelt and the New Deal 18 (1963) (hereinafter cited as Leuchtenburg). Further discussion of the dimension of the general economic collapse associated with the Depression and the banking crises is unnecessary, since the history of this period has been exhaustively probed by historians and is still a poignant memory to many citizens. In attempting to pinpoint the cause of the Depression, legislators, business and political leaders and scholars formulated many theories. Some felt, for example, that the nation and the economy had matured to the point that future growth would be negligible, while others thought the capitalist system of the economy was no longer workable. Most people, however, had a continuing faith in the nation’s free enterprise economy, but felt that the Depression was the result of irresponsible business and economic practices. Bankers in particular were often singled out as scapegoats. As a result of this continued faith in capitalism, federal and state legislation stressed government-business cooperation in an effort to rebuild a free enterprise economy. See Leuchtenburg, supra, at 18-62. In the banking business, the most general view was that bank failures were the result of excessive competition among banks and imprudent banking practices. See Stokes, “Public Convenience and Advantage in Applications for New Banks and Branches,” 74 Banking L.J. 921, 922-23 (1957); and Kreps, “Modernizing Banking Regulation,” 31 Law and Contemporary Problems 648, 651 (1966). To correct this supposed imbalance, remedies on the federal level included establishment of the Fed-era Deposit Insurance Corporation to protect depositors, strengthening regulation of national banks, and changes in the Federal Reserve System. On the state level, legislatures moved to give their bank regulatory agencies more power to oversee banking operations and to restrict the right of entry into the existing banking business. Laws of this latter type, allowing restriction of new bank entry, were passed in all forty-eight states, requiring some demonstration of a public need for new banks and an indication for prospects of successful operations without impairing the operation of existing banks. The first law of this type passed in Missouri was a 1927 amendment to the chartering act, which required the Commissioner to ascertain whether the probable volume of business of location of the new bank was sufficient to insure and maintain the solvency of the new bank and any existing banks. Laws 1927, p. 217. In State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708, 711 (Mo.1941), the court held that this amendment gave the Commissioner discretionary authority to restrict competition where it was necessary to protect the public by ensuring bank solvency. (The court in that case also held that the “convenience and needs of the community” amendment of 1941 broadened the Commissioner’s discretion in this respect. Supra, 156 S.W.2d at 712.) This brief historical review, coupled with judicial precedents discussed below, leads us to two conclusions. First, with regard to the depository functions performed by banks, the objectives sought to be obtained by enactment of the “convenience and needs of the community” amendment to the bank chartering act are rather narrow. The plain purpose of the amendment is to protect the public against excessive competition in the local banking business and against imprudent banking business practices, where either of these conditions could lead to bank failures or unsafe banking. The goal is a healthy banking system. The amendment does not contemplate preventing new banks from entering a market because existing banks are rendering adequate service. Suburban Bank of Kansas City v. Jackson County State Bank, supra, 330 S.W.2d at 187; Stokes, “Public Convenience and Advantage in Applications for New Banks and Branches,” 74 Banking Law Journal 921, 929 (1957). The primary protection afforded by the amendment is extended to the public, not to existing banks. But since the banking business is inextricably intertwined with the general economy, and thus the public welfare, there is an indirect protection provided to existing banks — to the extent that the public is protected from bank failures, so are the existing banks. It is within these limits that the words “convenience and needs of the community” are used concerning bank depository functions, and within these limits the Commissioner or Board has the discretionary authority to restrict competition. Our second conclusion concerns banking functions other than receiving deposits and paying checks — namely, the lending and other related credit services performed by banks. It is in this area that the issue of competition comes into sharper focus, particularly in view of the mushrooming expansion of the nation’s consumer credit market. In construing the “convenience and needs of the community” amendment as it pertains to these other functions, history again provides guidelines. We find it significant that even in the shadow of the Great Depression, the 1941 amendment was enacted against a background of continued faith in a competitive, free-enterprise form of economy. The legislature might have attempted to cure some of the ills of the Depression by subjecting banks to total state control, but it did not. It might have permitted regulated banking monopolies, but it did not. Rather, the legislative and national policy was to continue with an economy where private enterprises could compete among themselves for the attentions of the consumers, and where this competition would provide the public with the best possible goods and services at the lowest possible cost. The court in the Suburban Bank case took note of this policy when it noted that the purpose of convenience and needs enactments was not to deter competition and foster monoply. “. . . Too strict a monopoly in the banking field is regarded as being as undesirable as having an excessive number of banks . . . ” Supra, 330 S.W.2d at 187. This view of the “convenience and needs of the community” amendment is consistent with the policies implied in the Missouri Constitution, Art. 3, § 44, which provides that: “No law shall be valid fixing rates of interest or return for the loan or use of money, or the service or other charges made or imposed in connection therewith, for any particular group or class engaged in lending money. The rates of interest fixed by law shall be applicable generally and to all lenders without regard to the type or classification of their business.” This Constitutional provision, even though passed after enactment of the 1941 chartering amendment, is binding on our construction of that amendment. State ex rel. Heppe v. Zilafro, 206 S.W.2d 496 (Mo.1947). We agree with the sponsor of this Constitutional provision that, “[t]he purpose of Section 44 of Article III was to develop a competitive situation in the lender field . . .” McReynolds, “Legislative Remedies Possible under the Missouri Constitution of 1945,” 16 Mo.L.Rev. 292, 318 (1951). Further, our construction is consonant with federal policy on competition in the banking industry. The Bank Holding Company Act, 12 U.S.C.A. § 1841 et seq. (1969), as Amended, (Supp.1973), prohibits the Federal Reserve Board from approving any bank acquisition, merger or consolidation which would result in monopoly or would lessen competition in the banking business, “. . . [Ujnless it finds that the anticompetitive effects of the proposed transactions are clearly outweighed in the public interest . . .” 12 U.S.C.A. § 1842(c) (1969). This statute has been construed by the Supreme Court, in United States v. First City National Bank of Houston, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967), to promote competition and prevent monopoly in the banking business. See also Senate Rpt. No. 1179, 89th Cong., 2d Sess. (1966), 1966 U.S.Code Cong. & Admin. News, pp. 2385, 2386. We conclude, therefore, that with regard to lending and other credit functions, of banks, the purpose of the “convenience and needs of the community” amendment of the bank chartering act is to promote competition in the public interest among banks, to favor bank entry which will stimulate that competition consonant with prudent banking practices and bank safety, and to discourage monopoly in the lending field. The protection afforded by the amendment in this regard is again extended to the public. The goal is to provide the public, where possible, with a reasonable number of local borrowing and credit alternatives so that competition for the public’s business, the greatest possible efficiency in the banking business, and economic benefit to the public will result. It follows that the Commissioner or Board may, under the limitations stated in our first conclusion above, restrict competition to promote banking safety, but failing to find conditions endangering such safety, they must permit and promote healthy competition. Our conclusions today stressing both bank safety and competition in the construction of the “convenience and needs of the community” provision of the bank chartering bank are not unique. In Suburban Bank of Kansas City v. Jackson County State Bank, cited and quoted numerous times above, the court stressed the importance both of protecting the public from imprudent and unsafe banking practices and of promoting healthy competition. In State ex rel Dybdal v. State Securities Commission, 145 Minn. 221, 176 N.W. 759, 760 (1920), the Minnesota Supreme Court construed a “reasonable public demand” chartering provision similar to our 1941 chartering provision, and held that: “. . . It (the statute) does not intend that one or more established banks may keep out another because the banking facilities sufficiently take care of the banking business. Its purpose is not to deter competition or foster monopoly, but to guard the public and public interests against imprudent banking.” The Michigan Supreme Court quoted the holding above with approval in Moran v. Nelson, 322 Mich. 230, 33 N.W.2d 772, 778 (1948), and ordered a bank charter to issue even though the area to be served by the new bank was served by several well-established banks. Drawing from Chief Justice Marshall’s opinion in McCulloch v. Maryland, 4 Wheat 316, 17 U.S. 316, 4 L.Ed. 579 (1819), that court also rejected, as do we, a reading of “need” or “necessity” in the absolute sense. Dealing with the same issues, the New Jersey Supreme Court in Application of Howard Savings Inst, of Newark, 32 N.J. 29, 159 A.2d 113, 124 (1959), held that: “. . . [B]ut absolute public necessity for further facilities is not essential. The public should always be entitled to increased interest rates and greater services and convenience which proper competition may well bring. Mere sufficiency of existing facilities in the sense of some existing banking facilities, more or less appropriately located in an area and furnishing the usual gamut of services, is not in and of itself sufficient basis to deny establishment of a new institution or branch if the general economy of the area and its reasonable potential are such that there is room for a further installation without causing excessive competition with real harm to any institution or unduly affecting the banking structure at large . . .” Similarly, in Wall v. Fenner, 76 S.D. 252, 76 N.W.2d 722, 726 (1956), the South Dakota court rejected the view that “. . . because there are adequate (existing) banking facilities that public convenience and necessity justifying another bank cannot exist,” and said: “If such were the case the statute would tend to deter competition and foster a monopoly .” See also, Banking Board v. Turner Industrial Bank, 165 Colo. 147, 437 P.2d 531 (Colo.1968); Wilmington Savings Fund Society v. Green, 300 A.2d 227 (Del.Super.1972); First Federal Sav. & Loan Ass’n v. Department of Banking, 188 Neb. 215, 196 N.W.2d 105 (1972); Application of State Bank of Plainfield, 61 N.J. Super. 150, 160 A.2d 299 (1960); and Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595 (Tex.Civ.App.1964). Having delineated the purposes of the “convenience and needs of the community” bank chartering act provision, we turn now to the question of the type of evidence to be considered by an administrative agency in applying the statute. The question becomes — what evidence is probative on “the convenience and needs of the community"? We conclude that it is within the discretionary authority of the Commissioner and the Board, in their expert judgment, to decide what evidence is probative to the convenience and needs of a community, so long as the issues of fact and law are shaded in accordance with the purposes and limitations on the statutory language set out above and so long as the evidence is probative on these issues. The decisions of the Commissioner and Board are, of course, subject to judicial review under the applicable statutes. As both appellants and respondents have pointed out, precedent provides some suggestions of types of evidence which are relevant to convenience and needs. Thus in the Suburban. Bank case, supra, the court pointed out that : ■ “One good indication of whether or not the convenience and needs of the community to be served justify the respondent bank is the amount of deposits which the proposed bank would obtain during the first years of its operation. If the deposits and accompanying business of the bank are substantial, then the bank meets the convenience of the community and there is need for the bank.” 330 S.W.2d at 187.. Since the size of future deposits can only be estimated, the agency may want to hear other evidence; for example, facts bearing on the credibility and bases for deposit estimates. Numerous additional evidentiary considerations are suggested in Stokes, “Public Convenience and Advantage in Applications for New Banks and Branches,” 74 Banking Law Journal 921, 928-941 (1957). And, we note that a Congressional survey of state banking supervisors in 1951 found that prospects for profitable operations of a new bank were the most widely emphasized evidentiary determinants of need and convenience. The same survey found that lack of prospects for profitable operations was the most common ground for rejection of bank charter applications. Senate Document No. 123, 82d Congress, 2d Sess., Pt. 2, 989, 995 (1952). See also Marshfield Community Bank v. State Banking Board, supra. The forms of evidence suggested above relate largely to depository functions of banks. In evaluating the lending and credit functions of banks in light of the “convenience and needs of the community” provision, we would suggest an examination into the impact of a new bank on the economy of the community to be served, the number of lending alternatives available to small business and consumer borrowers, the actual competition among existing banks in the lending area, and whether credit is readily available within reasonable bound to all sectors of the local economy. We turn now to the question whether the evidence and findings in the instant case are probative to “the convenience and needs of the community,” as we have construed its meaning. Considering first the Board’s express findings, we have already concluded that “need” is not used in this statutory provision in an absolute sense, as the Board uses it, but is related to the history and objectives of the statute. There is no requirement in the statute that public witnesses produce evidence showing need for a new bank or complaint with existing banks. These considerations are not within the ambit of the bank chartering act as we have construed it, and the Board erred in interpreting the statute to require such evidence. Secondly, we must consider evidence produced at the hearing which supports the Board’s position. Again we find serious misinterpretations of the meanings of community need and convenience. Thus, as we have defined these statutory terms, it is simply not relevant to the purposes of the statute, explained above, that in this case the proposed bank would add little or nothing to the driving convenience of people in Clayton. Nor is it relevant that the new bank might, in competing for deposits, affect the growth rate of existing banks or draw deposits from an area already served by several existing banks. Nor is it relevant that banks in the area might choose to increase their promotional efforts because of entry of the new bank. This is in the very nature of healthy competition. In sum, we hold that none of this evidence is, in the context of this case, relevant to a finding that the convenience and needs of the community would not justify the opening of the new bank. In reviewing on evidentiary grounds the decisions of administrative agencies such as the Board, where a hearing is required by law, courts are limited to an inquiry into whether those decisions “are supported by competent and substantial evidence upon the whole record.” Constitution, Art. V, § 22 (1945); 536.-140 RSMo 1969, V.A.M.S. This quantum of evidence has been interpreted to mean evidence, which, if true, would have a probative force on the issues. State ex rel Rice v. Public Service Comm’n, 359 Mo. 109, 220 S.W.2d 61, 64 (1949). It has also been described as “. . . [Ejvidence favoring facts which are such that reasonable men may differ as to whether it establishes them; it is evidence from which the trier or triers of the fact reasonably could find the issues in harmony therewith; it is evidence of a character sufficiently substantial to warrant the trier of facts in finding from it the facts, to establish which the evidence was introduced.” Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 820 (1954). Further, courts are admonished to view the evidence in the light most favorable to the decision of the administrative tribunal, giving that decision the benefit of all reasonable inferences to be derived from the evidence produced. Edwards v. Firemen’s Retirement System, 410 S.W.2d 560, 567 (Mo.App.1966). In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488-489, 71 S.Ct. 456, 95 L.Ed. 456 (1951), Justice Frankfurter stated the judicial problem with the substantial evidence test, succinctly: “. . . A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work. “Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms.” The judicial task in this case is made somewhat easier because we have already found erroneous, within the statutory meaning of community convenience and needs, the Board’s conclusions of law concerning the lack of any “public witness” or complaint with existing banking facilities. We have also found irrelevant, within the meaning of the statute, some of the evidence produced by respondents which supports the Board’s order, particularly that evidence which shows that entry of a new bank will impair the growth rate of existing banks, or will not add driving time convenience to the Clayton banking market, or will result in increased promotional costs for existing banks. There remains, however, evidence presented by respondents’ expert which does fall within the statutory meaning of community convenience and needs and which could support the Board’s finding recited in Paragraph No. 1 of its order. We are concerned particularly with the expert’s conclusions that: (1) deposits in existing banks are growing faster than the determinants of need for banking facilities; (2) the new bank will probably not be successful; and (3) entry of a new bank could threaten the ability of the largest existing Clayton bank to compete among banks of its size in the entire metropolitan area. To arrive at his first conclusion, respondents’ expert measured various demographic statistics and found that the population and household growth rate in the Clayton area was quite low. He also found that retail sales in that area were off considerably. Pointing then to the 13.6 percent average annual growth rate of deposits in existing banks, he concluded that the growth rate of banks was outstripping the growth rate of needs for banking facilities. Of itself, this evidence might provide support for an administrative finding against entry of a new bank. However, the constitutional requirement that we consider the evidence “upon the whole record” means that we must take into account whatever in the record fairly detracts from the substantiality of the evidence. Universal Camera Corp. v. National Labor Relations Board, supra. The record in this case discloses serious faults in the reasoning employed by respondents’ expert. First, by his own admission, the expert failed to consider in his analysis the rather dramatic growth of the Clayton area as an office and commercial services community. To measure commercial activity, he analyzed statistics dealing with retail sales and industrial employment only. And second, also by his own admission, the expert used daytime employment figures for Clayton (8,600) which were substantially lower than those furnished by approved commercial reporting agencies (35-40,000). The expert’s employment figures were based solely on a poll answered by only a minority of those sampled. The expert’s conclusion, then, is an opinion based on an apparent discrepancy between two sets of statistical facts, the growth rate of bank deposits and the growth rate of households, population and retail sales; but, the omission of other facts clouds the discrepancy. In sum, we cannot find that this opinion is competent and substantial evidence upon which to rest the Board’s finding in Paragraph No. 1 of its order, relating to community convenience and needs. The expert’s second conclusion, that the new bank would probably not be successful, was given in testimony and contradicts the same expert’s earlier opinion given in his report. It is also contradicted by other expert testimony, and is unsupported by any facts. It cannot be substantial evidence within the meaning of the constitution and statute. Respondents expert’s last theory — that entry of a new bank could threaten the largest Clayton bank’s competitive position in the metropolitan area — is ingenious. In effect, he is asking the Board to restrict competition on one level (Clayton) to improve competition on another (the St. Louis Metropolitan Area). Whatever, the merits of this robbing Peter to pay Paul theory within the meaning of community convenience and needs, we need not pass on it, for this theory is unsubstantiated by any facts concerning banking competition on the metropolitan level. Furthermore, it is noteworthy that the largest Clayton bank now controls over 32 percent of all deposits in the Clayton area, compared with only 12 percent for its nearest competitor. This bank is hardly in need of the additional competitive edge supplied by the restrictive new bank entry. We hold, therefore, that a review of the whole record in this case shows that there is not competent and substantial evidence to support a Board finding which inhibits lawful competition in the Clayton banking market. The final point on this appeal raises the question whether the organization of a new bank, with an accompanying agreement by the incorporators to transfer control of the new bank to a multi-bank holding company, violates state restrictions against branch banking. Respondents urge that the Board’s findings on this issue in Paragraph No. 2 of its order, holding that such an organization is a violation of state branch banking laws, is supported by competent and .substantial evidence and therefore should be sustained. The facts bearing on this issue are not in dispute. For the purposes of administrative review, the issue is one of law, and not fact, as respondents contend. A court on appeal of an administrative determination of a question of law is not bound by the substantial evidence test. § 536.140, RSMo 1969, V.A.M.S.; Gordon v. Puritan Chemical Co., 406 S.W.2d 822 (Mo.App. 1966). Nonetheless, the Circuit Court below found that the Board’s decision on this issue was not supported by competent and substantial evidence upon the whole record. We agree with the Circuit Court that the Board should be reversed on this point, but we have different reasons. We have determined that on the record of this case the Board lacked jurisdiction to decide whether the attempted incorporation of Central Bank by officers of General Banc-shares, where those officers have agreed4o transfer controlling interest in the new bank to the holding company in the future, would violate Missouri branch banking laws. The requirement that fair notice be given in administrative cases is expressly defined by Missouri statutes. § 361.094, RSMo 1969, V.A.M.S., covering appeals to the Banking Board from decisions of the Commissioner of Finance, states that, “ . . . [t]he application shall state the grounds upon which it is alleged that the action of the commissioner should be stayed, reversed or altered.” Similar notice is required by § 536.063, RSMo. 1969, V.A.M.S., the Missouri Administrative Procedure Act, and that same section provides that, “[reasonable opportunity shall be given for the preparation and presentation of evidence bearing on any issue raised or decided . . .” While there are no Missouri cases decided directly on the notice requirement in administrative cases, the Nebraska court in Block v. Lincoln Telephone & Telegraph Co., 170 Neb. 531, 103 N.W.2d 312, 317 (1960), held that “[i]n order that an administrative hearing be fair, there must be adequate notice of the issues, and the issues must be clearly defined.” And, in North Federal Sav. & L. Ass’n of Chicago v. Becker, 24 Ill.2d 514, 182 N.E.2d 155, 158 (1962), the Illinois court said that an administrative officer could not receive evidence or argument on issues submitted by one party without fair notice to the other parties. See also, Schyman v. Department of Registration & Education, 9 Ill.App. 504, 133 N.E.2d 551, 554 (1956). Further, in State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 72-73 (1949), our court held that where an administrative agency’s decision affects private rights, and where the benefits in question are not mere gratuities from the agency, the agency may not deny a person those rights without due process of law. The right involved in this case — that of engaging in a lawful business — is a private right, albeit subject to regulation. State ex rel. Rouveyrol v. Donnelly, 365 Mo. 686, 285 S.W. 2d 669, 674 (1956); Banking Board v. Turner Industrial Bank, 165 Colo. 147, 437 P.2d 531, 534 (1968). This right cannot be denied without observance of the fundamentals of due process of law, of which fair notice is one. There is nothing on the record of this case to show that appellant, the Central Bank, was given fair notice that the contemplated association with General Bancshares was an issue to be tried at the hearing before the Board or was grounds for denial of a charter. The branch banking-holding company question was not mentioned in the existing banks’ application to the Board for review of the Commissioner’s decision granting the charter. Nor was the question even raised in the opening statement by counsel for the existing bank. The issue was raised peripherally, if at all, by a “slip of the tongue” by a witness for the existing banks. On this basis, it cannot be said that appellant was given “[reasonable opportunity for the preparation and presentation of evidence bearing on any issue raised or decided . . . ” § 536.063, RSMo 1969, V.A.M.S. Since the statutory requirement that the grounds relied upon in an application to the Board for reversal of the Commissioner’s decision were not complied with, we hold that the Board did not have the issue of branch banking and holding companies properly before it. The Board therefore was without jurisdiction to decide the case on that issue, and its findings recited in Paragraph No. 2 of its order, are void. Even if fair notice of the branch banking issue had been given in this case, it appears that, as a matter of federal law, the Board lacked jurisdiction to determine in a bank chartering procedure whether a new bank’s proposed acquisition by a bank holding company was in violation of state law. In pressing this point, appellants have referred us to the National Bank Holding Company Act, 12 U.S.C.A. § 1841 et seq. (1969), as Amended (Supp.1973), and the Supreme Court’s ruling in Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). The Bank Holding Company Act establishes a comprehensive scheme of regulation of bank holding companies by the Federal Reserve Board. Under the act, no bank holding company can acquire ownership or control of any bank, new or existing, state or national, without prior approval of the Federal Reserve Board. 12 U.S.C.A. § 1842(a) (1969), as Amended (Supp.1973). The act sets up a complete system of administrative control by the Federal Reserve Board of any applications by a bank holding company to acquire a bank. The precedure provides that the Federal Reserve Board shall solicit recommendations on proposed holding company acquisitions from the United States Comptroller of Currency if the bank to be acquired is a national bank, or from the state bank supervising agency if the bank to be acquired is a state bank. Thus, if a holding company wishes too acquire a state bank, as in the case before us, the act contemplates that the holding company will apply for approval of the acquisition to the Federal Reserve Board. That Board will give notice of the intended acquisition to the state agency and allow the agency to submit its views and recommendations. Upon receiving these recommendations and after a hearing on the application, at which interested persons may participate, the act gives the Federal Reserve Board the power to grant or deny the application. 12 U.S. C.A. § 1842(b) (1969), as Amended (Supp. 1973). The Federal Reserve Board’s determinations are subject to judicial review in the United States court of appeals, 12 U.S.C.A. § 1848 (1969). The question raised by appellants here is whether the procedure outlined above vests exclusive jurisdiction of holding company acquisitions of state banks in the Federal Reserve Board, or whether state supervisory agencies retain concurrent or separate jurisdiction over these acquisitions. In Whitney National Bank v. Bank of New Orleans & Trust Co., supra, the court held that the Bank Holding Company Act gave exclusive jurisdiction to the Federal Reserve Board to act in cases of bank holding company arrangements and that statutory proceedings before that Board were the sole means by which questions as to the organization or operation of a new bank by a holding company could be tested. Further, the court said that opponents of a holding company acquisition of a new bank could attack the arrangement only before the Federal Reserve Board and that the Board’s decisions were reviewable only in the United States courts of appeal. Supra, 379 U.S. at 419-423, 85 S.Ct. at 551. It is true that the Whitney case involved the proposed acquisition of a national bank, not a state bank. The scheme was for the original parent bank, a national bank, to become a subsidiary of the holding company, and for the holding company to acquire the new bank, also a national bank, which was located in another parish (county). The plan was attacked both as a violation of a Louisiana statute prohibiting holding company acquisitions and as a violation of the state’s branch banking laws. But despite the national bank aspect of the Whitney case, its implications are that its ruling applies to the situation before us now; that is, the acquisition of a state bank. As the Whitney court pointed out, the thrust of the opponents’ argument was not the chartering of a new bank, but a violation of law, if any, that would occur when the new bank was acquired by the holding company. Supra, 379 U.S. at 418, 85 S.Ct. at 551. This acquisition could be approved only by the Federal Reserve Board, and hence was a matter for that agency’s determination. In light of the procedures established by the act, the same point can be made about the instant case. Further, the language of both the federal statute and the Whitney case indicates that the exclusive jurisdiction of thé Federal Reserve Board exists whether or not a national or state bank acquisition is drawn into question. It should be noted that throughout the Whitney opinion, Mr. Justice Clark made no differentiation between national and state bank acquisitions. He also rejected the notion that the Board’s determinations could be attacked collaterally before the Comptroller, commenting that: “A rejection of this doctrine here would result in unnecessary duplication and conflicting litigation . . . ” Supra, 379 U.S. at 422, 85 S.Ct. at 558. By analogy, the same logic applies here, and the Federal Reserve Board’s determinations may not be challenged collaterally before the state banking agency. This latter position has been adopted by the Maine Supreme Court in Nealley v. Brown, 284 A.2d 480 (Me.1971), where the court considered, in a lengthy opinion, the same question as we have before us; that is, the acquisition of a state bank or trust company by a bank holding company. That court distinguished between the roles played by the state chartering authority and the Federal Reserve Board, and drawing from the rationale of Whitney, held that the state bank commissioner lacked jurisdiction to determine, at a chartering procedure, whether granting the charter would result in branch banking: “[T]he Bank Commissioner lacked jurisdiction, because of the impact of the Federal Bank Holding Company Act, to act as he did by making a final decision grounded on factors intimately involved in the total relationship of bank holding companies to banking corporations which they own, or control — i. e., whether ‘chain’ or ‘bank holding company affiliated’ banking is involved rather than ‘branch’ banking.” Supra, 284 A.2d at 490. In a footnote, the court noted that its emphasis was on the bank commissioner’s attempt to make a final decision denying the charter. The court said that if the commissioner believed that a violation of state branch banking laws would result, he should grant the charter but include a warning that he would oppose the holding company plan before the Federal Reserve Board. Supra, 284 A.2d at 490, Note 4. While both the Whitney case and Neal-ley v. Brown are clear in holding that the Federal Reserve Board has the exclusive jurisdiction to make an initial determination whether a holding company acquisition plan violates state laws, neither case directly answers the more difficult question. That question is: if the Federal Reserve Board grants an application for acquisition of a state bank by a holding company, does the state banking agency then have the power to disapprove the plan as a violation of state law? 12 U.S.C.A. § 1846 (1969) provides that the Bank Holding Company Act “ . . . shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have . . . ” Therefore, the problem is indeed troubling, but we need not reach the issue here. In conclusion, we find that the trial court erred in sustaining Finding Number One of the State Banking Board since that Order was not supported by competent and substantial evidence on the whole record. We further find that the trial court reached the right result in reversing the Board as to its Finding Number Two, but for a wrong reason. Accordingly, we affirm in part and reverse in part the judgment of the trial court with directions. The trial court is directed to set aside and hold for naught its affirmance of the Board’s Finding Number One; and to enter a new judgment in accordance with the views expressed herein. The trial court is further directed to dismiss the Board’s Finding Number Two for the reason that the Board lacked jurisdiction to decide the case on that issue. Finally, the charter granted to the Central Bank of Clayton by the Commissioner of the Division of Fi-is reinstated. DOWD, C. J., CLEMENS, KELLY, SIMEONE and GUNN, JJ„ and JAMES H. KEET, Jr., Special Judge, coflcur. . Sec. 362.105, RSMo 1969, V.A.M.S., provides, in part, that: “ . . . [N]o bank or trust company shall maintain in this state a branch bank or trust company, or receive deposits or pay checks except in its own banking house or as provided in section 862.107.” See. 362.107, RSMo 1969, V.A.M.S., places severe restrictions on the establishment of separate banking facilities. Other applicable sections are §§ 362.170, 362.415 and 362.425, RSMo 1969, V.A.M.S. . Section 362.030, RSMo 1969, V.A.M.S., provides, in part, that: “1. When any bank or trust company has filed with the commissioner proper copies of its articles of agreement, paid all incorporation and other fees in full, as required by law, and provided the cash required by law, the commissioner, before the bank or trust company shall complete its incorporation, shall cause an examination to be made to ascertain whether the requisite capital of the bank or trust company has been subscribed in good faith and paid in actual cash and is ready for use in the transaction of business of the proposed bank or trust company, and whether the character, responsibility and general fitness of the persons named in the articles of agreement are such as to command confidence and warrant belief that the business of the proposed corporation will be conducted honestly and efficiently in accordance with the intent and purpose of this chapter; and if the convenience and needs of the community to be served justify and warrant the opening of the bank or trust company therein, and if. the probable volume of business in such locality is sufficient to insure and maintain the solvency of the new bank or trust company and the solvency of the then existing banks and trust companies in the locality, without endangering the safety of any bank or trust company in the locality as a place of deposit of public and private moneys.” . 0. f. McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579 (1819), where the court addressed a similar problem: “Is it true, that this is the sense in which the word ‘necessary’ is always used? Does it always import an absolute physical necessity, so strong that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another . . . Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea . . . The word ‘necessary’ is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports . . . This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view" (Emphasis added.) . Compare Weir v. United States, 92 F.2d 634, 636 (7th Cir. 1937), holding that Congress created the Federal Deposit Insurance Corp. “[T]o promote the soundness of banking . . . Its obvious intent was, by securing deposits, to prevent runs on banks by depositors, to preserve solvency of insured banks, and thus to keep open the channels of trade and commercial exchange . . .” .Compare Deitrick v. Greaney, 309 U.S. 190, 195, 60 S.Ct. 480, 482, 84 L.Ed. 694 (1940), construing a provision of the National Banking Act, 12 U.S.C.A. § 21 et seq. (1970) : “[t]he obvious purpose of prohibiting the purchase by a bank of its own stock is to prevent the impairment of its capital resources and the consequent injury to its creditors in the event of insolvency . . .” . Por a compilation of these laws, see Note, “Bank Charter, Branching, Holding Company and Merger Laws: Competition Frustrated,” 71 Yale Law Journal 502, 510-511, Notes 72-88 (1962). . C. f. Brimmer, “Market Structure, Public Convenience and the Regulation of Bank Mergers,” 86 Banking Law Journal 773 (1969) ; and Kreps, “Modernizing Banking Regulation,” 31 Law and Contemporary Problems 648 (1966). . Where there are but a few banks in an urban community, the extent of actual bank competition and the number of real alternative credit opportunities becomes particularly relevant to new businesses, expanding small businesses, and persons of modest incomes. If these groups are denied credit because the existing banks do not need their business and classify them as marginal or unacceptable risks, then the competitiveness and growth of the economy of the entire community is lessened. G. f. Note, “Bank Charter, Branching, Holding Company and Merger Laws: Competition Frustrated,” 71 Yale L.J. 502, 503-504 (1962). The problem is perhaps particularly acute for persons with modest incomes who wish to obtain bank credit cards, a burgeoning source of credit in our present economy. . The implication of the Board’s finding that no “public witness” was produced to give evidence of banking needs is that “public witnesses” must be so produced. There being no statutory requirement to produce public witnesses, nor any Board regulation requiring or advising use of these witnesses, the finding raises serious constitutional questions of unfair surprise and the consequent denial of due process of law. But our disposition of this case makes consideration of the constitutional issue unnecessary. . While not raised as an issue on this appeal, the Board’s order in this ease is woefully uninformative. The Missouri Bar Committee on Administrative Law has commented recently that, “the character and quality of findings of fact and conclusions of law being issued by some Missouri Administrative Agencies leave much to be desired from the standpoint of the reviewing court and practicing attorneys.” 29 J.Mo.Bar 563 (1973). The Board’s order here falls within that description. Section 536.090, RSMo 1969, V.A.M.S., requires the agency decisions in contested cases include separately stated findings of fact and conclusions of law, as well as “. . . a concise statement of the findings on which the agency bases its order.” (Emphasis added.) See Iron County v. State Tax Commission, 480 S.W.2d 65 (Mo.1972). . See Footnote 1, supra. . Under § 536.063, RSMo 1969, V.A.M.S., a party to an administrative hearing may waive the right to notice “. . . [w]here issues are tried without objection or by consent . . . ” but this case does not fall within that exception. The issue of branch banking was neither “tried” nor identified as the basis for denial of the charter application. Further, counsel for appellant did object to presentation of this issue without notice. The evidence shows little beyond the fact that the incorporators of Central Bank had agreed to transfer a controlling interest in the bank to General Bancshares at some future date. The evidence also showed that the existing Clayton banks, intervenors-re-spondents, are presently holding ^company owned. Evidence was not produced which would show that a “unified operation” would result from the acquisition of Central Bank by General Bancshares. See Commercial National Bank of Little Rock v. Board of Governors, 451 F.2d 86 (8th Cir. 1971). . Our ruling in this regard is not meant to imply that pleadings in administrative cases are bound by the same strict requirements as those in court proceedings. It is considered a virtue of the administrative process that the rules of pleading are informal. The purpose of administrative pleading is simply to let each party know the other’s position so that each can properly prepare. The object is to avoid unfair surprise. A generalized summary of the case that affords fair notice of the issues to be tried is all that is necessary. Davis, Administrative Law Text, § 8.02, 196, 197 (3rd ed., 1972), and cases cited therein.

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CITY OF ST. LOUIS, Respondent, v. Tyrone MATTHEWS, Appellant. No. 34984. Missouri Court of Appeals, St. Louis District, Division One. April 23, 1974. Brady, Brady & Devereaux, Daniel R. Devereaux, St. Louis, for appellant. Jack L. Koehr, City Counselor, Raymond J. Issa, St. Louis, for respondent. KELLY, Judge. Appellant was convicted in the City Court of the City of St. Louis of a violation of Sec. 772.010, Revised Code of the City of St. Louis, 1960, Ordinance No. 50549, of selling or offering for sale a sex inciting device and he appealed to the St. Louis Court of Criminal Correction. Sec. 479.110 RSMo 1969, V.A.M.S. Thereafter on September 12, 1972, after a trial to the court without a jury, he was again convicted and sentenced to pay a fine of $100.00 and court costs, and allowed ten days to file a motion for new trial. On the tenth day following the finding of guilt, a motion for new trial was filed, and thereafter, on the 29th day of September, 1972, his motion for new trial was overruled and he was given ten days to file an appeal. On October 11, 1972, a notice of appeal was filed with the clerk of the Court of Criminal Correction. Appeals from judgments in cases appealed to the St. Louis Court of Criminal Correction from city police courts are taken to the St. Louis court of appeals (now the Missouri Court of Appeals, St. Louis District) and must be applied for within ten days after judgment. Sec. 479.250 RSMo 1969, V.A.M.S. However, although not presented to this court by appellant, we have determined that there has been no judgment from which an appeal might be taken in this case and the submission of the cause on appeal must be set aside and the cause remanded to the St. Louis Court of Criminal Correction with directions to properly sentence the appellant and render a final judgment. State v. Summers, 477 S.W.2d 721, 722[1, 2] (Mo.App.1972). The record in this court shows that after the City rested its case the appellant’s counsel announced that he had no evidence. The trial court thereupon overruled appellant’s motion to dismiss and announced: “BY THE COURT: Tyrone Matthews the Court finds you guilty as charged in the information of ‘Selling of Sex Inciting Devices.’ The Court now sentences you to pay a fine of $100.00 and costs.” The appellant was then granted ten days to file a motion for new trial. Within the time allowed appellant did file his motion for new trial which was, as stated supra, overruled. The record fails to evidence that the appellant was ever sentenced or that a final judgment of conviction was entered after the motion for new trial was overruled. The attempt of the trial court to sentence appellant prior to disposing of the motion for new trial was a nullity, does not constitute a final judgment, and we have no jurisdiction to hear an appeal in the absence of a final judgment in the trial court. State v. Summers, supra. Accordingly we remand the cause to the trial court with directions to properly sentence the defendant and render a final judgment; the defendant may thereafter have a right to appeal from that judgment. DOWD, C. J., and SIMEONE and WEIER, JJ., concur.

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CITY OF ST. LOUIS, Plaintiff-Respondent, v. James RICHARDSON, Defendant-Appellant. No. 35118. Missouri Court of Appeals, St. Louis District, Division 1. April 23, 1974. Brady, Brady & Devereaux, St. Louis, for defendant-appellant. Jack L. Koehr, City Counselor Raymond J. Issa, Asst. City Counselor, St. Louis, for plaintiff-respondent. PER CURIAM. Defendant-appellant, James Richardson, was convicted in the City Court of the City of St. Louis of a violation of § 772.010 Revised Code of the City of St. Louis, 1960, for selling; or offering for sale “sex-inciting devices” and he appealed to the St. Louis Court of Criminal Correction. § 479.110, RSMo, V.A.M.S. Thereafter, on October 27, 1972, after trial before the court, he was found guilty and the court assessed sentence of “One hundred dollars and costs” and he was given ten days to file a motion for a new trial. On November 6, the defendant was given an additional thirty days, until December 6, 1972, to file a motion for new trial. The motion was filed on that date. On January 2, 1973, the motion was overruled and on January 12, 1973 the defendant through counsel filed his notice of appeal to this court. We have determined that there has been no judgment from which an appeal might be taken in this cause so that the cause must be remanded to the St. Louis Court of Criminal Correction with directions to properly sentence the defendant and render a final judgment from which an appeal might be taken. The record in this court shows that at the end of the City’s case counsel for appellant moved to dismiss, and the Court announced “One hundred dollars and costs, ten days to file a motion for new trial.” Appellant was granted an additional thirty days to file his motion; the motion was filed within time and on January 2, 1973, the motion was overruled. The record, however, fails to show that the defendant was sentenced after the motion for new trial was overruled. The attempt of the court to sentence appellant prior to the disposition of the motion for new trial does not constitute a final judgment. In State v. Summers, 477 S.W.2d 721, 722 (Mo.App.1972), it was held that where the record shows that the court attempted to sentence the defendant before the filing and ruling on defendant’s motion for a new trial the assessment of sentence was premature and void as being made prior to the filing and ruling on the motion for new trial. There is no showing in the transcript that the defendant was ever sentenced or that a final judgment was entered after the motion for new trial was overruled. Since the appeal was taken before final judgment, it is premature. We are without jurisdiction to hear this appeal in the absence of a final judgment in the trial court. State v. Grimes, 470 S.W.2d 4 Mo.App.1972); State v. Ezell, 470 S.W. 2d 162, 163 (Mo.App.1971); City of St. Louis v. Matthews, Mo.App., 509 S.W.2d 195, St. Louis District, filed this date. The submission of this cause on appeal is set aside and the cause remanded to the trial court with directions to properly sentence the defendant and render a final judgment. The defendant will then have the right of appeal from that judgment. All the Judges concur.

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Caselaw Access Project

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Betty J. DATI and Alfred B. Dati, Appellants, v. Laveta SCOTT and Earnest J. Scott, d/b/a Scottie’s Market, Respondents. No. 35251. Missouri Court of Appeals, St. Louis District, Division Two. April 23, 1974. Politte & Thayer, Washington, for appellants. James J. Amelung, Amelung, Wulff & Willenbrock, St. Louis, for respondents. SMITH, Presiding Judge. Plaintiffs appeal from a judgment in favor of defendants pursuant to a jury verdict. Plaintiff-wife tripped and fell upon entering defendants’ store and sustained injury as a result. She contended a piece of wood fell from the doorway between her legs causing her to trip. Defendant contended she tripped and fell against the doorway causing the wood piece to break. Plaintiffs raise two issues on appeal. First, the trial court’s refusal to admit into evidence an expired lease on the premises. Defendant had admitted it leased the premises and that plaintiff was an invitee thereon. Secondly, the court’s failure to give a not-in-M.A.I. instruction that negligence could be inferred or presumed under circumstances establishing res ipsa loquitur. Plaintiffs’ motion for new trial made no specific objection to the court’s action in either regard and in no way specified why the court was in error in its rulings. No specific objection was made to the court’s action in regard to the instruction at the time it was offered and refused. In that posture neither point has been preserved for appellate review. Rule 79.03, V.A.M.R. Schneider v. Southerwestern Bell Telephone Co. (Mo.App.1967) 413 S.W.2d 16. Judgment affirmed. CLEMENS and McMILLIAN, JJ., concur.

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Caselaw Access Project

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Alphonzo N. LOPEZ, Plaintiff-Appellant, v. K. E. VANCE et al., Defendants-Respondents. No. 35127. Missouri Court of Appeals, St. Louis District, Division, 1. March 12, 1974. Motion for Rehearing or Transfer to Court En Banc or to Supreme Court Denied April 8, 1974. Application to Transfer Denied June 10, 1974. Buerkle, Buerkle & Lowes, Jackson, for plaintiff-appellant. Limbaugh, Limbaugh & Russell, Cape Girardeau, Dennis C. Brewer, Perryville, for defendants-respondents. SIMEONE, Judge. This case involves the construction and interpretation of the Missouri Teacher Tenure Act, §§ 168.102-168.130, RSMo 1969, V.A.M.S., adopted by the General Assembly, effective July 1, 1970. Plaintiff-appellant, Alphonzo N. Lopez, appeals from a decree in favor of the defendants-respondents, entered on January 11, 1973, by the circuit court of Perry County decreeing that “Plaintiff is not entitled to the relief prayed for in Count I of his petition” and that “Plaintiff is not a person entitled to the benefits of the Missouri Teacher Tenure Act. . . .” Plaintiff, Mr. Lopez, is an electronics teacher in Perryville School District No. 32 (hereinafter school district). Mr. Raymond Pensel is the senior high school principal and Mr. K. E. Vance is the superintendent of the school district. Mr. Lopez instituted this proceeding by filing a petition in two counts. Count I alleged that the General Assembly adopted the Teacher Tenure Act, effective July 1, 1970, that plaintiff was a duly licensed instructor, that he was employed by and completed his “5th year at the close of the school year in May of 1971, and thereby became a 'permanent teacher’ within the meaning of the Missouri Teacher Tenure Act, and, therefore, by law entitled to an indefinite contract.” He further alleged that the district did not tender him an indefinite contract for the year 1971-1972 and has not paid him all the normally scheduled wages that he was entitled to; that he is ready, willing and able to offer his services to the district, that he has been notified that he is not eligible for retirement credit for the year 1971-1972. He prayed for a mandatory injunction directing the officials of the district to tender him a contract which complies with the Teacher Tenure Act for 1972-1973 and that the defendants be enjoined from interfering with the performance of a contract and to order the district to take the necessary steps to correct the records with the Teachers’ Retirement System, and he sought additional compensation for 1971— 1972. Count II alleged a conspiracy on the part of the defendants to make the performance of his duties difficult and sought damages therefor. The parties agreed that only Count I would be the subject of the hearing and any appeal, and that the court should make Count I an appealable order under Rule 81.06, V.A.M.R. Evidence was taken. Mr. Lopez testified and his attorney introduced excerpts from the depositions of Mr. Pensel and Mr. Vance. The Perryville school district school day begins at 8:00 a. m. and ends slightly after 3:00 p. m. There are six hours in the school day, but the school day is divided into seven periods of fifty-five minutes each. A teacher is required to serve a total of six periods either in the classroom or in some form of supervision either in the lunchroom, or in the gymnasium or study hall. During the five years from 1966-1967 academic year through the 1970-1971 academic year, Mr. Lopez was assigned classroom instruction, and previous to the academic year 1971-1972 he had an assignment of supervising a lunchroom as one of his regular periods. The attorneys for the parties at the hearing on January 11, 1973 stipulated to certain facts: (1) Mr. Lopez was hired to teach electronics in the Vocational and Technical Education Program; he taught six hours in the years 1966-1967, 1967— 1968, 1968-1969, 1969-1970 and 1970-1971, a total of five years; (2) For the academic year 1971-1972, Mr. Lopez taught five periods rather than six and was paid on a ⅜ basis of his salary of $8,000.00. (The contract the school district and Mr. Lopez entered into for the 1971-1972 school year was dated March 10, 1971); (3) For the school year 1972-1973, Mr. Lopez was initially offered a contract to teach two hours at % pay, but prior to the school year the “contract” was enlarged to include teaching five hours at % pay. During the school year 1972-1973, he taught five hours (periods) and received ⅝ pay. (4) That Mr. Lopez, during all the period had a valid teacher’s certificate in the electronics field; (5) That Count I of the petition presents a legal issue with respect to the Teacher Tenure Act; (6) That when Mr. Lopez began teaching five hours (periods) instead of six the State Retirement Board was notified of the fact, and that a notice was sent to him from the retirement board to the effect that he was not a full time teacher and that he would not participate in the same retirement program as teachers who were teaching six hours; and (7) The salary paid to Mr. Lopez during the ’7l-’72 year was $6,666.65. % of $8,000.00 and the salary for the ’72-73 year was ⅝ of the $8,100.00. Mr. Lopez testified that he taught in the Perryville School System as a vocational instructor in electronics since 1966. Since 1966, until the 1971-72 year, he taught a total of six periods — five hours of class instruction and one of supervision. During the first five years he was assigned as supervisor at the cafeteria. In the school year 1971-1972, however, he was not assigned any supervisory duties to make up the sixth period, but did teach five hours of classroom instruction — electronics I, one hour twice a day and electronics II, a three period class. He also had a “conference” period — a preparatory period which “we do not get paid for.” For the 1971-1972 year he was tendered a contract for ⅜ of his salary, which was signed by him. He testified that he was ready, willing and able and available to take all the “chores” the school would assign, and ready, willing and able to teach six periods. He testified that there were several teachers who supervised study halls during the six periods, which counts toward the six periods. During the school year 1971-1972, Mr. Lopez was free to leave the school “a little after 2:00” as opposed to 3:00. Portions of the depositions of the principal, Mr. Pensel, and the superintendent, Mr. Vance, were read as part of the plaintiff’s case. The deposition of Mr. Pensel indicated that seven periods of fifty-five minutes is a school day, and that instructors teach six periods, which include some supervisory duties during lunch periods in the gymnasium or in the lunchroom, as well as study hall. He admitted knowing of some school systems which pay teachers their full salary who only put in five hours, but in this system teachers “teach” six periods which may include supervision. His answers in his deposition indicated that the reason that Mr. Lopez was paid ⅝ of his salary was because there was an insufficient number of pupils for his courses. Mr. Pensel stated that Lopez “did an unsatisfactory job” of supervising the lunchroom, hence “he doesn’t have lunch rooms anymore.” Much was made of the fact in both Mr. Pensel’s and Mr. Vance’s depositions that the board submitted to the voters an additional one dollar levy for four years to be used for a matching fund basis for federal funds, which would be used for various types of vocational education including electronics, this presumably to refute the reason for the decrease in salary that there was an insufficient number of pupils to take electronics. Portions of Mr. Vance’s deposition were read by the appellant. Mr. Vance stated that at contract time, Mr. Pensel indicated “there was some question whether or not we would have enough students for electronics II.” The testimony that was read indicated that the board did ask for an additional one dollar levy for four years to be used for vocational purposes. After reading the portions of the depositions, plaintiff rested. At that time, the attorney for the defendants moved for judgment on the ground that the plaintiff failed to show sufficient facts to entitle the plaintiff to relief on Count I. Then the attorney for Mr. Lopez requested findings of fact and conclusions of law. But the court stated, “That comes too late. . [T]he rules are very plain that if you want findings of fact and conclusions of law, they must be asked for in the beginning.” The court then stated that upon “re-reading of subparagraph 4 of § 168.104 the Court will find in favor of the Defendants and against the Plaintiff.” Thereafter, the court entered its decree: (1) ordering Count I of the plaintiff’s petition severed and that its decree on Count I be “deemed a final judgment for purposes of appeal under Supreme Court Rule 81.-06,” and (2) having heard the evidence decreed “for the Defendants and against the Plaintiff, at the close of the Plaintiff’s evidence upon motion of Defendants.” The court ordered and decreed that plaintiff is not entitled to the relief prayed for in Count I, and that the “Plaintiff is not a person entitled to the benefits of the Missouri Teacher Tenure Act as provided in Section 168.102 et seq. RSMo.1969.” In due time Mr. Lopez appealed. On appeal, Mr. Lopez makes two points: (1) the court erred in failing to honor his request for findings of fact and conclusions of law pursuant to Rule 73.01(b) and (2) the court erred in finding that the plaintiff was not a “tenured” or permanent teacher entitled to the benefits of the Teacher Tenure Act, and that plaintiff was not employed after his fifth year of teaching as a “full-time” teacher as contemplated by § 168.104(4). His position as indicated to the trial court is that having been employed for five years as a full time teacher and thereafter having made himself available for full-time service in the sixth year, and allegedly being employed as a “full-time” teacher he became a permanent teacher entitled to an indefinite contract at full salary. He contends that he was arbitrarily not assigned an additional sixth supervisory period for the 1971-1972 year and that he is entitled to be treated as a full-time teacher in the sixth year since he was available at all times to perform the services required. He further argues that the failure to assign the plaintiff a supervisory hour was an arbitrary one and an attempt to deny him tenure. The respondents contend on the other hand that the trial court properly found Mr. Lopez was not a tenured teacher and that he was not employed as a full-time teacher after his fifth year. The principal issue to be decided in our opinion is whether, after a teacher serves a period of five years as a full-time teacher, and in his sixth year makes himself available for full-time teaching duties, and teaches the same number of classroom hours as he has jn the past but is not assigned supervisory non-teaching duties by the principal or the district to make up six periods in the day, may be paid or tendered a contract which is less than a full salary for the academic year. Or, as appellant states the issue, it is “whether or not after the original five year probationary period he was thereafter employed as a full-time teacher.” This is a court tried case. We must review the facts and evidence and make our own independent determination, but in doing so, we give due deference to the opportunity of the trial court to judge the credibility of the witnesses and we are required not to set aside the judgment unless clearly erroneous. Rule 73.01(d). Our General Assembly in 1969 recognizing the benefits of teacher tenure passed Senate Committee Substitute for House Bill 120, effective July 1, 1970. We believe the purpose of our statute, as well as teacher tenure acts, was to attain stability, certainty and permanence of employment on the part of those who have shown by educational attainment and by a probationary period their fitness for the important profession of teaching. “The history behind the act justifies the view that the vicissitudes to which teachers had in the past been subjected were to be done away with or at least minimized. It was enacted for the benefit and advantage of the school system by providing such machinery as would tend to minimize the part that malice, political or partisan trends, or caprice might play. It established merit as the essential basis for the right of permanent employment.” McSherry, supra, 277 N.W. at 544. See also Blue Springs Reorganized School Dist. IV v. Landuyt, 499 S.W.2d 33, 37 (Mo.App.1973). § 168.104(4) of the Teacher Tenure Act defines a permanent teacher as “any teacher who has been employed ... in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district. .” Subsection (5) defines a “probationary teacher” as “any teacher as herein defined who has been employed full time in the same school district for five successive years or less.” § 168.106 provides that “The contract between a school district and a permanent teacher shall be known as an indefinite contract and shall continue in effect for an indefinite period, subject only to: [certain specified reasons.]” § 168.114 provides that “1. An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes: . . .” Under our statutes the critical point in time at which a teacher achieves a permanent teacher status is reemployment for or failure to notify the teacher of his reemployment for the sixth successive year by the same school district. He does not achieve the status of a permanent teacher unless the statutory conditions are fulfilled, i. e. he is a full-time teacher for five successive years and “thereafter continues to be employed as a full-time teacher by the school district.” Unless, therefore, Mr. Lopez was a full-time teacher for five consecutive years prior to the academic school year 1971-1972, and was reemployed on a full-time status for the school year 1971-1972, he cannot achieve the status of a permanent teacher and thus be entitled to tenure. The phrase “full-time” is in its nature somewhat ambiguous. But the evidence on the issue of full-time in the Perryville School District is impliedly, if not expressly clear. The class day consisted of six hours divided into seven periods of fifty-five minutes. The instructors “teach” a total of six periods which includes such non-classroom teaching as supervisory duties. Mr. Lopez for at least some time prior to the 1971-1972 academic year was assigned as supervisor at the cafeteria for his sixth period. But for the 1971-1972 year this assignment was not given him, and whether due to a lack of students in his classes or due to the non-assignment of supervisor at the cafeteria, he “taught” five, rather than six periods during the school day, and was offered a ⅝ contract for 1971-1972 and ⅝ pay for 1972-1973 The conference period was not an assigned teaching duty and teachers did not get paid for this period. The simple fact is, in this case, that Mr. Lopez was not a “full-time” teacher in his sixth or seventh year, even though he taught the same number of hours of classroom instruction. Even though he has indicated his willingness and ability to serve for the sixth period in some supervisory capacity, either in the lunchroom, gymnasium or study hall, and even though there may not be the need for particular expertise or training, he cannot unilaterally achieve a permanent teacher status and thus tenure by indicating his ability, readiness and willingness to so serve. Tenure is achieved not by the unilateral willingness on the part of the teacher but by the action of the school district. The matter of whether to grant or withhold tenure must, of necessity, be that of the district rather than the willingness and availability of the teacher. Mr. Lopez acknowledged that he left school and was free to leave at 2:00 p. m. as opposed to being out at 3:00 p. m. during 1971-1972 and during 1972-1973 he left at approximately 1:15 or 1:20 p. m. Much was made of the fact that an election was held to assess an additional $1.00 per hundred dollar assessed valuation tax levy in order to seek federal funding for vocational training in the community, while, at the same time contending that there was an insufficient number of pupils to take electronics. But, we believe as did the trial court, this is “mighty far afield” and is irrelevant to the issues presented. Under the facts presented by this record we cannot, as did the trial court, conclude that Mr. Lopez is entitled to the benefits of the Teacher Tenure Act as provided in § 168.102 et seq., nor can we conclude that he is entitled to the relief prayed for in Count I. Appellant relies on certain decisions from other states which we believe are in-apposite and do not dispose of the issues presented by this record. Appellant contends that we should reverse and remand because the trial court failed to honor the plaintiff’s request for findings of fact and conclusions of law pursuant to Rule 73.01(b). Rule 73.01(b) provides in part: “ . . .If any party shall so request before final submission of the case, the court shall dictate to the court reporter, or prepare and file a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded; and may, or if specifically requested by counsel, shall, include its findings on any of the principal controverted fact issues. . . . ” (Emphasis added.) The rule contemplates that a request may be made before final submission and not at the beginning of the hearing. The submission is final when the evidence and arguments are finished and the court takes the case, whether it is taken for immediate decision or merely under advisement preliminary to the rendition of a decision. McIntosh v. White, 447 S.W.2d 75, 77-78 (Mo.App.1969). A request made immediately after the close of the evidence and before any indication whether counsel desired to present or waive oral arguments and prior to any statement by the trial court, is made before final submission of the case. State ex rel. State Highway Commission v. Carlton, 453 S.W.2d 642, 652 (Mo.App.1970). However, it does not follow that the cause should be remanded on that account for we are instructed by Rule 84.-13(b) that “[n]o appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action.” As the parties stipulated and as the appellant continually pointed out, the determination of Count I involves a legal question. In the circumstances here, it may not fairly be said that the trial court’s failure to honor the request of the plaintiff materially affected the merits of the action or interfered with our review of the legal issues. State ex rel. State Highway Commission v. Carlton, supra at 652. We do not in any sense minimize the importance or validity of teacher tenure. Academic freedom and tenure are essentials if the teacher is to accomplish his or her objectives. The General Assembly in its wisdom adopted rules and regulations to protect the teacher and to benefit the school system by adopting the Teacher Tenure Act. And we are bound by the legislative deliberations and enactments of those representatives of the people. Under the facts of this record, as to Count I of the petition, Mr. Lopez did not legally attain the status of a permanent teacher and the trial court did not err. In reaching this conclusion we find the record devoid of any evidence to establish that the defendants conspired in a manner to avoid compliance with the Teacher Tenure Act and therefore we rule only on the legal issues presented in Count I. The decree of the trial court entered on January 11, 1973 on Count I of the petition is affirmed. DOWD, C. J., dissents in separate opinion. KELLY, J., concurs. DOWD, Chief Judge (dissenting). I respectfully dissent. Section 168.104(4) defines permanent teacher as: “[A]ny teacher who has been employed or who is hereafter employed as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district * * *” (Emphasis added). Probationary teacher is defined in Section 168.104(5) as: “[A]ny teacher * * * who has been employed full time in the same school district for five successive years or less. * * *” The intent and purpose of these two sub-sections of the teacher tenure act appear to be the establishment of a uniform system by which a school district determines whether a teacher is qualified to remain permanently within that district, and once that determination is made, the system provides security for the teacher who is retained. It is obvious that at any time during this probationary period of five years the school district may determine that the “probationary teacher” is not qualified or suitable to its needs and that the district does not desire this teacher as a “permanent teacher”. The district may then terminate the relationship. Equally obvious is the point that when this probationary period is completed, if the district chooses to continue the employment as a full-time teacher, that teacher becomes a “permanent teacher.” I believe Mr. Lopez has become a “permanent teacher.” During his five year probationary period, Mr. Lopez taught electronics five periods per day and supervised the cafeteria for one period. Clearly he was a “probationary teacher.” Section 168.104(5) provides that he must be employed full time and Mr. Lopez was employed full time as a teacher and cafeteria supervisor (assuming that as per Mr. Vance this school system pays full salary for six periods per day). When Mr. Lopez was given a contract to teach five periods of electronics for the 1971-1972 school year, this constituted continuation as a full-time teacher in that the number of hours he was teaching remained the same as during his five year probationary period and he became a permanent teacher. This obviously meets the purpose and intent of the tenure act in that the school district was evidently satisfied with Mr. Lopez’s teaching ability and wished to retain that ability. This is not to say that a school district may not define “full-time teaching” as requiring a certain number of hours composed of both teaching and supervisory activity. But this record is devoid of anything more concrete than the assertions of administrative personnel that six periods constitute full-time for purposes of salary. The question of remuneration does not, however, determine tenure. Surely a tenured teacher may be employed part time at part time pay. But without a showing that Mr. Lopez was made aware that teaching and supervising for six periods per day was required to become tenured, or of a written rule defining full-time as it applied to tenure in this district, I believe Mr. Lopez did in fact become tenured when he continued to teach full-time in the school district in the sixth year. This is not to say, however, that Mr. Lopez must continue to draw full salary during the years he teaches five periods but has no other duties the sixth. If Mr. Lopez is in fact not qualified to supervise the cafeteria or study hall or to perform a necessary function in this sixth hour, the school district may reduce his pay according to the number of hours worked. If the situation in fact deteriorates within the district as Mr. Vance and Mr. Pensel predict and the need for an electronics teacher dwindles to only two periods a day, the district should not have to pay Mr. Lopez full salary for working two periods. The district must, of course, determine'if Mr. Lopez is qualified to fill other needs within the school such as supervisory duties in the gymnasium, lunchroom or study halls in order to accumulate his six periods for full-time employment and pay. But if the needs of the school and qualification of Mr. Lopez dictate that he only be employed to teach the five periods of electronics, he should be paid only % of full-time salary. If the district was arbitrary in not permitting Mr. Lopez to work the additional periods to get full-time pay, his remedy is under Count II. I would reverse the judgment. . The parties agreed that his teaching at % pay was without prejudice to his rights in the litigation which Mr. Lopez commenced on May 26, 1972. . Tenure has various meanings. “Tenure in its broad sense means the duration of employment. . . . [T]he word tenure has developed a technical meaning in school law which refers to indefinite or permanent employment from year to year under certain conditions. Tenure in this technical sense is provided.by statute; there is no common law involved. The tenure status of teachers therefore depends upon the provisions of the particular tenure law under which they are employed.” Remmlein, School Law 25 (2nd ed. 1962) ; “Tenure is a means to certain ends; specifically: (1) Freedom of teaching and research . . . and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure are indispensable to the success of an institution .” 1940 Statement of Principles on Academic Freedom and Tenure, A.A.U.P. ; “Tenure is a job security device. It has been defined as assurance to an experienced faculty member that he may expect to continue in his academic position unless adequate cause for dismissal is shown in a fair hearing following established procedures of due process. Tenure is granted after a probationary period of anywhere from two to seven years.” Comment, 38 Mo.L.Rev. 279 (1973) ; See the history of teacher tenure laws in McSherry v. City of St. Paul, 202 Minn. 102, 277 N.W. 541, 543-544 (1938).