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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

BAYLESS BUILDING MATERIALS COMPANY, Plaintiff-Respondent, v. PEERLESS LAND COMPANY, Defendant-Appellant. STATE of Missouri ex rel. etc., and the MISSOURI LAND RECLAMATION COMMISSION, Plaintiffs-Appellants, v. PACIFIC AGGREGATES, INC., Defendant-Respondent. Nos. 35228, 35244. Missouri Court of Appeals, St. Louis District. March 19, 1974. Motion for Rehearings or Transfer to Supreme Court Denied April 8, 1974. Applications to Transfer Denied June 10, 1974. Ziercher, Hocker, Tzinberg, Human & Michenfelder, Lon Hocker, Clayton, for Bayless Building Materials. John C. Danforth, Atty. Gen., Walter W. Nowotny, Jr., William G. Cole, Asst. Attys. Gen., Jefferson City, for the State. Marshall, Littmann & Ragland, Richard M. Marshall, Clayton, for Peerless Land Co. Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, Ralph H. Schnebe-len, St. Louis, Marshall, Littmann & Rag-land, Clayton, for Pacific Aggregates. PER CURIAM: Suits in disputes over gravel mining rights with appeals from decrees of the trial court in separate actions which were consolidated for trial. Defendant-appellant Peerless Land Company appeals from the decree of the trial court enjoining it from preventing or interfering with the exercise of certain mining rights found by the trial court to exist in plaintiff-respondent Bay-less Building Materials Company (hereinafter “Bayless”). Plaintiff-appellant State of Missouri appeals from the decree denying the State’s prayer for injunction requiring Pacific Aggregates, Inc., (a wholly-owned operating affiliate of Bayless) to observe specific mining setback lines under § 444.774(5) RSMo Supp.1971, V.A.M.S., of the Land Reclamation Act. The critical issue before this court is whether pursuant to a valid enforceable agreement Bayless has sand and gravel mining rights to a specific 40 acres of land owned by Peerless Land Company. We find the existence of such an agreement and thereby affirm the decree of the trial court with modification. Our determination of the existence of a valid mining agreement between Bayless and Peerless Land Company is dispositive of the State’s action under the Land Reclamation Act. Therefore, we shall first settle the matter between Bayless and Peerless Land Company. In our review of the decision of a court tried case, we are guided by Rule 73.01(d) V.A.M.R. and will not set aside the judgment unless clearly erroneous, and due regard will be given to the trial court’s opportunity to judge the credibility of the witnesses. Inferences most favorable to the prevailing party will be drawn. City of St. Louis v. Boos, 503 S.W.2d 133 (Mo. App.1973). Bayless and its affiliate, Pacific Aggregates, Inc., conduct sand and gravel mining operations on 15 acres of land owned by Peerless Development Company. (To avoid confusion with defendant Peerless Land Company, Peerless Development Company will henceforth be referred to as Development Company and Peerless Land Company will be referred to as Peerless Land. Bayless, Peerless Land, Development Company and the tracts of land here involved are located within the limits of the Village of Peerless Park.) Adjoining Bayless’ 15 acre mining area is a 30-acre tract of land owned by Peerless Land. Bayless contends that prior to October 14, 1969, it had an oral agreement with Peerless Land to mine 10 acres of the 30-acre tract, as the mining area in the 15-acre tract was nearly exhausted. The 30-acre tract was encumbered by a deed of trust precluding mining operations until released by payment of the deed of trust. The deed of trust was written to permit the release of contiguous acreage as payments would be made for their release. Also prior to October 14, 1969, Peerless Land had an option to purchase an additional 60 acres of land adjoining its 30-acre tract. Exercise of the option to purchase the 60 acres required a $24,000 earnest money deposit, but Peerless Land had only $8,000 in its treasury. A joint meeting of all of the stockholders and members of the board of directors of Peerless Land was held to seek a solution which would allow it to purchase the 60-acre tract. The directors and stockholders were Thomas Ward, Charles Shaw and James Blind. Ward was chief stockholder of Peerless Land. Blind was the owner of Bayless and was also an officer and director of Peerless Land and the Development Company. At the meeting it was determined that the Development Company had $16,000.00, but that the money was owed to Bayless. Since Bayless’ existing 15-acre mining area was nearly exhausted, it was agreed by all the directors and stockholders of Peerless Land that if Bayless would forego the payment of the $16,000 owed to it by the Development Company, that the Development Company would advance the $16,000 to Peerless Land and permit the purchase option to be exercised; that Bay-less would receive a total of 40 acres of mining rights in the combined 60 and 30 acre tracts of land which would now be owned by Peerless Land subject to deeds of trust containing the same interdiction against mining as on the 30-acre tract. Thereupon, the following resolution dated October 14, 1969, was adopted by all of the Peerless Land shareholders and the entire board of directors: “RESOLVED, that the officers of this Company are hereby authorized to make an expenditure of $8,000.00 as payment on earnest money deposit of $24,000.00 to purchase the 60-acre tract of land described in the minutes of the Joint Meeting of the Board of Directors and Shareholders of Peerless Land Company on the 18th day of March, 1969. The Peerless Land Company shall relinquish one-third of this 60-acre tract to Peerless Development Company for the sum of $16,000.00, which said sum of $16,000.00 shall be applied with the $8,000.00 hereinabove mentioned on the earnest money contract as per the Resolution of this Company of March 18, 1969. The Peerless Land Company shall assume the obligation of meeting the monthly payments on the mortgage on the aforesaid 60-acre tract. The Bayless Building Materials Company shall have gravel rights in 40 acres of the combined tracts, for which Bayless Building Materials Company shall pay to Peerless Land Company royalties in the amount of five and one-half cents per ton. Peerless Land Company hereby acknowledges a 5 percent commission to be due and owing to Henry Dennis for his services in negotiating the transfer and sale of the 60-acre tract to Peerless Land Company. This commission will be paid as follows: ‘6 percent of the total commission will be paid to Henry Dennis every month. The total commission is $10,000.00. There shall be a deed of trust on only 57 acres of the 60-acre tract, and the additional acreage shall be released at the rate of $325.00 per acre.’ ” The option to purchase the 60 acres was exercised and the land was encumbered by deeds of trust similar to those on the 30-acre tract thereby precluding mining until the deeds were released. In accordance with the corporate resolution of October 14, 1969, Peerless Land did make the mortgage payments and obtained release of the deed of trust on three acres of the 60-acre tract, leaving deeds of trust on 57 acres of the 60-acre tract. Peerless Land also commissioned the Clayton Surveying Company to survey the 3 acres released from the deed of trust encumbrance. Subsequent to October 14, 1969, Bayless entered on a portion of the 40-acre tract in which it claimed to have mining rights and removed substantial amounts of overburden which were placed at Peerless Land’s direction on a landfill operation conducted by Mr. Ward. At trial, Mr. Ward denied knowledge of any agreement between Peerless Land and Bayless which would allow Bayless to conduct mining operations on the 40 acres of land, but there was substantial evidence from which the trial judge could find to the contrary. The annual reports of Peerless Land for the years 1969, 1970 and 1971, approved by its stockholders, including Mr. Ward, acknowledged that 40 acres of its land were subject to gravel rights at a 5.5‡ per ton royalty under agreement with Bayless. Also, subsequent to October 14, 1969, in an annexation case brought by the Village of Peerless Park and heard by the St. Louis County Circuit Court, Mr. Ward, as chairman of the Village Board of Trustees, testified that Bayless had an agreement with Peerless Land to mine 40 acres in the area owned by Peerless Land and sought to be annexed within the village limits. The Manager of Mr. Ward’s landfill operation on property owned by Peerless Land was instructed by Mr. Ward not to permit dumping within a specific 40 acre area because of Bayless’ gravel rights to that area. A resolution was adopted by the Board of Directors of Peerless Land on February 23, 1971, providing for the employment of an engineer to plat the boundaries of the Bayless mining operation on Peerless Land’s property, further indicating the existence of a mining agreement between Peerless Land and Bayless. In August, 1972, Peerless Land erected a fence between its property line and the Development Company’s 15-acre tract in which Bayless had been conducting its mining operations, thus preventing Bayless from doing any further mining in the Peerless Land’s 40-acre tract in which Bayless contends it has mining rights. The trial court found that the minutes of the Peerless Land meeting of October 14, 1969, constituted a sufficient memorandum to satisfy the statute of frauds; that the removal of the overburden and the commencement of mining in the 40-acre tract by Bayless was sufficient partial performance to take the agreement out of the statute of frauds. The trial court further found that the 40 acres in which Bayless was to have its mining rights was identified with sufficient specificity and enjoined Peerless Land from interfering with the exercise by Bayless of its gravel rights within the 40 acres described in the court’s decree. The trial court determined that since all of the officers, stockholders and directors of Peerless Land were aware of the deed restrictions precluding mining until the deeds of trust were paid and released and because of the thin financial condition of Peerless Land that it was therefore contemplated and intended that Bayless should be allowed to apply the gravel mining royalty payments directly to the holders of the deeds of trust and thereby secure the release of the deeds of trust. The trial court found that the reasonable time for the extraction of the gravel would be three years commencing from the date of release from the deed of trust of each portion of land so released. There were other conditions of the decree, which we do not find necessary to discuss as bearing on the issues to be determined in this case, but which are affirmed except as hereinafter specifically modified. Peerless Land appealed alleging that the trial court erroneously created a contract and the terms of contract for the parties; that if a contract existed, it was unenforceable under the statute of frauds; that even if a valid contract existed, it would be unenforceable against Peerless Land as it was unfairly imposed upon the corporation by James Blind, as officer and director of Peerless Land, in breach of his fiduciary duty. “As to the elements necessary to be present in order that the statute (of frauds) be satisfied, the following are required: (1) the parties; (2) the subject matter; (3) the premises upon both sides; (4) the price; and (5) the consideration.” Midland Realty Company v. Manzella, 308 S.W.2d 326 (Mo.App. 19S7), 1. c. 330. We agree with the trial court that the Peerless Land corporate resolution of October 14, 1969, constituted a sufficient written memorandum to remove the impediment of the statute of frauds, § 432.-010 RSMo 1969, V.A.M.S. It is not essential that the memorandum be contained in a single document. The essential elements may be contained in a series of writings or documents. Midland Realty Company v. Manzella, supra. It is not necessary to find definiteness of terms or that the contract be detailed, Watkins v. Watkins, 397 S.W.2d 603 (Mo.1965). Where, as we determine here, the essential elements of the agreement are set forth, specific performance is proper. Dunning v. Alfred H. Mayer Co., 483 S.W.2d 423 (Mo.App.1972). The resolution here adequately describes the parties, the premises, the price, the consideration and together with other evidence before the court, the subject matter is adequately covered. Frostwood Drugs, Inc. v. Fischer & Frichtel Const. Co., 352 S.W.2d 694 (Mo.1961), relied on by Peerland Land is inap-posite, for the Frostwood case involved an attempt to render nugatory and vary the specific terms of a written document by oral testimony. Such is not the case before. us. Bayless has yet another basis in support of its position that the mining rights granted to it would be outside the statute of frauds, through its performance of the contract. In addition to its advancement of $16,000 to permit the exercise of the option to purchase the 60-acre tract of land, there was clear evidence that Bayless had removed substantial quantities of overburden from the 40 acre area in which it was to conduct mining operations. The removal of the overburden was, of course, of benefit to Bayless, as its removal would be necessary to the commencement of mining operations. But Peerless Land also received benefit from the removal of the overburden, as the top soil was used in its landfill operations. In Alonzo v. Laubert, 418 S.W.2d 94 (Mo.1967), the court discussed the doctrine of part performance as it relates to removal of the statute of frauds from application. There, the court said, 1. c. 97: “There must have been sufficient part performance to convince the chancellor that fraud will result from a literal application of the statute. Mere payment of money is insufficient. ‘But if services are to be rendered instead of paying money and the services are fully performed, the statute cannot be used to produce fraud.’ ” (Quoting from 20 St. Louis L.Rev. 97, at 106.) Here, the performance by Bayless was clearly referrable to a contract between Bayless and Peerless Land. Bayless’ entry upon and possession of the land pursuant to the agreement and performing work thereon was sufficient part performance to take the contract out of the statute of frauds. Anderson v. Abernathy, 339 S.W. 2d 817 (Mo.1960). The trial judge could find that the performance by Bayless pointed to a contract granting gravel rights and could therefore properly find the performance eliminating the operation of the statute of frauds. Alonzo v. Laubert, supra. See also Grissum v. Reesman, 505 S.W.2d 81 (Mo.1974). As to the memorandum of agreement, Peerless Land first contends that there is not sufficient identification of the 40 acres to be mined. We disagree. The same issue was presented in Blankenship v. Porter, 479 S.W.2d 409 (Mo.1972), and Duelen v. Wilkinson, 473 S.W.2d 357 (Mo.1971). In Blankenship, the court said, 479 S.W.2d 1.c. 412: “The first issue is whether the description of the land to be conveyed is sufficient to satisfy the statute of frauds, or stated another way, whether the description is sufficient to enable the parties to locate and identify the land. As stated in Ray v. Wooster, Mo., 270 S.W.2d 743, 750, the description is sufficient ‘if the property can be identified with reasonable certainty with the aid of the data supplied by the instruments and a consideration of the attending circumstances.’ The evidence in this case clearly shows that the land intended to be conveyed was all the land owned by appellants north of the highway and south and east of the railroad. That land can easily be located, identified and described. The description in the contract is sufficient.” In Duelen v. Wilkinson, supra, it was stated that there was “no dispute with respect to the price and it and the mode of payment are shown by the contract. These factors were sufficient to enable plaintiffs to ascertain the exact description from Wilkinson’s abstract or title in possession of their mortgagee.” (473 S.W.2d 1. c. 362) The court there noted that the statute of frauds would be removed if there were available writings or other documents to serve as a guide to which the other property could be identified with certainty. In Wilt v. Waterfield, 273 S.W.2d 290, at 294 (Mo.1954), it was said: “If a contract for the sale of land fails to describe the land sufficiently to meet the requirements of the Statute of Frauds, it is not void, but voidable. (Citations omitted.) If there is sufficient compliance with the Statute of Frauds, the contract is valid and the statute would not apply. The test is, What is sufficient identification of the property which is the subject matter of the contract? This was answered in Herzog v. Ross, 355 Mo. 406, 409, 196 S.W.2d 268, 270, 167 A.L.R. 407; ‘ “The rule may be stated thus: The land need not be fully and actually described in the paper so as to be identified from a mere reading of the paper; but the writing must afford the means whereby the identification may be made perfect and certain by parol evidence.” ’ ” In this case, the evidence was such to specifically identify the 40 acres determined by the trial judge to be that agreed upon by the parties. In the Peerless Park annexation case, the testimony of Mr. Ward was that Peerless Land had an agreement with Bayless which permitted Bayless to mine a specific 40 acres of land in the area sought to be annexed; at least one witness testified that Mr. Ward had specifically identified a 40 acre tract of land in which landfill operations were not to be conducted as Bayless had mining rights to that 40-acre tract; a survey ordered by Peerless Land which was prepared February 23, 1971, specifically identified as the only 40 acre tract that same area determined by the trial judge to be the 40 acres referred to by the parties; another survey ordered by Peerless Land to indicate three acres released from the stricture of the deed of trust specifically located the acreage within the 40-acre tract; the removal of overburden was conducted solely within the 40 acre tract; the Peerless Land landfill operation halted at the southmost line of the 40-acre tract and did not violate the boundaries; there was clear evidence that the 40-acre tract referred to by the trial court was the only feasible area in which mining operations could be conducted, and the specific areas released from the encumbrance of the deed of trust were located within the 40-acre tract and subsequent release of contiguous acreage could only extend into that 40-acre area described by the trial judge. Given the evidence in this case, there is no problem under the surrounding circumstances to identify the particular 40 acres with sufficient specificity. Duelen v. Wilkinson, supra. We likewise find proper the court’s determination that Bayless was entitled to mine for a continued period of three years from and after the release of the deed of trust encumbrance on the acreage so encumbered. In Wilkinson v. Vaughn, 419 S.W.2d 1 (Mo.1967), the court was faced with an attack on the sufficiency of a contract in that it provided no specific time for performance. In overruling the challenge, the court quoted from Ray v. Wooster, 270 S.W.2d 743 (Mo.1954), stating, 1.c. 5: “ ‘Where time of performance is not made the essence of the 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.’ ” In this case, there was evidence that it might take up to ten years to mine the area involved. The three year time limitation also comports with the provisions of § 444.020, RSMo 1969, V.A.M.S., which give a mining permittee a term of three years to mine an area in which the owner has given consent to perform such mining operations. Inasmuch as the parties were fully aware of the existence of the deed of trust encumbrance, and as it has been determined that it was fully intended that Bayless should have mining rights to the 40 acres, it was a reasonable conclusion of the trial court to utilize the date of release of the encumbrance as a point of commencement of the mining rights to the particular acreage and a period of three years therefrom as a reasonable term for mining in each area released. We cannot, however, read into and cause to be a part of the agreement that Bayless should have the right to make the royalty payments it would owe to Peerless Land for the mining rights directly to the holder or holders of the notes secured by the deeds of trust. Before an obligation may be implied into a contract, it must appear that such an obligation was clearly contemplated by the parties and that the inference of the obligation is necessary to effectuate the purpose of the contract. Glass v. Mancuso, 444 S.W.2d 467 (Mo.1969); Conservative Federal Savings and Loan Assn. v. Warnecke, 324 S.W.2d 471 (Mo.App.1959). We cannot presume that Peerless Land will not meet the payments of the land as it has agreed to in the memorandum of agreement of October 14, 1969, and writing into the agreement the provision which allows Bayless to make the payment directly to the holder of the deed of trust thereby bypassing Peerless Land cannot, on this record, be said to be clearly contemplated by the parties. But it is evident from the terms of the mining agreement as contained in the resolution of October 14, 1969, that Peerless is obligated to make the monthly payments on the mortgage and secure the release thereof, and by the decree of the trial court, as affirmed by this court, it must do so. However, Peerless may take the mortgage payments from whatever funds it has available to it, not necessarily restricted to the mining royalty payments it receives from Bayless. But neither may Peerless thwart the purpose of the trial court’s decision, as hereby affirmed, by its failure to make the necessary monthly mortgage payments and secure the release of the deeds of trust, and in the event Peerless Land should fail to do so, Bayless, in order to carry out the intent and purpose of this decree, will then be authorized to apply the mining royalty payments due Peerless Land directly to the holders of the deeds of trust and secure the release thereof. This modification is necessary to effectuate the intent of the parties and is properly within the court’s power for full, adequate and complete justice and to avoid a multiplicity of suits. Wallach v. Joseph, 420 S. W.2d 289 (Mo.1967), cert. denied, Friedman v. Wallach, 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 362 (1967); Kerrick v. Schoenberg, 328 S.W.2d 595 (Mo.1959). Therefore, to the extent that Peerless Land may make payments on the deeds of trust by funds other than Bayless’ mining royalties, the decree of the trial court is modified, but in all other regards, it is affirmed. We find no merit in Peerless Land’s contention that Mr. Blind had breached his fiduciary duty as officer and director of Peerless Land by imposing unfair terms upon his own corporation. The transaction was open and fair and there was no evidence to show that Mr. Blind, as owner of Bayless, gained unconscionable or secret profits. A director or officer of a corporation is not prohibited from doing business with the corporation and making a profit therefrom. Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425 (Mo.1968). The other directors and shareholders of Peerless Land were fully advised, consented and participated in the transaction giving Bayless mining rights in Peerless Land’s property and, therefore, in this case, are not in position to attack the transaction. Hawkins v. Mall, Inc., 444 S.W.2d 369 (Mo.1969); Ramacciotti v. Joe Simpkins, Inc., supra. The State’s action against Bayless is bottomed on § 444.774(5) RSMo Supp. 1971 of the Land Reclamation Act which requires certain lateral support lines to be maintained in surface mining operations. The state has claimed that the lateral support lines have not been maintained between Bayless’ existing 15 acre mining area and the adjoining 40 acres in which it has commenced its mining operations. The foregoing section of the Land Reclamation Act contains an exception to the lateral support lines requirement where there is a mutual agreement between the operator and the adjacent property owner. Since it has been determined that a mining agreement exists between Peerless Land and Bayless, the setback line provisions of the Land Reclamation Act do not apply between the existing 15 acre mining tract and the 40 acre tract, as the mining operation abutting the Peerless Land property line was within the exception of § 444.-774(5) RSMo Supp.1971 because of the agreement. The trial court’s dismissal of the state’s petition for injunction against Bayless was proper. The decrees of the trial court are thereby affirmed except as modified with regard to the method of payment by Peerless Land of the monthly mortgage payment. All Judges concur. . §§ 444.760 through 444.786 RSMo Supp.1971. . It is not important to this case to maintain the identity of Pacific Aggregates, Inc. Therefore, all references will be to Bayless even though Pacific Aggregates, Inc., may technically have been involved. . The decision of the Circuit Court approving the annexation was affirmed in St. Louis County v. Village of Peerless Park, 494 S.W.2d 673 (Mo.App.1973).

sw2d_509/html/0214-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

NEW BRENTWOOD REALTY, INC., Plaintiff-Respondent, v. The STRAD, INC., Defendant-Appellant. No. 35380. Missouri Court of Appeals, St. Louis District, Division One. April 23, 1974. Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, John L. Mc-Mullin, Paul S. Brown, St. Louis, for defendant-appellant. Victor Packman, Thomas C. Boyle, St. Louis, for plaintiff-respondent. SIMEONE, Judge. This is an appeal from a judgment of the circuit court of St. Louis County entered January 17, 1973 in favor of plaintiff-respondent New Brentwood Realty, Inc. against defendant-appellant The Strad, Inc. restoring premises at 12-14 North Brentwood owned by plaintiff and leased to defendant and awarding double rent. Defendant-appellant, The Strad, Inc., appeals on the ground that the court erred in overruling its motion for judgment in accordance with its motion for directed verdict because the evidence considered in the light most favorable to plaintiff shows that plaintiff did not make demand for payment of rent on the precise day the rent became due (the 15th of the month) and for the precise amount of the rent. Plaintiff, New Brentwood Realty, Inc., filed its complaint in “Action of Unlawful Detainer Where Tenant Holds Over” after notices declaring the lease on the premises forfeited for nonpayment of rent due December 15, 1968 and January 15, 1969. The evidence favorable to plaintiff does not disclose that a notice of forfeiture nor demands for the rent were made on the precise day the rents became due nor in the precise amount of the rent. Plaintiff did not take advantage of the “statutory forfeiture” procedure as outlined in § 535.010-535.180, RSMo., but declared a forfeiture for nonpayment of rent and brought action in unlawful detainer under § 534.030, RSMo. Instead of resorting to the simple method of statutory forfeiture under Chapter 535, for nonpayment of rent, plaintiff invoked the remedy of common law forfeiture, seeking to recover in unlawful detain-er and double damages. §§ 534.030, 534.-330. When such common law procedure is invoked, the landlord will be held to the scrupulous observance of every requirement of the «common law. Those requirements include a demand for the precise amount due on the precise day that the rent is due. The evidence favorable to the plaintiff does not reveal that plaintiff observed these common law requirements; hence we are compelled to reverse the judgment. Carbonetti v. Elms, 261 S.W. 748, 750 (Mo.App.1924); Waring v. Rogers, 286 S.W.2d 374, 379 (Mo.App.1956); Independence Flying Service, Inc. v. Abitz, 386 S.W.2d 399, 404 (Mo.1965); Fritts v. Cloud Oak Flooring Company, 478 S.W.2d 8, 12 (Mo.App.1972); 49 Am.Jur.2d, Landlord and Tenant, §§ 1034, 1035, 1036 (1970); Annot. 28 A.L.R.2d 803 (1953). Prior to the day the cause was set for argument, the attorney on appeal for respondent candidly and commendably admitted in a letter to this court, “We have reviewed the record and defendant-appellant’s Brief and are convinced that defendant’s motion for a directed verdict should have been sustained. We therefore will file no respondent’s Brief with the expectation that the lower Court will be reversed.” We have read the complete transcript and all the authorities relied upon and under the law we have no alternative but to reverse the judgment entered January 17, 1973. Since we reverse, it is unnecessary to pass on the other points raised by the appellant. The judgment is reversed and the cause remanded to the Circuit Court with instructions to enter judgment for the defendant, The Strad, Inc. and for any further proceedings consistent with such judgment. DOWD, C. J., and KELLY, J., concur.

sw2d_509/html/0216-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Dora WOOLIVER, Plaintiff-Respondent, v. Alvin C. SCHOPP, Defendant-Appellant. No. 35018. Missouri Court of Appeals, St. Louis District, Division 1. March 5, 1974. Motion for Rehearing by Court En Banc or Transfer Denied April 8, 1974. Application to Transfer Denied June 10, 1974. Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Joseph H. Mueller, St. Louis, for defendant-appellant. Steinger, Schaeffer & Schaeffer, Herbert D. Schaeffer, Clayton, for plaintiff-respondent. DOWD, Chief Judge. This is a medical malpractice action which was instituted by filing a petition on September 15, 1967. The basis of the petition is the alleged negligence involved in the defendant’s surgical treatment of plaintiff on or about September 24, 1965. The jury found in favor of defendant. The defendant appealed from the order of the trial court granting the plaintiff a new trial. Defendant asserts on this appeal that the court erred in not granting his motion to dismiss this action on the grounds that it was barred by the statute of limitations. Because we believe the defendant is correct in this assertion, we will discuss only those facts pertinent to the motion to dismiss. The alleged act of negligence occurred on or about September 24, 1965. Plaintiff’s action “commenced” on September 15, 1967, and the original writ of summons issued September 18, 1967. That writ was returned non est. An alias writ of summons was issued on January 29, 1969 and was returned non est. A pluries writ of summons was issued on September 24, 1969 and was served upon the defendant September 29, 1969. On October 15, 1969 the defendant filed a motion to dismiss because the action was barred by the statute of limitations, Section 516.140, RSMo 1969, V.A.M.S. The motion was denied on November 7, 1969. The defendant orally renewed this motion before the court on the day of trial and it was again denied. Section 516.140, RSMo 1969, V.A. M.S., provides that all actions against physicians must be commenced within two years “from the date of the act of neglect complained of.” This cause of action accrued September 24, 1965 and was “commenced” within the two year statute. However, the filing of a petition and the issuance of a summons is but a conditional halting of the statute of limitations and unless a plaintiff thereafter exercises due diligence in obtaining service of process the statute continues to run. Emanuel v. Richards, 426 S.W.2d 716, 716, 718 (Mo.App.1968); Hennis v. Tucker, 447 S.W.2d 580, 583 (Mo.App.1969). According to our practice, an action is commenced by filing a petition with the court. Rule 53.01, V.A.M.R. Upon the filing of the petition the clerk then issues forthwith the original summons. Additional summonses are only issued at the request of the plaintiff. Rule 54.01, V.A.M.R. Whether a plaintiff has exercised due diligence must be decided on a case by case basis. Hennis, supra at 583. Turning to the case at hand, two periods of dormancy are apparent from the record. The first is the sixteen month period between the issuance of the original writ of summons and the alias writ. The second is the eight month period between the alias writ and the pluries writ. In all, the service upon defendant was over four years after the cause of action had accrued. The defendant maintained an office and practiced within the City of St. Louis during this period, and the address of this office was included in the plaintiff’s petition. Under these facts, it is obvious that due diligence was not exercised in securing service of process, and we hold that the statute of limitations continued to run barring this action The defendant’s motion to dismiss should have been granted. We, therefore, reverse and remand with instructions to dismiss plaintiff’s cause of action. SIMEONE, WEIER and KELLY, JJ., concur. . See also Driscoll v. Konze, 322 S.W.2d 824 (Mo.1969) ; Mayne v. Jacob Michel Real Estate Co., 237 Mo.App. 952, 180 S.W.2d 809 (1944). . Respondent’s attorney in this appeal was not the attorney who represented respondent during the time the two periods of dormancy occurred.

sw2d_509/html/0217-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

TRI-STATE MOTOR TRANSIT COMPANY, a corporation, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY, Defendants-Respondents, and George Anglen et al., Defendants. No. 9490. Missouri Court of Appeals, Springfield District. April 12, 1974. Motion for Rehearing or to Transfer to the Supreme Court Denied May 1, 1974. Application to Transfer Denied June 10, 1974. Charles White Hess, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for plaintiff-appellant. Lloyd G. Hanley, Jefferson City, for defendant-respondent Division of Employment Security. Lloyd G. Poole, Jefferson City, for defendant-respondent Industrial Commission of Mo. PER CURIAM: Tri-State Motor Transit Company appeals from the judgment of the Circuit Court of Jasper County affirming the award of the Industrial Commission of Missouri which held that 41 claimants (in what is termed “this representative case”) were “eligible for waiting week credit or benefits” under the Missouri Employment Security Law (Ch. 288 RSMo 1969, V.A. M.S.) “for which they claim benefits between December 26, 1970 to and including March 13, 1971.” The employer had a collective bargaining agreement with Teamsters Local 823 covering the wages and working conditions of all its office and maintenance workers and drivers. Claimants are all union members. Negotiations commenced in June 1970 between Tri-State and the union for a new contract when the existing contract expired. The union called a strike September 14, 1970 and placed pickets at TriState’s premises. The strike was still in progress when the Commission’s decision was rendered on April 24, 1972. Ere considering Tri-State’s points on appeal or recasting the evidence relative thereto, we remind ourselves of the rules governing a judicial review of decisions rendered by administrative agencies. It is aphoristic that the burden of proof was ever upon claimants to establish their rights to benefits [Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 544[1], 183 S.W.2d 77, 80[1] (1944); Rapp v. Industrial Commission of Missouri, 360 S.W.2d 366, 369 (Mo.App.1962)], and that the Commission, as the trier of the facts, could believe or disbelieve none, all or part of any witness’ testimony and draw inferences from facts dissimilar to those which a court on judicial review may have drawn. Cross v. Industrial Commission, 359 S.W.2d 494, 500 [7] (Mo.App.1962). “We are authorized to determine whether, upon the entire record, the Commission could reasonably have made the findings and decision under consideration. We may not substitute our own judgment on the evidence for that of the Industrial Commission, but may set aside the Commission’s judgment only if it is clearly contrary to the overwhelming weight of the evidence. . . . We must view the evidence, together with all legitimate inferences to be drawn therefrom in the light most favorable to the Commission’s decision. . . . The only question here is whether the Commission could have reasonably reached the conclusion it did, even where two possible conclusions may be made upon the evidence.” Blackman v. Industrial Commission, Div. of Emp. Sec., 491 S.W.2d 18, 22[1] (Mo.App.1973); Mo.Const. Art. V, § 22, V.A. M.S. In Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1011-1012, 291 S.W.2d 166, 176 (banc 1956), it is stated “ ‘that a labor dispute involves only a temporary suspension of the employer-employee relationship, as distinguished from the definite, or unequivocal termination which occurs when a worker simply quits his job’,” (and we add) or is fired. This statement is generally acceptable but not completely true because a labor dispute may or may not produce a suspension of the relationship; it is more accurate to note that the actual suspension of the relationship usually does not occur until the strike is called and the worker responds. Huck v. Industrial Commission, 361 S.W. 2d 332, 336 (Mo.App.1962). “Labor dispute” is not defined in Ch. 288 but § 295.-020-5 states: “The term ‘labor dispute’ shall involve any controversy between employer and employees as to hours, wages, and working conditions. The fact that employees have amicable relations with their employers should not preclude the existence of a dispute among them concerning their representative for collective bargaining purposes.” Thus, it does not follow that a suspension of the employer-employee relationship occurs coincidentally with the commencement of the labor dispute — the employees may continue to work although a labor dispute exists. Neither the negotiations between Tri-State and the union which commenced in June 1970 nor the strike called in September 1970 constituted a labor dispute. The negotiations and the strike were simply the result and evidence of a labor dispute already in esse. Also, claimants’ unemployment and the stoppage of work in this case did not take place simultaneously with the commencement of the labor dispute, but rather when the effects of the strike caused the unemployment and a substantial diminution in TriState’s business. Pickman v. Weltmer, 191 Kan. 543, 382 P.2d 298, 303 (1963). Furthermore, “it constitutes participation [in the labor dispute] within the meaning of the Act when claimants either personally or through their chosen representatives [the union] [made] demands concerning wages . . .. and enter [ed] into negotiations with the employers for the purpose of enforcing their demands whether by means of a strike or otherwise.” Poggemoeller v. Industrial Com’n, Div. of Emp. Sec., 371 S.W.2d 488, 505 [13] (Mo.App.1963). Under § 288.040-4(1) [Appendix I], a claimant is ineligible for benefits if his unemployment is due to a stoppage of work caused by a labor dispute in which he is participating, financing or directly interested at the place where he was last employed. It should follow, therefore, that if the stoppage of work is not due to a labor dispute or is due to a labor dispute in which claimant is not participating, financing or directly interested, then the ineligibility provisions of the law would not apply. “Stoppage of Work” is defined in our statute and generally held to refer to the employer’s operations, not to the employee’s labor or cessation of work by claimants. Meadow Gold Dairies-Hawaii, Ltd. v. Wiig, 50 Haw. 225, 437 P.2d 317, 319 (1968); Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689, 692[3] (1942); 81 C.J. S. Social Security and Public Welfare § 190, pp. 283-284. In criticism of this it is said such a pronouncement puts the “cart before the horse” by completely ignoring the import of the term “labor dispute” which necessarily implies the existence of the employer-employee relationship, and when that relationship is extinguished the disqualifying provisions of the law become inapplicable [Blakely v. Review Board of Indiana Emp. Sec. Div., 120 Ind.App. 257, 90 N.E.2d 353, 358[6] (1950)]; for example, a permanent replacement by the employer of the striking employee “at once prevents any choice or volition on the part of the worker to return to the job and since it severs the trade dispute as the cause of the unemployment, the disqualification of the section no longer operates.” Ruberoid Co. v. California Unemployment Ins. App. Bd., 59 Cal.2d 73, 27 Cal.Rptr. 878, 378 P.2d 102, 103[1] (1963). To us it appears that scant reason for an argument exists because basically the difference of opinion is predicated on an attempt to compare apples (stoppage of work) and oranges (labor dispute) in the abstract rather than on a complimentary dependent basis. It is provided by § 288.040^1(1), that a claimant may effectively terminate his disqualification by obtaining bona fide employment with another employer for the required period and that this serves to completely sever his relationship with the struck employer although the stoppage of work because of a labor dispute still exists at the latter’s place of business. Huck v. Industrial Commission, supra, 361 S,W.2d at 336 [4]; Evans v. Industrial Commission, 361 S.W.2d 337, 339[1] (Mo.App. 1962). In other words, if there is a real termination of the relationship between the struck employer and the claimant by reason of claimant’s bona fide employment with another, the claimant’s subsequent unemployment is compensable because it is not due to a stoppage of work which exists because of a labor dispute at the premises where he was formerly employed There would seem to be no reason why the employer-employee relationship could not also be effectively terminated by the ex parte act of the employer through hiring permanent replacements for the striking workers. Respondents urge that this alone should render the striking employees eligible for benefits although they cite us no Missouri authority to this effect, and we have found none in our independent research. It is unnecessary in this instance that we decide or accept respondents’ theory, although the thought is tempting. Rather, we believe it will suffice if we take the safer double track laid out by the Industrial Commission pursuant to the route established in Producers Produce Co. v. Industrial Commission, 281 S.W.2d 619, 624 (Mo.App.1955), as approved by the Supreme Court in the same case, supra, 291 S.W.2d at 171, and adopt the following as the ultimate issue: Whether claimants, who in the first instance were ineligible to receive benefits when their original unemployment was due to a stoppage of work caused by a labor dispute in which they were participating, were later entitled to receive benefits upon the termination of their employment by Tri-State through the hiring of replacement workers which resulted in the cessation of the stoppage of work which previously existed due to the labor dispute. Donald J. Quinn, acting as the “labor attorney” and “chief negotiator” for TriState, wrote the following letter dated December 22, 1970, to the Commissioner of “Federal Mediation and Conciliation Service,” who by this time had taken control of the negotiations: “Dear Commissioner O’Connell: The Tri-State Motor Transit Co. Board of Directors has directed me to negotiate on the question of reinstatement of economic strikers as follows: Since the economic strike against TriState Motor Transit Co. was initiated by Local 823 on September 14, 1970 the company has hired permanent replacements for all of the economic strikers and all available positions have now been filled. Any contract signed by the company will have to provide that replacements for economic strikers will continue working during the life of the contract. Economic strikers wishing to return to work unconditionally and writing a letter to the company to that effect will be placed on a preferential list and will be returned to work as vacancies occur in the chronological order of the receipt of their letters. /s/ Donald J. Quinn”. At a strike negotiation meeting held December 22, 1970, Mr. Quinn “personally handed” the original of the above letter to Commissioner O’Connell and copies thereof to Messrs. Williams & Kitts, officers of the Teamsters Union. In various ways, claimants and other members of Local 823 on strike against Tri-State, became acquainted with the contents of the letter. The interpretation placed on this letter by claimants, as most all testified, was that Tri-State had permanently replaced them with other employees, and that their positions were no longer available to them unconditionally. Claimants then began seeking work with other employers. As the Commission found, “Most of the claimants herein did not file their claims for benefits until after they had learned that they had been permanently replaced. The claimants herein testified that during the weeks for which benefits were claimed, they contacted prospective employers in a search for either permanent or temporary work. Most of the claimants stated that if the strike is settled satisfactorily and if they are not then employed, they will go back to work for the employer if their positions are then open and available. A number of the claimants are already employed elsewhere.” In explanation of the December 22 letter, supra, Mr. Quinn, its author, testified, in part: “Back in the first or second week in December [1970] in a meeting with Mr. Roy Williams, who conducted the meetings for the union, it was decided that a very critical point had to do with whether or not the company would fire all of its replacement people or whether their decision would be to keep the replacements and to replace the older employees in some fashion. As a result . . . the letter of 12-22-70. The letter indicated that the company had hired permanent replacements for the economic strikers as of that date and that the available positions then had been filled [and that any future contract] would have to provide that replacements for those strikers would continue working during the life of the contract that was to be signed. The third point of the letter being that any of those economic strikers who wanted to return to work all they would have to do would be to write the company and tell them they wanted to return to work and their letters would be assigned a chronological point on a list by their receipt date. . . . Paragraph two of that letter was prepared by me in response to information given to me by the Board of Directors ... of Tri-State . . As far as this letter is concerned, ⅝ was written for the eyes of perhaps four people. It was not a notification by the company to the union that anyone had been terminated, suspended, or otherwise. It simply was a way for the company to let the federal mediator know how far the company would go in replacing the replacements and returning to work all employees who were and are economic strikers .the company, as indicated in this letter, had hired permanent replacements for the economic strikers, that all available positions had been filled . . At the hearing before the appeals referee held on March 16, 1971, George W. Carter, “Senior Vice-President of Operations” for Tri-State, was asked and answered, among others, the following questions : “Q. Would you say that the operations at Tri-State since the strike have been substantially affected by the strike? A. At the beginning. Q. At the beginning of the strike? A. Yes. Q. And during the year 1971 ? A. I don’t think it has any effect. Q. In other words, you would say the operations at Tri-State are back to normal? Yes. . Q. [by the referee] Could you be a little more specific as to what you mean [by] ‘At the beginning’ . . . ? A. Well, September 14, [1970], of course, was the beginning . . . and it curtailed our operations considerably for the first three weeks. . . . After the first three weeks we started gaining our business back and it has continued ever since until the month of February [1971] we had normal operations as far as business was concerned and gross revenue was concerned. . there was considerable curtailment between September 14 and December 31 [1970], put the three months together — two and a half months. . . . there were approximately . a little over four hundred [workers who had originally gone on strike], Q. . . . in December of 1970 did you have four hundred persons working there at your company? A. Yes, we had that many working.” The witness went on to relate that in March 1971 the “biggest problem right now is we are turning down more business than we can handle and we don’t have enough people to handle it. Q. You need more employees now than you employed prior to this strike? A. That’s right.” Also, Mr. Carter stated that if the claimants were to report to work on the date of the hearing (March 16, 1971) “he can work.” However, the witness further recounted that “If some of these [claimants] would have showed up for work December 22 or December 23 [1970], we may or may not [have] put them back to work . . As of January 1 [1971] if ten people showed up, we may have put five back to work or may not, depending on how they returned to work. ... I don’t remember December 22 whether we could put any of these [claimants] to work that day or not.” When asked how long it had been possible for Tri-State to have returned all claimants to work, Mr. Carter replied: “That would be hard to determine exactly . . . , because business wasn’t as good a month ago as it is today.” After applications for review had been filed by Tri-State, the Industrial Commission remanded the cause to the appeals tribunal to obtain further information relative to the employer’s operations. As a result of this remand, certain data was prepared and presented by Harold F. Nickels, treasurer of Tri-State. However, in exploring the statistical information, it developed that the figures as to gross revenues and numbers of employees, both before and after the strike, included not only revenues and employees of Tri-State but also revenues and employees of Hughes Transportation and US AC Transport, Inc., each described as being “a division of TriState.” Revenues and employees of Aero Body Corporation and Parkhill Truck Company, denominated respectively as a “separate corporation” and “a wholly owned subsidiary,” and revenues generated by leased operators, were not included in the figures which, according to the exhibit, purported to show only gross revenues and average number of employees of Tri-State. When counsel for claimants undertook by questioning to determine and establish that some of the pre-strike operations of TriState were transferred to Parkhill and Aero Body after the strike or were performed by leased operators, he was thwarted by the declaration that “It’s the Referee’s ruling that he does not have jurisdiction over anything other than what is set out in the order of the remand. Its the Referee’s opinion that the Order of Remand does not include that question.” In addition to findings recited above, the Industrial Commission further found that the “evidence shows that by December 22, 1970, the employer hired permanent replacements for all of the claimants and that all of the available positions were filled. The evidence further shows that by January 1, 1971, the employer’s operations had become normal. The Commission concluded [sic] that after December 26, 1970, the work stoppage had ended, so that the claimants’ unemployment was not due to a stoppage of work which existed because of a labor dispute at the employer’s premises. The Commission further finds that during the weeks claimed after December 26, 1970, the claimants were able to work, and actively and earnestly sought work so were available for work. The Commission notes that the employer-employee relationship, which had been suspended by the strike, was terminated by the employer when the employer hired permanent replacements for the claimants and filled the claimants’ positions with such replacements; and that thereafter the claimants were not free to return to their positions if they so desired but could return only as vacancies among the permanent replacements occurred.” The two points relied on by Tri-State in this appeal are that the circuit court’s judgment and, in turn, the Commission’s decision should be reversed for the reasons that “I . . . claimants did not adduce substantial and competent evidence in the record to prove that their unemployment was not due to a stoppage of work which existed because of a labor dispute at TriState” and “II The claimants failed to prove by substantial and competent evidence that (1) they were able to work and available for work as those terms are defined in the Missouri law during the various periods of alleged unemployment, and, (2) jobs with Tri-State were not available to them after December 26, 1970.” Unfortunately, in defining “stoppage of work” [§ 288.040-4(2)], the statute employs the imprecise adjective “substantial.” How much stoppage of work constitutes a substantial diminution of an employer’s business, needs to be judged to ascertain not only when the stoppage of work commenced but when it ended. “Substantial” means “considerable,” “ample,” “large,” “important,” and “abundant.” “Massive” is given as a synonym. Webster’s Third New World Dictionary of the English Language, Unabridged, p. 2280; Webster’s New World Dictionary of The American Language, College Ed., p. 1454. This illustrates that it is impracticable for any tribunal to attempt to fix a definite percentage of the diminution of the activities, production or services that could serve to gauge when a stoppage of work started and when it stopped. Of necessity, each case must be judged on its own particular facts. Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707, 712 (1950). Tri-State’s figures [Appendixes II and III] show gross revenues in the 8 full months preceding the strike to be $20,024,031 for a monthly average of $2,503,004. In December 1970 and January and February 1971 the total revenues were $6,295,736 or a monthly average of $2,098,579, which represents a 16.16% diminution in gross revenues. How much of this diminution, if any, is attributable solely to Tri-State’s operations or to the operations of Hughes Transportation and USAC Transport, whose revenues are also included in the figures, we do not know. Professor Williams, writing in 8 Vand.L.Rev. 338, 340, said: “While various facts obviously would enter in, the courts tend to concentrate on the diminution of the activities of production in determining the question of existence of a stoppage of work. The critical breaking point would seem to be about 20 to 30 per cent cut in production as being sufficient to establish a stoppage.” Irrespective of any explanation given of the meaning, intent or purpose of the December 22, 1970, letter written by Tri-State’s counsel at the direction of its board of directors, it was not unreasonable for either the Industrial Commission or the claimants to conclude that the letter meant exactly what it said. In addition to this, Mr. Quinn stated as a fact “that the company, as indicated in this letter, had hired permanent replacements for the economic strikers [and] that all available positions had been filled.” Considering this with the testimony of Tri-State’s senior vice president of operations that the strike had no effect on operations in 1971 and that by February 1971 Tri-State “had normal operations as far as business was concerned and gross revenue was concerned,” and coupling this to the foregoing analysis of gross revenues showing only a 16.16% diminution in monthly average gross revenues commencing with December 1970, we cannot say here, as a matter of law, that the Industrial Commission could not have reasonably found and concluded that the stop-page of work, i. e., a “substantial diminution of the activities, production or services” at Tri-State, terminated on or about December 26, 1970, or that such a finding is clearly contrary to the overwhelming weight of the evidence. A stoppage of work is deemed to have ended when the employer resumes substantially normal operations, and when such a resumption occurs is usually a question of fact for the Industrial Commission. Totorica v. Western Equipment Co., 88 Idaho 534, 401 P.2d 817, 822[4] (1965). So long as claimants and TriState intended to maintain the employer-employee relationship, though it be relegated to limbo for the duration of the strike, and intended to resume their former positions actively upon settlement of the labor dispute, and so long as claimants’ positions were vacant and they were not available for work elsewhere, the claimants could not be deemed available for work within the meaning of the law. § 288.040-1 (2); Producers Produce Co. v. Industrial Commission, supra, 291 S.W.2d at 177. However, as specifically found by the Commission, when Tri-State hired permanent replacements for claimants and filled their positions so as to terminate the stoppage of work fall as could be reasonably found from the December 22, 1970, letter, the testimony of Messrs. Quinn and Carter, and the gross revenue figures produced in evidence), the employer-employee relationship ceased and no stoppage of work then existed because of a labor dispute at the premises of Tri-State. When this occurred claimants became available for work and the Commission could, as it did, have reasonably reached the conclusion (without detailing the evidence relative thereto in the 6-volume transcript in this case) that claimants actively and earnestly sought work of available employers. We are not persuaded with the employer’s argument that jobs were available to claimants at Tri-State after December 26, 1970. In the first place, such a contention flies in the face of the letter and testimony of Mr. Quinn that all the claimants had been permanently replaced by December 22, 1970. The argument is not supported by the equivocal testimony of Mr. Carter that Tri-State “may or may not” have had jobs available after that time and ignores that any rehiring of claimants by Tri-State would necessarily depend upon the condition and fortuity of a vacancy occurring among the workers hired to replace them. The award of the Commission concerned the period of December 26, 1970 to March 13, 1971; the vague announcement by Mr. Carter that Tri-State could return the claimants to work was not made until March 16, 1971, and, of course, an offer cannot be accepted until it has been communicated to the offeree. ACF Industries, Inc. v. Industrial Commission, 320 S.W.2d 484, 492 [10] (Mo. banc 1959). Even if the announcement could be said to attain the dignity of an offer, it came too late. Having concluded that the findings of the Commission are not clearly contrary to the overwhelming weight of the evidence and that it could have reasonably reached the conclusions that it did, the judgment nisi stands affirmed. All concur. APPENDIX I Sec. 288.040 before the 1972 amendment provided: “1. A claimant who is unemployed and has been determined to be an insured worker shall be eligible for benefits for any week only if the deputy finds that ... (2) He is able to work and is available for work; provided, however, that no person shall be deemed available for work unless he has been and is actively and earnestly seeking work; . . . 4. (1) A claimant shall be ineligible for waiting week credit or benefits for any week for which the deputy finds that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute in the factory, establishment or other premises in which he is or was last employed; provided, that in the event he secures other employment from which he is separated during the existence of the labor dispute, he must have obtained bona fide employment as a permanent employee for at least the major part of each of two weeks in such subsequent employment to terminate his ineligibility; . . . and provided further, that this subsection shall not apply if it is shown to the satisfaction of the deputy that (a) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work . ; (2) 'Stoppage of Work’ as used in this subsection means a substantial diminution of the activities, production or services at the establishment, plant, factory or premises of the employing unit.” II Table 1 TRI-STATE MOTOR TRANSIT CO. JOPLIN, MISSOURI 1970 . III Table 2 $777,000 Gross estimated revenues for the period September 1, 1970 through September 13, 1970 510 Average number of employees on the payroll for the week ending September 12, 1970 391 Average number of employees for the week ending September 16, 1970 October 11, 1970 and February 27, 1971: Average number of employees for each calendar week between . See Appendix I. . This assumes, of course, that unemployment from the second employer did not result from a stoppage of work caused by a labor dispute. . The information sought by the remand order was: “(1). Gross revenue by month for the calendar year 1970. (2). Gross revenue for the month of January and the month of February, 1971. (3). Gross revenue for the month of September, 1970, prior to the fourteenth day of the month. (4). Average number of employees on the payroll for each month of the calendar year 1970. (5). Average number of employees on the payroll for the week ending September 12, 1970. (6). Average number of employees for the week ending September 26, 1970. (7). Average number of employees for each calendar week between October 11, 1970 and February 27, 1971.” . Tables 1 and 2 of the exhibits are set forth in Appendixes II and III.

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James Rodney SMITH, Jr., and James Rodney Smith, Sr., Plaintiffs-Appellants, v. O. S. UFFELMAN, Defendant-Appellee. Court of Appeals of Tennessee, Middle Section. June 29, 1973. Certiorari Denied by Supreme Court Feb. 19, 1974. Thomas N. Bateman, Paul D. Welker, Clarksville, for plaintiffs-appellants. Charles Hampton White and Charles G. Cornelius, Cornelius, Collins, Higgins & White, Nashville, for defendant-appellee. OPINION SHRIVER, Presiding Judge. This is a suit for personal injuries sustained by James Rodney Smith, Jr., a minor fifteen years of age, while operating a power lawn mower on the schoolyard of Houston County High School at Erin, Tennessee. James Rodney Smith, Sr., father of the minor son, brought suit for loss of services and medical expenses resulting from the accident to his son. The two cases were consolidated and tried together before Honorable J. H. Spencer, Circuit Judge, and a jury, and resulted in a verdict in favor of the plaintiff in each case and an award of $1.00 damages to each plaintiff against the defendant, O. S. Uffelman, Principal of the High School. Suit was originally brought also against the Houston County Board of Education but, on motion, the suit against the Board was dismissed and no appeal was perfected from the action of the Court in that respect. The declaration was in two counts, the first of which alleged common law negligence, while the second count of the amended declaration charged a violation of Section 50-711, T.C.A., which provides as follows: “50-711. Prohibited employment for children under sixteen. — No minor under sixteen (16) years of age shall be employed, permitted, or suffered to work in or in connection with any manufacturing or mechanical establishment. No minor under the age of sixteen (16) shall be employed, permitted or suffered to work in, about, or in connection with a bowling alley or in the operation of any power-driven machinery.” There was a general issue plea of not guilty. THE FACTS In response to the motions for a new trial, the Trial Judge filed a Memorandum Opinion in which he discussed in detail the facts and the proceedings in these consolidated cases. As is stated in said Memorandum Opinion, James Rodney Smith, Jr.’s testimony was to the effect that oh May 23, 1969 he was fifteen years of age and a student at Houston County High School. He said that he worked at the school at such odd jobs as picking up paper on the school ground and mowing the grass and that, as compensation for this work, he received free lunches at the school cafeteria. He said that he had been employed on occasions prior to May 23, 1969 in mowing the grass in the schoolyard; that on that date, after picking up paper in the yard for a while, he went to Mr. Pickens, one of the teachers in the school, to ask him for some gas for the lawn mower which was kept in the furnace room of the school; thereafter, he took the mower to a point on the bank near the highway and started mowing; that the grass was rather high and was slick and wet and that as he mowed on this steep bank, his foot slipped and went under the side of the mower, which was a rotary type power mower, with the result that he lost three toes on his -foot and the fourth toe was badly injured. He testified about his movements after his foot was injured and the fact that he was carried to a doctor and then to a hospital in Clarksville. He further testified as to the pain resulting from this accident and the disability that he continued to suffer when walking and otherwise using his injured foot. Mr. James Rodney Smith, Sr., the boy’s father, testified, among other things, that on the night following the accident in the afternoon, he and his wife were visiting his son at the hospital in Clarksville when the defendant, Mr. Uffelman, came. He quoted the defendant as saying that he, Uffelman, was sorry about the accident and that the reason he had sent Jimmy out to cut the grass was that he knew he would do a good job and would come back in when he had finished. Mr. Smith testified that he did not know that his son, Jimmy, was working for his lunches until he learned it on that evening, and that he had given his son lunch money every week during the school year. When asked to state whether Mr. Uffelman said he was compensating Jimmy for cutting the grass, he answered: “Yes. He told me that night at the hospital that he was doing that. That’s the only time that I ever knew.” He testified that his son’s hospital bill was $169.00, the doctor’s bill was $75.00, and that, in addition to this, there were bills for dressings and medicine and an ambulance bill of $30.00 for transporting his son to the hospital. The defendant, O. S. Uffelman, testified that he had been Principal of the Houston County High School for about six years, prior to which time he was the Basketball Coach at the School. When asked whether there were students in school receiving free lunches in 1969, he stated that there were probably 175 or 200 receiving such free lunches. He was then asked if they were required to do any work to be eligible for the lunches. He answered as follows: “You can’t force them, no, sir. That’s usually volunteer. Right now it’s volunteer. You cannot make them work for their lunch. I have about twenty working now and I’d say eighteen — fifteen to eighteen are working to pay for their lunch voluntarily. Now, back then I don’t remember exactly how many I had.” When questioned about any conversation he had with the plaintiff, Jimmy Smith, on the day of the accident, he stated that Jimmy had come to his office twice to ask if he could mow the grass and that he, Uffel-man, had told him “No”. He went on to say that this was sometime following the lunch period, and he stated: “Well, he came in again and I was real busy. We was taking senior exams and I was real busy trying to get everybody in their station. And I told him to go see Mr. Brewer.” He stated that Mr. Brewer was the Agriculture Teacher and, when asked why he sent him to see Mr. Brewer, he answered: “Well, Mr. Brewer usually saw after things of that nature, as to whether a machine was in operation or whether— different details around school, he would take care of them.” When the defendant was asked about his conversation at the hospital with Mr. Smith, Sr., and as to whether he made a statement to Mr. Smith about sending Jimmy out to do the job or mow the grass, he answered: “I don’t remember specifically whether I did or not, sir.” He was then asked whether any of the other students got free lunches for mowing the grass, and he testified : “A. I couldn’t say specifically. Probably, but I don’t remember for sure. Q. And if they had mowed the grass in 1969, who would have authorized them to mow the grass ? A. Probably I would have.” On cross-examination, he testified: “Q. But Jimmy was working, was he not? A. Jimmy was working for his lunch, yes, sir. Q. And so, he was assigned different jobs and that was usually by you, with your knowledge ? A. Yes, sir.” On further cross-examination, he was asked and answered as follows : “Q. Didn’t you state in that particular deposition that you sent him to the Agriculture Teacher for the purpose of getting gasoline ? A. I don’t remember whether I said it was for the purpose of getting gas or not, sir. Q. You knew that Jimmy worked there, did you not ? A. Yes, sir. Q. That was with your knowledge? A. Yes, sir. Q. You stated that he was under your supervision when he worked ? A. Yes. Q. And you don’t deny the fact that Jimmy received compensation for his work, do you ? A. No, sir. If a free lunch is compensation, he got a free lunch — he got compensation, sir.” Mr. Brewer, the Agriculture Teacher, testified that the plaintiff was in his class at school where he instructed in the operation of power mowers such as the one involved here. He also stated that the mower in question was a new one that belonged to the school and was kept in the furnace room of the school building, and that plaintiff had come to his window while he was at his desk to ask for gasoline for the lawn mower and a few minutes later the accident in question occurred. ASSIGNMENTS OF ERROR There are three assignments of error, as follows: “I. The verdict is contrary to the law applicable to the case. II. The verdict is so small and inadequate as to show passion, prejudice and caprice upon the part of the jury. III. The Court erred in not granting the plaintiff’s motion for per-emp-tory instructions.” OUR CONCLUSIONS The verdict of the jury was a general verdict and the record does not reflect whether the jury found the defendant guilty of common law negligence and, hence, liable for damages, or guilty of violating Section 50-711, T.C.A., and, hence, liable under said statute, or if they found him liable under both counts of the declaration. The Trial Judge, in his Memorandum Opinion hereinabove referred to, expressed the view that the defendant was guilty of common law negligence in allowing a fifteen year old boy to take a power mower and undertake to mow the grass on a steep and slippery bank where an accident, such as the one here involved, might be expected to happen. We concur. According to the testimony of Mr. Uffelman, himself, we are compelled to hold that there was material evidence to support a verdict under the second count of the declaration because he admitted that the fifteen year old boy was under his direction and control and that the mowing of the grass and the picking up of paper was compensated for with free lunches, that is, assuming that the mower in question is properly described as a power driven machine and, thus, within the terms of the statute, Section 50-711, T.C.A. From an examination of several cases in Tennessee, as well as a number of cases in other jurisdictions, it seems clear that we must hold that the mower comes within the definition of the statute. In the case of Swift v. Wimberly, 51 Tenn.App. 532, 370 S.W.2d 500, involving a go-cart, described as a small gasoline propelled riding device, on which a fourteen year old boy was riding when he was injured, the Court held that “mere permitting or suffering of a 14-year-old boy to work on defendants’ go-carts violated child labor statutes, even though the boy was never formally employed,” and judgment for the injured boy was affirmed. The question of remote contributory negligence is advanced by counsel for the defendant as explaining and supporting the verdict and judgment for $1.00. However, it should be pointed out that contributory negligence is not available as a defense to a suit for injuries sustained as a result of wrongful employment of a minor. See Schilly v. Baker, 184 Tenn. 654, 202 S.W.2d 348. Thus, we think the verdict for the plaintiffs on the question of liability must be affirmed. Assignment of Error No. 1: “The verdict is contrary to the law applicable to the case,” is insufficient on its face for our consideration. General Motors Corp. v. Dodson, 47 Tenn.App. 438, 338 S.W.2d 655. The third assignment is without merit and is overruled. The second assignment that the verdict is so small and inadequate as to show passion, prejudice and caprice upon the part of the jury must be sustained. As to the boy’s injuries, they are rather serious and permanent and $1.00 does not represent any compensation for these injuries, although the jury found for the plaintiff and, thereby, settled the question of liability under either or both of the counts of the declaration since, as has been observed hereinabove, there is material substantial evidence to support a judgment under either count. In the case of James Rodney Smith, Sr., there is uncontroverted evidence that the hospital bill amounted to $169.00, the doctor’s bill $75.00, and the ambulance bill $30.00, in addition to some unspecified amount for medical supplies. Having found that the defendant is liable, we can find no grounds upon which a judgment for $1.00 in favor of the father can be sustained. Kent v. Freeman, 48 Tenn.App. 218, 345 S.W.2d 252; McCullough v. Johnson Freight Lines, 202 Tenn. 596, 308 S.W.2d 387. Although it is with some reluctance that we do so, we must remand this cause for a trial limited to a determination of the amount of damages in both cases. Reversed and remanded. PUR YEAR and TODD, JJ., concur.

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Roy REEVES et al., Appellees, v. Billy W. PERKINS et ux., Appellants. Court of Appeals of Tennessee, Western Section. Oct. 31, 1973. Certiorari Denied by Supreme Court May 6, 1974. W. W. Lackey, Savannah, for appellants. Howard F. Douglass, Lexington, for ap-pellees. MATHERNE, Judge. The issue on appeal is whether an acknowledged way across the defendants’ property is a private or public road. Both parties admit the existence of the road, but the defendants insist it is a private field road, and have erected a fence at each end of the road. The plaintiffs, county road commissioners, allege the road is part of the Lexington-Saltillo Road and pray the defendants be enjoined to remove the fences, and be further and permanently enjoined from obstructing the road in any manner. The Chancellor granted the relief sought, and the defendants appeal. The record establishes there was never an express dedication of the road to the state or county. Dedication, however, is a question of intention and may be either express or implied. McCord v. Hays (1957), 202 Tenn. 46, 302 S.W.2d 331. “Dedication may arise from the failure of the owner to object to user by the public. A highway may be established in this manner.” 16 Am.Jur., Sec. 45, p. 392, quoted in the McCord case. The burden is upon the plaintiff to establish by competent evidence that the way across the defendants’ land is in fact a public road rather than a private way. On the issue of dedication by user the evidence must be clear and convincing there was an intention to dedicate the roadway and an express or implied acceptance by the public. McCord case, supra, and the authorities therein cited. The defendants challenge in this Court the authority of the plaintiffs as road commissioners of Henderson County, Tennessee, to bring this lawsuit seeking to enjoin the defendants from obstructing the road. The defendants insist the action can only be maintained by the Quarterly County Court of Henderson County, and cite as authority the case of Ledbetter v. Turnpike Company (1902), 110 Tenn. 92, 73 S.W. 117. We agree with this insistence of the defendants, but the plaintiffs point out the defendants waived this lack of authority in the plaintiffs to sue by their failure to raise the issue in the trial court as permitted by Rule 9.01, Tennessee Rules of Civil Procedure. Rule 9.01 provides : “It is not necessary to aver the capacity of any party to sue or be sued or the authority of a party to s te or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or to be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” The complaint alleges the plaintiffs compose the Henderson County Highway Commission and “are charged with the responsibility of maintaining the county highway system within Henderson County including the Lexington-Saltillo Road as mentioned hereinafter.” To this allegation of plaintiffs’ position, authority and duty, the defendants by answer allege: "I. The Defendants have insufficient knowledge to admit or deny the official capacity of the Plaintiffs and demand strict proof thereof. They also neither admit nor deny the nature of the responsibility of the Plaintiffs and demand strict proof of the same.” The record establishes the defendants did not by motion or answer make a “specific negative averment” of the plaintiffs’ authority to sue. We must conclude the failure to do so constitutes a waiver of the objection. See and compare: Trounstine v. Bauer, Pogue & Co., 144 F.2d 379 (2 Cir. 1944), cert. denied by Sup.Ct., 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621; Montellier v. United States, 202 F.Supp. 384 (D.C. 1962). The plaintiffs presented 16 witnesses consisting of people who lived in the area, employees and former employees and commissioners of the county highway department. This proof establishes the road has been .in existence and used by anyone who wished to use it since the 1920’s. The use included foot travel, horseback, wagon, automobile and pick-up trucks. No owner of the property ever fenced off either of the two ends of the road nor did any previous owner object to or restrict the use of the road. A former county highway commissioner and some county highway department employees testified that the county had graded and ditched the road several times since 1939. One witness traveled the road in a pick-up truck about two or three years prior to suit. The road was used by plaintiff Hubert Petty while a Star Route mail carrier in 1926, because it was at times the better road from Sardis to Lexington. The defendants presented ten witnesses. Vernie Robins, an aunt of the defendant Billy Perkins, testified the former owner of the Perkins’ land stopped the WPA workers from working the road; the county road workers did not work the road. This witness last saw the road in question about 25 years ago at which time she traveled the road, which had holes, but the roadway was evident. Pearl Perkins, an aunt by marriage of the defendant, testified she lived in the area about 47 years ago and knew that people traveled the road on foot and horseback. She traveled the road on one occasion in a wagon, and the road was not barricaded or fenced, nor was permission needed to travel the road. She understood anyone could travel the road if they so desired. The defendant Billy Perkins testified the road was a field road only. He built a fence along both sides of his farm in 1964 and built a gap at each end of the road at the request of adjoining landowners. This defendant refused permission to a party to use the road for the purpose of hauling some logs. This defendant closed the gaps and obstructed passage along the road. As a result the county highway commission filed the present lawsuit to open the road. Witness Frank Pierce testified he worked for the county for about three years during the period from 1922 to 1928. He worked on a grader which the county furnished to work roads where the people involved would pay for the gasoline and labor. He and his crew worked this road up to the boundary of the present Perkins’ farm. The then owner would not pay for the gas and labor so the grader did not go through. The witness would not identify the particular road as a public road because he said the grader crew at that time would work any road where the money was furnished for gasoline and labor. The remainder of the defense witnesses appeared to have little if any knowledge of the road and its use. No defense witness testified to any restriction on the use of the road, but some denied it was a public road. All defense witnesses commented upon the rough nature of the road and the difficulty encountered in an attempt to travel the road. We conclude from the entire evidence as presented by both parties the plaintiffs carried the burden of proving by clear and convincing evidence that a public road was established many years ago across the lands now owned by the defendants. The defendants cannot rely upon the defense of laches. These defendants cannot deny their knowledge of the existence of the road across the land when they purchased the farm in 1959. The defendants admit they placed gaps at each end of the road when they fenced the farm, thus recognizing the right of people to travel the road. These defendants have not been injured to their detriment by unreasonable delay on the part of the plaintiffs to bring suit. This suit was instituted immediately after the defendants closed the gaps and obstructed the road. The defendants have no complaint that the Chancellor failed to describe the road across their property. The lawsuit was filed to enjoin the obstruction of the road as it now exists. The record reveals the road is identifiable, and there was no occasion for a description thereof under the pleadings in this lawsuit. It results all assignments of error are overruled, and the decree of the Chancellor is affirmed. The cost of this appeal is adjudged against the appellants. CARNEY, P. J., and NEARN, J., concur.

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Floyd Joe KILBURN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Dec. 28, 1973. Certiorari Denied by Supreme Court April 15, 1974. Fred Robertson and William B. Black, Tiptonville, for plaintiff in error. David M. Pack, Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Fleming Hodges, Dist. Atty. Gen., Othal Smith, Jr., Asst. Dist. Atty. Gen., Dyers-burg, for defendant in error. OPINION DWYER, Judge. From an involuntary manslaughter conviction by a jury with judgment pronounced thereon, this appeal flows, with two basic assignments of error pertaining to the admission into evidence of a dying declaration and the statement of the youthful defendant. The punishment as assessed by the jury was confinement in the county jail for 11 months and 29 days. This tragedy occurred in a residence located near Owl City, in Lake County, on September 26, 1971, around 1:30 p. m. The young female victim was thirteen years of age and was visiting in the home of the defendant, playing and dancing with his sister. There are two versions of this homicide as reflected by the evidence from our review. The little nine-year-old brother of the victim testified that the defendant, immediately prior to the shooting, had threatened him. His sister, the decedent, told him to leave. He then heard the defendant ask his sister if she “was going to give him some” and then he heard a shot. The doctor who attended the young victim at the hospital related that she had suffered a gunshot wound to the right hip; that she was in shock and they had administered eight bottles of blood to her, and that she was then taken to surgery. The next day when the wound started bleeding again she was returned to the operating room. This shooting occurred on a Sunday and the following October 3, she told the doctor that she was going to tell the truth; that the defendant had told her that if she did not let him rape her he was going to shoot her; that she had told him no; and that he had shot her. This statement was testified to by the nurse and the sheriff and, over objection was admitted into evidence. The state’s proof further reflects that the deputy, arriving at the home and finding the little girl on the floor, inquired as to what had happened. The defendant stated then that his sister and the deceased had had the record player on and had been dancing and that he had reached up, gotten down his shotgun and that it went off and that he had accidentally shot the little victim. This statement was admitted by the trial court over objection. The evidence further reflects that later in the week the sheriff went to the home of the defendant and took him to the jail where he questioned him. The sheriff advised the young defendant before questioning in the following form: “I advised him of his Constitutional Rights; that he didn’t have to make any statement to us if he didn’t want to; and that he didn’t have to make any statement unless counsel was present, or at any time during the questioning if he desired counsel, why, and counsel would not be furnished by the County but he would have a chance to get counsel any time during the questioning; that anything he said might be used against him in a court of law.” The young defendant then proceeded to detail three versions of the event: (1) that he was going squirrel hunting, had laid the gun on the bed and in attempting to get other shells the gun went off and shot the little girl; (2) that the gun was by a window, he brought it over to the bed and, while cleaning it, it went off; and (3) that he had the gun, went into the house, it was breached open and he had a shell out and was attempting to put the shell back in a shell belt and it must have gotten into the gun and, when he sat down on the bed and pulled the hammer back, the gun went off, striking the little girl. This oral statement was objected to and is the basis for one of the assignments. The proof reflects that the death weapon was a single barrel Stevens .20 gauge shotgun. The young defendant testified and denied making any threats to the little brother of the decedent. He further denied any threats or sexual motivations towards the little girl. His version was that he decided to go squirrel hunting, had his shotgun and had cleaned it while sitting on the bed; that the little girl and his sister were dancing in the room and the little girl asked to see one of the shotgun shells; that he gave her a shell, put the gun on the bed, left the room to put his cleaning gear up and when he came back he saw the gun on the bed, picked it up and was wiping oil off the hammer when it fired, striking the little girl. The little victim died on October 5, 1971, and from the medical testimony death was attributable to the gunshot wound with peritonitis having developed. There are two assignments of error. By the first assignment he contends that the trial court erred in admitting into the evidence, over objection, the statement of the decedent made two days before her death. He urges that there was no statement from the decedent acknowledging impending death and that the doctor still expressed hope for her recovery. We do not think that actual acknowledgment of impending death by the decedent is an absolute to the admission of the statement. We think this facet of the distinction from the hearsay rule may be gathered from the circumstances. See Beard v. State, Tenn.Cr.App., 485 S.W.2d 882, 885. From the nature and extent of the wound on the body of the little thirteen-year-old girl and also from the fact that she was in considerable pain and showing concern the next day about her fingernails turning blue, we are satisfied that she was aware of her critical condition. We also note her assertion, prior to her disclosures about the incident to the sheriff, that she wanted to tell the truth about the shooting. We think that from these circumstances a reasonable inference may be taken that the youngster had an awareness of her death. See Anthony v. State, 19 Tenn. (Meigs) 265, 279, 280. We do not think that the trial court abused its discretion in allowing the evidence to be admitted. See Dickason v. State, 139 Tenn. 601, 607, 202 S.W. 922. The assignment is overruled. He lastly contends that the trial court erred in admitting the conflicting exculpatory statements of the defendant into evidence because of the totality of the circumstances: (1) The defendant asserts that the admissions should not be introduced into evidence, his being a juvenile and without parents and counsel at the time they were made. We think these facts are not controlling, but rather they are for the trial court to consider in his hearing, out of the presence of the jury, on the voluntariness of the statement and on compliance with Miranda warnings. We further note that at the time the sheriff took the young defendant into his custody his parents were at home and the sheriff told them where and for what reason he was taking the youngster to jail. The fact that he was a juvenile does not preclude, as a matter of law, the taking of a free and voluntary statement from him in the absence of an attorney or parents. See O’Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597, 603. (2) He claims that his statement, at the time of the shooting, to the deputy who arrived on the scene, inquiring as to what had happened should be inadmissible. At that time, the young defendant stated that he had accidentally shot the little girl after he had gotten the gun down, had laid it on the bed and as he was reaching for some shells. This is and was a volunteered statement by the youngster, not then in custody, with no accusation having been made by the officer. See Gordon v. State, Tenn.Cr.App., 478 S.W.2d 911, 914. (3) He states that the sheriff’s admonition that counsel would not be furnished by the county negates the admissibility of the evidence. We think that this was an unfortunate statement by the sheriff. However, where, as here, he was not an indigent we do not think that this excerpt would be fatal. The assignments pertaining to the statement are accordingly overruled. However, in closing we do not think that a youngster of fifteen years of age at the time of this tragedy should be incarcerated with criminals. We are bolstered in this conclusion by the verdict of the jury evincing that the killing was unintentional and done for want of caution. See Lee v. State, 41 Tenn. (1 Cold.) 62, 67. It therefore appears to us that T.C.A. § 37-234(f) may be applicable. However, we have treated his assignments and find as a matter of law they are without merit. We therefore affirm the judgment of the trial court. O’BRIEN, J., concurs. GALBREATH, Judge (concurring in part and dissenting in part). I agree with the majority that a youngster of fifteen years of age should not be incarcerated with criminals, subject to certain restricted exception such as having been declared incorrigible. Not only do I agree with the majority, but more importantly so does our Supreme Court, but that Court goes further and says, in effect, that he cannot be so punished. In Greene v. State, 210 Tenn. 276, 358 S.W.2d 306, the minor defendant was, as the young defendant in this case, charged with a capital offense but was convicted of a lesser included offense, again parallel to the history of this case. Pointing out that the acquittal of the offense that forced by statute the treatment of the child as an adult eliminated the basis for such treatment, the Supreme Court logically held: “[W]hen it is shown that some crime other than those excepted in the statute has been committed the trial judge should then remand the child to the Juvenile Court where proceedings may be had under Juvenile Court law, that is, whether the child is incorrigible or not under such circumstances and under the statute.” It cannot be supposed that the modifications in our juvenile statutes since the Supreme Court spoke to this issue, modifications designed to insure more humane treatment of children accused of crime than formerly, would in effect accomplish the opposite and permit a much more harsh disposition of a juvenile found guilty of an offense not set out by statute as removing the cloak of insulation than would have been permissible before the updating of our juvenile statutes. The only reason the defendant was tried as an adult was that the juvenile court found that there was probable cause to believe he had committed murder in the first degree. It has now been established that he did not, and under the rule laid down in Greene, jurisdiction reverts to the juvenile court for such disposition as that court deems proper under the Juvenile Court Act. If the judge there finds that the youngster is incorrigible, he can order him confined in the penitentiary as in the case of other children who commit non-capital crimes who are incapable of being rehabilitated. If the defendant is found to be corrigible, then confinement in a juvenile institution or such probation as appears proper to the juvenile judge should follow. Inasmuch as I feel bound by the Supreme Court to apply their recent holding under the exact circumstances of this case, I must respectfully dissent from the result reached by the majority to the limited extent dealt with in this opinion.

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Robert Lee JENKINS and Harvey E. Jenkins, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Jan. 3, 1974. Certiorari Denied, by Supreme Court April 15, 1974. Hal H. Carr, Blountville, Thomas McKinney, Jr., Kingsport, for plaintiff in error. David M. Pack, Atty. Gen., Phillip W. Brooks, Asst. Atty. Gen., Nashville, Carl K. Kirpatrick, Dist. Atty. Gen., Kings-port, for defendant in error. OPINION OLIVER, Judge. Following the killing of Newman Christian on November 28, 1971, Robert Lee Jenkins was indicted for first degree murder, and in a separate indictment Harvey E. Jenkins was charged with aiding and abetting Robert Lee Jenkins in the murder of Christian. Jointly tried in the Criminal Court of Sullivan County, Robert Lee Jenkins was convicted of second degree murder and sentenced to imprisonment in the penitentiary for not less than 10 nor more than 20 years, and Harvey E. Jenkins was convicted of aiding and abetting murder in the second degree and sentenced to 10 years in the penitentiary. Each has duly perfected an appeal in the nature of a writ of error to this Court. By appropriate Assignments of Error, both defendants raise the usual challenge to the sufficiency of the evidence to warrant and support the verdicts of the jury. We summarize the material evidence. On the night of November 27, 1971, Roy Morelock and two other men went to a bootlegging establishment where the defendant Robert Lee Jenkins, who was in charge, and Hugh Laughlin (or Lawson) were involved in an argument over Jenkins’ refusal to sell Laughlin beer. When Morelock offered to buy the beer for Laughlin (with the latter’s money), Jenkins took exception and pulled a gun on More-lock and told him to leave, grabbed him by the collar and jerked him across a half door and struck him on the head. About noon the following day, which was Sunday, after driving Newman Christian’s father to Bristol, Morelock and Christian decided to go to Gallatin, Tennessee. After stopping to buy 12 bottles of beer and a box of .38 caliber cartridges for Christian’s revolver, they decided to go to the same bootlegging establishment to buy some liquor because they did not want to try to buy any in a strange town on Sunday, and Morelock did not think Robert Lee Jenkins would be there since he had worked the night before. Enroute to that establishment, Morelock and Christian each drank a beer. Robert Lee Jenkins was in the establishment when Morelock and Christian arrived. Morelock said to him, “I don’t appreciate you busting my head like that.” At that time or shortly before, Christian returned to the car. Harvey E. Jenkins came from another room with a shotgun and ordered Morelock to leave, and Robert Lee Jenkins pulled a .38 caliber revolver and told Morelock it was “about time to go.” Morelock said, “No trouble” and went outside and started to his car. When he was two or three steps beyond the porch, about half way to his car, he heard one of the defendants say, “Why don’t we just kill that son of a bitch going there?” He then heard a gun fire and a rattling sound “like you throw a handful of gravels at something.” Later investigation showed that a large number of shotgun pellets struck the left side of Morelock’s car near the bottom. Turning around, Morelock saw both of the defendants, Harvey E. Jenkins with a shotgun and Robert Lee Jenkins pointing a revolver at him. Chris-tain was standing on the other side of Morelock’s car. Morelock described it: “Well one arm was laying sort of like on top of this car, right here, and the other one, you know, was sort of hung over, like this way, just raised up out of the car.” As Morelock started to run, another shot was fired. Blood appeared instantly on Christian’s face, he stood for a second and then collapsed. It was stipulated that he died from a .38 caliber gunshot wound in the head. Morelock testified that Christian did not have a gun in his hand when he was shot. The police found the deceased’s gun 18 inches from his hand, fully loaded. In Morelock’s car the officers found one empty beer can and one empty beer bottle, and a box of .38 caliber cartridges with 13 missing. Morelock testified that some of the cartridges fell down into the rotting carpet of his -car, and that enroute to the bootlegging establishment he and the deceased fired a couple of shots each into the floorboard of his car. A police officer testified that Morelock and Harvey E. Jenkins appeared to have been drinking. The defendant Robert Lee Jenkins testified that on the night of November 27, 1971 he declined to sell any beer to More-lock and another man who came to the house and told them to leave; that More-lock began arguing and “he reached in there to unbolt my door, and when he did, I hit him in the head with a pistol”; that Morelock got into his car and “hollered that he’d be back”; that the next afternoon, Sunday, Morelock and Christian came in and asked for two cans of beer, which he refused to sell them; that More-lock said, “I don’t appreciate you hitting me in the head. I could have got a warrant for you, but I brought my warrant with me”; that he replied to Morelock, “Well, I don’t appreciate you being here. I told you to stay away”; that Christian then left, taking a gun from his pocket, and Morelock said “My name’s Roy More-lock” and that he replied, “That’s nothing, mine’s Robert Jenkins. You just go on. I don’t want no trouble with you. I told you last night not to come back here”; that Morelock then went outside, and turned around after going down the steps and said, “Wait a minute, let’s get this straight now”; that he stepped out on the porch and “I told him, I said ‘Go on,’ and I looked up and I was looking right in the barrel of Tiny Christian’s pistol, aimed at me over the top of the car”; that “I just up and fired and fell on the porch,” and Morelock ran and Christian disappeared behind the car; that he fired only once because “That man was going to kill me”; that after he fired his brother (Harvey E. Jenkins) came outside; and that he did not have anything to drink that night. On cross-examination, both by Harvey E. Jenkins’ counsel and the District Attorney General, he testified that he had already shot the deceased before Harvey came out on the porch with a shotgun and fired into the side of Morelock’s car, and at that time Morelock was somewhere down at the side of the house, and he didn’t know what Harvey was shooting at. The defendant Harvey E. Jenkins testified he had been staying at his brother’s (Robert Jenkins) house a few days; that around 1:00 a. m. the night of November 27, 1971 a man who gave his name as Lawson (as Harvey understood it) began kicking on the door; that his brother Robert Jenkins opened the top half of this Dutch door and told Lawson he could have used the door buzzer; that Lawson said he wanted some beer and wanted to come inside; that, because it was after hours for beer sales, Robert told Lawson he could not come in; that a short time later Lawson and Morelock returned and kicked on the door and Morelock asked Robert Jenkins why he was giving his friend a rough time; that Morelock, Lawson and Robert Jenkins began arguing, and as Morelock reached over the closed bottom half of the door, Robert Jenkins hit him in the head with a pistol; that as they left, Morelock said he would be back; that the next afternoon Morelock and the deceased came to the house; that from where he was sitting in a back room, he could see a pistol in the deceased’s pocket; that Morelock, the deceased and Robert Jenkins argued; that he got the shotgun from under the mattress in a bedroom, and when he returned the deceased and Morelock and Robert had gone outside; that he then heard a shot and saw Robert go down, and when he got outside he saw Robert getting up, and saw no one else except Morelock walking pretty fast down along the side of the building; “Well, when I see that, well, there’s nothing to shoot at,” and that he did not intend to shoot at Morelock or anyone else “unless they’d been shooting towards me, or been aiming at me or my brother,” and the shotgun was accidentally discharged as he undertook to uncock it. Tested by the time-honored and oft-repeated rules governing appellate review of evidence in criminal cases when, as here, its legal sufficiency is challenged on appeal, to which we must adhere, Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135, in our judgment the material evidence in this case unquestionably justified the jury in finding the defendant Robert Lee Jenkins guilty of second degree murder and amply supports that verdict, and also supports the verdict finding Harvey E. Jenkins guilty of aiding and abetting that homicide. TCA § 39-109 defines aiders and abettors : “All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such.” According to Harvey E. Jenkins’ own testimony he was present and went out on the porch with a cocked shotgun ready and intending to shoot at anyone “aiming at me or my brother.” Thus, he was “present, aiding and abetting, or ready and consenting to aid and abet” in the homicide. The jury very evidently believed Morelock’s testimony that the shotgun blast preceded the pistol shot, and did not believe the defendants’ story that Robert had already fired the fatal shot before Harvey came out on the porch and that the shotgun was only then discharged accidentally. In 22 C.J.S. Criminal Law § 85, pp. 250-251, it is said: “A principal in the second degree, or an aider and abettor as he is frequently called, is one who is present actually or constructively, aiding and abetting in the commission of the felony; one who so far participates in the commission of a crime as to be present for the purpose of assisting therein, if necessary; one who gives aid and comfort, or who either commands, advises, instigates, or encourages another to commit a crime; one who aids and abets the actual commission of a felony hy some degree of assistance or encouragement, whether or not present at1 the place of perpetration; a person, who, by being present, by words or conduct, assists or incites another to commit the criminal act. “Accordingly, in order that one may be a principal in the second degree or aider and abettor, the general rule is that it is essential that there be a crime committed and a principal in the first degree, and it must be shown that the person for whom accused was acting was connected with the offense. One cannot be an aider and abettor of himself in the commission of an offense; and where only one person is indicted for a felony, he cannot be convicted of aiding and abetting in the commission of the crime charged, but where two or more persons are jointly indicted as principals, any one of them, although tried separately, may be convicted of aiding and abetting.” It is also said in 22 C.J.S. Criminal Law § 87, pp. 255-258': “In order to aid and abet another to commit a crime, it is necessary that accused in some sort associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree; the same criminal intent must exist in the minds of both. There must be a community of unlawful purpose at the time that the act is committed, . “ . . . The common purpose need not be to commit the particular crime which is committed; if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal, if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof.” And in 22 C.J.S. Criminal Law § 88(1), pp. 260-261: “All persons who are actually or constructively present at the time and place of a crime, whether it is a felony or merely a misdemeanor, and who either actually aid, abet, assist, or advise its commission, or are there with that purpose in mind, to the knowledge of the party actually committing the crime, are guilty as principals in the second degree or aiders and abettors or as ‘principals’ under applicable statute, although they did not themselves accomplish the purpose. Conduct which amounts to aiding and abetting of the crime by accused at the time and place of its commission is, however, essential to guilt as a principal in the second degree or aider and abettor.” See also: Presley v. State, 161 Tenn. 310, 317, 30 S.W.2d 231. Robert Jenkins’ defense of self-defense presented a question for the exclusive determination of the jury. McGill v. State, Tenn.Cr.App., 475 S.W.2d 223; Arterburn v. State, 216 Tenn. 240, 391 S.W. 2d 648; May v. State, 220 Tenn. 541, 420 S.W.2d 647. Quite evidently the jury accepted Morelock’s account of this killing and rejected this defendant’s theory that he acted in his own necessary self-defense in killing the deceased and has resolved that question against him. Considering the fundamental rule that the jurors are the sole and only judges of the evidence, and of the weight to be given to the swearing of each and every witness in the case, and that the credibility of the witnesses and the weight and value of their testimony are matters entrusted exclusively to the jury as the triers of the facts, Bailey v. State, Tenn.Cr.App., 479 S.W.2d 829; Gordon v. State, Tenn.Cr.App., 478 S.W.2d 911, and cases therein cited, upon this record we cannot say that the jury erroneously decided that issue. Both defendants next complain that the court erred in excluding from the evidence an autopsy report showing the alcohol concentration in the deceased’s blood. Upon cross-examination counsel for the defendant Robert Lee Jenkins elicited from a Kingsport police officer who investigated the homicide, and who was called as a prosecution witness, that the pathologist gave him a report made by the laboratory of the Holston Valley Community Hospital showing the deceased was drinking, and asked the witness to file that report as an exhibit to his testimony. The court sustained the State’s objection on the ground that such evidence was hearsay. There was considerable contentious discussion about the autopsy report with reference to the analysis of the deceased’s blood. After the jury retired for deliberation upon its verdict, a Xerox copy of a document entitled “Provisional Anatomical Diagnosis, Holston Valley Community Hospital, Kingsport, Tenn.”, obviously made by the pathologist and which described the deceased’s wound and stated that a blood sample was sent to the State Laboratory for toxicologic examination, was admitted on motion of Robert Lee Jenkins’ counsel. Then, on motion of the State, a Xerox copy of the pathologist’s autopsy report, in which the body of the provisional report just referred to was copied, and which included a finding that the deceased had a blood alcohol level of “224 gms.%”, was also admitted. In our judgment the defendants’ complaints about alcohol in the deceased’s blood are without substance, because such evidence was wholly irrelevant and immaterial to any issue in the case. Plainly, the amount of alcoholic beverage the deceased may have consumed and its effect upon him could not be raised as a matter of defense by either of the defendants, in the context of this record and under their theory of the case. There is nothing in this record to show that he ever spoke a word to either of them, or that anything he may have had to drink beforehand affected him in any way or precipitated the events culminating in his death. There is no merit in Harvey E. Jenkins’ complaint that the court erred in permitting the State to elicit from him on cross-examination that he had been convicted previously of crimes involving moral turpitude, larceny and burglary, because the State failed to show those convictions were recent. Of course, when a defendant takes the witness stand in his own behalf in the trial of a criminal case, he subjects himself to the same rules applicable to other witnesses and may be impeached in the same manner as any other witness. Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7; Powers v. State, 117 Tenn. 363, 97 S.W. 815; Hill v. State, 91 Tenn. 521, 19 S.W. 674; Turner v. State, 89 Tenn. 547, 562, 15 S.W. 838; Peck v. State, 86 Tenn. 259, 6 S.W. 389; Morgan v. State, 86 Tenn, 472, 7 S. W. 456. Upon cross-examination, for purposes of impeaching his credibility as a witness, the defendant may be interrogated as to whether he was convicted previously of offenses involving moral turpitude. McGee v. State, 206 Tenn. 230, 332 S.W.2d 507; Jones v. State, 197 Tenn. 667, 277 S. W.2d 371. Larceny and burglary are such offenses. But the jury should be instructed to consider impeaching testimony as affecting only his credibility as a witness, and not as impairing the presumption of innocence. Hill v. State, supra; Peck v. State, supra; Morgan v. State, supra. Before permitting this defendant to answer the State’s questions about his previous convictions, the court interrupted to instruct the jury that “you cannot consider previous conviction of felonies as in anywise showing the guilt of the defendants on any charge, or in anywise weakening the presumption of innocence of the defendants on these charges, but you can only consider it in weighing their credibility as witnesses.” Additionally, in the formal instructions to the jury the court charged: “If there is evidence that the defendants, Robert Jenkins and Harvey E. Jenkins, had been previously convicted of a felony involving moral turpitude, you cannot consider that as in anywise showing the defendants guilty of the offenses charged in the indictment, or as anywise weakening the presumption of innocence of the defendants on these charges. You can only consider this in weighing their credit as a witness and for no other purpose.” But one qualification of the rules just stated is that the acts inquired about must not be too remote in time. In Cooper v. State, 123 Tenn. 37, 144, 138 S.W. 826, 854, the Court said: “ . . . The authorities are to the effect that inquiry into transactions so ancient should not be permitted by the trial judge for the purpose of impeaching the credibility of a witness, since it is to the interest of society that men reform, and live down their past, if an evil one, and the witness stand should not be made a place of torture, for probing into occurrences long forgotten, and perhaps forgiven before forgotten, and for dragging them forth anew, to the distress of the person who is subjected to the ordeal, and to the injury of the public morals.” In the present case, however, this defendant makes no claim that his past convictions were so remote as to cast no light on his present credibility. Clearly, then, he cannot claim upon any basis reflected by this record that he was prejudiced by having it brought out during his cross-examination that he had been convicted of larceny and burglary. Harvey E. Jenkins next complains about the court’s charge to the jury. When the jury returned into open court to report their verdicts in these cases, in response to the court’s inquiry as to Harvey E. Jenkins’ case the jury foreman reported the jury had found him guilty as an aider and abettor in second degree murder and fixed his punishment at five years. The court then further instructed the jury as follows: “You have reported to the Court that in Case No. 6393-BL, you find the defendant, Harvey E. Jenkins, guilty as an aider and abettor of murder in the second degree and fix his punishment at five (5) years. The Court is unable to accept this verdict as the punishment for murder in the second degree is a range of not less than ten (10) years, nor more than twenty (20) years, and if a person aids and abets in the commission of a felony the punishment must be within the range as established by the Legislature for the offense. Therefore, the Court must ask — request that you return to the jury room to further deliberate in Case No. 6393-BL.” After additional deliberation the jury returned into open court and reported the same verdict as to guilt and fixed punishment at 10 years. Of course, a verdict fixing punishment below the statutory minimum for the offense of which the defendant is found guilty is a nullity. Daniels v. State, 176 Tenn. 181, 140 S.W.2d 148; Mayfield v. State, 101 Tenn. 673, 49 S.W. 742; Murphy v. State, 47 Tenn. 516. Patently, therefore, the court could not accept the jury’s verdict fixing punishment at five years in the penitentiary, because aiders and abettors are deemed principal offenders and are subject to the same punishment. TCA § 39-109. Second degree murder is punishable by imprisonment in the penitentiary for not less than 10 nor more than 20 years. TCA § 39-2408. When the jury fixed an unauthorized sentence rendering the verdict void, it was altogether proper for the court to redirect the jury’s attention to the punishment provided by law for second degree murder and to direct them to reconsider their verdict in Harvey E. Jenkins’ case on that basis. Strunk v. State, 209 Tenn. 1, 348 S.W.2d 339. Indeed, failure to do so would have been a gross dereliction. There is no merit in Harvey E. Jenkins’ contention that the trial court’s charge led the jury to believe this defendant should be found guilty of the same offense as Robert Lee Jenkins. That the jury was not confused or misled in that respect, either by the original charge with reference to aiding and abetting or in the supplemental instruction above quoted, is conclusively demonstrated by the fact that the jury initially found, this defendant guilty of aiding and abetting in the commission of second degree murder and adhered to that verdict following the supplemental instruction. We must also reject Harvey E. Jenkins’ argument here that Presley v. State, supra, required the trial judge to give “a complete and full charge of the lesser included offenses.” In the first place, this defendant did not raise that complaint in his motion for a new trial, with the result that it cannot be considered here. Hughes v. State, 3 Tenn.Cr.App. 602, 465 S.W.2d 892; Nelson v. State, Tenn.Cr.App., 470 S.W.2d 32; Rules 14(4) and 14(5) of the Rules of the Supreme Court of Tennessee, adopted by this Court. Additionally, Presley v. State, supra, bears no factual resemblance to the case before us. In Presley, both J. D. Presley and Herman Presley were jointly indicted, tried and convicted of assault with intent to commit murder in the first degree. J. D. Presley and his wife were separated and she had instituted a divorce action against him. After both men watched her leave her place of employment and followed her, J. D. Presley stabbed her several times when they came to where she was engaged in conversation with another man. During the assault, Herman Presley aided and abetted his brother by restraining the bystanders from interfering. The question propounded to the trial judge by the jury was “Whether or not we can find Herman Presley guilty of a different degree of crime than we might find J. D. Presley.” The trial judge simply reminded the jurors that they were the sole judges of the guilt or innocence of the defendants and of the different degrees of crime “heretofore defined and explained to you.” Upon consideration of those facts, the Court reversed Herman Presley’s conviction and remanded his case for a new trial, holding that he was entitled to additional instructions differentiating his status from that of his brother so as to guide the jury in determining the degree of his guilt. The Court said: “In so far as the guilt of Herman Presley of some degree of an unlawful assault is concerned, there can be no question upon the proof but that he was present aiding and abetting his brother by preventing the interference of bystanders in behalf of Mrs. Presley. The intervention and assistance of Herman Presley was rendered indisputably unlawful by the unlawfulness of the actions of J. D. Presley, in whose behalf the assistance was rendered. Johnson v. State, 125 Tenn., 420, 425, 434-435, 143 S.W. 1134, Ann.Cas.1913C, 261, and cases there cited. “And if Herman Presley had knowledge of the fact that his brother had followed his wife with intent to assault her, or to do her violence, and came with his brother to assist him and did assist him, his guilt as an aider and abetter is in the same degree as that of his brother in whose unlawful purpose and design he shared. Moody v. State, 46 Tenn. (6 Cold.) 299; Reagan v. State, 155 Tenn. 397, 293 S.W. 755. “In Riggs v. State, 43 Tenn. (3 Cold.) 85, 91 Am.Dec., this court noted the converse of the rule stated in Moody v. State, supra, thus: ‘ “Yet if many be together upon a lawful account, and one of the company kill another of an adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke, or actually abetted them to do it.” ’ In such case, since the guilt of the abetter arises, not from his presence with the person who strikes the blow, but from the fact of his own participation, it would seem that the degree of his guilt is to be determined according to his own criminal intent and not according to the intent and degree of guilt of the principal offender. “So, applying this rule to the proof in the case at bar, we think the jury should have been instructed that, if Herman Presley came to the scene of the assault without knowledge of any purpose on the part of his brother to assault his wife, or to commit any other act of unlawful violence, so that they were not engaged in a common unlawful enterprise, and if the assistance given by Herman Presley was without deliberation and premeditation, then he would not be guilty of the same degree of felonious assault as his brother, but of an assault with intent to commit murder in the second degree or manslaughter, according to whether his participation was with malice or induced by sudden passion, upon adequate provocation.” In the case before us, the record admits of no doubt whatever that both brothers, both Robert Lee Jenkins and Harvey E. Jenkins, were engaged in an unlawful act. Unquestionably, both knew what they were doing and had a community of purpose, as demonstrated by the statement by one or the other, “Why don’t we just kill that son of a bitch going there?” and by their appearance together on the porch where Harvey opened the assault by firing his shotgun into the side of Morelock’s car as the latter walked toward it and as the deceased was either sitting in it or standing on the opposite side. Under these facts there was not and could not be any issue as to a lesser included offense as far as Harvey E. Jenkins was concerned. Presley does not hold that in all cases involving aiders and abettors the trial judge must charge they may be convicted of aiding and abetting in the commission of offenses lesser than the principal actor is found guilty of. Nor does Presley in any way conflict with the legal principle quoted above from Corpus Juris Secundum that an aider and abettor must share in the criminal intent of the principal actor and the same intent must exist in the minds of both. The defendant Robert Lee Jenkins complains that the court erroneously overruled his objection when the District Attorney General argued to the jury that the defendants were guilty and this kind of killing had to be stopped and only the jury could do anything about stopping it, “because you write the community standards. You decide what kind of standards this community has . . . ” In Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1, the Court held that an argument urging conviction of the accused to prevent injustice and deter others was not improper when the opinion expressed is not based on something not appearing in the evidence. In a speech before the United States Judicial Conference for the Sixth Circuit in Louisville, Kentucky on June 1, 1973, United States District Judge Frank W. Wilson said this: “ . . .So jury trial is more than an instrument of justice. It is the one sure symbol that freedom still lives. “As Sir William Holdsworth in his classic History of English Law has stated: ‘The jury system has for some hundreds of years been constantly bringing the rules of the law to the touchstone of contemporary common sense.’ ” In this case we find nothing in this record even to suggest, much less to show, that the District Attorney General’s statement affected the verdict to the prejudice of the defendants. That is the general test applicable in such cases. Shadden v. State, 2 Tenn.Cr.App. 450, 455 S.W.2d 164; King v. State, 1 Tenn.Cr.App. 101, 430 S.W.2d 810. Finally, there is no merit in Robert Lee Jenkins’ contention that the trial court erred in limiting him to eight peremptory challenges. This defendant insists that, being charged with a capital offense, he was entitled to 15 peremptory challenges as provided in TCA § 40-2510. This case was tried September 27, 1972. On June 29, 1972, the Supreme Court of the United States outlawed the death penalty under statutes leaving its imposition to the untrammeled discretion of the trial jury. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Thus, Furman struck down capital punishment in Tennessee. In Beeler v. State, 206 Tenn. 160, 332 S. W.2d 203, the Court, quoting Black’s .Law Dictionary, 3rd Edition, defined a capital case as “one in or for which the death penalty may, but need not necessarily be inflicted.” So, at the time of this trial first degree murder was not a capital offense in this State. The trial judge correctly held, therefore, that this defendant charged with first degree murder was not on trial for a capital offense and was entitled only to the eight peremptory challenges allowed to defendants in felony trials generally. TCA § 40-2510. Affirmed. DWYER and RUSSELL, JJ„ concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Loreen L. WEST, Administratrix, etc., Appellant, v. Walter J. LUCHESI et al., d/b/a, etc., Appellees. Willie D. BLACKWELL, Administrator, etc., Cross-Appellant, v. Loreen L. WEST, Administratrix, etc., Cross-Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied June 7, 1974. Charles A. Williams, Paducah, for appellant and cross-appellee. Francis T. Goheen, E. Palmer James, Julian M. Carroll, Paducah, for appellees. Julian M. Carroll, Francis T. Goheen, Paducah, for cross-appellant. STEINFELD, Justice. On May 9, 1968, a dark and hazy night, at about 9:30 p. m. a limousine which served the Paducah airport was being driven westwardly on U.S. 60 by Mary Blackwell. Roy West, whose administratrix is appellant, was riding his motorcycle in the same direction ahead of the limousine, with a car being driven by Mr. R. L. King traveling between him and the limousine. As West turned leftwardly to enter Holt Road, the limousine, having passed the King automobile, struck the motorcycle. Both West and Mrs. Blackwell were killed. In the litigation which followed a verdict of $250,000 was rendered in favor of West’s estate,'but a new trial was granted on the ground that the verdict was excessive and for other reasons. On the second trial the jury found both West and Mrs. Blackwell guilty of negligence. A judgment was entered dismissing all claims, from which judgment West’s administra-trix appeals and Mrs. Blackwell’s administrator cross-appeals. Luchesi, et al did not appeal or cross-appeal. We affirm. Each of the parties at the first trial had requested that a verdict in his favor be directed dismissing the claims being asserted against him. The trial court denied these requests. West claims that the trial court erred in not sustaining his motion for a directed verdict and that the first verdict should not have been set aside, but if we hold that voiding the first verdict was not error the second trial should have been limited to damages only. Blackwell and Luchesi, et al argue that in both trials a directed verdict in their favor was appropriate and Blackwell argues that he should recover damages. U.S. 60 runs east and west. Holt Road enters U.S. 60 from the south. West lived in a residence located at the southwest corner of that intersection. Mr. and Mrs. King, who live on U.S. 60 a short distance west of Holt Road, were returning to their home from Paducah, which city is approximately three miles to the east. They were the only eye witnesses to the accident. Mr. King testified at both trials, while Mrs. King appeared only at the second trial. Their testimony was substantially the same in all instances. After leaving the city Mr. King, while driving at about fifty miles per hour, observed a dim red light some distance ahead of him and moving in the same direction in which he was traveling, but he was unable to tell what it was. He described the light as appearing somewhat dimmer than a bicycle reflector. Mr. King slowed his speed to approximately thirty-five miles per hour and followed the light for a mile or more, still unable to tell what it was. When he had come within 100 feet or a little more of the red light, he realized that it was a motorcycle. Also he became aware of the presence of the limousine passing him on the left. The limousine continued on and just after it had gotten by him and while it was still in the passing lane the motorcycle turned left across the centerline into the limousine’s passing lane. The impact, King testified, occurred two feet or a little more south of the centerline, with the right front of the limousine colliding with the left side of the motorcycle. The testimony regarding the point of impact was supported by the testimony of a police officer. The officer testified about marks in the surface of the road which were made by the vehicles involved in the collision. After the collision the motorcycle continued in a northwestwardly direction approximately 103 feet and the limousine finally came to rest against a tree in West’s yard, a distance of 164 feet from the point of impact. Mr. King was asked whether West gave a signal of his intention to make a left turn. The pertinent questions and answers were as follows: “Q34 Are you in a position to say whether he did or did not give a signal ? A No, I am not. Q3S In other words, he may have given one but you didn’t see it, is that what you are saying ? A That’s right, I didn’t see one. QS Do you believe if such a signal had been given that you would have seen it, since you were looking straight ahead ? A I couldn’t say that.” Mr. King stated that no horn or other signal was sounded by the limousine as it attempted to pass. KRS 189.340 requires a motorist to give such a warning before passing. KRS 189.380(1) prohibits a left turn by a vehicle unless it can be made in reasonable safety. Four headlights were following West only a short distance behind him, two of which were in the passing lane when he attempted to make the left turn. Counsel for West calls our attention to Maybrier v. Baldwin, Ky., 442 S.W.2d 585 (1969), in which a left-turning vehicle was absolved by law of any negligence in turning, it having been struck from the rear by another vehicle which was attempting to pass it. In Maybrier' we said, “Nowhere in the evidence was there any testimony by any witness, express or implied, that Baldwin (the passing vehicle) turned (into the passing lane) before Mrs. Maybrier (the left turning vehicle) turned, or that he did so in time for her to observe his movement before undertaking her own.” Here, there was conclusive evidence that the limousine had turned into the passing lane before West attempted to make his left turn and that the limousine had been in that lane for sufficient time for West to observe its movements before he undertook to turn. It is our opinion that the evidence of the violation of statutory duties by West convicted him of contributory negligence as a matter of law, wherefore the court should have sustained the motions to dismiss the claim being asserted by West’s administratrix. However, this did not mean that Mrs. Blackwell, et al were entitled to recover on their claims, because at the very least the evidence of statutory violations by Mrs. Blackwell created a jury issue as to her contributory negligence as a claimant. Wright v. Clausen, 263 Ky. 298, 92 S.W.2d 93 (1936); Jewell v. Oglesby, Ky., 402 S.W.2d 439 (1966). On the claim of West, we agree that it was error for the court not to dismiss that claim. On the claim asserted by Blackwell’s administrator and Luchesi, et al, whether it was error not to sustain West’s motion to dismiss we need not decide as the jury found in the first trial (and in the second trial which Blackwell’s administrator and Luchesi, et al had requested) that the driver of the limousine was negligent. Other issues were presented, but we deem it unnecessary to discuss them. The judgment is affirmed. All concur, except OSBORNE, C. J., and REED, J., who dissent. OSBORNE, C. J., files a dissenting opinion, in which REED, J., joins. OSBORNE, Chief Justice (dissenting). As I view this case one of the problems presented is basically a problem of statutory construction. Our previous cases construing the statutes involved are not all in accord. The crux of the matter is whether or not our statutes relating to traffic regulations do in fact place an absolute duty upon a left-turning vehicle to ascertain, at the. exact moment the turn is made, whether the left lane of the highway is in fact clear of passing vehicles traveling in the same direction as the turning vehicle. KRS 189.300(1) provides: “The operator of any vehicle when upon a highway shall travel upon the right side of the highway whenever possible, and unless the left side of the highway is clear of all other traffic or obstructions and presents a clear vision for a distance of at least one hundred and fifty (ISO) feet ahead.” This would seem, at first blush, to be a statute controlling passing and require that the passing vehicle make sure that the passing lane is clear for ISO feet ahead, viz: the lane not be occupied by other vehicles or that there be no curves or hills that would obstruct the view. However, it might be arguable that this section also deals with left-turning vehicles. KRS 189.330(1) provides: “When turning to the right at an intersection of highways, vehicles shall keep to the right of the center, and in turning to the left shall pass to the left of the center, keeping, however, as far to the right as is possible to do so and still pass to the left of the center. In this subsection “center” means the meeting point of the medial lines of the two highways.” It would seem that this only outlines the track that the vehicle should follow in making the turn and in no way regulates or prescribes the duties of the driver relative to other vehicles upon the road. KRS 189.340, according to its heading, regulates Overtaking Vehicles-Traffic Lanes-Following Vehicles. Subsection 3 provides as follows: “No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet (100') of any vehicle approaching from the opposite direction.” It appears that this section requires the driver of an overtaking vehicle to make sure that the left lane is not occupied by an oncoming vehicle. It is arguable that the principle set out here, though not the specific language, might equally apply to a turning vehicle as well as an oncoming vehicle. However, as we construe this section as controlling passing then it would appear that KRS 189.300, above, is applicable to something other than passing vehicles, as it does not seem reasonable that the legislature would have two separate statutes upon the same subject, one worded in specific terms and the other general. KRS 189.350(1) provides as follows: “The operator of a vehicle about to be overtaken and passed shall give way to the right in favor of the overtaking vehicle, upon audible signal being given by the overtaking vehicle, if the overtaking vehicle is a motor vehicle or bicycle.” The duties here set out are clear that the vehicle being overtaken, once it is alerted to this fact by an audible signal, shall give way. KRS 189.380(1) and (2) provide as follows: “No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and only after a clearly audible signal has been given by sounding the horn if any pedestrian shall be affected by the movement. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. A signal of the intention to turn right or left shall be given continuously for not less than the last one hundred (100) feet traveled by the vehicle before turning.” It is rather clear that the duty here placed upon the driver of the turning vehicle is to give an appropriate signal (later defined in the statute) when it is ascertained that the movement of another vehicle will be affected and not to turn until after the signal has been given and after ascertaining that the turn may be made with reasonable safety. The problem with this statute is that it does not make clear whether the driver is obligated to ascertain that the turn can be made with safety at the moment when he gives the signal and elects to make the turn, or whether he must make this decision 100 feet down the road at the exact point where the turn is made. This question was presented to us in Lockridge v. Mercer, Ky., 438 S.W.2d 486 (1968). In that case Lockridge was operating a pickup truck proceeding east on U. S. Highway 60 near Owensboro, Kentucky. He made a left turn to go into a parallel lane and was struck broadside, as he went into the left lane, by Mercer’s truck which was attempting to pass. There was evidence that Lockridge had given a proper signal. The trial court instructed the jury that Lockridge “was not to turn the Volkswagen to the left or from a direct course upon the highway without first ascertaining that such movement could be made with reasonable safety.” Lockridge appealed to this court contending that this instruction was erroneous as it required him to ascertain that the turn could be made in safety at the time of the turn and not 100 feet back up the road at the time he was required to give the signal. In analyzing and deciding this issue we stated as follows : “It is next contended that the instructions erroneously required plaintiff driver to keep a reasonable lookout to the rear and not to make a turn without ascertaining such movement could be made with reasonable safety. It is apparently appellants’ position that this duty should have been limited to the time when the driver was required to give a signal, which was at least 100 feet before actually turning. The argument is that once a driver has given a signal to make a left turn, he no longer has any duty to ascertain whether the turning will reasonably affect the operation of a following vehicle. We know of no reason or authority for such a proposition. The flashing of a turning signal does not discharge all of the duties of a motorist. KRS 189.380(1) provides that no person shall turn a vehicle (from a direct course upon a highway) unless such movement can be made with reasonable safety. Clearly this imposes a continuing duty on a motorist, after giving his signal, to observe traffic conditions both fore and aft up to the time of actual turning. The subject of lookout for vehicles approaching from the rear was discussed in Hainline v. Hukill, Ky., 383 S.W.2d 353. In addition of course, KRS 189.290 requires a motorist to operate his vehicle in a careful manner at all times.” It would seem this forecloses the question of whether or not this statute requires the driver of a left turning vehicle to make certain that the left lane is clear of passing vehicles immediately before making the turn. However, it only goes to the extent that the question is one to be submitted to a jury. We did not say in that case that Lockridge was guilty of negligence as a matter of law and that his negligence was, as a matter of law, the proximate cause of the accident. When all the statutory law upon the subject is collectively examined it would appear that when a driver intends to turn left he must, at that moment, examine traffic both fore and aft and ascertain that the turn to be made is with safety. He must than activate his turn signal or give a manual signal of his intent to turn and the direction in which the turn will be made. These signals should be continued for the last 100 feet before the turn is executed. If, during this period of time, he ascertains that the turn can not be safely made than of course he would have to abort it. The statutes require that anyone about to pass the vehicle would have to give an audible signal to direct the driver of the turning vehicle’s attention to the fact that he is being passed. We seem to say in the Lock-ridge case that even though the audible signal had not been given the driver of the turning vehicle still has the duty, at the exact time of the turn, to make sure that there is no traffic in the left, or passing lane, coming from his rear. This seems to make the burden upon the turning driver more strict than the statutes contemplate. The Lockridge case may have gone a step further than the statutes when it placed an absolute duty upon the driver of the turning vehicle to clear the left lane at the time of entry. While it is true that the flashing of a turn signal does not discharge all the duties of a motorist as stated in that opinion it is also true that this does discharge some of the duties, at least enough of them that the ultimate turn should not be at the sole risk of the turning driver. The question before us in this case is whether West was guilty of negligence as a matter of law in turning left at a time when the Blackwell vehicle was in the process of passing both him and the King vehicle, and whether his negligence was as matter of law a proximate cause of the collision. We have never so held. The law of negligence has never required more than that a man act in a reasonable manner viewing all the surrounding circumstances. The test is, and has always been, what would a reasonable man have done under the given circumstances. The law has never required the impossible nor even the unusual. If we assume that our opinion in Lock-ridge, supra, is a proper construction of our statutory law controlling traffic (an assumption which is not free of some doubt) then the driver of the turning vehicle is required not only to give a proper signal for the required distance before the turn, but to use reasonable care at the time of the turn to make sure that the turn can be made in safety. This rule, like all other rules of law, must be applied with reason and judgment and I do not see how we can fail to take note of the fact that there must be a point in time at which the turning driver is justified in concentrating on his turn and directing his entire attention to the front of his vehicle in order to make sure that the course in which he intends to travel is free of obstruction. To put the matter bluntly, when we require a man to look both fore and aft we should be careful not to say that he was looking aft when he should have been looking fore, or his was looking fore when he should have been looking aft. If West had properly cleared the traffic behind him, given the proper signal, not hearing a horn indicating that there was a passing taking place and then looked forward to clear for oncoming traffic and to make sure that the entry to the Holt Road was clear, and in that short period of time the Blackwell limousine came around the West car and struck him, I am at a loss to see how any court could say that he was negligent as a matter of law. The law required the limousine to sound its horn before passing. The evidence is conclusive that there was no horn. Could West not assume, since there was no horn, there was no passing? This is what we said in Chambliss v. Lewis, Ky., 382 S.W. 2d 207 (1964). In that case Lewis had entered a main highway from a secondary road in the immediate front of Chambliss’ car, in violation of KRS 189.330(4) which requires a motorist entering a main highway from a secondary road to stop and not proceed if an approaching car is so close as to constitute an immediate hazard. In the course of the opinion we said “ . . . under the circumstances Cham-bliss could assume that Lewis would conform to the law and remain where he was until the way was reasonably clear and could act upon that assumption in determining his own manner of using the road.” If Chambliss could assume that Lewis would obey the law, why couldn’t West assume that Blackwell would obey the law. There is one statement of fact in the majority opinion which I believe to be incorrect. The opinion states “the limousine, after passing the King automobile, struck the motorcycle.” I do not believe this to be supported by the evidence. A more accurate statement of the fact would be that the limousine, while in the process of passing the King automobile, struck the motorcycle. The testimony upon which I base my statement in this respect is as follows: “18 Where were you when the limousine passed you ? I mean roughly where were you, say, between Potter’s Restaurant and Holt Road ? A. Well, it was somewhere between there. Oh, I have estimated the distance at approximately 100 ft. from the accident when it happened. You mean at the time the limousine come around us ? 19 Yes, sir. A. Well, that was some distance farther than that. I had slowed down to what I imagine to be 35 to 40, or maybe even slower, than this limousine started around us. Now it would be hard for me to determine where that was in reference to where the accident happened. 37 Where was the limousine when he started making his turn ? A. Well, again, I couldn’t rightfully say. 38 I mean with relationship to your vehicle. A. The limousine was at least at my side, and possibly a little bit ahead of me at that time. 39 How far were the two vehicles from you when the collision occurred ? A. Well, I have — I would say it was approximately 100 ft». I would have to say that.” From the foregoing testimony it would appear that the witness is saying that the Blackwell limousine was along about his side when the motorcycle started to turn into the Holt Road. At another point, it appears he is saying that the limousine and the motorcycle were approximately 100 feet ahead of him when they collided. There is an inconsistency here which could only be resolved by the jury. It would be impossible for the motorcycle not to have cleared the left lane had it started its turn across that lane when the limousine was 100 feet away or else the limousine would have had to have been traveling over 10 times as fast as the motorcycle (assuming the left lane of the highway to be 10 feet wide). In any event, it would seem for the majority opinion to make the absolute statement that the limousine had passed the King car might be somewhat misleading. In conclusion, it is my sincere opinion that questions such as this are better left to juries and in this opinion I do not stand alone, see Blashfield Automobile Law and Practice, Volume 2, Section 113.4 wherein the matter is stated as follows: “The lookout required of the driver of a vehicle traveling along a highway is largely confined to the observation of vehicles in front rather than to vehicles in the rear, and he need not maintain a constant lookout for overtaking vehicles, even though he is traveling at less than the maximum speed permitted by law. However, he owes the duty to keep some lookout for following vehicles, and when his attention has been called to the presence of a vehicle behind he must maintain a lookout for it. The driver of a vehicle must look to the rear for following vehicles when he intends to execute a maneuver which could affect the operation of a following vehicle or endanger the safety of the occupants thereof, and he must maintain his lookout until all danger is past, but there is no absolute legal requirement that he continue to took in the rear-view mirror during the entire time he is executing the maneuver. Unless the evidence is undisputed and susceptible of but one reasonable inference, whether the driver of a vehicle was negligent or contributorily negligent with respect to lookout for vehicles in the rear, and whether such negligence was the proximate cause of a subsequent accident, are ordinarily questions of fact for the jury.” The trial court set aside the verdict of the jury as being excessive. An examination of the record in this case reveals that this was a close question. It is my opinion that trial courts certainly have some discretion in this respect. I do not think it was abused. I would, therefore, affirm the action of the trial court in resetting the case for trial. As the majority opinion does not deal with the second trial in this matter I will not pursue the subject in this dissent. For the foregoing reasons, I respectfully dissent. REED, T., joins in this dissent. . For a case holding the exact opposite of Lockridge, see Cook v. Gillespie, 259 Ky. 281, 82 S.W.2d 347. . West was knocked 70 feet from the point of impact. All indications are that the Blackwell automobile was driving at a high rate of speed, probably in the neighborhood of 60 m. p. h. At this speed an automobile travels 5,280 feet per minute or nearly 100 feet per second. The evidence is that the Blackwell car was abreast of the King car, approximately 100 feet before it struck West. If we extend this distance another 100 feet, then the point where the Blackwell car pulled out from behind the West car into the passing lane would have only been two seconds away from striking West. In short, West only had time to breath twice from the time the Blackwell car pulled into the passing lane until he was struck.

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COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General, et al., Appellants, v. Charles J. HOLMES, Commissioner, Department of Corrections, et al., Appellees. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied June 7, 1974. Ed W. Hancock, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellants. Edward F. Prichard, Jr., Frankfort, for appellees. STEINFELD, Justice. The 1972 session of the General Assembly of the Commonwealth passed an Act which is referred to as the “work release program” for prisoners convicted of a felony. KRS 439.580 through 439.630. The Commonwealth, on relation of the Attorney General, brought this action to enjoin the installation of this program and to have declared part of the Act as repugnant to section 253 of the Kentucky Constitution. The statutory language herein involved is as follows: KRS 439.590: “The department may establish community residential correctional centers at locations approved by the legislative body of the area where located as places of confinement for convicted felons * * * » KRS 439.600: “The commissioner, or such person as said commissioner delegates, may extend the limits of the place of confinement of a prisoner as to whom there is reasonable cause to believe will honor his trust, by authorizing him, under prescribed conditions, to: “(1) Visit specifically designated places within the boundaries of Kentucky for a period not to exceed seven (7) days and return to the same institution or facility. “(4) To do work at paid employment in the community on a voluntary basis returning to the institution or to the facility at night.” Section 253 of the Constitution, with the 1915 amendment, is as follows: “Persons convicted of felony and sentenced to confinement in the penitentiary shall be confined at labor within the walls of the penitentiary; and the General Assembly shall not have the power to authorize employment of convicts elsewhere, except upon the public works of the Commonwealth of Kentucky, or when, during pestilence or in case of the destruction of the prison buildings, they cannot be confined in the penitentiary.” 1915 amendment: “That section 253 of the Constitution be so amended that the Commonwealth of Kentucky may use and employ outside of the walls of the penitentiaries in such manner and means as may be provided by law, persons convicted of felony and sentenced to confinement in the penitentiary for the purpose of constructing or reconstructing and maintaining public roads and public bridges or for the purpose of making and preparing material for public roads and bridges, and that the Commonwealth of Kentucky may, by the use and employment of convict labor outside of the walls of the penitentiary by other ways or means, as may be provided by law, aid the counties for road and bridge purposes, work on the State farm or farms.” The circuit court dismissed the complaint holding, among other things, that, “The Kentucky Statute challenged herein does not violate Section 253 of the Constitution of Kentucky under the interpretation the Kentucky Court of Appeals has already given that Section in George v. Lillard [21 Ky.Law Rep. 483], 51 S.W. 793 (C.A.Ky., 1899).” From that judgment this appeal was lodged. We affirm in part and reverse in part. The Attorney General claims that KRS 439.600(1) violates section 253 of our Constitution and vigorously argues that KRS 439.600(4) is legislation contrary to the language, spirit and intent of section 253. There is no contention that the legislature may not authorize the construction and operation of penitentiaries in addition to those now existing, nor do the appellants claim that the establishment of “correctional centers” authorized by KRS 439.590 violates the provisions of section 253 if these centers are used in connection with programs which allow felony convicts to participate in non-work activities outside of those facilities. Appellants do not attack the parole system or KRS 439.600 (2) which permits a prisoner to be sent outside the correctional institution for medical attention not available within the facility. They do not challenge KRS 439.600(3) which authorizes prisoners to “(participate in an educational training program in the community on a voluntary basis * * therefore, we do not consider or decide the validity or invalidity of the sections of the Act which are not under attack. We are of the opinion that KRS 439.600(1) is not violative of section 253 of the Constitution as that section has been construed in George v. Lillard, 106 Ky. 820, 21 K.L.R. 483, 51 S.W. 793 (1899), and other cases. KRS 439.600(4) deals with employment other than that allowed by section 253. The constitutional debates clearly reveal that section 253 was designed to prohibit the Commonwealth, any division thereof, or any private enterprise from working convicts outside the prison walls, with the exceptions we will mention. In George v. Lillard, supra, we said, “ * * * The purpose of the enactment of that section of the constitution was to prevent the working of convicts by the state outside of the prison walls. That was the evil intended to be remedied by the prohibition contained in the section. * * * ” Originally the Commonwealth was authorized to use convict labor outside the prison walls on its public works, or during a time of pestilence, or if prison buildings were destroyed and confinement could not be continued. Harris v. Commonwealth, 23 K.L.R. 775, 64 S.W. 434 (1901); Reliance Mfg. Co. v. Board of Prison Commissioners, 161 Ky. 135, 170 S.W. 941 (1914). Harris stated, “ * * * While the section of the constitution quoted requires the convicts to be worked within the walls of the penitentiary, they are not required to be always kept within the walls, and may be sent out under guard at times. * * * ” Our decision in Reliance Mfg. Co. v. Board of Prison Commissioners, supra, said, “ * * * that convicts shall be confined at labor within the walls of the penitentiaries, and the General Assembly shall not have the power to authorize their employment elsewhere, except upon the public works of the commonwealth, or in case of pestilence or the destruction of the prison building. * * * ” The 1915 amendment to section 253 of the Constitution liberalized its provisions by authorizing the use of prison labor to “ * * * aid the counties for road and bridge purposes, * * Appellees argue that this is a meritorious and progressive program, therefore we should not strike it down. It is not for this court to judge the benefits, if any, to be derived from legislation, but rather to determine whether it is prohibited by the Constitution. Viewing it in that light, we hold that employment of prisoners convicted of a felony, except as authorized by section 253 as amended, is impermissible and that KRS 439.600(4) as drawn and implemented by KRS 439.-620 is contrary to that section of the Constitution. The judgment is affirmed in part and reversed in part. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE, REED, STEINFELD and STEPHENSON, JJ., sitting. JONES and STEINFELD, JJ., concur. OSBORNE, C. J., and STEPHENSON, J., dissent from so much of the opinion which holds constitutional KRS 439.600(1). PALMORE and REED, JJ., dissent in part. PALMORE, Justice (dissenting in part). The parole system passed constitutional muster in George v. Lillard, 106 Ky. 820, 51 S.W. 793 (1899), and has been in effect for 75 years. The work release program here in dispute is even more restrictive of the prisoner’s liberty than parole. If Lillard is still the law I do not see how it can be declared invalid. REED, J., concurs in this viewpoint, . A parole system was held valid in Wilson v. Commonwealth, 141 Ky. 341, 132 S.W. 557 (1910). . It appears that this may have been an overly broad statement.

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David Ray BYRD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied June 7, 1974. Anthony M. Wilhoit, Public Defender, David E. Murrell, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee. STEPHENSON, Justice. A Henderson Circuit Court jury convicted David Ray Byrd of the offense of maliciously shooting and wounding with intent to kill (KRS 435.170) and of the offense of carrying concealed a deadly weapon (KRS 435.230). A sentence of twenty-one years in the penitentiary was imposed for the conviction of maliciously shooting and wounding, and a penitentiary sentence of five years was imposed for the charge of carrying concealed a deadly weapon. Byrd appeals. We affirm. This appeal is from the second trial of the case. A conviction on the first trial of the case was reversed, Byrd v. Commonwealth, Ky., 463 S.W.2d 333 (1971). The facts of the case are not complicated. Police officers were attempting to serve a warrant on Byrd for parole violation. During the course of the affair, Byrd managed to grab one of the officers as a hostage, and threatened to shoot him. He did shoot the officer in the side; and in the melee that followed, in which gun fire was exchanged by both sides, Byrd wounded another police officer and was wounded himself. Byrd makes the following assignment of errors. First he says the trial court overruled his motion for discovery of the FBI ballistics report in connection with the case and his motion to examine the clothing worn by the officer he held hostage and argues that both the ballistics test and the clothing worn by the officer he held hostage would furnish a basis for his defense, which seemed to be that there was some possibility that the officers might have shot each other. The officers testified that Byrd shot them, and he did not deny the testimony. The Commonwealth did not receive, nor did it introduce at the trial, any ballistics test made by the FBI or any other agency. The motion for the production of the clothing was overruled by the trial court upon the assurance of the Commonwealth’s attorney that between the first trial and the second trial the clothing had been misplaced or lost. On the day of the trial, the Commonwealth attempted to introduce this clothing and advised the court that it had been found the day before. The court declined to permit the Commonwealth to introduce the clothing. We can see no prejudice to the defendant in the court’s ruling. It should be noted that the defendant had an adequate opportunity at the first trial to examine the clothing, and it apparently did not af- 0 ford any basis for any theory of defense on Byrd’s part. Byrd next argues that on the voir dire one of the jurors made a remark that Byrd was presently in the penitentiary and that this so inflamed and prejudiced the jury that it deprived him of his right to a fair trial. The trial court admonished the jury to disregard the remark made by the juror. Byrd argues that the fact that he received the maximum sentence on both charges was possibly because the jury was biased by this remark. The simple answer is that the circumstances were so aggravated that it is difficult to see how a jury would do otherwise than impose the maximum penalty on both charges. Byrd next argues that KRS 435.-230, which denounces the carrying of a concealed deadly weapon, is unconstitutional because of the “enormous disparity between the sentence of two to five years and a fine of $50 to $500.” Byrd’s argument is that the application of this statute should he considered as violating the Eighth Amendment’s inhibition against cruel and unusual punishment. We fail to follow his reasoning in this respect and conclude that KRS 435.230 is constitutional. Byrd’s next argument is that he was denied the right to obtain counsel of his choice at the preliminary hearing. This argument is totally without merit. Finally Byrd argues that he was denied a right to speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States. As stated before, this court reversed Byrd’s conviction after the first trial on February 12, 1971, mandate being issued on March 14, 1971. Byrd says that he moved the trial court for dismissal or in the alternative for a speedy trial on June 14, 1971. According to the record, this motion was received in the office of the circuit court clerk on August 1, 1972. On February 10, 1972, and April 24, 1972, Byrd wrote to the clerk of the Henderson Circuit Court inquiring about the status of his June motion. On May 11. 1972, he was informed by letter from the circuit court clerk that the judge had not set the case for trial. On July 13, 1972, Byrd filed motion to dismiss the charges on the ground that the Commonwealth had failed to prosecute him within a reasonable time. The trial court overruled the motion and set the case for trial on September 25, 1972. Byrd moved for a continuance, and the case was reset for trial on November 16, 1972. The trial court set the motion to dismiss for hearing on November 13, and after the hearing overruled Byrd’s motion to dismiss on the ground that he had not received a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, at page 2192, 33 L.Ed.2d 101 (1972), states: “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” The trial court found that Byrd did not move for a speedy trial until July 1972. The June 1971 motion referred to by Byrd was filed in the clerk’s office in August 1972. It is significant that the many letters and motions filed by Byrd contained a certificate that they were handed to the mail clerk or case worker at the prison, with the exception of the June 1971 motion. The trial court further noted that Byrd’s defense counsel at the first trial had been appointed Commonwealth’s attorney in 1971, and further that the county jail had been declared inadequate for high-risk prisoners by the Federal authorities until certain remedial measures were taken. Byrd argues that he was prejudiced by the delay because of the inability to secure the attendance of defense witnesses who, according to Byrd, would testify that he had been drinking before the incident. One of the witnesses testified for the Commonwealth, and it is apparent from the record that Byrd’s argument of prejudice is without merit. The evidence of guilt was clear, convincing, and without substantial contradiction. We conclude that the length of delay prior to the second trial did not deny Byrd a speedy trial within the meaning of the Constitution. Judgment affirmed. OSBORNE, C. J., and JONES, MILLI-KEN, REED, PALMORE, STEINFELD, and STEPHENSON, JJ., sitting. All concur.

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Danny PAYNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 22, 1974. Rehearing Denied June 7, 1974. Anthony M. Wilhoit, Public Defender, Frankfort, Anthea M. Boarman, Lexington, for appellant. Ed W. Hancock, Atty. Gen., John C. Ryan, Sp. Asst. Atty. Gen., Frankfort, for appellee. STEINFELD, Justice. Appellant Danny Payne was indicted on February 9, 1973, for the murder of James Horsley on January 21, 1973. Both men were prisoners in the LaGrange Reformatory at the time of Horsley’s death. Payne was found guilty of voluntary manslaughter and his punishment was fixed at 12 years’ confinement in the penitentiary. He appeals from a judgment entered pursuant to a jury verdict. We reverse. The following is quoted from the voir dire examination of the jury panel by the attorney representing the Commonwealth: “ * * * And all of you new jurors, you have heard my questions concerning the fact that the deceased, James Hor-sley, was a convict serving time for storehouse breaking and Mr. Payne here was serving time for voluntary manslaughter and escape. The fact that they are convicts won’t prejudice you in the trial of this case ?” Defense counsel immediately, but unsuccessfully, moved that the jury panel be discharged. No admonition was requested and none was given. Payne charges that the trial court erred, to his prejudice, in forcing him into a trial by a jury which knew that he had been convicted of manslaughter and of escaping from a penal institution. The Commonwealth argues that supplying this information to the jury panel “was not evidence” and because it was not again mentioned “ * * * no reversible error (was) committed by the trial court in declining to declare a mistrial.” Payne’s defense was that he did not really know what happened on the night of Horsley’s death and that he had no recollection of killing Horsley because he was intoxicated from drinking “prison home brew” and was suffering from mental disorders. Payne had made a statement of guilt to police officers, which the Commonwealth introduced into evidence, but he told the jury that the information it contained was not given from his own knowledge but from what he had been told by another inmate. Horsley was found lying on the floor of his room with part of a broken electric cord around his neck and chin. Another part of the cord was dangling from a heat vent over a door close to where Horsley’s body was lying, giving the appearance that Horsley had hanged himself or that a person or persons had hanged him. The police laboratory concluded that the cord had pulled apart. One of Payne’s arms was materially incapacitated, therefore he claimed it would have been impossible for him to have hanged Horsley. In cases such as Turpin v. Commonwealth, Ky., 352 S.W.2d 66 (1961), we pointed out as follows: “This Court has frequently held it is reversible error to call to the attention of the jury information that tends to show another crime has been committed which is independent of, and unconnected with, the one for which the accused is on trial.” When the Commonwealth’s Attorney injected information of the type of crime resulting in two previous convictions into the proceedings, he violated the rule we have announced. We are unwilling to say that the effect was not prejudicial to Payne. Cf. Swanger v. Commonwealth, Ky., 255 S.W.2d 38 (1953). We hold, therefore, that the jury panel should have been discharged. Because there may be another trial, we will discuss other claimed errors. Payne had been a patient in a mental hospital almost eight years before the trial. He produced as a witness the custodian of the hospital records and, through her, offered them in evidence to prove his mental instability. After an objection, they were rejected because they were too remote in time to the commission of the offense for which Payne was being tried. Mental disorders may or may not be of a temporary nature, therefore the time that had elapsed between the events, in our opinion, was not in itself so great as to require excluding the hospital records on that basis. No avowal was made and the hospital records were not tendered for the purpose of appeal, therefore we cannot consider whether their exclusion was prejudicial. Payne also offered in evidence the records of a general hospital covering his stay as a patient just six months before the date of the offense. They were produced by the custodian of the records, but their admission was disallowed, apparently on the basis of the hearsay rule. Our rule is that records of patients at a hospital, organized on the usual modern plan may be produced in evidence by the custodian of the records. Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498 (1948), and Bellew v. Commonwealth, Ky., 477 S.W.2d 779 (1972). Also see 32 C.J.S. Evidence, § 730 (2), p. 1052 and 40 Am.Jur.2d, Hospitals and Asylums § 43, p. 885. Of course their admission is subject to competency, relevancy and materiality. 29 Am.Jur.2d, Evidence, § 249, p. 297; 32 C.J.S. Evidence, § 728 f, p. 1043. Other claims of error are asserted, but it appears that it is unnecessary for us to consider them as the events to which they were related are unlikely to recur. They are reserved. The judgment is reversed. All concur, except JONES, J., who dissents.

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HIGGINS INVESTMENTS, INC., Appellant, v. Octavia STURGILL, Executrix of the Estate of John Dennis Sturgill, Deceased, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. As Modified on Denial of Rehearing May 17, 1974. Lionel A. Hawse, Charles Landrum, Jr., Landrum, Patterson & Dickey, Lexington, for appellant. Wheeler B. Boone, M. Theodore Valentine, Lexington, for appellee. GARDNER, Commissioner. John Dennis Sturgill died in a fire which occurred in the apartment where he was a tenant. Appellant was the owner of the building. The trial resulted in a jury verdict and a judgment of $102,039.20 in favor of Sturgill’s executrix against appellant. We affirm. The building originally was a large single dwelling, but later was converted into apartments so that there were two apartments on the first floor, four on the second floor, and three on the third floor. There was also an attic. Sturgill lived alone in a two-room apartment on the third floor. Adjoining his apartment was one occupied by Miss Regina Faye Cunningham. A small hallway, four feet by six feet, provided the only means of going from either the Sturgill apartment or the Cunningham apartment to the stairway. There was an outside fire escape parallel to this stairway which could be reached through the Cunningham kitchen or through a large window near the top of the stairway. According to Miss Cunningham, she awoke to find a “red glow” around the door between her apartment and the hallway. When she opened the door the hallway was engulfed in smoke and blaze. She raced back through her kitchen and onto the fire escape. After the fire was subdued the deputy coroner and others went to Sturgill’s apartment where they found him dead, with “100 percent” of his body having been burned. He was lying on the floor with his feet close to the hall door. The water was flowing from the shower past his feet and into the hallway. The nozzle was pointing toward the body. The cause of the fire was not definitely established. There was no probative evidence of faulty wiring. There was speculation that arson was involved but no tangible evidence was produced to verify it. There was no evidence, of course, as to when Sturgill became aware of the fire. There was testimony that earlier in the evening Sturgill was drinking with friends but there was no evidence of his having “passed out” or of his being so drunk that he was insensible to the hazard of the fire. The many uncertainties make the case difficult to decide. There appears to be no serious doubt that the fire orignated in the hallway, which is an important consideration in determining the proximate cause of the death of Sturgill. The main issue is not whether appellant was negligent in permitting the fire to start, rather whether it provided an acceptable means of escape, and, if not, whether such failure was a substantial factor in causing Sturgill’s death. “Standards of Safety” adopted by the Department of Insurance pursuant to KRS 227.300, and adopted by the City of Lexington, provide: Article VIII, section 804, 4. Exits. “(a) Every story used as a residential occupancy for ten or more occupants and every story in an apartment building having one or more dwelling units above the second story shall have at least two separate exits; * * Article V, section 501, 1. Exits Defined. “(b) Required exists from any area in a building shall not lead through rooms of other tenancies, or through any room subject to locking, * * “(d) Elevators and windows shall not constitute paths of exit.” Article V, section 500. Purpose. “(a) * * * In general this will require not less than two exits, as widely separated as possible, together with doorways, hallways, passageways, and stairways, forming continuous and unobstructed avenues of escape from any given point.” Appellant argues that the court’s instructing the jury that appellant was negligent if it failed to furnish two exits, and further instructing “The Court states that elevators and windows shall not constitute paths of exit,” was tantamount to its directing the jury to find appellant negligent since appellant admitted that one of the exits was through the window between the stairway and the fire escape. Instruction No. 1 was in part as follows: “The court instructs the jury that it was the duty of the defendant, Higgins Investments, Inc., to provide two means of exit from the floor of the apartment building on which the deceased, Sturgill, resided, but not from the apartment of John Dennis Sturgill itself. The Court states that elevators and windows shall not constitute paths of exit. Required exits from any area in a building shall not lead through rooms of other tenancies, or through any room subject to locking. If you believe from the evidence that the defendant, Higgins Investments, Inc., was negligent in that it failed, if they did, to furnish two means of exit as herein described from the story of said apartment building, and that such failure, if any there was, was the direct and proximate cause of the death of the decedent, John Dennis Sturgill, then the law is for the plaintiff and you will so find, but unless you so believe, you will find for the defendant.” The court’s instruction followed the wording of the standards, which specifically declared that windows would not qualify as “paths of exit.” Appellant stresses that there was a “substantial compliance” and the court should have so declared as a matter of law. Appellant asserts that throughout the standards the word “reasonable” is used and there is included in section 500(c) the words “substantially equivalent” in referring to exit facilities. Aside from the question of whether the issue of substantial compliance was properly presented to the trial court so that it could be reviewed by this court, we do not believe that, under the circumstances revealed by the evidence, it could be said that there was substantial compliance as a matter of law. Nor do we accept appellant’s argument that the determination of the city fire marshal, whose duty it was to determine if there was substantial compliance, was conclusive. His opinion, like that of any other expert, only became a part of all the evidence to be given such weight as the court or jury placed on it. It matters not whether the court specifically directed the jury to find that the window did not meet tl^e specifications or whether, as it did, it submitted the issue to the jury in such a way that it was tantamount to a peremptory instruction. A peremptory instruction on this issue would have been proper. Appellant asssigns as error the admission into evidence of violations of provisions of the standards which had not been specifically relied on in the complaint. Appellant states that in the complaint ap-pellee pleaded specific violation of the standards which dealt with the causes of fires, but not those dealing with means of escape. It argues that since the complaint and most of the evidence were concerned with faulty wiring and other possible cause of the fire, appellant was taken by surprise and was prejudiced by the introduction of evidence relating to the matter of escape. It is noted that the complaint speaks of violation of certain sections of the standards and of “other violations of said standards.” Under a 'iberal construction of the rules (see Pike v. George, Ky., 434 S.W.2d 626 (1968), and 6 Clay Ky. Practice 2d Ed., CR 8.01), we believe the complaint was sufficient to authorize evidence of violation of any pertinent provision of the standards of safety. If the complaint was vague or ambiguous appellant could have moved for a more definite statement. CR 12.05. Appellant’s main contention is that regardless of whether the window qualified as an exit within the meaning of the standards, the issue is immaterial since the deceased could not have reached it because of the raging fire in the hallway; that inadequacy of the window exit could not have been a proximate cause of the death. Appellant sets forth the general rule that to be successful in a negligence action the plaintiff must prove both negligence and proximate cause. See Conway v. Louisville & N. R. Co., 135 Ky. 229, 119 S.W. 206, 122 S.W. 136 (1909). Appellant argues vigorously that appellee utterly failed to show a causal connection between the inadequate exit and the death of Stur-gill. It points out that if there had been five adequate doors for escape on the other side of the hallway the deceased could not have pierced the “raging inferno.” The same argument under somewhat similar circumstances was rejected by this court in Louisville Trust Co. v. Morgan, 180 Ky. 609, 203 S.W. 555 (1918). In that case a fire trapped Morgan and two other tenants in a room in the annex of a hotel. Their means of exit was through a hallway. There was no outside fire escape as required by the city ordinance. The argument was advanced that Morgan failed to show that the negligence of the hotel owner in not having the building equipped in the manner provided in the ordinance was the proximate cause of the injury. The owner contended that the fire itself would have prevented Morgan from reaching the fire escape, so the element of proximate cause was lacking. The court disagreed and in its opinion quoted with approval part of the opinion of Arnold v. National Starch Co., 194 N.Y. 42, 86 N.E. 815 (1909), as follows: “ ‘But * * * it is further urged in behalf of respondent that its failure to comply with the statute, even if mandatory, may not be made the basis of a recovery for any damages sustained by appellant on the occasion in question, because it was not established that the injuries resulted from such failure. This argument rests on two propositions; the first one being that other sufficient means of escape were provided, and the second one that appellant’s clothes and hair took fire immediately when the conflagration reached the room where she was, and that, therefore, her damages accrued before she could possibly have reached the fire escape if provided. The evidence, in my judgment, permitted the jury to find against this argument and both of the propositions involved in it. * * * And on the other proposition, while the evidence may not establish with mathematical accuracy just when the fire reached appellant’s clothes and person with reference to its first appearance on the floor, or with reference to her final escape therefrom many minutes afterwards, still, as I read it, it permitted the jury to find that as the result of an accumulation of inflammable dust and material the fire spread very rapidly throughout the floor, that appellant came in contact with it and was set on fire some time after it first appeared, and that if there had been statutory and convenient fire escapes from the windows she might have escaped thereby before becoming on fire, and, conversely, that the failure to comply with the statute resulted in her detention in the burning room for many unnecessary minutes, and that such detention and inability to escape caused and contributed to her injuries.’ ” Whether there was a showing of a substantial causative factor as a matter of law, we do not need to discuss since the question was submitted to the jury and the jury found that there was. The ordinance required two exits and that they be as widely separated as possible. There were two apartments and one common hallway, leading to a single stairway, on the floor in question. When the fire consumed the hallway all means of escape from the Sturgill apartment were blocked. Had the second exit been somewhere other than in the Cunningham apartment, it would have had to be in Sturgill’s apartment, and in that event there is little doubt that he could have escaped and that appellant’s failure to provide such a second exit was a substantial causative factor in producing the injury. We believe that there was sufficient evidence to warrant the court’s submission of the question of substantial causation to the jury. The judgment is affirmed. All concur. . See Collins v. Galbraith, Ky., 494 S.W.2d 527, 530 (1973), and Harris v. Thompson, Ky., 497 S.W.2d 422, 431 (1973), employing the language of Restatement 2d, Torts, section 231, in lieu of “proximate cause.”

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WADSWORTH ELECTRIC MANUFACTURING COMPANY, INC., Appellant, v. KENTON COUNTY AIRPORT BOARD, INC., Appellee. Court of Appeals of Kentucky. May 3, 1974. Donald L. Stepner, Adams, Brooking & Stepner, Covington, for appellant. William P. McEvoy, Burlington, for ap-pellee. STEINFELD, Justice. For the purpose of expanding its airport, appellee Kenton County Airport Board, Inc. condemned 3.6 acres of land in Boone County, which land was owned by appellant Wadsworth Electric Manufacturing Company, Inc. The “taking date” was September 8, 1970. From a judgment entered pursuant to a jury verdict awarding $57,750 to the landowner electric company, it appeals. We affirm. The Kenton County Airport Board acquired, controls and operates the Greater Cincinnati Airport located in Boone County, Kentucky, which since 1942 has been the principal airport serving approximately one and one-half million people living in Cincinnati, Ohio; Covington and Newport, Kentucky; and the general area around those communities. Wadsworth Electric challenges on three bases the claimed right of the Kenton County board to acquire, much less condemn, land outside of Kenton County. It argues first, that the asserted power violates the Fourteenth Amendment to the Constitution of the United States; second, that it violates Section 13 of the Kentucky Constitution; and third, that extraterritorial eminent domain power is not authorized by KRS 183.133(4) and (5), a statute which vests condemning power in airport boards. The appellant apparently relies on that part of the Fourteenth Amendment to the United States Constitution which provides that no state may deprive the owner of his property without affording to him the due lawful processes, but appellant does not elaborate on this contention. We detect nothing in that amendment which prohibits the legislature from granting a local governmental unit the power to acquire and condemn land outside of its territory. Wadsworth Electric concedes that its second ground was discussed and disposed of adverse to its position in Kenton County Fiscal Court v. Richards, 291 Ky. 132, 163 S.W.2d 302 (1942), in which we held that there was no constitutional provision preventing the legislature from granting to a county the authority to extraterri-torially acquire land. We see no reason to depart from that ruling. After that decision the airport was established and has been operated continuously since that time by appellee. In 1928 the General Assembly enacted the first law concerning the acquisition of land for “ * * * an aviation field * * * ” KS, Sec. 938j-7, Chap. 77, Sec. 7, Acts 1928. That Act authorized an airport board in counties containing cities of the first class to acquire by condemnation “ * * * property anywhere within the county or city in which said board is created and acting * * (Emphasis added) When the statutes were revised in 1942, KS, Sec. 938j-7 became KRS 183.180 and as to airport boards appointed and acting in counties containing cities of the first class, it allowed them to condemn “ * * * property within the city or county * * (Emphasis added) KRS 183.370 was adopted in 1942 (Chap. 10, Sec. 2). It provided as follows: “Any city of the second, third, fourth, fifth or sixth class, or any county or any such city jointly with the county in which it is located may acquire, either by lease, purchase, gift or condemnation in the same manner as park property is condemned, any land necessary or suitable for establishing airports within or without the limits of such city or county. * * (Emphasis added) Then airport boards in counties containing a city of the first class had no extraterritorial eminent domain power, but all other airport boards had that authority. Chapter 179 of the Acts of 1960, which was a revision of our laws with respect to aeronautics, repealed Chapter 183 of the Kentucky Revised Statutes and abolished the classifications of cities and counties on this subject. Section 33 of that Act became KRS 183.133. A minor amendment was made to subsection (4) in 1964 (Chap. 134, Sec. 6), at which time there were revisions of some of the statutes relating to aviation and the repeal of some of the others. Subsections (4) and (5) of KRS 183.133 then read and now read in pertinent part as follows: “(4) The board may acquire by * * * condemnation * * * any real or personal property * * * for establishing, operating or expanding airports and air navigation facilities * * “(5) The board * * * may by resolution reciting that the property is needed for airport or air navigation purposes direct the condemnation of any property, including navigation or other easements * * (Emphasis added) Appellant points out that the quoted statute eliminates the words ‘‘within or without the limits of such city or county.” (Emphasis added) It argues therefore that the power of appellee to condemn land ex-traterritorially was taken from it upon the repeal of KRS 183.370. Appellee, on the other hand, calls our attention to the word “any” which appeared in the 1942 Act and was continued in subsections (4) and (5) of KRS 183.133, and argues that'the deleted words were superfluous. “The word ‘any’ is very broad and general * * *.” Johnson v. Johnson, 297 Ky. 268, 178 S. W.2d 983 (1944). The word “any” was discussed at length in Elliott v. Pikeville National Bank & Trust Co., 278 Ky. 325, 128 S.W.2d 756 (1939). The comprehensive meaning of the words “any property” is revealed by the several cases cited in Words and Phrases, 3A, Permanent Edition, page 195. Cf. Walla Walla v. Clausen, 157 Wash. 457, 289 P. 61 (1930), and Ohio Water Service Co. v. City of Circleville, 82 Ohio App. 159, 81 N.E.2d 304 (1947) . It is our opinion that if the legislature had intended to restrict the acquisition and condemning power to the confines of the county or city governmental unit or units creating the airport board, it would have retained the limiting language of KRS 183.180. We hold that the word “any” which appears in subsections (4) and (5) of KRS 183.133 authorizes an airport board to acquire, even by condemnation, any real property reasonably necessary for the establishment, operation and expansion of the airport wherever the land is located, so long as it is reasonably needed to serve the area for which the airport board was created. We think it is significant that the current Act, as well as some of the previous Acts, authorized combinations of cities and/or counties to establish a joint airport board. KRS 183.132. Moreover, KRS 183.475 permits governmental units in Kentucky counties which are contiguous to counties located in foreign states to join with foreign governmental units in those border states to establish and maintain airports. Even more significant is the authority vested in those Kentucky governmental units to act alone in owning and operating airports in non-Kentucky counties. It is therefore apparent that all authorized airports could not be located exclusively within the territory of the participating governmental units. The 1960 revision of the statutes pertaining to aviation (Chap. 179, Sec. 36) provided: “(2) The board may, as an alternative method and in addition to all other methods provided by law, acquire, construct, maintain, add to and improve airports and airport facilities and issue revenue bonds in connection therewith under the terms and provisions of Chapter 58 of the Kentucky Revised Statutes and under said law the term ‘governmental agency’ means the board and the term ‘public project’ means airports and airport facilities.” This section was numbered KRS 183.136 and, with minor amendments, is the law today. Chapter 58, which is known as the public project act, provides: “A governmental agency acting separately or jointly with one or more of any such agency, may acquire, construct, maintain, add to and improve any public project as defined in KRS 58.010, which public project may be located within or without or partly within and partly without the territorial limits of such governmental agency or agencies, * * KRS 58.020. By KRS 58.140, a governmental agency is given the power of condemnation. Also we note that KRS 183.740, which was originally adopted as Section 51 of Chapter 179 of the Acts of 1960 and was later amended, now reads in part as follows: “KRS 183.630 to 183.730 shall constitute a method for the acquisition, construction, maintenance, expansion, financing or improvement of air navigation facilities or airport facilities or any part thereof or interest therein, or contract for services therefrom, by governmental units or the commonwealth in addition or as an alternate, to' any other method authorized by statute. It is intended to authorize the acquisition, construction, maintenance, expansion, financing, or improvement of additional facilities for an airport acquired under authority of KRS 183.133 or interest therein, or contract for services therefrom, as well as the original acquisition, construction, maintenance, expansion, financing, or improvement of land and other facilities for an airport. * * As heretofore stated, the Kenton County Airport Board has been the owner and operator of the Greater Cincinnati Airport in Boone County, Kentucky, continuously since 1942. It is apparent that under KRS 183.740 it has the authority to acquire additional facilities for that airport. From the foregoing, we are of the opinion the trial court did not err in adjudging that the condemnation of the Wadsworth Electric property was authorized by law. Wadsworth objected to the testimony of one of condemnor’s witnesses because he referred to the adverse effect a highway then under construction would have on the commercial value of Wads-worth’s property. It argues that only those things which existed on the date of the taking could be considered. The highway had not been completed on the date of taking, but its completion was imminent. This highway was some distance from and was unrelated to the project for which the condemnation was being processed. Development in the general area in which a condemnation is taking place may have a material effect on the value of land, and we know of no reason why such a factor should not be considered in the determination of that value. The judgment is affirmed. All concur. . This issue was presented in Stillpass v. Kenton County Airport Board, Inc., Ky., 403 S.W. 2d 46 (1966), but was not decided as the appeal was dismissed. . For a discussion of the meaning of the word “any”, see 3A O.J.S. p. 899.

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Lemar T. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Lester H. Burns, Jr., Somerset, for appellant. Ed W. Hancock, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee. OSBORNE, Chief Justice. This case is before us on a motion for an appeal from a judgment sentencing appellant to a fine of $50.00 and imprisonment for thirty days in jail for the offense of transporting alcoholic beverages for the purpose of sale in local option territory. KRS 242.230. The motion for appeal is granted. Appellant was stopped by a state police officer upon a public highway in Pulaski County, Kentucky. The officer had received information that appellant was returning to Pulaski County from Richmond, Kentucky, with a quantity of alcoholic beverages. Appellant consented to a search of his automobile and the search disclosed seventeen cases of beer in the trunk of the car. Two revolvers were found in the glove compartment and a set of brass knuckles was found in the appellant’s pocket. Appellant contends that the possession of alcoholic beverages in a dry county is not an offense absent evidence of a purpose of sale. He claimed the beer was purchased for his own use in giving a party and relies upon Irvin v. Commonwealth, Ky., 317 S.W.2d 178 (1958) and Holbrook v. Commonwealth, Ky., 327 S.W.2d 950 (1959). In both Irvin, supra, and Holbrook, supra, the defendant was arrested in local option territory in possession of large quantities of alcoholic beverages and the mere possession of the beverage was the only evidence against them. This court held that the mere possession of such beverages, absent proof of intent to sell, did not constitute an offense. However, in Smith v. Commonwealth, Ky., 467 S.W.2d 606 (1971), this court upheld a conviction in a case where the defendant was found in possession of sixty cases of beer. We said: “It is first contended that mere possession of alcoholic beverages in an automobile in local option territory does not constitute an offense under KRS 242.-230(1). That is true. See Commonwealth v. Trousdale, 297 Ky. 724, 181 S. W.2d 254 (1944). However, a large quantity of such beverages being transported may constitute substantial circumstantial evidence of the illicit purpose. See Cornett v. Commonwealth, 170 Ky. 717, 186 S.W. 671 (1916). Transporting 60 or more cases of beer raises a strong inference that this beverage was not possessed for personal or other legitimate use.” Although there was some evidence that Smith's reputation for trafficking in alcoholic beverages was bad, the court did not turn the decision upon this distinction but emphasized the inference that might properly be raised from possession of a large quantity of alcoholic beverages in local option territory. We think the effect of Smith, supra, is that evidence of transportation of a large quantity of alcoholic beverages in a dry territory is sufficient to support a conviction of the offense of transporting said beverages for the purpose of sale and to the extent that Irvin v. Commonwealth, supra, and Holbrook v. Commonwealth, supra, are inconsistent therewith, they are overruled. It is also our opinion that seventeen cases of beer is a sufficiently large quantity to support a finding by a jury that the possession was for sale or some other illegitimate purpose. Appellant contends his consent to the search of his automobile was coerced. The officers testified that appellant was told on at least three occasions prior to his consent that he did not have to consent to the search of his car but that he nevertheless did so consent and signed a written consent to the search which was introduced in evidence. Appellant admitted that he was told by the officers that he did not have to sign the consent papers. In view of this we cannot say that the search was unlawful. The cases relied upon by the appellant do not hold otherwise. We do not feel that the closing argument of the Commonwealth’s Attorney was prejudicial to the rights of the appellant. The judgment is affirmed. All concur.

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Sven Pete TIITSMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Terrence R. Fitzgerald, Deputy Public Defender, Vic Baltzell, Legal Intern, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Thomas R. Emerson, Asst. Atty. Gen., Frankfort, for appellee. OSBORNE, Chief Justice. This is an appeal from an order overruling appellant’s motion to vacate judgment pursuant to RCr 11.42. The appellant was convicted of the offense of grand larceny and sentenced to confinement for a period of five years. No question is raised as to the validity of that judgment of conviction. Appellant moved the court for probation and his motion was sustained. Subsequently appellant became an accessory after the fact in the theft of an automobile and when charged with this offense, entered a plea of guilty. A motion was made by the Commonwealth to revoke the probation previously granted. On a hearing of that motion appellant contended that he was unaware, at the time of arrest as an accessory, that his motion for probation on the prior charge had been sustained; that he had not been advised of the conditions of the probation and not knowing of those conditions he could not be held accountable for a violation of them. The probation was revoked and he filed his motion to vacate judgment pursuant to RCr 11.42. This motion was overruled without evidentiary hearing and this appeal resulted. We find the motion to vacate the judgment revoking the probation to be entirely without merit. Assuming that appellant may not have had knowledge of the probation of his sentence, or the conditions thereof, we cannot accede to appellant’s view that his subsequent commission of crime must be ignored by the court as a factor in a revocation hearing. Every person on probation or who has a motion for probation pending must be charged with knowledge that subsequent criminal behavior may have some bearing upon his probation or his motion for probation. In appellant’s case his knowledge of whether his motion for probation had been sustained or was still pending was immaterial for in either event the court had every right to consider his subsequent criminal behavior in determining on the one hand whether to grant the probation or on the other whether to revoke it if it had already been granted. The judgment is affirmed. All concur.

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The NORTHERN KENTUCKY AREA PLANNING COMMISSION, etc., Appellant, v. CAMPBELL COUNTY, Kentucky and the Fiscal Court of Campbell County, Kentucky, et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. Douglas M. Stephens, Deters, Benzinger & Stephens, Covington, for appellant. William O. Bertelsman, Bertelsman & Bertelsman, Newport, for appellees. REED, Justice. This lawsuit resulted from a dispute between appellant, The Northern Kentucky Area Planning Commission, and the appel-lees, Campbell County and its Fiscal Court. The controversy presented to the circuit court in a declaratory judgment proceeding was the extent of authority of the area planning commission in the regulation of land use and public construction within the county. In essence, the planning4 commission contended that the applicable statutes vested mandatory power in ■ it in the instances considered, while the local governmental units insisted that the same statutes confined the commission’s authority to an advisory status. The circuit judge agreed with the county’s construction of the relevant statutes. The commission appealed. During the pendency of the appeal, the General Assembly revised the applicable statutes in a manner that we believe resolves the controversy. Prior to the regular session of the General Assembly in 1974 and since 1968, the general statutory scheme for area planning, applicable to two or more adjacent counties, in one of which there was a city having a population of more than 50,000 and not more than 200,000 employing the device of an area planning commission, was spelled out in KRS 147.610 through 147.990. The interpretation of the legal effect of the language of those statutes was the problem presented to the circuit court. The 1974 General Assembly enacted Senate Bill 260 and the Governor signed it. Its provisions will be fully effective as of June 21, 1974. This new legislation declared: “The provisions of KRS 147.610 through 147.990 shall be construed to confer on the area planning commission an advisory capacity only.” It did not stop there in expressing the applicability of the clarification. Section 2 of SB 260 specifically provides that the master plans or portions thereof of each of the participating units of government in an area planning project, including all zoning ordinances and amendments, supplements and changes thereto “heretofore and hereafter” adopted by the participating governmental units and all action taken under the authority of such ordinances “shall continue and he in effect” so long as all proposed amendments, supplements and changes thereto have been reviewed and recommendations made by the area planning commission. It is also stated in this section that in the event the local legislative body overrides the commission’s recommendation it shall state in writing the reasons for its action. Section 4 of SB 260 repeats the same procedure in the case of proposed public construction. This section provides that the area planning commission shall review and recommend; if the local legislative body overrides the recommendation it must state, in writing, the reasons for its action. The 1974 General Assembly clarified the law; it legislated not only concerning future actions but directed the clarifications to past actions as well. The abstract issues presented to the circuit court and by appeal to this court are framed in the reference of construction of the legal effect to be ascribed to the use of language. No issue of constitutionality is implicated and we do not purport to consider it. Declaratory judgments concerning public questions cannot be decided in a vacuum. The legislative action subsequent to the judgment cannot be ignored. Cf. Bradshaw v. Ball, Ky., 487 S.W.2d 294 (1972). Johnson v. City of Paducah, Ky., 461 S.W.2d 357 (1970). The circuit court’s judgment should not be disturbed except that its terms may be extended to implement the relevant provisions of SB 260 of the 1974 General Assembly. The judgment is affirmed. All concur.

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Charles ROBBINS, Appellant, v. Amanda SHEPHERD, Administratrix of Estate of Odell Shepherd, Deceased, Appellee. Court of Appeals of Kentucky. May 3, 1974. Wix Unthank, Harlan, for appellant. Jessie Horn, Hazard, C. A. Noble, Jr., Hazard, for appellee. STEINFELD, Justice. In September, 1970, Odell Shepherd was killed when a bulldozer he was operating went over a retaining wall. Appellee Amanda Shepherd, as administratrix of her husband’s estate, brought an action for wrongful ..death against Julian Parrott, owner of the bulldozer, Scynus Parrott, owner of the property on which Odell was working when he was killed, and appellant Charles Robbins. The complaint alleged that Odell was an employee of the Parrotts and Robbins; that they knew of an unsafe condition on the premises where Odell was working, and that said condition caused the bulldozer to overturn. Among other defenses, the answer alleged that Odell was contributorily negligent. On the first trial the court sustained motions made by the Parrotts for directed verdicts and declared a mistrial as to Robbins. A second trial, at which Robbins was the sole defendant, resulted in a judgment of $50,000 for appellee. Robbins appeals, claiming the trial court erred in denying his (1) motions for a directed verdict made at the close of appellee’s evidence and again at the conclusion of all the evidence, and (2) motion for judgment n. o. v. Robbins, whose services were engaged by the Parrotts, hired Odell to operate a bulldozer on land owned by Scynus and to spread, level and pack dirt thereon. A concrete-block retaining wall, approximately 30 yards long and nine to ten feet high, was located on this land, and at the base of the wall was the bank of a creek. Robbins testified that when the job was almost completed Odell asked him to operate the bulldozer while he (Odell) did something else; that when Odell returned he (Robbins) told Odell to load the bulldozer on a trailer, but instead of doing so Odell started to cross the lot with the bulldozer, and that he began chasing Odell and yelling for him to stop. Robbins further testified that as Odell drove near the wall, it gave way causing the bulldozer to go over it and overturn on Odell. Julian, the only other witness to the accident, testified that he saw Odell driving parallel to the wall and that he began to chase after Odell and to yell for him to stop. There was evidence that the lot was a safe place to work with a bulldozer if the bulldozer was operated properly; that the safe and proper manner for operating heavy equipment near a ledge or precipice is in a vertical manner and never in a parallel manner; that Odell was an experienced heavy equipment operator; that an operator of such equipment would know the proper way to use such equipment in the circumstances Odell faced; that Odell knew of the existence of the wall and was familiar with its placement; and that Odell had been warned two or three hours before the accident that the wall had begun to give way. The case was submitted to the jury with instructions on the duty of Robbins to furnish his employee with a safe place to work and on Odell’s duty to use ordinary care for his own safety. This court has stated that KRS 338.030, the safe-place-of-employment statute, “ * * * does not make the employer or any one else an insurer.” Simmons v. Clark Construction Company, Ky., 426 S.W.2d 930 (1968). In Ruble v. Stone, Ky., 430 S.W.2d 140 (1968), we said: * * * the law in this state is that when work-connected dangers are obvious and the employee voluntarily performs the task ‘and where there is no showing of negligence on the part of the master the servant may not recover for an injury he sustains.’ ” See Crush v. Kaelin, Ky., 419 S.W.2d 142 (1967). The record discloses no evidence of negligence on the part of Robbins, and that the failure of Odell to use “ordinary care for his own safety” was a substantial factor in causing his death. This court held in Donahue v. Simms, Ky., 419 S.W.2d 154 (1967), that where “the proof (is) insufficient to support a verdict for plaintiffs, * * *, there (is) nothing to submit to the jury.” It is our opinion that the trial court should have sustained Robbins’ motions for a directed verdict and, not having done so, his motion for judgment n. o. v. should have been sustained. Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755 (1965). The judgment is reversed with directions that judgment n. o. v. be entered. All concur. . KRS 338.030 was repealed by Acts 1972, Ch. 251, Sec. 22.

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CHARLES F. TRIVETTE COAL COMPANY, Appellant, v. Joseph HAMPTON et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. John D. Hays, Stratton, May & Hays, Pikeville, for appellant. Kelsey E. Friend, Pikeville, for Joseph Hampton. Robert D. Hawkins, Chief Counsel, Dept, of Labor, Frankfort, for Special Fund. REED, Justice. In this workmen’s compensation case, the appellee, Joseph Hampton, an injured employee, settled his claim on the basis that he was 43 per cent permanently partially disabled. The compensable event, a work-related traumatic back injury, occurred in February 1965. In October 1966, Hampton moved to reopen the previous award under the authority of KRS 342.125. The stated basis for this reopening was “change of condition." The compensation board refused to disturb the previous award. On Hampton’s appeal to the circuit court, the board’s disposition was reversed with direction that the board increase the amount of the award to reflect permanent and total disability. We reversed the circuit court and upheld the board’s decision. See Young v. Charles F. Trivette Coal Company, Ky., 459 S.W.2d 776 (1970). During the pendency of the appeal, Hampton filed a new motion to reopen the same previous, “approved-settlement” award. In August 1971, the board sustained Hampton’s second motion to reopen and increased the amount of the award to reflect permanent and total disability. The employer appealed this decision of the board to the circuit court where it was upheld. The employer thereupon appealed to this court. Under the operative facts, which are substantially undisputed, we hold that relitigation of the particular issue involved was precluded. Therefore, we reverse the decisions of the board and the circuit court that are the subject of this appeal. Our opinion in Young v. Charles F. Trivette Coal Company, Ky., 459 S.W.2d 776 (1970), stated: “His [Hampton’s] evidence was sufficient to compel a finding that he is presently totally and permanently disabled.” Id. at 776. It also declared: “The mistake claimed by the appellee [Hampton] is simply that although he was totally disabled at the time he made his settlement, he did not realize the fact at that time.” Id. at 777. Our holding was: “ . . . [T]he settlement agreement bound the parties with respect to the condition which existed at the time of settlement[.]” Id. at 780. Hampton contends “that KRS 342.125 permits a compensation claim to be reopened at any time during the compensa-ble pay period to increase, decrease, or diminish a compensation award on a basis of a change of condition.” (Brief for appel-lee, Hampton, p. 5). Although we agree with the stated contention, we disagree that it is dispositive of the question presented in this appeal. It would appear settled that successive motions to reopen may be filed, but does this permit the relitigation in a successive reopening proceeding of an ultimate fact actually litigated and determined in the first reopening proceeding when such determination was essential to the decision of whether relief should be granted? We conclude that relitigation under such circumstances is impermissible. In the first reopening proceeding, Hampton asserted and it was judicially determined for decisional purposes that he was permanently and totally disabled at the time of the original award. In the present proceeding he undertook to assert that he was only partially disabled at the time of the original award. It seems to us that to permit such an inconsistent position on an issue of ultimate fact that was necessary to a determination of the first proceeding would effectively destroy all principles of finality and would encourage an unending avalanche of litigation. The judgment of the circuit court is reversed with direction to enter a new judgment remanding the case to the board with instructions that the board set aside its order increasing the original award. All concur.

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Elizabeth JACKSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Anthony W. Wilhoit, Public Defender, Wm. C. Ayer, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Peter C. MacDonald, Asst. Atty. Gen., Frankfort, for appellee. PER CURIAM, affirming Opinion ordered not to be published.

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Robert Louis ANDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. John Tim McCall, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee. Appeal from Jefferson Circuit Court, Criminal Branch, First Division, Jefferson County; S. Rush Nicholson, Judge. Memorandum Opinion of the Court by Commissioner VANCE, Reversing.*

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Ray McKINNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant. Ed W. Hancock, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee. PER CURIAM, affirming.*

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W. W. CHILTON, Sr., Petitioner, v. Lyndon SCHMID, Judge Jefferson Circuit Court, Respondent. Court of Appeals of Kentucky. May 3, 1974. Manley N. Feinberg, Louisville, for petitioner. Edgar A. Zingman and J. Larry Cashen, Wyatt, Grafton & Sloss, Louisville, for respondent. Original Action. Memorandum Opinion of the Court by Commissioner CULLEN, Denying Prohibition.*

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Hardy STEPP, Appellant, v. Henry E. COWAN, Superintendent, etc., et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. Hardy Stepp, pro se. Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee. Appeal from Lyon Circuit Court; Stephen P. White, Jr., Judge. Memorandum Opinion PER CURIAM, Affirming. Opinion ordered t to be published.

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Norbert ZITT, Appellant, v. Henry E. COWAN, Warden, Appellee. Court of Appeals of Kentucky. May 3, 1974. Norbert Zitt, pro se. Ed W. Hancock, Atty. Gen., George W. Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellee. Appeal from Lyon Circuit Court; Stephen P. White, Jr., Judge. Memorandum Opinion PER CURIAM, Affirming.*

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Carol R. POULTER, Appellant, v. William E. RAY and Norma J. Ray, Appellees. Court of Appeals of Kentucky. May 3, 1974. William A. Miller and James M. Clements, Clements, Miller, O’Bryan & McDaniel, Louisville, for appellant. Charles R. Boyer, Hargadon, Hargadon, Lenihan & Harbolt, Louisville, for appel-lees. Appeal from Jefferson Circuit Court, Common Pleas Branch, First Division; Raymond C. Stephenson, Judge. Memorandum Opinion of the Court by Commissioner CULLEN, Reversing.*

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. F. HANDY et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. Carl T. Miller, Jr., General Counsel, Dept, of Highways, Frankfort, David G. Carroll, Somerset, for appellant. Coleman D. Moberly, William J. Weaver, Lewis & Weaver, London, for appel-lees. Appeal from Laurel Circuit Court; Robert H. Helton, Jr., Judge. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming*

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JEFFERSON COUNTY LODGE #14, FRATERNAL ORDER OF POLICE, Appellant, v. JEFFERSON COUNTY FISCAL COURT, Appellee. Court of Appeals of Kentucky. May 3, 1974. Manny H. Frockt, Frockt & Benovitz, Louisville, for appellant. J. Bruce Miller, Jefferson Co. Atty., Eugene L. Mosley, Louisville, for appellee. Appeal from Chancery Branch, First Division, Jefferson Circuit Court; Macauley Smith, Judge. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming Opinion ordered not to be published.

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Ralph J. THOMURE, Appellant, v. Joe PRITCHETT and Juanita Pritchett, Appellees. Court of Appeals of Kentucky. May 3, 1974. Nat Ryan Hughes, Hughes & Gregory, Murray, for appellant. Stephen C. Sanders, Murray, Marvin C. Prince, Benton, for appellees. Appeal from Calloway Circuit Court; James M. Lassiter, Judge. Memorandum Opinion of the Court by Commissioner CATINNA, Affirming.*

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Ernest ANGEL et al., Appellants, v. Julius ANGEL, Administrator of the Estate of Shelby Angel, Deceased, etc., et al., Appellees. Court of Appeals of Kentucky. May 3, 1974. William G. Reed, Carrollton, for appellants. H. Douglas Rouse, Carrollton, for appel-lees. Appeal from Carroll Circuit Court; James R. Ford, Judge. Memorandum Opinion of the Court by Special Commissioner J. T. HATCHER, Affirming.*

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William Jacob BRUCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. William Jacob Bruce, pro se. Ed W. Hancock, Atty. Gen., G. Edward James, Asst. Atty. Gen., Frankfort, for ap-pellee. Appeal from Hopkins Circuit Court; Thomas B. Spain, Judge. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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Charles Edward RINGO, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Anthony M. Wilhoit, Public Defender, David E. Murrell, Deputy Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee. Appeal from Lyon Circuit Court; Stephen P. White, Jr., Judge. Memorandum Opinion of the Court by Justice JONES, Affirming. Opinion ordered not to be published.

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Michael A. LAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Michael A. Land, pro se. Ed W. Hancock, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee. Appeal from Daviess Circuit Court; Henry M. Griffin, Judge. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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James Wesley ILES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. James Wesley lies, pro se. Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee. Appeal from Jefferson Circuit Court; John P. Hayes, Judge. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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Gail HEUCKER, Commissioner Department of Economic Security, Appellant, v. Earnest D. CANNADA, Appellee. Court of Appeals of Kentucky. May 3, 1974. Paul E. Tierney, General Counsel, Forest Smith, Department of Economic Security, Frankfort, for appellant. E. G. Bertram, Jr., Monticello, Homer W. Ramsey, Whitley City, for appellee. Appeal from McCreary Circuit Court; Pleas Jones, Judge. Memorandum Opinion of the Court by Justice STEINFELD, Affirming.*

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COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS v. James THOMAS et al. Court of Appeals of Kentucky. May 3, 1974. James D. Robinson, Acting General Counsel, Carl T. Miller, Jr., General Counsel, Dept, of Highways, Frankfort, Charles W. Huddleston, Bowling Green, Robert M. Alexander, Glasgow, for appellant. Cecil C. Wilson, Wilson, Herbert, Gar-mon & Gillenwater, Glasgow, for appellees. Appeal from Barren Circuit Court; Hon. Cass R. Walden, Judge. Memorandum Opinion of the Court by Justice REED, Reversing. Opinion ordered not to be published.

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Ron WHITAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. May 3, 1974. Dale B. Mitchell, Somerset, for appellant. Ed W. Hancock, Atty. Gen., Robert W. Willmott, Jr., Asst. Atty. Gen., Frankfort, for appellee. Appeal from Pulaski Circuit Court; Lawrence S. Hail, Judge. Memorandum Opinion of the Court by Justice MILLIKEN, Reversing*

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Pedro Lopez VILLEGAS and David Lopez Villegas, Appellants, v. The STATE of Texas, Appellee. No. 47885. Court of Criminal Appeals of Texas. April 24, 1974. Rehearing Denied May 29, 1974. Victor R. Blaine, Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and Gregory Laughlin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This appeal is taken by both appellants from the joint trial for possession of heroin wherein the punishment for David Vil-legas was assessed at ten (10) years, probated, and Pedro Villegas was assessed a punishment of five (5) years, probated, by the court following verdicts of guilty. Initially, appellants contend the court erred in overruling the motion to suppress evidence since the search warrant and the affidavit upon which it is based failed to sufficiently describe the person allegedly in possession and control of the premises to be searched. Article 18.13, Vernon’s Ann.C.C.P., provides, among other things, that a search warrant is sufficient if it contains the following requisites: “(1)- (4) That it name the person accused of having charge of the suspected place, if there be any such person, or if his name is unknown, that it describe him with accuracy, and direct him to be brought before the magistrate; and * * * ” The search warrant and the affidavit in the instant case described the person in charge of the premises to be searched as “one Latin American male known only as Pete . . . . ” An examination of the warrant and affidavit reveals that it affirmatively asserts that the full name of the occupant of the premises is unknown, sets forth his name insofar as it was known, together with his sex and ethnic origin. We conclude that these identifying factors were sufficient to identify him and distinguish him from other persons as the occupant of the premises which are described in the warrant and affidavit with particularity. Appellants rely upon Aguirre v. State, 31 Tex.Cr.R. 519, 7 S.W.2d 76 (Tex.Cr.App.1928) ; Manly v. State, 120 Tex.Cr.R. 212, 48 S.W.2d 256 (Tex.Cr.App.1932); and Brown v. State, 136 Tex.Cr.R. 61, 124 S. W.2d 124 (Tex.Cr.App.1939). These cases can all be distinguished. In Aguirre, supra, the warrant described the premises in question as being “occupied by a certain Mexican whose true name to affiants is unknown.” The court noted that the description of both the person and the premises to be searched was vague; that defendant was a woman, which fact was not revealed by the warrant or affidavit; the house searched contained twelve rooms, each a separate apartment for use of laborers upon the estate in question, and one in which the defendant lived was occupied by her and three others. In the instant case there was only one apartment to be searched, which was adequately described, and the warrant specified that the occupant was a Latin American male known only as Pete, giving the officer sufficient description to guide him in identifying the occupant. In Manly, supra, the search warrant affidavit, after describing the private residence in question, contained the following: “Said described private residence is occupied by negro, name unknown.” Here again, the omission of the sex of the occupant or any part of the occupant’s name or other description distinguishes it from the instant case. In Brown, supra the instruments averred the premises to be searched were “the premises of one Brown and some person or persons whose name or names and descriptions” were unknown to the affiants. There was no averment that Brown’s given name was unknown. Such fact distinguishes the instant case. Appellants’ initial contention is overruled. Next, appellants contend the court erred in overruling their motion to suppress evidence because the person named in the search warrant was not the person in actual possession of the premises. This contention is that neither one is a Latin American, nor known by the name of Pete. At the hearing on the motion Houston police officer J. J. Davis testified that on June 30, 1972, he obtained a search warrant for apartment G7 at 8282 Park Place Boulevard in Houston, and when he arrived no one was at home. Later, he explained that both appellants approached the premises, that he stopped them and asked Pedro Villegas if his name was “Pete” and that Pedro replied “Yes.” After showing the appellant the warrant, Davis related Pedro Villegas used a key and admitted the officers into the apartment. Testifying, Pedro Villegas admitted that he was sometimes called as “Pete’” but he was not only known by this name. His brother corroborated such testimony. Both appellants testified they lived on the premises in question, but were not Latin Americans as that term is used to describe those from Central and South America, and they had never heard the term used to describe a Mexican or a Chicano. Under the circumstances, we find no error in the court’s action in overruling the motion to suppress. Lastly, appellants challenge the sufficiency of the evidence to sustain the convictions. The record reflects upon entering the apartment Officer Bell, who accompanied Officer Davis, observed an envelope containing a hand-rolled cigarette on the coffee table in the living room. It appeared to be marihuana. A search of the back bedroom of the two bedroom apartment revealed several hat boxes on a shelf in the closet. One box contained a needle and a syringe. Another contained twelve cellophane packages of brown powder, which was later shown to be heroin. Appellants argued that the evidence is insufficient to show which appellant occupied the bedroom in which the heroin was found. In proving possession in narcotic cases, it is not necessary to prove the accused had exclusive possession of the narcotics in question. Collini v. State, 487 S. W.2d 132, 135 (Tex.Cr.App.1972), and cases there cited. Where there is an absence of direct evidence that an accused was in exclusive possession of a narcotic, then possession, if any, must be proved by the introduction of circumstantial evidence. Collini v. State, supra. Various facts and circumstances surrounding a search and arrest may be shown to prove that the accused and another person or persons acted together in jointly possessing a narcotic. Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Hicks v. State, 489 S.W.2d 912 (Tex.Cr.App.1973), and cases there cited. In the instant case the court charged the jury on the law of principals and of circumstantial evidence. The record reflects that the appellants were brothers living together in the apartment. At the time the officers entered the apartment what appeared to be marihuana was found lying on a table in the living room. There was no evidence that anyone else but the appellants lived in the apartment or had common access. The apartment door was opened with a key in the possession of one of the appellants. The heroin was. subsequently found as described. The evidence, we conclude, is sufficient to sustain the jury’s verdict, which this court must view in the light most favorable thereto and to show joint possession of the heroin by the appellants. See Hicks v. State, supra. The judgment is affirmed. . At the trial on the merits Davis testified that when he saw the appellants approach the apartment, he hollered, “Hey, Pete,” and that Pedro Villegas answered, “Yeah?”

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Guy FORD, Appellant, v. The STATE of Texas, Appellee. No. 48418. Court of Criminal Appeals of Texas. May 8, 1974. Johnnie Abercia, Houston, for appellant. Carol S. Vance, Dist. Atty., Ted Poe and Jim Larkin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. Appellant was tried and convicted by a jury for the murder of K. P. Glasse. The jury assessed punishment at life imprisonment. Appellant had previously been tried and convicted of this same offense in 1970. The jury there assessed appellant’s punishment at death. On appeal to this Court, that conviction was reversed because the trial court admitted into evidence testimony concerning an extraneous offense. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). On this appeal appellant contends that the evidence is insufficient to support the conviction. The evidence at the instant trial was substantially the same as in the first, except evidence concerning the extraneous offense was not admitted. This being the case, a statement of the evidence in the instant case will be taken from our opinion in Ford v. State, supra. “Charles P. Glasse, Jr., testified that on May 26, 1969, he was employed with his father, K. P. Glasse, in a family owned chemical business in the city of Houston. He testified that on that date he went to the place of business early in the morning, following his usual practice. As he approached the building, he observed the appellant seated on the steps of a building located across the street from the chemical business. He parked his car and went inside, where he performed the routine tasks connected with opening the business. Shortly thereafter, he saw appellant talking with his father in the front part of the building. His father introduced appellant to him as 'Charles White,’ and asked if he had work for appellant. Charles replied that he did, and told appellant to wait until he finished sweeping the floor, at which time he would show appellant the work which was to be done. Charles testified that shortly thereafter, he turned around to find appellant pointing a pistol at him. Appellant held the pistol at his head, and forced him to walk to the front office where K. P. Glasse was seated at a desk. Appellant told K. P. to give him his money. Charles testified that he then moved toward appellant, who then pointed the pistol at him. At that time, K. P. lunged toward appellant. Appellant turned and fired the pistol, the bullet striking K. P. in the hip. K. P. fell to the floor, and appellant fired again, striking K. P. in the back. Appellant took K. P.’s wallet. A brief struggle ensued between Charles Glasse and appellant, after which appellant fled from the building. He ran across an adjacent parking lot, tripping over a cable. Charles followed, shouting for someone to stop appellant. However, Charles did not continue the chase, but returned to his father. Charles was unequivocal in his identification of appellant as the perpetrator of the crime, and did not qualify his testimony on cross-examination. “Two other witnesses testified that they were in the adjacent parking lot at the time, and that they saw appellant run from the building and cross the lot, and heard shouting. One of the two stated that he first heard a ‘bang,’ and saw appellant carrying an object which appeared to be a wallet. The other witness did not hear a noise nor did he see the wallet, but he did hear the shouting and see appellant run. Both witnesses were unequivocal in their identification of appellant. “Appellant testified in his own behalf, claiming to have been working at another place on the day of the murder. His employer at the job corroborated his testimony.” Appellant contends that his alibi testimony shows conclusively that the identification of him by the state’s witnesses was one of mistaken identity. However, the jury chose not to believe appellant’s version of the facts, and it is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Hines v. State, 495 S.W.2d 252 (Tex.Cr.App.1973). Alibi is a factual question. It is within the province of the jury to reject this defensive theory and believe other testimony. Franks v. State, 462 S.W.2d 287 (Tex.Cr.App.1971). The positive identification of appellant as the person who killed Mr. Glasse is sufficient to support his conviction. Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973). Next, appellant contends that the trial court erred in refusing to sustain his challenge for cause to prospective juror Ethel Bell when it was made known that her husband had been murdered in 1965. Although Mrs. Bell stated that such fact would have no effect on her consideration in the instant case, appellant contends that the trial court should have disregarded her statement and excused her from the jury-panel. Appellant used one of his peremptory challenges to remove Mrs. Bell from the jury panel. The complete voir dire examination of the jury is not in the record before us. This Court has consistently held that in order to complain of the exclusion of a qualified juror or inclusion of an allegedly disqualified juror, the appellant must show that he was injured or forced to proceed with an objectionable juror. Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974). In the instant case, no attempt was made to show that appellant was required to take an objectionable juror. In fact, appellant personally stated that he had no objection to the jury selected to try his case, except for the fact that no Negroes were a part of the twelve jurors selected. Last, appellant contends that reversal is called for because there were no Negroes on the jury which tried him. The record does not show exactly how many Blacks were on the jury panel in this case. The record does show that two Blacks were excused without any objection from the appellant. The record further shows that Mrs. Ethel Bell, a Black, was peremptorily challenged by appellant. We have held that the mere showing by an accused that no Blacks served on the jury that tried him, standing alone, will not establish racial discrimination. Lara v. State, 480 S.W.2d 661 (Tex.Cr.App.1972); Ridley v. State, 475 S.W.2d 769 (Tex.Cr.App.1972); Walters v. State, 471 S.W.2d 796 (Tex.Cr.App.1971). Appellant recognizes this rule; however, he asked us to reconsider our previous rulings. He contends that every Black defendant, such as appellant, should be tried by a jury containing at least one person of his own race. However, the Supreme Court of the United States has held that “A Negro defendant is not entitled to a jury containing members of his race, . ” Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the instant case, there has been no showing of any purposeful or deliberate effort on the part of the state to deny to Blacks participation as jurors on account of their race. There being no reversible error, the judgment is affirmed.

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Acevedo L. RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee. No. 48409. Court of Criminal Appeals of Texas. May 8, 1974. Rebearing Denied May 29, 1974. Frank Roberts, Killeen, for appellant. Joe Carroll, Dist. Atty. and Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. On a plea of guilty before the court to possession of heroin, a narcotic drug, appellant was assessed six (6) years. No attack is made upon the sufficiency of the evidence, which included a judicial confession and the testimony of appellant that he possessed heroin as alleged. The primary contention of appellant is that he should have been allowed to withdraw his plea of guilty, as prayed for by him, because he says the plea of guilty was involuntary in that his attorney and the assistant district attorney had a prior agreement that if he plead guilty the prosecutor would recommend to the court that the punishment should be 4 years, when, in fact, the recommendation was for 10 years and the punishment assessed was 6 years. He relies principally upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. We must disagree with this contention because there was evidence before the trial court on motion for new trial to justify the implied finding that no such agreement upon plea bargaining was made between appellant’s retained counsel and the assistant district attorney, and hence no error is shown. On the motion for new trial, appellant’s attorney put his .affidavit in evidence, without objection by the State, the gist of which was: “That the State of Texas, through the above mentioned Assistant District Attorneys, agreed to recommend four (4) year’s confinement in the Texas Department of Corrections for a Plea of Guilty by the defendant, Acevedo L. Rodriquez, to a charge of Possessin of Heroin.” The assistant district attorney involved testified before the court, the substance of which is shown by the following quotation: “As I understand plea bargaining it can not work unless there is both an offer and an acceptance, not unlike a civil contract. If there is no full acceptance then there is no contract. If it were to work in any other way, then the State would make its offer and then the defendant could refuse to plea to that, and would be able to shop around for a better deal, and yet the State would be bound by its original offer. It is my understanding of plea bargaining that this was not the way it was intended to work. “This was not my intention in this case. I agreed to make one offer for a plea of guilty with Mr. Roberts. He informed me that they could not accept this offer; that they would still plead guilty, but they would make a plea for probation. (Emphasis Added) “At the time of the plea, Mr. Roberts did offer evidence in a plea for probation from the court, and I as attorney for the State, did make a recommendation to the court that was in execess (sic) of what I had originally offered Mr. Roberts. I did this because I felt that I was not bound by that recommendation. Then the court, in passing sentence, passed a sentence that was for a number of years that was in between my offer to Mr. Roberts and my recommendation to the court.” It is clear from the above evidence that there was an issue of fact to be decided by the trial court as to whether an agreement was reached. If there was no agreement, there could be no breach of duty. The evidence of the assistant district attorney clearly shows that his offer was rejected and no bargain was struck. The trial court had the right to accept his version of the occurrences in the plea bargain attempt, and we will not upset his decision. Connaughton v. State, 164 Tex.Cr.R. 158, 297 S.W.2d 185; Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86; Williams v. State, Tex.Cr.App., 487 S.W.2d 363; Kirven v. State, Tex.Cr.App., 492 S.W.2d 468; Miles v. State, Tex.Cr.App., 501 S.W.2d 91. In connection with the admonishments required by Art. 26.13, Vernon’s Ann.C.C. P., the appellant told the court that he was pleading guilty because he was guilty and for no other reason, that no promises had been made to him, that he understood that in all probability the court would find him guilty and that the punishment would be any term not less than two years or life in the Department of Corrections, and that even if the State may recommend punishment the court was not bound thereby, even though it would be considered. Upon the hearing of the motion for new trial, appellant’s affidavit was placed in evidence in which he stated that prior to his plea of guilty his attorney had advised him that the assistant district attorney had agreed to recommend 4 years, and that he would not have plead guilty but for that fact. The actions and advice of his retained counsel could not be imputed to the State. Kincaid v. State, Tex.Cr.App., 500 S.W.2d 487, and cases cited therein. We overrule the first ground of error. Next, appellant seeks reversal because his good reputation witnesses were asked over his objection at the hearing on punishment before the court if the fact that he had plead guilty and been convicted in the case on trial would affect their testimony as to his good reputation. The trial court remarked that he did not think this was the law, but permitted the questions. His opinion was correct. See Wright v. State, Tex.Cr.App., 491 S.W.2d 936, where it is said: “It is still improper to permit a witness to testify that a defendant’s general reputation for being a peaceable law-abiding citizen is bad based upon the offense for which he is being tried. Stephens v. State, 128 Tex.Cr.R. 531 [311] 80 S.W. 2d 980 (1935) ; Broadway v. State, supra [Tex.Cr.App., 418 S.W.2d 679] (concurring opinion); Wilson v. State, 434 S.W.2d 873 (Tex.Cr.App.1968) and Frison v. State, supra [Tex.Cr.App., 473 S.W.2d 479] It is also improper to test the knowledge of a witness who has testified to the good reputation of a defendant for being a peaceable, law-abiding citizen by asking ‘have you heard’ questions concerning the alleged offense for which he is being tried.” However, since the court indicated by his remark that he considered the questions impermissible, and the presumption is that the court did not consider inadmissible evidence, these questions and answers were harmless. Rodriguez v. State, Tex.Cr.App., 442 S.W.2d 376; Hattersley v. State, Tex.Cr.App., 487 S.W.2d 354; Flowers v. State, Tex.Cr.App., 482 S.W.2d 268. Ground of error number two is overruled. The judgment is affirmed. Opinion approved by the Court.

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Charles Ray JOHNSON, Jr., Appellant, v. The STATE of Texas, Appellee. No. 48416. Court of Criminal Appeals of Texas. May 15, 1974. David Ball, Jr., Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Victor A. Driscoll, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. This is an appeal from a conviction for the offense of murder with malice, with punishment being assessed at ten (10) years in the penitentiary. Appellant’s sole contention on appeal is that the trial court erred in not consolidating for trial, before one jury, the present indictment for the offense of murder and another charge of carrying a pistol on premises covered by a permit and license issued under the provisions of the Texas Liquor Control Act as prohibited by Art. 483, Vernon’s Ann.P.C. Appellant argues that since the charge for possessing a pistol in a “place where they serve alcohol” and the instant murder charge arose out of the same transaction, facts and circumstances, appellant should have a right to consolidate these charges for consideration by one single jury panel. Appellant points to Section 3.02 of the New Texas Penal Code, V.T. C.A., which gives the accused the right to consolidate all charges which arose out of the same “criminal episode.” Initially, we note that Section 3.02 of the New Penal Code did not become effective until January 1, 1974, and therefore this new code provision would have no application to appellant’s trial which began on May 1, 1972. At the time that this trial commenced, neither the Code of Criminal Procedure nor the Penal Code contained provisions giving the accused a mandatory right to consolidate pending indictments for trial before one jury panel. As a matter of fact, the law in effect at the time of this trial gave defendants the specific right not to be tried on more than one charge at a time. See Art. 21.24, Vernon’s Ann.C.C. P. This court has previously held that pending indictments may be consolidated in a single trial absent an objection by, and with the implied consent of, the defendant. See Watson v. State, 488 S.W.2d 816 (Tex.Cr.App.1972); Jones v. State, 480 S.W.2d 623 (Tex.Cr.App.1972); Royal v. State, 391 S.W.2d 410 (Tex.Cr.App.1965). As a matter of fact, there are some occasions where consolidated trials, with the consent of the accused, would appear to implement full utilization of the criminal justice system without prejudice to the defendant. See and compare Fairley v. State, 493 S.W.2d 179 (Tex.Cr.App.1973); Gipson v. State, 503 S.W.2d 796 (Tex.Cr.App.1974); Jones v. State, 502 S.W.2d 164 (Tex.Cr.App.1973) ; Williams v. State, 506 S.W.2d 868 (decided 3/13/74). We hold that the matter of consolidation of indictments, with the defendant’s approval, was a matter to be left to the discretion of the trial court. In the case at bar, no evidence was presented on this motion, and there is no showing in this record that appellant had ever been indicted for the offense of “carrying a pistol on a licensed premises” as prohibited by Art. 483, V.A.P.C. There being no showing that appellant had been indicted for the felony offense on which he requested consolidation, or that this trial court had jurisdiction of that indictment, if any, there can be no abuse of discretion shown. There being no reversible error, the judgment is affirmed. . Section 3.02 of the New Penal Code reads as follows: (a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. (b) When a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial. (c) If a judgment of guilt is reversed, set aside, or vacated, and a new trial ordered, the state may not prosecute in a single criminal action in the new trial any offense not joined in the former prosecution unless evidence to establish probable guilt for that offense was not known to the appropriate prosecuting official at the time the first prosecution commenced.

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Richard Stanley GLEFFE, Appellant, v. The STATE of Texas, Appellee. Nos. 47962-47965. Court of Criminal Appeals of Texas. May 15, 1974. Lawrence B. Mitchell, Dallas (on appeal only), for appellant. Henry Wade, Dist. Atty., John Rapier, Asst. Dist. Atty., Dallas, and Jim D. Vol-lers, State’s Atty., Austin, for the State. OPINION BROWN, Commissioner. This is an appeal from convictions in four separate cases, to-wit: (1) cause number 47,962 — assault to murder with malice; the punishment assessed by the jury is twenty-five (25) years; (2) cause number 47,963 — assault with intent to rob; the punishment assessed by the jury is seven (7) years; (3) cause number 47,964 and (4) cause number 47,965 — separate convictions for robbery by assault; the punishment assessed by the jury in each robbery is fifty (50) years. The four causes were tried together before the same jury at the request of the appellant by the granting of his motion to consolidate. In this appeal the appellant does not contest the sufficiency of the evidence. The record reflects that appellant on December 10, 1971, robbed at gunpoint the manager of the Stardust Motel in Dallas. Then on December 18, 1971, appellant, together with another man, robbed the cashier at the Interpark Valet Parking Service, Love Field, Dallas. On December 27, 1971, appellant and another entered an A & P Grocery Store in Dallas, began the robbery, shot one of the employees, then fled. Complaint is made that reversible error was committed during the direct examination of a bystander whose wife was knocked down by appellant while he was fleeing from the attempted robbery at the grocery store and the shooting. The following transpired: “Q * * * (W)hich one of them knocked your wife down ? “A It was this other fellow. No, Gleffe (appellant), he ran through us, pushed me aside and hit my wife and knocked her down. “Q Now, what was your wife’s condition at that time? “A She was four months pregnant. “Q She was four months pregnant? "A Yes, sir. “Q Did she have a miscarriage ? “A Yes, sir, she had — ” Appellant’s objection was sustained. The jury was instructed to disregard and appellant’s motion for a mistrial was denied. We stated in Brown v. State, 466 S.W.2d 288 (Tex.Cr.App.1971) : “This Court has consistently held a conviction will rarely be reversed because of an improper question unless it was obviously harmful to the accused. Smith v. State, Tex.Cr.App., 457 S.W.2d 58; Mitchell v. State, Tex.Cr.App., 455 S.W.2d 266; Mirowitz v. State, Tex.Cr. App., 449 S.W.2d 475, and Sensabaugh v. State, Tex.Cr.App., 426 S.W.2d 224.” The record does not reflect that the prosecutor acted in bad faith in propounding the complained of question, nor does the record reflect any calculated attempt to circumvent rulings of the court or any repetition of such questioning. We conclude the court’s instruction to disregard was sufficient under the circumstances. Appellant’s ground of error is overruled. In two grounds of error the appellant contends a reversal of the cause is required because of the prosecutor’s jury argument. He complains of the following argument: “Long haired, blond headed people committing robberies day in and day out in Dallas County? Now, do you think that’s true ? * * * they * * * (could have' asked) Detective Adamcik, ‘Detective Adamcik, isn’t it a fact that we are still having those robberies by that 5 foot 5 inch, 130 pound, blond headed person with a mustache? They are still going on day in, day out in Dallas County?’ No, that’s not true, because they stopped December 29, 1971 — ” The court sustained appellant’s objection and instructed the jury to disregard the argument. Appellant did not request a mistrial. There are two reasons for the overruling of this ground of error. First, appellant received the relief he sought and, not having requested a mistrial, the error, if any, was waived. Bourg v. State, 484 S.W.2d 724 (Tex.Cr.App.1972); Haywood v. State, 482 S.W.2d 855 (Tex.Cr.App.1972); and Burks v. State, 432 S.W.2d 925 (Tex.Cr.App.1968). Second, the complained of argument was invited by the following argument of appellant’s counsel: “There are many, many, many young men in Dallas with long hair, with Army jackets on. You can drive down Lem-mon Avenue, you can drive down to Lee Park, you can drive down to East Dallas, you can drive all over town and you can see many people with Army jackets. You can see many people with long hair. You can see many short men. You can see many tall men. Some of them are armed robbers; some of them aren’t. It’s just that simple. We get a lot of robberies around here with young people with long hair. Get two or three of them a day. * * * I believe the man that did these things is still out there running around. I think we ought to devote our attention to getting him in here.” See Hefley v. State, 489 S.W.2d 115 (Tex.Cr.App.1973); Sennette v. State, 481 S.W.2d 827 (Tex.Cr.App.1972); and Turner v. State, 482 S.W.2d 277 (Tex.Cr.App.1972). The other portion of the jury argument of which complaint is made is: “Let’s be fair to them. Let’s turn them all out on the street. We ought to turn that flag upside down with reference to people like this in this country — ” The court sustained appellant’s objection, instructed the jury to disregard the argument, but overruled appellant’s motion for a mistrial. The meaning of the argument taken as a whole would appear to be a proper plea of law enforcement. See Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973); Cunningham v. State, 484 S.W.2d 906 (Tex.Cr.App.1972). The error, if any, was cured by the trial court’s having had the comment withdrawn and having the jury to disregard it. Cunningham v. State, supra; and Ward v. State, 474 S.W.2d 471 (Tex.Cr.App.1971). Appellant’s grounds of error four and five urge error by the trial court in allowing the in-court identification of appellant by the two witnesses Dorothy High-field and John Simmons, because the pretrial photographic display was so impermis-sibly suggestive as to give rise to the likelihood of misidentification. The record before this court contains the trial court’s findings of fact and conclusions of law of a hearing held prior to the trial of the present cause to determine whether the identification of appellant by the two witnesses was impermissibly tainted. There is no statement of facts from this hearing. The findings of the trial court establish that it followed the standards as set forth by this court in Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972): “The factors to be considered, in determining the origin of an in-court identification include: (1) the prior opportunity to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, (3) any identification prior to lineup of another person, (4) the identification by picture of the defendant prior to the lineup, (5) failure to identify the defendant on a prior occasion, and (6) the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969).” Applying this criteria, we hold the trial court was correct in its ruling: “. . . the Court concludes that while pictures were shown to the witnesses, that they were not shown under conditions or circumstances which were unnecessarily suggestive or conducive to irreparable mistaken identification which would be a denial of due process based on the totality of the circumstances surrounding the crime . . . ” We overrule appellant’s grounds of error four and five. The remaining grounds of error challenge the court’s failure to have a pre-trial hearing on the issue of identification by the three witnesses to the alleged assault to murder at the A & P Grocery Store, James A. Davy, E. L. Bryant and M. W. Turner, when appellant made a motion requesting same. After the motion by appellant, the court made the following ruling: “Let the record reflect that this Defendant was heretofore tried in cause number C-72-334-JH, styled the State of Texas versus Richard Stanley Gleffe, upon a bill of indictment alleging the felony offense of robbery . . . and the Court at that time did conduct a hearing out of the presence of the jury in that case with regard to aforementioned witnesses and filed therein Findings of Fact and Conclusions of Law, wherein the Court established that the in Court identification was not tainted. And, if Mr. Boardman wishes, the Court will incorporate into the record of these cases those Findings of Fact and Conclusions of Law, and the Court will not again conduct the same type hearing.” Appellant’s appointed counsel, who did not represent the appellant at his robbery trial (Cause No. C-72-334-JH) growing out of the same transaction as the instant assault to murder case, then requested the court to incorporate the findings of fact and conclusions of law in the record. It does not appear from the record whether appellant’s counsel had benefit of the transcription of the court reporter’s notes from the pre-trial hearing. Thereafter, the witnesses Davy, Bryant and Turner all made in-court identifications of the appellant based on their observations under excellent lighting conditions at the time of the offense. It appears that such identifications were of independent origin. The State originally did not offer evidence of any prior photographic identification. In the presence of the jury the appellant first developed the fact that the witnesses Davy and Bryant had made such photographic identifications and he explored the circumstances of such identifications. The witness Turner did not testify in the instant trial as to any pre-trial photographic identifications. The mere showing of pictures prior to trial is not a denial of due process, Evans v. State, 444 S.W.2d 641 (Tex.Cr.App.1969); Jones v. State, 458 S.W.2d 62, 64 (Tex.Cr.App.1970), and nothing in the record before us indicates the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970); Bowman v. State, 446 S.W.2d 320 (Tex.Cr.App.1969). While the trial court’s position that it does not want to rehear the same testimony it had earlier heard on the same matter in a previous trial is understandable, we are of the view that, since appellant was represented by different counsel, counsel’s request should have been granted. Appellant does not assert on appeal, however, that he was denied the effective assistance of counsel by the court’s action, and nothing in the record before us indicates that a separate hearing would have shown a violation of appellant’s rights or indicates that the in-court identifications were “tainted.” While the error should have been avoided, we conclude that under the circumstances of this particular case it is harmless error beyond a reasonable doubt. The judgments are affirmed. Opinion approved by the Court. . The robbery took place at an A & P Grocery Store where a customer, L. D. Gross, was robbed. During the same transaction, an employee of the store, E. L. Bryant, the complainant in the instant case, was shot. . On appeal appellant complains that the findings of fact and conclusions of law were not brought forward in the appellant record. In a supplemental transcript they have now been brought forward, as well as a transcription of the court reporter’s notes from the pre-trial hearing in the earlier robbery case, where the question of the “taint,” if any, of the in-court identification of the appellant by the three named witnesses was explored. .It would .appear that much time could be saved in similar circumstances if the parties by agreement have the transcription of the court reporter’s notes of the prior hearing introduced, with counsel being given an opportunity to interrogate the witnesses as to any relevant matters not previously covered.

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Richard LAMBERSON, Appellant, v. The STATE of Texas, Appellee. No. 48253. Court of Criminal Appeals of Texas, May 15, 1974. Selden Hale, Amarillo, for appellant. Tom Curtis, Dist. Atty., Russell Busby, Asst. Dist. Atty., Amarillo, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant was convicted in a jury trial of murder with malice of George Jones. His punishment was assessed by the jury at 40 years’ confinement. Prior to this trial, this appellant was convicted of robbery by assault of the same George Jones, which robbery occurred about 30 or 40 minutes before the acts occurred resulting in the death of Jones. See Lamberson v. State, Tex.Cr. App., 504 S.W.2d 894. The record reflects that the appellant, while at the Danceland Bar in Amarillo, agreed with Alvin Clark and Robert Easley to entice the deceased, George Jones, to a house on Florida Street in order to rob him. At the house on Florida Street the appellant beat Jones to a state of submission and robbed him of money. The appellant then took Jones’ car and drove the victim to an isolated area called Walnut Hills and stopped near a small creek. Clark, Easley, Debbie Randle and Debbie Bailey followed in a second car. The appellant placed Jones, who was alive but semi-conscious, in front of the car. The appellant then got back into the car and drove it into Jones. The appellant again got out of the car and hit and kicked Jones for several minutes. The victim was then abandoned and the appellant returned to the house on Florida Street followed by the above named persons in the second car. Within approximately five to ten minutes, at the appellant’s insistence, the appellant and Clark drove back to the Walnut Hills area. The victim, Jones, who was still alive, was still lying where he had been abandoned. According to Clark’s testimony, the appellant said he wanted Clark to watch something. The appellant then beat Jones in the head, neck, and shoulders area with the butt-end of a jointed pool cue. The victim was left unconscious near the edge of a slope descending to the creek. The deceased was discovered two days later lying face down in the creek. A pathologist testified that the cause of death was asphyxia due to drowning. It was the pathologist’s expert opinion that the combination of alcohol and a trauma produced unconsciousness, rendering the victim helpless when his face became submerged in the water. The trauma was the result of a star-shaped wound on the back of the deceased’s skull which had been caused by a blow from a blunt instrument. The pathologist testified further that the pool cue could have been the instrument used to deliver the blow. In his first ground of error, appellant contends the trial court erred in allowing him to be tried for murder after he had been convicted for robbery by assault. See Lamberson v. State, supra. It is appellant’s contention that the robbery and subsequent murder were one continuous transaction or criminal episode, thereby rendering the subsequent murder conviction void under the double jeopardy provisions of the United States Constitution. In his argument and authorities appellant raises related questions concerning the doctrine of collateral estoppel and carving as well as double jeopardy. We conclude that, under the fact situation presented, none of the above principles are applicable. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1969), the doctrine of collateral estoppel was embodied within the double jeopardy provisions of the Fifth Amendment and thereby barred relitigation of an ultimate fact issue which had been determined by a valid and final judgment. However, the doctrine of collateral estoppel is limited to situations where the prior final judgment resulted in an acquittal. In Joshlin v. State, Tex.Cr. App., 488 S.W.2d 773, 775 (1972), we stated: “Without deciding what single conceivable rational issue was decided in the prior conviction, this Court has never considered the applicability of the doctrine of collateral estoppel where the prior trial has resulted in a conviction rather than an acquittal. See Bradley v. State, 478 S.W.2d 527 (Tex.Cr.App.1972).” Appellant’s prior trial for the offense of robbery by assault resulted in a conviction. The appellant further contends that the State is bound by the doctrine of carving due to their election to try the defendant for robbery and to introduce testimony of the entire episode at Walnut Hills in the robbery trial. In Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399 (1935), cited by appellant, the defendant had been convicted for both robbery by firearms and murder. In that case the victim was shot when he failed to comply with the order to put up his hands and the money was then taken. In reversing the subsequent murder conviction this Court stated: “In the present instance, the proof is conclusive that, in the appellant’s conviction for murder, he was convicted of the same transaction and upon the same evidence as that upon which he was previously convicted of the offense of robbery with firearms.” The above rule was reiterated in Duckett v. State, Tex.Cr.App., 454 S.W.2d 755 (1970), also relied on by appellant, where both convictions were for the same assault upon the same person occurring at the same place and time. However, the holdings in the above cases are not applicable. In the present case it was established that the robbery had terminated when the murder took place. The murder was not committed at the same time nor in the same place as the robbery. In the robbery case, the record shows that the offense occurred at the house on Florida Street, where appellant by assault took money from Jones, as charged in that indictment. There was not one continuous assaultive action tying the two crimes together. The record reflects that over 30 minutes elapsed between the robbery and the assaults at the creek. We hold the robbery and the murder constituted separate transactions. See Douthit v. State, Tex.Cr.App., 482 S.W.2d 155 (1971). In the prior robbery conviction, testimony of the murder was admitted as a part of the res gestae of the offense under the rule that “where the offense is one continous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper.” Lamberson, supra, 504 S.W.2d at 896. The above rule is concerned solely with evidentiary matters and has no bearing on determining whether two crimes constitute one single transaction under the double jeopardy clause. It in no way constitutes an election of the State under the doctrine of carving. Compare Joshlin v. State, Tex.Cr.App., 488 S.W.2d 773 (1972) and Joshlin v. State, Tex.Cr.App., 468 S.W.2d 826 (1971). Neither does the fact situation present a case of double jeopardy. Crabb v. State, Tex.Cr.App., 503 S.W.2d 260; Waffer v. State, Tex.Cr.App., 504 S. W.2d 408. Appellant’s first ground of error is overruled. In his second ground of error, appellant complains of improper jury argument in the punishment phase of the trial. The complained of argument is as follows: “MR. CURTIS: . . . Now, let’s look at the character as the evidence has shown it to you of this defendant. He’s not been shown by the evidence to be any first offender — (Emphasis added) “MR. HALE: Now, Your Honor, I want to object to this— “MR. CURTIS: —he’s done it 11 times —(Emphasis added) “MR. HALE: Your Honor, I would like to object to this— “MR. CURTIS: It’s within the record, Your Honor. “MR. HALE: It’s outside the record and I’m for a mistrial. He’s implying that there are other offenses that this young man is accused of and I move for a mistrial, Your Honor. “THE COURT: The objection is overruled. Your Motion for Mistrial is overruled. And counsel,— “MR. HALE: Note our exception. “THE COURT: —counsel for the State is instructed to stay within the record that has been presented here and the evidence submitted before this Jury. “MR. CURTIS: Yes, sir, Your Honor. “THE COURT: Please proceed. “MR. CURTIS: I don’t know whether as the evidence as shown you he’s bragged — whether he’s actually committed the 11 other similar acts, I frankly doubt it. But, I think it’s reasonable to conclude that some had been committed —(Emphasis added) “MR. HALE: Your Honor, I’m going to object to that and I move for a mistrial. “THE COURT: Objection is overruled and your Motion for Mistrial is denied. “MR. HALE: Note our exception. “THE COURT: So noted.” The evidence introduced at the guilt stage of the trial reflects that Alvin Clark was relating the conversation he had with the appellant on the second return trip from Walnut Hills. The following testimony was elicited: “Q Did he say anything else to you on the way back from Walnut Hills? “A Yes, sir, he said that — like it happened just then, like George Jones, it had happened 11 times before.” ' The argument that appellant had committed other crimes, it will be seen, was not a deduction from the evidence. The quoted testimony was evidence of what appellant said, not of what he did. However, when the argument is read as a whole, including the prosecutor’s statement pointing out that the testimony went to what was said by appellant rather than any specific extraneous offenses, we conclude no reversible error is shown. Appellant’s second ground of error is overruled. In his third ground of error, appellant contends the trial court erred in failing to charge the jury on murder without malice. The charge on murder without malice is mandatory only in cases where there is evidence that the appellant acted under immediate influence of sudden passion arising from an adequate cause. Machado v. State, Tex.Cr.App., 494 S.W.2d 859 (1973) ; Corbett v. State, Tex.Cr.App., 493 S.W.2d 940, 952 (1973). We find no evidence in the record which requires a charge on murder without malice. Appellant’s third ground of error is overruled. In his fourth ground of error, appellant contends the trial court erred in failing to charge the jury on negligent homicide. Article 1235, Vernon’s Ann.P.C., states: “To bring the offense within the definition of negligent homicide either of the first or second degree, there must be no apparent intention to kill.” In Palafox v. State, Tex.Civ.App., 484 S.W.2d 739, 744 (1972), this Court stated: “. . . negligent homicide is based wholly upon the theory that the evidence must show there was no intent to kill by an act intentionally done . . . ” The evidence raises no issue of fact which would require a charge on negligent homicide. Appellant’s fourth ground of error is overruled. The judgment is affirmed. Opinion approved by the Court. . In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court declared the double jeopardy provisions of the Fifth Amendment were applicable to the States.

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Ex parte William Eugene BAGLEY. No. 48289. Court of Criminal Appeals of Texas. May 15, 1974. Luther E. Jones, Jr., Corpus Christi, for appellant. William B. Mobley, Jr., Dist. Atty., John M. Potter, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections. Petitioner was convicted in a jury trial in Cause No. 12,692 in the 105th District Court of Nueces County on June 14, 1967, of murder with malice, and his punishment was assessed by the court at 35 years confinement. He appealed to this Court, and his conviction was affirmed. Bagley v. State, Tex.Cr.App., 425 S.W.2d 656. The present proceeding is a second application by petitioner under Article 11.07, V.A.C.C.P. In this proceeding he urges for the first time the federal constitutional claim that his conviction is void because there was used against him a confession given, petitioner alleges, without his ever being warned of his Miranda right to presence of counsel during interrogation. The record of the main trial in which petitioner was convicted of murder reflects that the trial started on June 12, 1967, a day less than one year after the Supreme Court delivered its opinion in Miranda, supra. At the trial, a hearing was had outside of the presence of the jury, at the request of the State, to determine the admissibility of the confession. There was no objection raised as to the voluntariness of the confession. After hearing testimony in regard to the warnings which were given and the various statements which had been taken, the court ruled the confession to be admissible. No objection was made at the time. Later, the confession was introduced in evidence before the jury. The only objection to its admission was as follows: Mr. Fagan (Defense Counsel) "Of course, I object to it at this time, if the court please.” There was no objection that the confession was involuntarily made, or that appellant was not properly warned of his right to counsel. Furthermore, the record also reveals that there was no complaint made on the appeal of the conviction concerning the introduction of the confession in evidence. See Bagley v. State, supra. No such complaint was made in the first habeas corpus proceeding. This Court has consistently held that in order to complain about the admissibility of a confession, even in regard to a violation of Miranda, and other federally guaranteed constitutional rights, there must be an objection in the trial court. Aldrighetti v. State, Tex.Cr.App., 507 S.W.2d 770 (1974); Spead v. State, Tex.Cr.App., 500 S.W.2d 112; Jones v. State, Tex.Cr. App., 501 S.W.2d 308; Taylor v. State, Tex.Cr.App., 489 S.W.2d 890; Rawlinson v. State, Tex.Cr.App., 487 S.W.2d 341; Moore v. State, Tex.Cr.App., 480 S.W.2d 728; Clark v. State, Tex.Cr.App., 470 S. W.2d 869; Green v. State, Tex.Cr.App., 467 S.W.2d 481; Mason v. State, Tex.Cr. App., 459 S.W.2d 855; Evans v. State, Tex.Cr.App., 444 S.W.2d 641. Furthermore, the objection, if any, must have called the attention of the trial court to the particular complaint raised on appeal. Rawlinson, supra; Salas v. State, Tex.Cr. App., 486 S.W.2d 956; Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728; Lawhon v. State, Tex.Cr.App., 429 S.W.2d 147. The same rule as to the necessity of an objection to complained of evidence has been applied by this Court in habeas corpus cases. Ex parte Roberts, Tex.Cr.App., 502 S.W.2d 802; Ex parte Kirby, Tex.Cr.App., 492 S.W.2d 579; Ex party Kelly, Tex.Cr. App., 484 S.W.2d 773; Ex parte Kirk, Tex.Cr.App., 478 S.W.2d 503; Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706; Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666; Ex parte Bertsch, Tex.Cr.App., 395 S.W.2d 620. Recently this Court in a habeas corpus proceeding passed upon a problem similar in some respects in Ex parte Casarez, 508 S.W.2d 620 (1974). Evidence of three prior convictions for aggravated assault was admitted in evidence without objection at the punishment stage of a trial for burglary of a private residence at night. It was shown on the habeas corpus hearing that each of the three misdemeanor convictions was void because in each case the defendant had not been represented by counsel, was indigent, and had not waived his right to counsel. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373. In each case, the punishment included imprisonment in jail. In setting aside the conviction and granting the relief sought, we said: “Petitioner’s trial resulting in the challenged conviction as stated above was had on May 12, 1967, over five years before the decision in Argersinger v. Hamlin, 407 U.S. 25 [92 S.Ct. 2006, 32 L.Ed. 2d 530] (June 15, 1972), upon which our opinion in Ramirezr, supra, was grounded. Consequently, counsel’s failure to object upon a ground not yet established as a defect of constitutional magnitude did not constitute a waiver.” The basis for granting the writ in Casarez is not applicable here. As heretofore stated, the trial of petitioner Bagley for murder was had one year after the decision in Miranda, supra, had become the law of the land. As was said by the Supreme Court in discussing Miranda in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, “Future defendants will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused.” Notwithstanding the finding of the trial court at the hearing on this habeas corpus proceeding, based on the testimony of petitioner’s counsel at the murder trial, that counsel’s failure to object was not a product of deliberate trial strategy and was not accompanied by any intention to bypass or circumvent Texas procedural laws, we hold that counsel was put on notice of the standards of Miranda, which at the time of the trial had been in effect for a year. We, therefore, hold that the contemporaneous objection rule serves a legitimate State interest in this question, and that the failure of petitioner, as defendant, to object at the trial, and to pursue vindication of a constitutional right of which he was put on notice on appeal, constitutes a waiver of the position he now asserts. In so holding we are not suggesting that petitioner is correct in his contention that the standards of Miranda were not complied with in the taking of the confession in question. Although the waiver would cause us to deny the writ, we shall nevertheless reconsider petitioner’s said contention. Petitioner’s contention in this proceeding is limited to his claim that his confession, admitted in evidence as State’s Exhibit 16, is void because at the time of making it he had not been warned that he had a right to have an attorney present during the interrogation productive of such confession. Petitioner alleged in his writ of habeas corpus that, “An important part of the State’s proof in the trial in this Court in which said conviction was obtained was a written confession given by him in response to custodial interrogation after various warnings were made to him. Those warnings did not include, and nobody at any time ever gave him, a warning that he had a right to have an attorney present with him during the interrogation productive of said confession. Because of the total lack of any warning of that kind petitioner makes the contention, in reliance on Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966) and Sanchez v. Beto, 467 F. 2d 513 (5th Cir. 1972), that the action of this Court admitting said confession into evidence before the jury subjected him to a deprivation of his federally secured constitutional right . . . ” (Emphasis ours) In response to the above pleading the trial court in its findings of fact and conclusions of law found, “Nobody before commencement of that interrogation warned petitioner of his right to have an attorney present with him during that interrogation.” This Court is not bound by the findings of the trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court’s findings. Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566; Ex parte Young, Tex.Cr.App., 479 S.W.2d 45. Petitioner in his hearing introduced in evidence as a part of the record the statement of facts reflecting the evidence given in the original trial at which he was convicted. We find from such record that the petitioner received the specific warning that he had a right to have an attorney present with him during the interrogation not only once, but twice before the complained of confession was taken. The record reflects that the petitioner was arrested on the night of January 16, 1967. The following morning, at approximately 10:30 o’clock, the petitioner was taken before Assistant District Attorney Kenneth Yarbrough. At this time Yar-brough warned petitioner that he had a right to retain counsel, that if he was unable to do so, counsel would be appointed to represent him, that he had a right to an examining trial, right to have bail set, and a warning that any statement he made could be used against him. The testimony does not reflect petitioner was warned of his right to have counsel present during the interrogation. Prior to this meeting petitioner had been warned by the arresting officers and taken before a magistrate to be warned pursuant to Art. 15.17, V.A.C.C.P., as it then existed. These warnings were also deficient in that they failed to apprise petitioner of his right to have counsel during interrogation. See Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972); Burns v. State, Tex.Cr.App., 486 S.W.2d 310. The petitioner and Yarbrough talked for approximately forty-five minutes before breaking for lunch. No written statement had been taken up to this time by Yar-brough. After lunch, petitioner was taken to the Department of Public Safety in order to take a polygraph examination. The polygraph examiner warned petitioner of his rights, but the record does not show whether it included the right to counsel during the interrogation. During the examination the polygraph examiner told Yarbrough that petitioner wished to make a statement. At this time Yarbrough again warned petitioner of his rights and reduced the statement to writing. The printed portion of the statement contained the following: “VOLUNTARY STATEMENT OF William Eugene Bagley, January 17, A. D., 1967. “I, William Eugene Bagley, before being interrogated and after first being duly warned by Vernon Harville of Nueces County, at 12:40 P.M., at Nueces County Courthouse on January 17, 1967 the accusation against me of murder and the affidavit, if any, filed in support of such accusation; that I have a right to retain counsel; that if I am unable to obtain counsel that I can request the appointment of counsel; that I have a right to an examining trial; that I am not required to make any statement at all and that any statement I do make may be used against me; and Kenneth Yar-brough (officer taking statement), the person to whom this statement is made, also warned me at the beginning of the interrogation that I do not have to make any statement at all; that I have a right to consult with a lawyer; that if I cannot afford a lawyer, one will be provided for me; that I have a right to have my attorney present during the interrogation; and that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement:” (Emphasis ours) The printed portion of the statement contained the express warning “that I have a right to have my attorney present during the interrogation . . . ” together with the statement that if accused could not afford a lawyer, one would be provided for him. The statement was signed by the petitioner, and the record reflects the petitioner read and understood the statement prior to signing it. However, this was not the confession introduced into evidence at the trial as State’s Exhibit No. 16, or complained of on this application for the writ of habeas corpus. Upon completion of the written statement the petitioner was returned to his jail cell. Yarbrough then questioned the petitioner’s co-defendant Troy H. Tharp. After returning from his evening meal and after a lengthy discussion with Tharp, Yarbrough had the petitioner brought from his cell for further questioning. Yarbrough and the petitioner went over the statement and it was determined corrections were needed. The resulting confession was the confession introduced at trial as State’s Exhibit 16, and complained of in this proceeding. It was signed by petitioner at approximately midnight on January 17, 1967. The record reflects that, prior to taking the second written confession, Yarbrough warned petitioner of his right to counsel during interrogation. The relevant portion of the record is as follows: “Q Okay, and did you warn him at any time in the evening hours there when he, before he made this additional statement? “A When I, when he determined that there were certain parts of his statement that he wanted to state, wanted to change, I got a typewriter and a statement form and at that time I again told him that he didn’t have to make another statement, and that if he did, this statement could be used against him, and I also told him that, of course, again, that he was charged with Murder, that he had a right to an attorney, and the presence of an attorney before he made this statement, and that if he could not hire an attorney one would be appointed for him. “Q Well, did you actually give him and read to him the statement which is, the statutory warning which is required by Texas law in the Constitution and the United States ? “A I did not read it to him from a book or from something written out; I told him in those general terms that you are charged, or you are accused of the offense of Murder, and that you may make a statement, you don’t have to, and any statement you make will be used against you. You have a right to an examining trial, to have bond set, and, of course, the right to an attorney, and if you can’t afford an attorney, one will be appointed to represent you.” (Emphasis ours). Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694, held “that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation ...” From the testimony it can be seen Yar-brough was not reciting the statutory warning under Art. 15.17 as it then existed. It is also clear that petitioner was warned of his right to have counsel present at that moment, during interrogation, before any statement was made by him. We hold the requirements of Miranda, specifically that petitioner be warned of his right to^ presence of counsel at the interrogation, were met before the confession introduced as State’s Exhibit 16 was taken. Furthermore, the express written warning given petitioner some 6 to 8 hours previous to the complained of confession would have satisfied the dictates of Miranda. In Bell v. United States, 382 F.2d 985, 987 (9th Cir. 1967), cert. denied, 390 U.S. 965, 88 S.Ct. 1070, 19 L.Ed.2d 1165 (1968), the court held, “There is no requirement as to the precise manner in which police communicate the required [Miranda] warnings to one suspected of crime. The requirement is that the police fully advise such a person of his rights, and appellant made no showing that he did not read or understand the written warnings which were presented to him.” In United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970), cert. denied, 401 U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550 (1971), the Fifth Circuit concerned with the need to repeat Miranda warnings stated, “The Miranda warnings, once given, are not to be accorded unlimited efficacy or perpetuity. There may be occasions where interrogation by one authority, be it state or federal, is so disconnected with interrogation by the other as to compel a reiteration of the Miranda warnings. Nevertheless, on the basis of this record, and in light of the following factors, we must reject Hopkins’ contentions. First, there was no significant time lapse between the federal interrogation and Detective Hobbs’ question. Second, the question posed by Detective Hobbs touched upon the same subject matter discussed with Agent Hanley. Third, there is no evidence that the Dallas police, either prior to or following the federal interrogation, acted so as to dilute the efficacy of the warning given by Agent Hanley. This record pictures an uninterrupted sequence of events beginning with the Miranda warnings given by Agent Hanley, including the presence of Hobbs at the third floor interrogation room to take Hopkins to his cell, and culminating with a question on the same matter posed by Hobbs as he and Hopkins returned to the fifth floor. We find that the question of Detective Hobbs was so intertwined with the interrogation by Agent Hanley that Hopkins must have been aware of his constitutional rights with regard to Hobbs’ query and, by his answer, Hopkins knowingly waived those rights . . . .” See also United States v. Springer, 460 F. 2d 1344 (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1973), where written confession was upheld on the basis of a more thorough warning given two days before the written confession, and Maguire v. United States, 396 F.2d 327 (9th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969), where an adequate warning given 3 days before interrogation of defendant by another officer apprised defendant of his rights. In Xanthull v. State, Tex.Cr.App., 403 S.W.2d 807, this Court held two different statements were admissible into evidence, though only one warning was given defendant, when the two statements were substantially the same, signed on the same day, and given to the same officer. See Charles v. State, Tex.Cr.App., 424 S.W.2d 909, where the warning was given 6 days before the confession was made. We find from the “totality of the circumstances” that the petitioner was sufficiently apprised of his rights before making the second written confession (State’s Exhibit 16) by virtue of the written warnings administered some eight hours previously when the first confession was made, and also by the oral warning given by Assistant District Attorney Yarbrough before the second confession here complained of was made. Silva v. State, Tex. Cr.App., 499 S.W.2d 147; Babcock v. State, Tex.Cr.App., 473 S.W.2d 941. The writ is denied. Opinion approved by the Court. ONION, P. J., concurs on the ground of waiver. . State’s Exhibit 16 at the trial. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. . The effective date of the decision in Miranda, supra, was June 13, 1966, and the decision was only prospective in effect. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Charles v. State, Tex.Cr. App., 424 S.W.2d 909 (dissenting opinion, 913). . A similar finding was made concerning the failure of petitioner’s attorney to raise the present contention in the first habeas corpus proceeding under Art. 11.07, V.A.O.C.P.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Herbert Dean MAXWELL, Appellant, v. The STATE of Texas, Appellee. No. 47689. Court of Criminal Appeals of Texas. April 3, 1974. Rehearing Denied May 29, 1974. Raymon Jordan, Houston, for appellant. Carol S. Vance, Dist. Atty., James Brough, Ted Poe and George Karam, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This appeal is taken from a conviction for felony theft wherein the jury assessed the punishment of two (2) years, probated. The indictment charged the felony offense of theft of twelve coils of ¾ inch copper tubing, twenty-five ¾ ⅛⅛ brass curb stops, and twenty ¾ inch brass corporation stops. In his first two grounds of error appellant challenges the sufficiency of the evidence to sustain the conviction. Leon Morris Cohen, President of Jones Supply Co., Inc., testified that his company records reflected that on August 17, 1971, the items listed in the indictment were sold to the I.O.I. Systems Company and Woodrow Wilson signed the receipt for the same. The selling price for such items was $915.45. He related that Wilson had been introduced to “our people” by another employee of I.O.I. Systems, who informed them Wilson was authorized to pick up material and supplies as needed by I.O.I. Systems. Cohen testified that if he had known on August 17, 1971, that Wilson had no such authority the transaction in question would not have been completed. He acknowledged, however, that the items had been given to Wilson under the impression I.O.I. Systems was purchasing the same. John Wayne Thompson, an employee of the Jones Supply Company, testified that several months prior to August 17th Roosevelt Duncan, also known as Willie X, an employee of the I.O.I. Systems, had introduced Woodrow Wilson to him, told him Wilson was an I.O.I. employee and was authorized to pick up material for I.O.I. Thompson related he checked with I.O.I. and was told it was “okay” and that Wilson had come in on several occasions to pick up material. He testified he was present on August 17th when the items described in the indictment were loaded onto a red 1969 or 1970 truck being driven by Wilson. Sam Caliva, President of I.O.I. Systems, testified Wilson was an employee of his organization from April 28th to May 18, 1971, and from July 27th to July 28, 1971, and that Roosevelt Duncan was also an employee. Caliva testified he began checking on some invoices on August 19th and asked Duncan to contact and bring Wilson in on the pretext he was needed for work. When Wilson arrived, he was questioned by Detective Elkin of the Houston Police, and subsequently, Caliva, Wilson and Elkin all went to the appellant’s junk yard or place of business at 3615 Crane. From there, after a conversation between Elkin and appellant, they went to Gulf Metals, where they found some brand new corporation and curb stops with the seal of the Hays Company on them and Elkin took some into possession for evidence. The copper found was chopped up and couldn’t be identified. Detective Elkin described the above events as occurring on August 18th. He revealed that after talking to Wilson at I. O.I. he went with others to appellant’s business where he observed a red 1969 Ford truck and that, following a conversation with the appellant, he went to Gulf Metals where they found new Hays brand corporation and curb stops. Bernard Schwartzberg, general manager of Gulf Metal Industries, testified that on August 17, 1971, the appellant Maxwell, accompanied by another man, sold him some “No. 1 copper” and red brass for $595.92 and that he paid $450.00 immediately so the appellant could pay his supplier. He related he had had a number of transactions with the appellant, who was one of forty dealers from whom he purchased scrap metal on a regular basis. Woodrow Wilson, 21, testified that he was raised in Louisiana speaking French, that he only went to the third grade, and learned the English he knew after he arrived in Houston several years before the events in question. He claimed he could sign his name, but could not read or write. He related he was looking for a job and was hired by the appellant, to whom he had explained his former employment with I.O.I.; that the appellant would give him “a receipt” with something written on it and direct him to go in appellant’s red truck to Jones Supply or Utility Supply and pick up items such as copper tubing, etc., and that he would sign for such items and deliver them to the appellant. Wilson testified he knew it was wrong to steal, but he didn’t know what- he was doing was wrong, that he didn’t understand how the system worked or who paid for the items he secured, even though he had previously picked up needed items for I.O.I. and a subcontractor named Collins. He denied he had borrowed a truck from a Murphy Richards and had merely sold the items listed in the indictment to the appellant. Dr. Jerome Brown, a clinical psychologist, testified that he had examined Wilson and found he had an “IX (sic) of 52,” was mentally retarded and had the mental ability of a six or eight year old child, and did not have the ability to form the intent to commit a crime. Roosevelt Duncan, testifying for the defense, acknowledged that Wilson had been a fellow employee at I.O.I. and that he and Wilson often sold old copper to the appellant, the copper being from jobs where the old copper was being abandoned or left in the ground. Murphy Richards testified he met Wilson for the first time on August 5, 1971, and Wilson paid him $10.00 for the use of his truck, and that he drove Wilson on that date to Jones Supply and to Utility Supply, where a number of items were picked up and were then unloaded at the appellant’s place of business. Joseph Porter testified he lived across the street from the appellant’s business establishment, and that on an occasion in August, 1971, Wilson had paid him $10.00 to unload some copper tubing at the appellant’s place; that Wilson did not appear to know the appellant was in a red truck with another man, such truck being similar to appellant’s truck. James Booker testified that on an occasion in August, 1971, he loaned money to the appellant so that the appellant could purchase some copper tubing from Wilson. Appellant’s wife testified she helped her husband operate his business, that they never had any employees, and that she saw Wilson for the first time on August 5, 1971, when he came inquiring about “the man who buys metal.” She recalled one occasion when Wilson asked to borrow her husband’s truck, claiming his brother’s truck had broken down. Testifying, appellant denied he had ever employed Wilson, and said he met Wilson on August 5th when he purchased some copper from Wilson which had been hauled in Murphy Richard’s truck. He related he had other purchases the next day and through August 17, 1971, the day before his arrest. He acknowledged he sold the items purchased on August 17th to Gulf Metals. He denied that Wilson was an employee or that he had used Wilson in any way to obtain the items involved. In rebuttal the State called Woodrow Wilson’s brother, Colton, who testified Woodrow was employed by the appellant and that he (Colton) took Woodrow to work on a number of days. Without objection, the court charged the jury at the guilt stage of the trial to find the appellant guilty if they found there was a taking without consent. The court also instructed the jury “that if anyone fraudulently procures another person innocent of any fraudulent intent to take property for him, it is a taking through an innocent agent and is a taking by the person who procured the taking by the innocent agent.” The law was then applied to the facts in the case. On appeal appellant complains that the evidence is insufficient to sustain the conviction because there was no showing that Wilson was an innocent agent. Appellant acknowledges that a taking by an accused who fraudulently procures a person innocent of any fraudulent intent to take property for him is a taking through an innocent agent, and that a taking by an innocent agent is a taking by the accused. Heard v. State, 160 Tex.Cr.R. 88, 267 S.W.2d 150 (1954). Citing these same authorities, the State urges that the appellant was constructively present at the time of the alleged theft. Passing over appellant’s contention that Wilson was not an innocent agent, we turn to his other contention regarding the sufficiency of the evidence. Appellant contends that he was charged with ordinary theft under Article 1410, Vernon’s Ann.P.C., and that this was the offense which was submitted to the jury in the court’s charge and that the verdict cannot stand because the undisputed evidence shows that the taking was with consent, not without consent. Articles 1410 and 1413, Vernon’s Ann.P. C., denounce separate modes of committing the offense of theft. Article 1410, supra, provides as follows: “ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” (Emphasis supplied) Article 1413, supra, provides that: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.” In the charge in the instant case the court defined “theft” in the terms of Article 1410, supra, and in applying the law to facts instructed the jury: “Now, if you believe from the evidence beyond a reasonable doubt that the property mentioned in the indictment belonged to Leon Morris Cohen and was of the value of Fifty Dollars or over and was in his possession, and that on or about the time and at the place stated in the indictment, the defendant did fraudulently take said property or a part thereof from the possession of said Leon Morris Cohen without his consent and with the intent to deprive him of the said property and its value and to appropriate the same to the defendant’s use and benefit, then you will find the de fendant guilty as charged in the indict ment and so say by your verdict.” (Em phasis supplied) “The charge given authorized and confined the conviction of the appellant to the offense of theft as defined in Art. 1410, supra. Such a charge was outside of and not supported by the evidence for the reason that it required the jury to find that the money was taken without the consent of the owner. The court, under the evidence, was not authorized to submit any theory in the charge except the modes of committing the offense of theft as defined by Art. 1413, supra.” Finley v. State, 440 S.W.2d 849 (Tex.Cr.App.1969). Since the original taking was with consent, the conviction cannot rest upon the offense of theft as defined by Article 1410, supra. See Finley v. State, supra. The judgment is reversed and the cause remanded. . He described the brass curb stops and corporation stops as having been manufactured by the Hays Manufacturing Company, Erie, Pennsylvania, and related that the company’s name was stamped on each item. . Cohen related the payment arrangement his company had with I.O.I. Systems was to “invoice them . . . due thirty days from the date of invoice.” He denied that on the occasion in question his company had ever been paid for the transaction in question. . In Spivey v. State, 144 Tex.Cr.R. 432, 164 S.W.2d 668, 672, quoted with approval in Heard, supra, it was written: “In a legal sense, defendant was present when the act was done if he fraudulently caused that act to be done by an innocent agent although in fact he was in a different county or state.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Homer Lopez ATTWOOD, Appellant, v. The STATE of Texas, Appellee. No. 47539. Court of Criminal Appeals of Texas. May 1, 1974. Rehearing Denied May 29, 1974. Ramon Garcia, Edinburg, for appellant. Fred Galindo, Dist. Atty., Menton Murray, Jr., Asst. Dist. Atty., Brownsville, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from a conviction for the offense of possession of marihuana. Punishment was assessed by a jury at seven and one-half years. Appellant did not testify or offer any evidence in his behalf. Patrolman Harris stopped the Chevrolet in which the contraband was subsequently found, advised Larson, the driver, that he had an expired license plate and issued him a traffic ticket. Officer Trevino then took over the interview and questioned Larson with regard to the ownership of the Chevrolet. Larson seemed exceptionally nervous and could not produce a title, bill of sale, or any identification that the vehicle belonged to him. Trevino detected a strong odor of marihuana emitting from the automobile and asked Larson for the key to the trunk. Larson handed him the key and, upon opening the trunk, he found approximately 197 pounds of marihuana, a rubber raft, two wooden oars, and three tire pumps. We overrule appellant’s contention that the marihuana in question was secured as the result of an illegal arrest and search. The driver of the vehicle was committing an offense in violation of Article 807b, Section 7, Vernon’s Annotated Penal Code, at the time his car was stopped. As for the search of the auto and its trunk, in Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967), this Court stated: “Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence.” (Emphasis supplied). See also Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.). In the case at bar, Trevino stated that while questioning Larson he smelled a strong odor of marihuana emitting from the trunk of the car. Thus, the trial court did not err in admitting into evidence the marihuana in question. See Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973) ; Medina v. State, 493 S.W.2d 151 (Tex.Cr.App.1973). The fourth ground of error is a contention that State’s Exhibit No. 14 should not have been admitted because such evidence was seized as a result of an illegal arrest and search. The exhibit is a repair order issued by Aamco Transmission Company of Austin, dated March 15, 1971, allegedly signed by appellant for mechanical work done on a 1958 Chevrolet, Serial No. 5169668. This exhibit was seized from the back seat of the 1958 Chevrolet in which the contraband was found. We reach the same conclusion as we did in discussing the first three grounds of error. Appellant further argues that said exhibit was hearsay as to appellant and was admitted without a proper predicate being laid. Trevino testified that he seized the exhibit from the back seat of the Chevrolet; that he didn’t know how it got there or how long it had been there; that he didn’t know who prepared the exhibit; and that he was not familiar with the signature of appellant. The receipt was not offered for the truth of the matters stated therein; i. e., that appellant had the Chevrolet’s transmission repaired on March 15, 1971. Trevino’s testimony ábout the finding of the receipt related only to the fact that such receipt was found. See and compare Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972). As for the admission into evidence of the receipt itself, it was admitted for its non-testimonial value as circumstantial evidence connecting appellant to the possession of the marihuana in question and was not hearsay. See and compare Arnott v. State, 498 S.W.2d 166 (Tex.Cr. App.1973) with Phenix v. State, 488 S.W. 2d 759 (Tex.Cr.App.1973). Furthermore, we find that a proper predicate was laid for the admission of the receipt, as evidenced by Trevino’s testimony. Appellant contends by his fifth ground of error that the evidence was not sufficient to support his conviction in that the testimony of the two accomplice witnesses was not sufficiently corroborated. The testimony of Duke Price Larson and Patricia Larson, the accomplice witnesses, made out a complete case against appellant. The rule forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender. However, the rule does require that there be other evidence tending to connect the accused with the offense committed. Anders v. State, 501 S.W.2d 665 (Tex.Cr.App.1973); Quintanilla v. State, 501 S.W.2d 329 (Tex.Cr.App.1973); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.); Runkle v. State, 484 S.W.2d 912 (Tex.Cr.App.); Cherb v. State, 472 S.W. 2d 273 (Tex.Cr.App.1971). Now we apply the above test to the facts in this case. Appellant was seen driving the car in which the marihuana was being kept on the morning of March 29th. This was sufficient corroboration to connect appellant with the charged offense in compliance with Article 38.14, Vernon’s Ann.C.C.P. Next, appellant contends by his sixth ground of error that the indictment did not sufficiently apprise him of the offense with which he was charged. The indictment alleged that “appellant on or about the 29th day of March did then and there unlawfully possess a narcotic drug, to wit: marihuana, . . . ” The contention is without merit. Cook v. State, 467 S.W.2d 421 (Tex.Cr.App.1971). Appellant contends by his seventh and eighth grounds of error that Article 725b, V.A.P.C. is unconstitutional in that it classifies marihuana as a narcotic drug and because there is a conflict between Federal and State law as to the classification of marihuana. The contention that Article 725b, supra, is unconstitutional because it classifies marihuana as a narcotic drug has been urged previously and rejected by this Court. See Grudzien v. State, 493 S.W.2d 827 (Tex.Cr.App.1973). The contention that there is a conflict between State and Federal law as to the classification of marihuana as a narcotic drug and that Federal law should control has also been answered adversely to appellant. See Rener v. Beto, 447 F.2d 20 (5th Cir.1971). Appellant next contends that the trial court incorrectly defined “probable cause.” In its charge to the jury, the court gave the following definition: “By the term ‘probable cause’ as used herein is meant a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief.” Appellant argues that the instruction failed to: “(1) Instruct the jury that said officer’s beliefs must have been limited to that point in time he determined to conduct said search; (2) Instruct the jury that said officer’s ‘reasonable suspicions’ must, have been based on reasonably trustworthy information.” In regard to appellant’s first contention the charge states: “ . . . if the police officer while questioning the motorist regarding the traffic offense acquires probable cause to believe, and does believe, that the vehicle contains narcotics possessed contrary to law, he may thereupon search the vehicle for narcotics.” No error is shown. Regarding appellant’s second contention, it was not necessary for the trial court so to instruct the jury because the searching officer (Trevino) acquired probable cause to search Larson’s vehicle only after he smelled a strong odor of marihuana, and not upon previously received information. See discussion of grounds of error nos. 1, 2, and 3 and cases cited therein. Next, appellant contends that the trial court improperly instructed the jury by misstating the law in the following portion of the court’s charge: “Once a bona fide stop or arrest has been made for a traffic offense, a police officer can make an additional arrest for any other offense thereafter discovered during the course of the investigation. Thus, if the police officer while questioning the motorist regarding the traffic offense in some manner acquires probable cause to believe, and does believe, that another offense is being committed, he may arrest for this subsequently discovered offense and conduct any necessary search incident to that arrest; or, if the police officer while questioning the motorist regarding the traffic offense acquires probable cause to believe, and does believe, that the vehicle contains narcotics possessed contrary to law, he may thereupon search dhe vehicle for narcotics.” We find the above language to be a correct statement of the law. See Taylor v. State, supra. Finally, appellant contends that the following paragraph of the court’s charge was an incorrect statement of the law and was a comment on the weight of the evidence: “Now, therefore, bearing in mind all of the foregoing instructions, if you find from the evidence, and believe beyond a reasonable doubt that the Larson vehicle was stopped in a bona fide stop or arrest for the traffic offense of operating a motor vehicle with an expired license plate, and thereafter the search of the trunk of the Larson vehicle was made by the police officer, who, while investigating the traffic offense, acquired probable cause to believe and did believe that a narcotics offense was being committed, if it was, and the police officer was searching for narcotics possessed contrary to law, if it was, then you may consider the evidence obtained by the search of the Larson vehicle.” The instruction was not an incorrect statement of the law. See Taylor v. State, supra. We also fail to see how it could constitute a comment on the weight of the evidence. The instruction in question stated “Now, therefore ... if you find from the evidence . . . . ” Finding no reversible error, the judgment is affirmed. . Appellant was not in the vehicle at the time it was stopped but earlier in the day, while it was under surveillance, he was observed driving it. . No issue of standing having been raised, briefed or argued by the parties, we decline to consider it sua sponte in view of our finding that the search and seizure were proper.

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Roger M. GEORGE, Appellant, v. The STATE of Texas, Appellee. No. 48285. Court of Criminal Appeals of Texas. May 15, 1974. Rehearing Denied May 29, 1974. Roy Q. Minton, John L. Foster, Austin, for appellant. Robert O. Smith, Dist. Atty., Charles Craig, Asst. Dist. Atty., and Jim D. Voll-ers, State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is possession of marihuana; the punishment, ten years probated. The sole question presented is the legality of the search. Officer Sides testified that he received an anonymous telephone call reporting that he (the caller) had seen marihuana growing in the back yard at a specific address (identified in subsequent testimony as the appellant’s home) and that if he (Officer Sides) would go to that location, he would find a large quantity of marihuana growing there. Officer Sides proceeded to that location and went upon a vacant lot where some maintenance men were working adjacent to appellant’s eight-foot high privacy fence. Through cracks and knotholes therein he was able to see marihuana plants growing inside. He stated that he was standing “about a foot” from the fence when he peered through. The evidence is undisputed that the fence was located 18 inches inside the appellant’s property line. After seeing the marihuana, Sides then secured a search warrant and upon entering appellant’s back yard through the house he found 675 marihuana plants ranging in height from two and a half to four feet. The question before us as stated advantageously to appellant in his brief is as follows : “Stated in its simplest terms the only question before this court is whether or not Sergeant Sides was required to obtain judicial authorization in the form of a search warrant before he could lawfully approach the privacy fence enclosing the defendant’s back yard and peer through minute cracks and defects in the fence for the plain and admitted purpose of attempting to observe violations of the law. If he was not, then the subsequent search of the house and yard was valid. If he was, then all of the fruits of that initial search, including the fruits of the search justified by the observations, are inadmissible.” A very similar fact situation was before this Court in Gil v. State, 394 S.W.2d 810, and Capuchino v. State, 389 S.W.2d 296. See also Gil v. Beto, 5 Cir., 440 F.2d 666. In these cases the officers went upon a common walkway at a tourist court and peered through defective Venetian blinds. They proceeded to search without a warrant based upon what they saw through the window. This Court and the Fifth Circuit Court of Appeals upheld the legality of the officers’ conduct. People v. Fly, 34 Cal.App.3d 665, 110 Cal.Rptr. 158, relied upon by appellant is not controlling because the officer there viewed the marihuana on the accused’s premises through a telescope from a vantage point on a neighbor’s property “to which the defendants had a reasonable expectation of privacy.” The anonymous telephone call did not constitute probable cause for an arrest or a search within the house or within the fence. It did, however, authorize the officer to initiate an investigation by proceeding to the neighborhood to determine if there were any witnesses or contraband in plain view. There was a legitimate reason for the officer’s being in and around the neighborhood. We hold that the limited investigation by the officer which resulted in the observation of the marihuana was not unreasonable under the circumstances. The officer’s action in then proceeding to obtain a proper search warrant was commendable. Officers must have some reasonable leeway to investigate into criminal activity absent probable cause for an arrest or search. Turner v. State, Tex.Cr.App., 499 S.W.2d 182; Walker v. Beto, 437 F.2d 1018 (1971); United States v. Knight, 451 F.2d 275, cert denied, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240. We overrule appellant’s contention. Finding no reversible error, the judgment is affirmed.

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Billy Don ALLEN, Appellant, v. The STATE of Texas, Appellee. No. 48410. Court of Criminal Appeals of Texas. May 8, 1974. Rehearing Denied May 29, 1974. Stan Brown, Abilene, for appellant. Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This appeal is from an order revoking probation. On November 21, 1973, appellant entered a plea of guilty to the offense of theft of property over the value of $50.00; punishment was assessed at three years. The imposition of the sentence was suspended and probation granted. One of the terms and conditions of probation was to “avoid injurious or vicious habits; specifically alcoholic beverages, harmful drugs or narcotics.” On December 4, 1973, a motion to revoke probation was filed. The allegations set out that appellant “on or about the 25th day of November, 1973, in the County of Callahan and State of Texas, failed to avoid injurious or vicious habits, to-wit: sniffing paint fumes and thereafter did drive an automobile while under the influence of paint fumes.” Appellant contends that the trial court abused its discretion in revoking his probation because of the insufficiency of the evidence. After reviewing the record, we agree. The terms and conditions of probation regarding injurious and vicious habits limited and clarified what was understood thereby with the phrase: “specifically, alcoholic beverages, harmful drugs, or narcotics.” The allegations of the motion to revoke allege a violation committed by “sniffing paint fumes and thereafter did drive an automobile while under the influence of paint fumes.” The record reveals some kind of use of aluminum paint, but is absolutely devoid of any evidence of any drug contained therein, or of the harmful or narcotic character of any element of the aluminum paint. We are unable to say as a matter of law that aluminum paint is a harmful drug or narcotic. Cf. Smithhart v. State, Tex.Cr.App., 503 S.W.2d 283. Of course, the conditions of probation may be altered by the court in accordance with Article 42.12, Sec. 6, Vernon’s Ann. C.C.P., but, upon the terms in existence at the time probation was here revoked, there is no evidence to support a finding that appellant violated the stated condition. Accordingly, the judgment is reversed and the cause remanded.

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Graybon Allen MOORE, Appellant, v. The STATE of Texas, Appellee. No. 48324. Court of Criminal Appeals of Texas. May 15, 1974. Bill Pedersen, Jr., Nacogdoches, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ON MOTION TO REINSTATE APPEAL GREEN, Commissioner. A supplemental transcript having been filed containing a proper notice of appeal, the order of this Court dismissing this appeal is set aside, and the appeal is reinstated and is now considered on its merits. This appeal is from an order revoking probation. On August 2, 1972, appellant was convicted in Cause No. 9094-71-12 in the District Court of Nacogdoches County of burglary. His punishment was assessed at 10 years, probated. Among other provisions of his probation was that appellant “commit no offense against the laws of this or any other state or the United States.” On July 3, 1973, the State filed a motion seeking revocation of probation, in which it was alleged that appellant had, on March 1, 1973, committed the offense of burglary of a house of Fred Ship in Walker County. A hearing on this motion was held on September 21, 1973, and the court found from the evidence that appellant had violated the abovementioned condition of his probation in that he had committed the offense of burglary as alleged in the motion. Probation was revoked, and appellant was duly sentenced to a term of not less than 2 nor more than 10 years. In his second ground of error, appellant contends that the court abused his discretion since the evidence was insufficient to support the order of revocation. The district clerk of Nacogdoches County identified appellant as being the same person who was convicted of burglary in Cause No. 9094-71-12, and whose punishment was assessed at 10 years, probated. The judgment and order of probation were introduced in evidence. Officer Pierce of the Huntsville Police Department testified that at about 9:29 P. M. on March 1, 1973, he was directed by his dispatcher to answer a burglary alarm at Fred Ship’s pharmacy in Huntsville. As he approached the pharmacy, he saw appellant, Shriver and Poole run out of a wash-ateria adjacent to the pharmacy, and get in a car in a nearby parking lot. He blocked the car with his own automobile, arrested the three men, and placed them in the custody of an officer while he and another officer entered the washateria. At the time these men were apprehended, appellant and Shriver had dust and lint in their hair and on their clothing. The officers found where a hole had been “broke” between the attic wall of the washateria and the pharmacy. On the top of the washateria restroom, over which one would go to get to the attic, he found three boxes, each of which contained what he considered to be a hundred disposable needles of a kind sold in a drugstore. The ceiling in the washa-teria and in the pharmacy was broken, and beneath the hole was an ice box used to keep drugs needing refrigeration. The top of this ice box was “real dusty” and he saw a foot print in the dust. Fred Ship testified that he was the proprietor of the pharmacy, and that it was in his custody and control. He had not given anyone consent to break into the pharmacy on the night in question, or to take anything from it. He identified the three boxes of needles and syringes found by Officer Pierce as coming from his store. Bobby Joe Shriver, an inmate of the Texas Department of Corrections, testified as a witness for the appellant that he had plead guilty to this burglary, and had received a two year sentence. He had been in the washateria in Huntsville together with appellant and Poole on the night in question to wash some clothes. He admitted having climbed over the restroom of the washateria and entered the drugstore through the ceiling. As he was standing on the refrigerator, he noticed the light beam of the burglar alarm, at which time he returned to the washateria through the ceiling. He told the other two to get their clothes and “let’s go.” They all left together, got in their car, and were arrested in the parking lot. Shriver testified that appellant did not know that he was going to burglarize the drugstore, and had no part in it. The trial court, as the trier of facts, could believe any portion of Shriver’s testimony and discard any portion. The finding of the trial court that appellant committed the offense alleged is supported by the evidence, and the court did not abuse his discretion in so finding. Appellant’s first ground alleges error in the trial court’s failure to give him “an opportunity to examine the offense report of the Huntsville Police Department by refusing to give appellant a recess to allow the Subpoena Duces Tecum for such offense report to be served on the Huntsville Police Department.” On cross-examination, Officer Pierce testified that he and a lieutenant had jointly written a police report on this offense, and that he had read it at the police station two days prior to the trial. The State objected to appellant’s request to be allowed to see the report as follows: “MR. ADAMS: I object to whether this witness cares or not, in all probability it is a Police work product of the Huntsville Police Department. If he can show some relevancy of it — The officer testified that he reviewed it a couple of days ago, but he’s not testifying from it and I see no need in compelling him to say whether or not he had objection ot (sic) it being seen by this Defendant.” This objection was overruled. However, the officer did not have the report with him, and it was not shown to be in the possession of the prosecuting attorney. No further effort was made by appellant at that time to secure the offense report. Later in the trial, after the State had rested its case, appellant requested that a recess be granted so that he could have a subpoena issued for the production in court of the report. The court stated that the issuing of the subpoena was a matter to be taken up with the clerk, but declined the request for a recess. Appellant excepted, and moved for a mistrial, which was refused. A subpoena duces tecum addressed to the police chief of Huntsville is contained in the transcript, but does not reflect that service was had on the subpoena. It is not necessary that we pass on appellant’s contention that the court erred in refusing to halt the trial until the report could be produced in court. Under the rule of Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, where a State’s witness has made a report in writing prior to testifying, the defendant, after a timely motion or request, is entitled to inspect and use such prior report for cross-examination and impeachment purposes after the witness has testified, and this right obtains whether or not the witness has used the instrument to refresh his memory. Howard v. State, Tex.Cr.App., 505 S.W.2d 306. However, even though the trial court may be in error in refusing the defendant such right, such is not reversible error unless the accused can show harm. The harmfulness of the error is dependent upon whether an examination by the appellate court demonstrates that the defendant should have been allowed the statement for purposes of cross-examination and impeachment. Reversible error is shown if the defendant is denied the opportunity to have made available the report for the appellate record in order that injury, if any, may be shown. Howard v. State, supra; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708; Rose v. State, Tex.Cr.App., 427 S.W.2d 609, 612; Campos v. State, Tex.Cr.App., 468 S.W.2d 81; Pruitt v. State, 172 Tex. Cr.R. 187, 355 S.W.2d 528. The report in question is not in the record, and is not before us for our inspection. During the trial, after the court had overruled the State’s objection to the appellant’s request concerning the report, appellant made no request that the State be required to furnish him a copy of the officer’s report. No post-trial request was made that the offense report be included in the record, or sent to this Court in a sealed envelope for its inspection. See footnote 4, Zanders v. State, supra, 480 S.W.2d at p. 711. Cf. Darrington v. State, Tex.Cr.App., 493 S.W.2d 244, where the judgment was reversed because the trial court refused to grant the defendant’s post-trial request, made before the record was approved, to forward the report to this Court. In the instant case, appellant has failed to preserve reversible error, since he took no steps to have the officer’s written report included in the record on appeal. Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491; Lewis v. State, Tex.Cr.App., 481 S.W.2d 804; Stevenson v. State, Tex.Cr.App., 456 S.W.2d 60. On February 8, 1974 after the record was filed on February 7, 1974, appellant’s counsel wrote to this Court asking that “a copy of the offense report, the subject of point of error number one, be allowed to be sent to the court as a sealed exhibit from Judge Jack Pierce, Nacog-doches County.” The request should have been made to Judge Pierce before the record was approved on December 13, 1973. Such request was not made to the trial court. The request is denied. Appellant’s first ground of error is overruled. The judgment is affirmed. Opinion approved by the Court.

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Wayne Ernest BARKER, Appellant, v. The STATE of Texas, Appellee. No. 48396. Court of Criminal Appeals of Texas. May 15, 1974. Homer T. Bouldin, Houston, for appellant. Carol S. Vance, Dist. Atty., Ted Poe, Martin E. McVey, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is assault with intent to murder; the punishment, 20 years. We are met at the outset with the question of the admissibility of a petition for annulment which resulted in the dissolution of appellant’s marriage to Deborah Lowery. Deborah was the State’s first witness and she testified that she had been married to the appellant for approximately three months prior to their marriage being annulled. She was then questioned about her acquaintanceship with the complaining witness and told of appellant’s assault upon him because of appellant’s jealousy over her, which is the basis for this prosecution. Appellant testified that his marriage to Deborah was annulled by her parents because of her age. Following appellant’s testimony the State, over objection, introduced the annulment petition which recited that the appellant had procured his marriage with Deborah by the infliction of many acts of violence upon her and stated this as the reason for the annulment. In Hoyle v. State, 153 Tex.Cr.R. 548, 223 S.W.2d 231, this Court reversed a murder conviction because the court admitted in evidence a copy of the divorce petition filed by the deceased against the accused in which it was alleged that the accused had threatened to kill her. This Court held that it might have been admissible to prove that the deceased had sued the appellant for divorce but that the contents of the pleadings were not admissible. In Yates v. State, Tex.Cr.App., 489 S. W.2d 620, this Court reversed because the State was permitted to introduce the divorce petition and temporary restraining order which recited that the accused was physically violent toward the deceased. In Brooks v. State, Tex.Cr.App., 475 S.W.2d 268, this Court reversed because the State was permitted to introduce a temporary restraining order which alleged that probable harm and injury would result to the deceased at the hands of the appellant. In the case at bar the annulment petition was signed by counsel and was sworn to by Deborah and her two parents and alleged acts of violence by the appellant toward Deborah which had been denied by the appellant. We overrule the State’s contention that appellant’s objection to the annulment petition was not sufficient to properly apprise the trial court of the grounds here asserted. In the absence of the jury the appellant objected on the grounds that the petition was a “mere pleading” and further: “To admit these statements and instruments at this time would be in violation of the best evidence rule. Further, would deprive us, the Defense, of the right of cross examination of this witness as to these statements that are made and contained in these instruments.” The petition for annulment was inadmissible as hearsay, and we have concluded that the appellant sufficiently pointed out to the trial court the fact that he would not be able to cross examine the four persons who had signed the petition for annulment and properly preserved his error. In Brooks, supra, this Court said: “In Acker v. State, 421 S.W.2d 398, 402 (Tex.Cr.App.1967), this court noted that pleadings in another law suit have been held to be inadmissible as hearsay, citing Granata v. Mothner, 44 S.W.2d 817 (Tex.Civ.App.1931). In Acker the contents of the divorce petition of Acker’s wife were held to be hearsay and inadmissible in prosecution for murder of the wife’s former husband. See also Drake v. State, 65 Tex.Cr.R. 282, 143 S.W. 1157 (1912).” We further overrule the State’s contention that the annulment petition was admissible to rebut appellant’s testimony as to the reasons for the annulment. A similar contention was before this Court on rehearing in Hoyle v. State, supra, where we held the contents of the petition were inadmissible in spite of the accused’s testimony. We conclude that the error was not harmless. Appellant’s defense was self-defense and that the complaining witness was the aggressor. The admission before the jury of the contents of the petition, which set out specific acts of violence on the part of appellant and suggested that appellant was of a violent nature, was clearly prejudicial to appellant’s defense. For the reasons stated, the judgment is reversed and the cause remanded.

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J. W. GAMBLE, Appellant, v. The STATE of Texas, Appellee. No. 48284. Court of Criminal Appeals of Texas. May 15, 1974. Lawrence B. Mitchell and Tom M. Shaw, Dallas, for appellant. Henry Wade, Dist. Atty. and William L. Hubbard, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for murder; the punishment, imprisonment for thirty-five years. The evidence shows that the appellant shot and killed his wife. His main defense was insanity. In his third ground of error the appellant contends that hearsay evidence admitted over his timely objection „was so harmful and prejudicial as to require a reversal of the judgment. We agree. A four page Order of Service of the deceased’s funeral was admitted into evidence over a timely objection that it was hearsay evidence which was harmful and prejudicial to the appellant. The Order of Service, bearing a picture of the deceased on the front, also contained an obituary section and the family’s words of appreciation to friends for their kindnesses during the family’s bereavement. We hold the admission of this clearly inadmissible evidence to be so harmful as to require reversal. See and compare Barber v. State, 481 S.W.2d 812 (Tex.Cr.App.1972); Pannell v. State, 477 S.W.2d 586 (Tex.Cr.App.1972); Brooks v. State, 475 S.W.2d 268 (Tex.Cr.App.1972). We need not discuss the other grounds of error concerning jury selection, jury misconduct and the Court’s charge as the matters raised in these grounds of error are not likely to recur in the event of another trial. The judgment is reversed and the cause remanded. Opinion approved by the Court. MORRISON, Judge (dissenting). I cannot understand why the Order of Service was offered or why it was received in evidence in this case. Both the offer and the receipt demonstrate poor taste, but in my judgment do not constitute reversible error. I have examined the document and find nothing injurious to appellant contained therein. This should be the test of reversible error. There is no injury to appellant for the further reason that no showing has been made that this exhibit was read to or by the jury, passed to the jury or ever made its way into the jury room. I dissent to the reversal of this conviction.

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Paul Clay LESSING, Appellant, v. The STATE of Texas, Appellee. No. 48744. Court of Criminal Appeals of Texas. May 15, 1974. No attorney on appeal for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. Appellant was convicted by a jury for cattle theft; the court assessed punishment at two (2) years. The record on appeal was filed in this court on May 3, 1974. The record was forwarded to this court on order of the trial court. We note, however, that the record was never approved by the trial court pursuant to Article 40.09, Sec. 7, Vernon’s Ann.C.C.P. Consequently, this appeal must be abated. St. John v. State, 421 S.W.2d 661 (Tex.Cr.App.1967); McKinney v. State, 477 S.W.2d 295 (Tex.Cr.App.1972). We note that on April 5, 1974, appellant filed his personal affidavit requesting that he be allowed to withdraw his notice of appeal and requesting the trial court to dismiss his appeal. Such motion was not acted on by the trial court. By abating the appeal we remand the cause to the trial court for approval of the entire record and such further proceedings under Article 40.-09, Vernon’s Ann.C.C.P., “as though the record had not been filed in this court.” St. John v. State, supra. Accordingly, upon remand, the trial court should determine if it is still appellant’s desire not to pursue this appeal. If this be the case, the trial court has authority to dismiss the appeal. Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966). See also: Goodney v. State, 501 S.W.2d 311 (Tex.Cr.App.1973). Brock v. State, 449 S.W.2d 471 (Tex.Cr.App.1969); Tucker v. State, 416 S.W.2d 437 (Tex.Cr.App.1967); and Brill v. State, 408 S.W.2d 232 (Tex.Cr.App.1966). Should the trial court dismiss the appeal pursuant to Rangel and its progeny, no further action need be taken by this court. The appeal is abated.

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Ex parte Richard D. GILL. No. 48235. Court of Criminal Appeals of Texas. May 15, 1974. James E. Maggard, Jr., Rosharon, Texas, for petitioner. Tom Curtis, Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. This is an application for writ of habeas corpus by an inmate of the Department of Corrections. Petitioner was convicted in the 108th District Court of Potter County on July 23, 1970, for the offense of robbery by assault, in Cause No. 14731. Petitioner’s conviction in Cause No. 10980 in the 47th District Court of Potter County on February 16, 1961, for the offense of robbery by assault in which an eight year probated sentence was assessed was introduced at the punishment stage of the trial as was the revocation proceeding in said cause in which probation was revoked and petitioner was sentenced to eight years in the penitentiary. Under Article 11.07, Vernon’s Ann.C.C. P., and in accordance with Ex parte Young, Tex.Cr.App., 418 S.W.2d 824, petitioner applied for writ of habeas corpus to the trial court, alleging that the probation revocation proceeding introduced at the punishment stage of the trial was void in that he did not have counsel, was indigent, and did not waive counsel at such proceeding. A hearing was held before the Honorable Ed Nobles, Judge of the 108th District Court, and findings were entered: (1) That petitioner’s conviction and subsequent probation revocation in Cause No. 10980 were introduced in the trial of Cause No. 14731; (2) That petitioner was not represented by counsel at the probation revocation hearing, did not waive counsel and was indigent at the time of revocation proceeding. In its conclusions of law, the trial court found that petitioner’s conviction in Cause No. 10980 should not have been introduced in the trial of Cause No. 14731. In Ex parte Shivers, Tex.Cr.App., 501 S.W.2d 898, this court held that the decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) was not applicable to Texas revocation proceedings and did not affect the previous holdings of this court that revocation of probation and imposition of sentence (which had been deferred following conviction) were invalid where indigent probationer had not been represented by counsel at revocation hearing and had not waived counsel. In the instant case, the revocation proceeding was invalid and the same should not have been admitted in the trial of Cause No. 14731. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Ex parte Olvera, Tex.Cr. App., 489 S.W.2d 586, this court noted that Burgett “has been consistently applied retroactively by this court.” We have reviewed the record in Cause No. 14731, which is before us as a result of direct appeal to this court. Gill v. State, Tex.Cr.App., 479 S.W.2d 289. It reflects that no objection was voiced to the introduction of State’s Exhibit No. 3 at the punishment stage of the trial which included the judgment granting probation, revocation judgment and sentence. In fact, petitioner took the stand at the punishment stage and testified before the jury on direct examination that he had been convicted in the cause in question and granted probation, which was ultimately revoked. He further testified that he did not have counsel at the revocation proceeding, but no testimony was elicited as to indigency or waiver of counsel. Petitioner did, however, file a motion in limine requesting' the court to instruct the State not to ask any witnesses about any time petitioner spent in the penitentiary and not to ask petitioner, if he takes the stand, any questions regarding any time served or prior convictions “since said conviction was void because the Defendant did not have counsel when probation was revoked as was stated and proven in Defendant’s Motion to Quash Indictment in this cause. Petitioner’s motion in limine does not reflect that it was ever brought to the attention of the court nor do we find that any testimony was offered in support of same. A notation on the docket sheet does, however, reflect “defendant’s motions in limine overruled.” (The record reflects that at least one other motion in limine was filed by petitioner.) This court has held that the fact that the court has granted defendant’s motion in limine prior to trial requesting exclusion of evidence generally does not preserve error without objection being made during trial. Whatley v. State, Tex.Cr.App., 488 S.W.2d 422; Brazzell v. State, Tex.Cr.App., 481 S.W.2d 130. In the instant case, unlike the foregoing cited cases, it would appear that petitioner’s motion in limine was overruled. We hold that petitioner’s failure to object when the complained of Exhibit No. 3 was offered into evidence constitutes a waiver of the claimed rights. We find no merit in petitioner’s argument that he was prevented from testifying at the guilt stage of the trial as a result of the court overruling his motion in limine. The record does not reflect what petitioner’s testimony would have been in the event he had testified. Petitioner’s application for writ of ha-beas corpus is denied. Opinion approved by the Court. . See Gill v. State, Tex.Cr.App., 479 S.W. 2d 289, in which this court affirmed the conviction upon petitioner’s direct appeal. . In Gagnon v. Scarpelli, supra, the Supreme Court noted that probationer had been sentenced at the time of trial of the primary offense and held that the body conducting the hearing at revocation should decide in each individual ease whether due process requires that an indigent probationer be represented by counsel. .In Ex parte Shivers, supra, this court noted that Article 42.12, Section 3, Y.A.C.O.P., provides that where probation is granted the court shall have power “to suspend the imposition of the sentence . . . ” and thus, any revocation of probation comes before the imposition of sentence and before the end of the criminal prosecution. In addition, it was noted that Article 42.12, Section 3b, Y.A. O.O.P., had been interpreted as requiring the assistance of counsel for an indigent probationer at a revocation hearing. . The docket sheet reflects that the State withdrew enhancement portion of indictment which alleged the conviction, probation and revocation in Cause No. 10980. The record does not reflect that any hearing was held on the motion to quash. . On direct appeal, petitioner contended that the trial court erred in refusing to grant his motion in limine. Gill v. State, supra. This court rejected the contention, noting that no showing of indigency was made and held that for one to secure a favorable ruling under Burgett v. Texas, supra, it is necessary that a showing of indigency be made.

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Thad Murphy BUMPUS, Appellant, v. The STATE of Texas, Appellee. No. 48254. Court of Criminal Appeals of Texas. May 15, 1974. Richard D. Bird, Childress (Court-appointed), for appellant. Clarence L. Darter, County Atty., Child-ress, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION CHADICK, Commissioner. This is a misdemeanor driving while intoxicated case. The jury found appellant guilty and the trial court assessed punishment at a fine of $150.00 and fifteen days’ confinement in the county jail. However, entry of judgment was suspended and appellant was placed upon probation, subject to terms and conditions recited in the probation order. See Art. 42.13, Vernon’s Ann.C.C.P. Counsel for appellant verbally dictated to the court reporter an objection to the trial court’s charge because it did not present a claimed affirmative defense. The trial judge verbally overruled the objection and trial continued. The court’s charge was delivered to the jury and the jury verdict rendered prior to 2:30 p. m., August IS, 1973. Objection in writing to the charge was not filed in the case until September 10, 1973. The dictated objection did not conform to provisions of Art. 36.14, V.A.C.C.P., which requires objections to a court’s charge to be in writing. Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Hatke v. State, 455 S.W.2d 310 (Tex.Cr.App.1970). The court’s order suspending judgment and placing appellant on probation was entered August 15, 1973. The article does allow a reasonable time for counsel to examine the court’s charge before it is read to the jury and time to make objections thereto but it does not authorize the procedure and delay shown here. Compliance with the provisions of the statute is necessary to preserve error. Following the pattern of appellant’s brief, appellant’s grounds of error two through five are grouped for discussion. Admissibility of the results of a “Breathalyzer Test” is challenged. In Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953) the essential elements of proof in a breath test for alcoholic intoxication are set out. These essentials were reiterated in French v. State, 484 S.W.2d 716 (Tex.Cr.App.1972). As stated in Hill, they are: “1. Proof that the chemicals were compounded to the proper percentage for use in the machine. “2. Proof that the operator and the machine were under the periodic supervision of one who has an understanding of the scientific theory of the machine. “3. Proof by a witness who was qualified to calculate and translate the readings of the machine into the percentages of alcohol in the blood; that is, one who could eliminate the hearsay evidence * * * The issue here is confined by argument under the grounds to, first, failure to show the officer conducting the breath test had a valid certificate issued by the Texas Department of Public Safety authorizing him to give breathalyzer tests, and, second, failure to show the chemicals used in the test were the correct chemicals for such purpose and in proper proportion to insure an accurate test. Direct interrogation of the patrolman conducting the test is as follows: “Q Bobby, are you qualified to give the test? “A Yes, sir, I am. “Q Will you tell the Court and Jury where you became qualified ? “A Yes, sir. I attended a Breathalyzer School in Austin at the Texas Department of Public Safety Office down there. I attended forty hours of schooling down there, and graduated the 16th day of February, 1973, after forty hours of instructions. “Q Did you receive a certificate ? “A Yes, sir. I did. “Q That qualified you to administer the tests ? “A Yes, sir. It did.” The following is from the interrogation of the supervising chemist, whose qualifications are unquestioned: “Q Now, you don’t know of your own knowledge the exact chemicals that were in the ampoule used in this particular Breathalyzer test? “A I know the exact compilation of that particular batch number, that particular chemical solution. “Q Of your own knowledge, getting back to the exactness, of your own knowledge, you don’t know what was in the ampoule ? “A I know what was in the ampoule, but I didn’t check that particular ampoule. “Q Do you check this machine down here regularly? “A Yes, sir. “Q Did you check it before March 25, 1973? “A I did. I checked it March the 6th “Q Did you check it after March 25th? “A Yes, sir. I checked it April the 12th “Q Was there anything wrong with the machine either time ? “A No, sir. “Q It was in working order ? “A Yes, sir. It was working properly at both times.” Fairly construed, the patrolman’s testimony showed he possessed the requisite certificate. The import of the supervising chemist’s testimony is that proper chemicals were used and compounded to the proper percentage for use in the test apparatus. Over objection that the question called for an opinion, the trial court permitted one of the arresting officers to testify that the appellant at the time of arrest and breath test was, in the officer’s opinion, a “hazard” when driving a motor vehicle upon the highway. The objection should have been sustained. The evidence was an opinion upon an immaterial issue. When the case as a whole is considered, however, the error appears harmless beyond a reasonable doubt. Evidence of appellant’s intoxicated condition is overwhelming. The appellant admits to having consumed alcoholic beverage a few hours before he was arrested. His sister’s testimony confirmed such fact. There is much evidence in addition to the breath test. A waitress who served appellant a meal and observed him for approximately an hour and a half, said he was very drunk. She called the sheriff when appellant left the cafe where she was employed. Appellant was arrested within a few minutes after leaving the cafe by a deputy sheriff who testified he was intoxicated when arrested. The highway patrolman that administered the test detailed his reasons, independent of the breath test, for concluding appellant was drunk. No contention was made in the trial court or here that the questions or answers were inherently inflammatory or prejudicial. The unwarranted testimony was harmless. See Stone v. State, 147 Tex.Cr.R. 489, 182 S.W.2d 400 (1944); 5 Tex.Jur.2d, Appeal and Error, Criminal Cases, Sec. 444. Following entry of an order granting probation on August 15, 1973, the appellant filed a motion for new trial on August 21, 1973. An order reciting that such motion was denied on the same day, August 21, 1973, “neither defendant or defendant’s counsel being present at the hearing,” together with a notation in the order that defendant objected to the court’s action in overruling it was filed for record by the county clerk at 2:30 p. m. on the day the motion was filed and overruled. The former Code of Criminal Procedure, Art. 580, provided that: “In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail. When the record in the appellate court shows that the defendant was present at the commencement or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.” Such article was supplanted in 1965 by enactment of Art. 33.03, V.A.C.C.P., which reads: “In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all caseSj when the defendant voluntarily absents himself after pleading to the indictment or information, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case.” (Emphasized is material not appearing in Art. 580.) Under former Art. 580, when the punishment in a misdemeanor case or any part thereof was imprisonment in jail, the action of the trial court in overruling an accused’s motion for new trial in his absence without giving the accused an opportunity to offer proof of the allegations of the motion was error. Johnson v. State, 163 Tex.Cr.R. 101, 289 S.W.2d 249 (1956); Skinner v. State, 144 Tex.Cr.R. 21, 159 S.W.2d 878 (1942). The clear, explicit language of the last sentence of present Art. 33.03 dispenses with the requirements that the accused, in a misdemeanor case, be present at the hearings on a motion for new trial. Though this appears to be the first time this question has reached this Court, the lucid language of the statute requires no aid from decided cases in determining its meaning. Moreover, if the former requirement prevailed, appellant’s motion for new trial did not present a question determinable by proof outside the record. All questions presented were determinable from the record then before the court; therefore, appellant was not deprived of an opportunity to offer proof in support of his motion for new trial. No error is shown. Appellant’s grounds of error have been carefully considered and no error requiring a reversal of judgment is found. The judgment of the trial court is affirmed. MORRISON, J., concurs in the result. Opinion approved by the Court.

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L. C. STEPHENS, Appellant, v. The STATE of Texas, Appellee. No. 48458. Court of Criminal Appeals of Texas. May 15, 1974. C. C. Divine, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for the offense of sale of heroin, with the punishment being assessed at fifty (50) years. The only issue presented in this appeal is the question of whether or not the appellant is indigent for the purposes of this appeal, and is therefore entitled to the use of an in forma pauperis appellate record in order to perfect a meaningful appeal. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Ex parte Campbell, 494 S.W.2d 842 (Tex.Cr.App. 1973); Art. 40.09, Sec. 5, Vernon’s Ann. C.C.P. At the conclusion of the formal sentencing hearing conducted on July 16, 1973, appellant’s retained trial counsel gave due and timely notice of appeal. Thereafter, appellant filed a sworn pauper’s oath requesting a free transcript in question and answer form for appellate purposes, and a hearing was held on this motion on August 1, 1973. At the conclusion of this hearing, the trial court denied relief and refused to order that a free statement of facts be prepared for the use of counsel on appeal. This court must now determine from the record produced at the hearing on the question of indigency whether the trial judge’s denial was error. At the hearing, appellant testified that he had eight children living at home, with three other “grown” children living elsewhere ; that he was married, that his wife did not work, and that she had been on welfare since appellant had been sentenced in this case; that he had no money with which to purchase a record, nor did he have bonds or any other securities which could be easily liquidated. Appellant further testified that he did own a 1968 Ford station wagon, but related that this car was “not running” and was just “sitting up in the yard.” The only other property that appellant owned was his homestead, in which his wife and eight children lived, and a seven-year-old “ordinary horse” for which appellant had paid One Hunrdred Thirty-Five Dollars ($135.-00) seven years before. Appellant testified that he didn’t know how much the horse would sell for, but that he would be willing to sell it because the animal would have been no “benefit to him now.” The State presented no evidence in rebuttal of petitioner’s testimony. We further note that the record reflects that appellant, being assessed a fifty (50) year prison term, had been in continuous custody of the sheriff since at least June 20, 1973. There is some indication that the record on appeal would have cost between Two Hundred Fifty and Three Hundred Dollars ($250.00 and $300.00) for reproduction. The State initially contends that appellant is not indigent for the reason that the record shows that appellant, at some time prior to the date of this hearing, had bought a Cadillac automobile for his nineteen-year-old daughter. This record does not reflect when this vehicle was purchased, the model of the vehicle, the location of the vehicle, or its possible worth. Since the marketability of the “ordinary horse” owned by the appellant is not reflected in this record, we can hardly say that the ownership of this particular animal classifies appellant as a non-indigent. The State alternatively suggests that since the record does not contain a timely written designation requesting the statement of facts, appellant has in some manner waived his right to request an in for-ma pauperis appellate record. We note that Art. 40.09(2), V.A.C.C.P. requires a written designation to be filed “within sixty days after notice of appeal is given,” and that in this case, the trial court conducted its hearing on the request for a statement of facts well within the sixty-day time limit. See Sowell v. State, 505 S.W.2d 877 (Tex.Cr.App.1974). This Court has had, on recent occasions, opportunity to review whether or not a trial court’s denial of a free record on appeal constitutes a constitutional abuse of discretion. See Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Barrow v. State, 502 S.W.2d 162 (Tex.Cr.App.1973); Butler v. State, 506 S.W.2d 902 (Tex.Cr.App., delivered March 13, 1974). A review of these cases makes it abundantly clear that the'final decision as to the status of “indi-gency” will require a case-by-case analysis of each individual situation. While there appear to be no firm standards set out in our statutes, see Art. 40.09(5), V.A.C.C.P., nor case law providing guidance to trial judges in determining the actual indigency of a criminal defendant, it is clear that appellant in this case established a prima facie case of his status as an indigent at the date of this hearing. See Kitchens v. Smith, 401 U.S. 847, 91 S. Ct. 1089, 28 L.Ed.2d 519. Compare Butler v. State, supra. In response to the State’s argument that appellant’s failure to obtain an agreed or narrative statement of facts, or file formal bills of exception should support the trial court’s denial, we point to the language in Curry v. State, supra, where it was said: “ . . . the parties, with the approval of the trial court, may utilize an agreed statement of facts, Art. 40.09 § 14, supra, and a formal bill of exception may be used to disclose some action, event, testimony, etc., not otherwise shown by the record. If found to be indigent, appellant need not use these alternative methods unless by choice. Thus, it would appear that our statutory procedure is broader than the constitutional requirements. The grounds of error alleged need not make out a ‘colorable need for the complete transcript’ before the indigent becomes entitled to a complete record by virtue of the statutory provisions.” (Emphasis added) It being well settled that a convicted accused is entitled to the effective assistance of counsel on appeal, we must conclude that the record in this case supports the appellant’s position that he is indigent, and, under this record, appellant is entitled to a free transcription of the court reporter’s notes for appeal purposes. See Griffin v. Illinois, supra; Ex parte Tullos, 476 S.W. 2d 689 (Tex.Cr.App.1972); Ex parte Perez, 479 S.W.2d 283 (Tex.Cr.App.1972); Steel v. State, 453 S.W.2d 486 (Tex.Cr. App.1970); Richardson v. State, 495 S. W.2d 246 (Tex.Cr.App.1973); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811 (1963). For the reasons stated, the appeal is abated in order that a record may he supplied to counsel and that a full and meaningful appeal can be accorded to this appellant pursuant to Art. 40.09, V.A.C.C.P. It is so ordered. Opinion approved by the Court. . We also note in this case that appellant’s counsel, during the motion for new trial hearing, argued that the evidence was insufficient and that the trial court had improperly denied certain requested jury charges. Without a statement of facts for the purposes of appeal, a review of these contentions would be very difficult.

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2024-08-24T03:29:51.129683

Donald Wayne BURNS, Appellant, v. The STATE of Texas, Appellee. No. 48357. Court of Criminal Appeals of Texas. May 15, 1974. Kerry P. Fitzgerald, Dallas (Court-appointed on appeal), for appellant. Henry Wade, Dist. Atty., George B. Shepherd, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION McCLOUD, Commissioner. This is an appeal from a conviction for robbery wherein punishment was assessed at two hundred (200) years. Theroy White and Homer Butts testified that at about 9 p. m. on August 31, 1972, two men, one of whom was appellant, entered the A & P Food Store where they were employed and robbed them of approximately $900. The indictment alleges Butts as the complaining witness. Appellant contends in his single ground of error the court erred in refusing to submit an affirmative charge on alibi. Appellant attempted to establish a general pattern of conduct through his testimony and that of his sister and mother to the effect that he came home every week night after work, and he argues that since neither he, nor they, remember him being out on August 31, 1972, he must have been at home. Neither appellant, his sister nor his mother testified as to his precise whereabouts on the day and at the time of the crime in question. Appellant testified as follows: “Q Okay. Basically, your testimony is you really don’t recall what you were doing on August the 31st, 1972? “A No, not for sure.” Appellant’s sister testified in a similar manner : “Q Do you have any — later, directing your atention then to, say, the 31st day of August in 1962 (sic) do you have any recollection of any specific way that you remember that day ? Excuse me, '72 P “A No. No more than just a normal day. “Q Would you remember whether it was a week day or a weekend type day? “A It was — I looked at August 31st, and I know it was on Thursday. “Q You know it was on a Thursday, but there’s nothing outstanding particularly in your memory about that particular day? “A No, Sir. “Q Do you remember, specifically, where your brother was on that day? “A He was usually working. “Q But you don’t remember specifically where he was on that particular day? “A Just like any other day, every day; like I just got through telling you. “Q Would you have any way to remember, say, the evening hours of the 31st day of August, 1972? “A For Thursday, no.” Appellant’s mother testified as follows: “Q Do you remember the 31st day of August, 1972, specifically at all ? Is there anything that stands out in your memory? “A No, I just can’t — I’m just sorry to say, I just sure can’t.” The State’s witnesses placed appellant at the scene of the crime at 9 p. m. on August 31, 1972, and appellant introduced no specific affirmative evidence establishing his presence at any other place at that time. Appellant’s evidence established only a general pattern of conduct. This court in Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73 (1956), said: “An instruction as to alibi is not required when the defendant merely denies that he was at the place where the crime was committed, but does not offer affirmative evidence as to his presence elsewhere. Byas v. State, 41 Tex.C.R. 51, 51 S.W. 923; Rippey v. State, 86 Tex.C.R. 539, 219 S.W. 463.” The issue of alibi was not raised by the evidence and the refusal to charge thereon was not error. Appellant’s ground of error is overruled. Lee v. State, 454 S.W.2d 207 (Tex.Cr.App.1970); Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958); Rippey v. State, 86 Tex.Cr.R. 539, 219 S.W. 463 (1920); and Parker v. State, 40 Tex.Cr.R. 119, 49 S.W. 80 (1899). We have also examined appellant’s pro se brief and find it to be without merit. The judgment is affirmed. Opinion approved by the Court.

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Berlin Pickett NELSON, Appellant, v. The STATE of Texas, Appellee. No. 48293. Court of Criminal Appeals of Texas. May 15, 1974. Gary Conrad, Kerry P. Fitzgerald, Dallas (Court-appointed), for appellant. Henry Wade, Dist. Atty., Mardell Tem-pleton, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION JACKSON, Commissioner. The conviction by a jury on a plea of not guilty was for robbery; the punishment, twenty (20) years. On December 22, 1971, Ted Crow returned to his place of business from an outside call about 5 :20 P.M. Upon entering his office, there was a black man crouched behind one of the desks, who claimed to be cleaning. This was appellant. Crow knew this was not true and ordered the man to leave. Another black man then came from the warehouse, who likewise was not supposed to be there. The two men scuffled with Crow and tied him up. The lighting was good and Crow observed appellant well, and positively identified him at the trial as one of the robbers. They took $57 or $58 in cash from Crow, and also took company checks, Crow’s billfold, credit cards, blood type cards, hunting license, etc. After warning Crow that if he turned them in they would kill his wife and kids, the robbers left Crow still tied up. About 10:15 the night of the robbery, Dallas Policemen Wimer and Peterson searched the automobile in which appellant and two other black men were riding, and found Crow’s property therein. Appellant testified and denied that he was one of the robbers. The first contention of appellant is that there was a fatal variance between the indictment and the proof, because he says the proof showed that the robbery occurred subsequent to the return of the indictment. The indictment returned on January 17, 1972, alleged that appellant robbed Ted Crow “on or about December 22, 1971.” The charge of the court used that date. The trial was held on October 2, 1972. The contention of a variance arises from the fact that in questioning the alleged victim of the robbery, Ted Crow, the prosecutor directed his attention in describing the robbery to “the 22nd of December, 1972, just past.” The State says the use of the year 1972 instead of 1971 was a “slip of the lip.” This is apparent since the trial was on October 2, 1972, which was before December 22, 1972, and could not be "just past.” At that time the December 22 “just past” was December 22, 1971. Further, Officers Henderson and Wimer in detailing the search of the automobile where Ted Crow’s property was found the night of the robbery fixed the date at December 22, 1971. Also, when appellant testified, he fixed the date of the search as December 22, 1971. We agree with the State that the use of 1972 instead of 1971 in the question asked Crow was a “slip of the lip,” and overrule ground of error number one. Next, appellant contends that the search of the automobile was illegal and in violation of his constitutional rights, and that Crow’s property found in the automobile was improperly received in evidence. The court held a hearing outside tfye presence of the jury and overruled appellant’s motion to suppress. The facts relating to the arrest, search and seizure are as follows: Officer P. O. Wimer, while on routine patrol at about 10:15 P.M., December 22, 1971, saw a man get into an automobile at a parking lot and then saw the automobile proceed into the street without stopping or signalling. The automobile entered the traffic without the usé of its lights. At this time, the automobile was occupied by the driver, the appellant who was in the right front seat fjdid a third man in the back seat. Officer Winter testified that the shopping center adjacent to the parking lot was comprised of a liquor store, a Stop and Go store, a pool hall and a lounge. He had made several narcotic arrests at the parking lot on prior occasions; and, in his opinion, the parking lot was “known as a spot where you can score or buy narcotics.” Officer Wimer stated that the automobile in question did not pull off onto the street at a high rate of speed. The officer and his partner proceeded to stop the automobile on account of the two traffic law violations, whereupon Officer Wimer’s partner walked to the driver’s side and Wimer walked to the passenger side. When appellant opened the passenger door to look out, Officer Wimer told him to get out so he could search him for weapons. After appellant opened the door, the officer noticed “a strong smell of alcoholic beverage.” A search of appellant showed that he had no weapons on his person. Officer Wimer then either pulled up appellant’s sleeves or took off his coat and saw needle marks on both arms, which, in the officer’s opinion, showed appellant was a parcotic user. The officer then got the third man out of the back seat, pat searched him and then took appellant and the third man to the rear of the automobile where he talked to both of them. At this time, Officer Wimer’s partner was standing with the driver (presumably by the driver’s side of the automobile). Officer Wimer walked back to look in the automobile, at which time the third man “run down the street” and was never apprehended. Officer Wimer returned to appellant and handcuffed him. Officer Wimer further testified that appellant had been drinking and perhaps using narcotics. Officer Wimer testified that he took a look inside the automobile because he “(w) anted to see how much wine was in the car and see why that man ran off and left, see if there was a gun in there or something else in the car. Lots of times when we stop somebody and they will run, leave the car and there will be a television sitting in the back seat.” Officer Wimer found one or more of the company checks on the back seat and large, regular grocery sacks on the floor in the back seat and “. . . the wallet and either the check stubs and one check or the other checks were in the grocery sack and the others were on the back seat” in plain view. The wallet contained the driver’s license and credit cards and other cards belonging to Crow. Officer Wimer further testified that when the police stopped the automobile initially it was done so because “that man that was driving the car was driving without lights.” Being asked, “What were you looking for then?” when he looked in the back seat of the car, Officer Wimer testified : “A Wanted to see how much wine was in the car and see why that man ran off and left, see if there was a gun in there or something else in the car. Lot of times when we stop somebody and they will run, leave the car and there will be a television sitting in the back seat. “Q What did you see in the back seat of the car ? “A I found three pieces of paper. I think one of them — I take that back. I found some of these checks here. I don’t recall whether I found the scraps — I think it was this that I found, but I can’t be sure. It was one or the other of them was in this sack. I don’t recall whether this was laying in the seat in the back seat or whether that was, Your Honor. “Q Okay. “THE COURT: Anyway, you found all of the stuff that’s now in that sack in the car ? “THE WITNESS: Yes, sir, we found, like I say, I don’t recall which place I found what, but there were some grocery sacks in the car. Somebody in the car had recently bought groceries and this was either in the seat or this was and the other was in one of the grocery sacks along with a billfold.” The officers were justified in stopping the vehicle for the traffic violations. Art. 14.01, Sec. (b), Vernon’s Ann.C.C.P., provides that an officer may arrest for an offense committed within his presence. Lewis v. State, Tex.Cr.App., 502 S.W.2d 699. When one of the occupants ran away and some of the stolen checks and the sacks were in plain view, under all the circumstances of this case, further search was justified and the fruits thereof were admissible in evidence. Kay v. State, Tex.Cr.App., 489 S.W.2d 861; Buntion v. State, Tex.Cr.App., 476 S.W.2d 317; Black v. State, Tex.Cr.App., 491 S.W.2d 428; Onofre v. State, Tex.Cr.App., 474 S.W.2d 699. Additionally, when appellant testified in his own behalf before the jury, he related that the officers searched the automobile and found the stolen property. By so doing he waived his objection to the legality of the search. Bradley v. State, Tex.Cr.App., 478 S.W.2d 527; Williams v. State, Tex.Cr.App., 479 S.W.2d 301. See Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169. We overrule ground of error number three. The judgment is affirmed. Opinion approved by the Court.

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Oelius EVANS, Jr., Appellant, v. The STATE of Texas, Appellee. No. 48317. Court of Criminal Appeals of Texas. May 15, 1974. James S. Moss, Mesquite, 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 DALLY, Commissioner. The conviction is for felony theft; the punishment, imprisonment for ten years. The only ground of error raised is that the evidence is insufficient to sustain the conviction because there is a material variance between the alleged name of the complainant and the proof offered. The indictment alleges the owner of the stolen property to be Daniel Wier. The transcript of the court reporter’s notes reflects and the State acknowledges the proof shows the complainant’s name to be Dan R. Wier. There is no proof in the record that the appellant was known both as Dan and Daniel Wier. Article 21.07, Vernon’s Ann.C.C.P. provides : “In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names it shall be sufficient to state either name . . . ” Does a variance result where two names are derived from the same source or where one is an abbreviation or corruption of another but both are taken by common use to be the same though differing in sound? The decisions in this State have answered the question both ways. Some say in the absence of proof that the injured party was known by the name alleged or in the absence of proof of the contraction, derivation or corruption of the name, the Court will not take judicial notice of the contraction, derivation or corruption of such name. See Humbard v. State, 21 Tex.R. 200, 17 S.W. 126 (1886); Owens v. State, Tex.Cr.App., 20 S.W. 558 (1892) ; Waters v. State, Tex.Cr.App., 31 S.W. 642 (1895); and 1 Branch’s Ann.P. C.2d 469, § 480. It has also been said that where two names have the same derivation or where one is an abbreviation or corruption of the other but both are taken according to common use to be the same the use of one for the other is not a material misnomer. See Goode v. State, 2 Tex.App. 520 (1877) ; Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174 (1896); 40 Tex.Jur.2d 379-380, § 8, Names, and compare State Bank & Trust Co. v. W. O. Horn & Bro., 295 S.W. 698 (Tex.Civ.App.1927). We resolve the conflict by adopting the rule applied in Alsup v. State, supra, where the Court held that a variance did not result when the name alleged was Robert Thomas and the State proved the complainant’s name was Bob Thomas. The Court took judicial knowledge of the contraction, derivation and corruption of names and held that it was unnecessary to introduce any evidence to show that Bob meant Robert. We hold in this case that proof that the owner of the property was Dan R. Wier supports the allegation that the owner of the property was Daniel Wier. The cases in conflict with this holding are overruled. The judgment is affirmed. Opinion approved by the Court. . No particular issue has been made regarding the middle initial — the adding or deleting of a middle name or initial does not create a variance since it is not essential to allege a middle name. See Swain v. State, 498 S.W.2d 188 (Tex.Cr.App.1973) ; Cepeda v. State, 489 S.W.2d 907 (Tex.Cr.App.1973). . In the Court’s charge the name Daniel Wier was used without objection. . The complainant’s name was alleged to be R. J. Huckaby. It was held a variance resulted when proof showed the name was Becky Jane Huckaby. . The complainant’s name was alleged to be Lettie Owens. It was held a variance resulted when proof showed the name was Letitia Owens. . The complainant’s name was alleged to be Edith C — . It was held a variance resulted when proof showed the name was Edie C — . . The complainant’s given name was alleged to be Mary Etta. It was held no variance resulted when proof showed the name was Marietta. . Many examples are given in this opinion, including Daniel and Dan. . More careful interrogation of complaining witnesses concerning their names would eliminate many questions which are presented for review.

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Jimmie Don HOLLIS, Appellant, v. The STATE of Texas, Appellee. Nos. 48295, 48296. Court of Criminal Appeals of Texas. May 15, 1974. Peter S. Chamberlain, Dallas, for appellant. Henry Wade, Dist. Atty., Richard W. Wilhelm, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. The appellant was charged, by two indictments, with the offense of rape. The two cases were tried together by a single jury, on appellant’s plea of not guilty, and resulted in conviction. Punishment was assessed by the court at 25 years’ imprisonment in each case. Appellant’s first two grounds of error challenge the sufficiency of the evidence. He contends that the testimony of each prosecutrix is “. . . permeated with utterly unbelievable statements, with inconsistencies, and with evidence of poor recollection or evasion ...” such that it is insufficient to serve as a basis for conviction. The transcript of testimony reflects that the victims, both college students, were roommates at the time of the offense. Each testified that on the day of the offense they had been celebrating the twenty-second birthday of one of the victims. They had left their apartmant in a residential area, and driven to downtown Dallas in search of a night club where some friends of theirs were performing. They testified that they did not know the name of the club, but were aware of its general location. They parked their car and entered one or two clubs in an effort to find the one in question. As they were leaving one of these clubs, a man, later identified as appellant, approached one of the girls and said something to her. She testified that she ignored him and could not remember what he said. As the young women were crossing the street, appellant again approached them and, displaying a revolver, ordered them to “shut-up” and go to the car. Appellant then forced one of the girls to drive to a secluded park and stop, at which time he ordered her from the car. Getting out of the car himself, he turned to prosecutrix A, who was in the back seat, and ordered her to be silent. He told pros-ecutrix A that he would kill prosecutrix B, who was then outside the car, if prosecu-trix A made any noise or attempted to leave. Appellant then led prosecutrix B into the woods, to a small park bench and table. She testified that he ordered her to remove her clothes and lay on the table; that she did so; and that appellant then removed his trousers and, laying the gun at her head, had sexual intercourse with her. Prosecutrix B testified that she was then allowed to dress and was ordered back to the car, but that she fled and called the police. Meanwhile, appellant returned to the car and ordered prosecutrix A to accompany him. He led her to the same location and repeated the procedure used with prosecu-trix B. Prosecutrix A testified that, upon completing the act of intercourse with her, appellant led her back to the car. When they were about half-way to it, the police arrived and appellant fled. He was captured shortly thereafter and returned to the scene, where he was identified. Both women testified that appellant penetrated their sexual organs, that the act occurred without their consent and against their will, that they were in fear of their lives, and that the pistol was within appellant’s reach during both of the acts. The evidence was sufficient. Appellant’s grounds of error three, four and five urge that his cross-examination of one of the prosecuting witnesses was improperly limited and that the State improperly failed to disclose certain information regarding her financial background. The prosecutrix testified that at the time of the offense (July, 1971) she owned a 1970 model MG automobile. She also testified that she held a student job, based on financial need, in order to attend Bishop College in Dallas, and that she had obtained some financial assistance in the form of student loans. Outside the presence of the jury, appellant sought to delve more deeply into her financial status, arguing that the inconsistency between her ownership of a year-old sports car and her need for financial assistance was a factor affecting her credibility. The court sustained the State’s objection to the effort. Thereafter, appellant made no attempt to develop this testimony by either formal or informal bill of exception. The present state of the record is such that we cannot determine whether such an inconsistency did, in fact, exist. Absent perfection of a bill of exception, the error, if any, is not presented for review. See Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971) ; and Alexander v. State, 476 S.W.2d 10 (Tex.Cr.App.1972). Appellant’s sixth ground of error urges that the prosecuting attorney prejudiced him when he injected the name of Che Guevera, a revolutionary, into the case. The record reflects that the prosecutor was questioning a defense witness regarding a picture appellant had drawn. He asked “Would that be Che Guevera?” at which point appellant objected; objection was sustained. The witness then testified that she did not know who the picture was supposed to depict. Appellant did not request that the jury be instructed to disregard the matter. Nothing is preserved for review. See Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972). Appellant’s grounds of error seven and eight relate to the court’s refusal to discharge two prospective jurors for cause. One of the jurors expressed an unwillingness to consider probation in the event appellant was found guilty, and the other expressed a prejudice against the use of alcohol. There is no showing that either of these persons served on the jury, and appellant alleges in his brief that he used peremptory challenges to eliminate them. It is not urged that appellant was forced to take an unacceptable juror, nor is any other harm alleged. There was no error. See Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). Appellant’s ninth ground of error urges that the indictments against him should have been quashed because of the requirement of Art. 19.01(2), Vernon’s Ann.C.C. P., requiring grand jury commissioners to be freeholders. Citing no authority, appellant argues that this requirement denied him equal protection, due process and a “fair trial.” As originally enacted, Art. 19.01(2), supra, did require that grand jury commissioners be freeholders. However, that requirement was eliminated by amendment of the article in 1971. See acts 1971, 62nd Leg., p. 905, ch. 131, Sec. 1, effective May-10, 1971. The indictments against appellant were not returned until August 23, 1971. The record does not reflect an attempt by appellant to show that non-freeholders were excluded from service as jury commissioners. Appellant’s contention is without merit. Appellant’s last contention is as follows: “The cumulative effect of the aforementioned errors and each of them calls for reversal of these cases.” This is not a proper ground of error and presents nothing for review. The judgment is affirmed. .The record reflects that the amendment to Art. 19.01(2) was brought to appellant’s attention when the motion to quash was offered, and at that time, counsel for appellant conceded that his position was without merit. On appeal, he urges that the amendments altered only the qualifications of grand jurors, and did not affect those of commissioners. This is clearly an incorrect reading of the statute, which applies expressly to jury commissioners.

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FIRST STATE BANK & TRUST COMPANY OF HOUSTON, Appellant, v. Fred M. TANNER, Appellee. No. 16291. Court of Civil Appeals of Texas, Houston (1st Dist.). April 11, 1974. Rehearing Denied May 9, 1974. Strickland & Gordon, Irving C. Stern, Houston, for appellant. Bailey, Blum & Lipper, Joseph Lipper, Houston, for appellee. COLEMAN, Chief Justice. This is a suit to recover on a dishonored check from an endorser. The case was tried to a jury and judgment was entered in favor of the defendant on the jury verdict. In 1965 defendant approached the bank and requested a loan to pay off several personal notes held by the bank and for additional cash. The bank approved -the loan subject to a valid first lien on certain real estate. City Title Company was brought into the transaction to issue a title policy. The evidence is disputed as to whether the plaintiff or the defendant selected the title company. The bank sent the title company a note for $4,800.00 to be signed by the defendant and his wife and a bank draft payable to the title company in the same amount to be disbursed when the title policy was issued. The title company deposited the check in its account and reissued a check dated April 16, 1965 payable to defendant, but delivered the check to the bank. The transaction was closed April 16, 1965 and on April 24, 1965 the defendant was called to the bank to endorse the check for deposit and retire $3,264.24 of debts. The check was returned to plaintiff on April 27, 1965. The title company was declared bankrupt. The jury found: (1) that the City Title Company was selected by the plaintiff Bank as disbursing agent; (4) that the Bank by accepting payment in full of the promissory note dated April 16, 1965 is es-topped from holding the defendant liable on the check; (5) that the plaintiff failed to deliver the check in the amount of $4,498.00 to the defendant for replacement by a cashier’s check; (6) that such failure constituted an estoppel as that term is defined. The trial court instructed the jury that “ . . . estoppel arises whenever, by the fault of one party, another has been induced to change his position for the worse.” The jury failed to find that the title company knew on April 16, 1965 that the $4,498.00 check was insufficient. It also failed to find that the bank, on April 16, 1965, had knowledge of such facts concerning the insolvency of the City Title Company; that the bank’s action in crediting the check for $4,498.00 amounted to bad faith. The bank contends that as a matter of law the title company was an escrow agent for both parties. There was admitted into evidence a copy of a letter from Mr. Hodges, a vice president of the bank, to Mr. Gordon, the attorney for the bank, as a business record. The letter reads: “The Bank is contemplating a loan to Mr. Fred M. Tanner, in the amount of $4,800.00 to run for ten years at 7%. The Bank will retain two points brokerage on the loan. The loan will be secured by an improved piece of property described as . . .on which we hold an appraisal in our file in the amount of . Mr. Tanner informs us the title to this property rests in his name only and he would prefer that City Title Company be used in closing . . .” A letter from Mr. Hodges to the City Title Company was admitted which reads: “Enclosed is our bank money order No. 71894 in the amount of $4,800.00 which you are authorized to disburse when you are in a position to issue your title policy showing ours to be a first and superior lien on the subject property. “Disburse in accordance with instructions tendered by Gerald F. Gordon, and retain two points brokerage for the Bank.” There is a letter from Mr. Gordon to the title company enclosing a $4,800.00 note, a deed of trust and Homestead Affidavit with instructions to require the execution of these records and that the title company file them for record immediately. The title company was then directed to collect charges for their premiums for recording, for taxes, for the mortgagee’s title policy, for the tax certificates, for a mortgagee’s fee of $96.00, and for attorney’s fees. The title company was to retain, disburse, or forward to the bank these items as appropriate. The letter concludes: “If there is any question in connection with this transaction, please call the writer prior to closing.” A mortgagor’s statement signed by the title company shows that from the proceeds of the loan, $4,800.00, there should be deducted charges payable by the mortgagor for the title policy, recording fees, attorney’s fees, bank’s “two points,” tax certificates and a survey, in the total sum of $402.00, leaving due to the mortgagor out of the proceeds of the loan the sum of $4,498.00. The title company drew a check on its general funds in this amount and forwarded the same to the bank. This check was subsequently presented to Mr. Tanner who endorsed it for deposit and thereupon gave to the bank his check in the approximate sum of $3,000.00 in payment of certain loans which he had with the bank. The bank then sent the check through appropriate channels for collection. Before the check was returned Mr. Tanner had withdrawn most of the funds from his personal account. The title company did not receive or hold these funds as a true escrow. There was no escrow agreement and the title company owed no obligation to Mr. Tanner with respect to the funds which it was holding pending the consummation of the transaction. The title company was the agent of the bank to disburse the funds which it held in accordance with the bank’s instructions. City of Ft. Worth v. Pippen, 439 S.W.2d 660 (Tex.1969). The bank could not be a holder in due course against Tanner of a check issued to him by the bank’s agent as a. loan from the bank. As a result of this transaction the bank had in its possession a note for the sum of $4,800.00 payable to the order of the bank and executed by Mr. and Mrs. Tanner. It also had a check which was endorsed by Mr. Tanner in the sum of $4,498.00 which had not been paid by the maker. Mr. Tanner had only received the latter sum. He elected to pay in full the note which was secured by a lien on his real estate. The jury found that by accepting payment of this note the bank became estopped from holding the defendant liable on the $4,498.00 check. The note and the check represent in equity the same obligation. It was merely evidenced by two writings. Once the note was paid in full, the obligation was discharged, and equity will not permit the bank to assert that Mr. Tanner is liable to it by reason of his endorsement of the check. In Parma v. First National Bank of Cameron, 63 S.W.2d 692 (Tex.Com.App.1933), the court quotes with approval the following equitable maxim: “When one of two persons, equally entitled to consideration as far as their purposes are concerned, must suffer from the delinquency of a third, the loss more properly falls upon him, who having readily at hand the means of protection, has failed to avail himself of them.” This doctrine has been recognized by this court and made the basis of several decisions. Hankamer v. Delta Leasing & Investment Corporation, 481 S.W.2d 491 (Tex.Civ.App.—Houston, 1st, 1962, writ ref. n. r. e.). Either the bank or Mr. Tanner must suffer a loss by reason of this transaction. The loss is occasioned by the default of the agent of the bank, who in this transaction was following the instructions of the bank. The judgment is affirmed.

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William Earl CLARK et ux., Appellants, v. TARRANT COUNTY CHILD WELFARE UNIT, Appellee. No. 17497. Court of Civil Appeals of Texas, Fort Worth. April 19, 1974. Law Offices of Jack W. Beech, and Max Blankenship, Fort Worth, for appellants. Tim Curry, Crim. Dist. Atty., Tarrant County, and Bob Marshall, Asst. Dist. Atty., Fort Worth, for appellee. OPINION BREWSTER, Justice. The appellants, William Earl Clark and wife, Barbara Ann Clark, filed an application for a writ of habeas corpus in Domestic Relations Court No. 4 of Tarrant County, Texas, against the Tarrant County Unit Director of the Texas State Department of Public Welfare and others seeking to recover the custody of several children. Barbara Ann Clark was the mother of all the children and William Earl Clark was the father of some of them. The judge of that court denied the relief prayed for and appellants here appeal from that decree. Appellants, in this habeas corpus action filed in Domestic Relations Court No. 4 of Tarrant County, sought to collaterally attack and to have declared void a prior judgment signed and rendered on March 9, 1972, by the Judge of Domestic Relations Court No. 2 of Tarrant County in a case pending in that court. The judgment attacked had decreed the children involved to be dependent and neglected children, had terminated the parental rights of these appellants, and had awarded custody of the children to the Unit Director of the State Department of Public Welfare. At all times referred to herein the Domestic Relations Court No. 2 of Tarrant County had been properly designated in the manner prescribed by law as the Juvenile Court of that county and was acting as such. All parties admit the above facts so we accept them as true. See Rule 419, Texas Rules of Civil Procedure. Appellants admit in their brief that in the dependency action they were duly served with citation, that a trial was had, that judgment was rendered therein and entered in the minutes decreeing the children to be dependént and neglected, that appellants here did not appeal from that judgment, and that it became a final judgment. Appellants contend that the dependency decree was invalid and that the trial court in this case for that reason erred in denying their petition seeking to recover custody of their children. Their contention in the trial court was and here is that the dependency decree rendered by the Domestic Relations Court No. 2 of Tarrant County was void because: (1) Article 5, Section 8, of the Texas Constitution, Vernon’s Ann.St. vested exclusive jurisdiction of dependent and neglected children cases in district courts and Article 2338-15a giving the Domestic Relations Court No. 2 of Tarrant County jurisdiction to try such cases was therefore unconstitutional; and (2) because Article 2338-1, Section 24-A, also provided that the district court only shall have original jurisdiction of dependent and neglected child cases and since this was true the judgment of Domestic Relations Court No. 2 decreeing the children to be dependent and neglected was illegal and void. We overrule both of these contentions and affirm the trial court’s judgment. Article 2338-1 Sa, Section 3, provides that the Domestic Relations Court No. 2 of Tarrant County shall have jurisdiction concurrent with the district and other domestic relations courts to try dependent and neglected child cases. 1. Is that provision in the statute that creates and provides the jurisdiction of that court unconstitutional? We hold that it is not. Article 5, Section 8, of the Texas Constitution, does provide: “The District Court shall have . . . original jurisdiction and general control over minors under such regulations as may be prescribed by law.” Domestic Relations Courts, such as the ones involved here, are not district courts within the meaning of that constitutional provision. See Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (1950). But Article 5, Section 1, of the Constitution, provides as follows: “The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law. “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” It is noted that Art. 2338-15a does not take away any of the jurisdiction that is vested in the District Courts. District Courts still have the right or jurisdiction to try dependent and neglected child cases. The statute simply creates a new court and gives it concurrent jurisdiction with the district courts to try that class of cases in order to help relieve the crowded dockets that have resulted from the population growth that has occurred. We hold that the Constitution contains no provision that prohibited the Legislature from enacting Art. 2338-15a. In fact the last paragraph of Art. 5, Sec. 1, of the Constitution, expressly gives the Legislature the power to enact statutes creating courts that it deems necessary and to prescribe the jurisdiction of such courts and to conform the jurisdiction of the district courts thereto. This was exactly what the Legislature did when it enacted Art. 2338-15a, which statute created Domestic Relations Court No. 2 of Tarrant County and prescribed its jurisdiction. Similar questions have been before Texas appellate courts before. The following cases support our holding that the provision of Art. 2338-15a that is here under attack is not unconstitutional: State v. McClelland, 148 Tex. 372, 224 S.W.2d 706 (1949); Jordan v. Crudington, supra; and Carter v. Missouri, K. & T. Ry. Co. of Texas, 106 Tex. 137, 157 S.W. 1169 (1913). The court in this last cited case was speaking of the last paragraph of Art. 5, Sec. 1, of the Texas Constitution, which is above set out, when it said at page 1172 of the opinion, the following: “We are of opinion that the effect of that provision was to confer authority upon the Legislature to create emergency courts and in their organization to provide the means by which the existing evils could be remedied expeditiously. The manifest purpose of the people in adopting that amendment was to enable the Legislature to meet such conditions as are present in this case, and it is the duty of the courts to act in harmony with the spirit of that amendment, and to give to it a liberal construction. It would be difficult to express more definitely the authority conferred in that clause of the Constitution — to ‘establish such other courts as it may deem necessary’ — which places in the discretion of the Legislature the character and number of courts that may be created as well as the manner in which the officers shall be chosen. The territory over which the jurisdiction of such court may be exercised and the subjects upon which its authority may be exerted are at the discretion of the Legislature.” The next question for our determination in deciding this case is: 2. Is the provision in Art. 2338-15a, Sec. 3, which gives the Domestic Relations Court No. 2 of Tarrant County jurisdiction concurrent with District and other Domestic Relations Courts of dependent and neglected child cases invalid because of being in conflict with the provision contained in Art. 2338-1, Sec. 24 — A, providing that the District Court only shall have original jurisdiction in all dependent and neglected child cases? We hold that the questioned provision above referred to of Art. 2338-15a, Sec. 3, is not invalid for the reasons urged by appellants. The 1973 Acts of the 63rd Legislature of Texas, p. 1485, Ch. 544, enacted Title 3, of the Texas “Family Code” which resulted in the repeal of all of Art. 2338-1. But such statute had not been repealed by the Legislature by the enactment of the “Family Code” at the time the judgment here being attacked was rendered on March 9, 1972. See Chapter 51, Texas Family Code, V.T. C.A. Article 2338-1, Sec. 24-A, provided: “. . . the District Court only shall have original jurisdiction in all proceedings wherein it is sought to have a child adjudged to be a dependent or neglected child, .” (Emphasis ours.) This section of that statute was enacted by the Legislature in 1943. That statute was in existence at the time the Legislature created Domestic Relations Court No. 2 of Tarrant County in 196S by the enactment of Art. 2338-15a. This last statute became effective August 30, 1965. The Legislature that enacted Art. 2338-1, Sec. 24-A, could not and did not by enacting such statute create a law that could not be repealed. A later Legislature can repeal any existing statute at will. Jefferson County v. Board of County and Dist. R. Indebt., 143 Tex. 99, 182 S.W.2d 908 (1944) and 53 Tex.Jur.2d 139, Statutes, Sec. 93. In the period between 1949 and the present date the Texas Legislature has enacted over 30 statutes that created over 30 Courts of Domestic Relations and Juvenile Courts. The statutes creating these courts are set out in Volume 7A of Vernon’s Ann.Civ.St. and start with the Potter County Domestic Relations Court that was created by Art. 2338-3, V.A.C.S., in 1949. In each of the statutes referred to the court thereby created is expressly given concurrent jurisdiction with the District Courts to try neglected or dependent child proceedings. We consider the provisions of each of those statutes giving each of these newly created courts concurrent jurisdiction with the District Courts of neglected or dependent child proceedings to be in direct and irreconcilable conflict with the provision in Sec. 24-A of Art. 2338-1, V.A.C.S., providing that, “ . . . the District Court only shall have original jurisdiction in all proceedings wherein it is sought to have a child adjudged to be a dependent or neglected child, . . . .” (Emphasis ours.) Article 2338-15a, V.A.C.S., is the statute that created the court that rendered the decree claimed here to be invalid. The court created thereby was Domestic Relations Court No. 2 of Tarrant County. The statute provided that that court would have jurisdiction concurrent with the District Court and other Domestic Relations Courts sitting in the county to try neglected or dependent child proceedings. This provision was in direct and irreconcilable conflict with Art. 2338-1, Sec. 24-A, giving only the District Courts jurisdiction to try such cases. We hold that the Legislature of Texas by enacting Art. 2338-15a, V.A.C.S., by necessary implication repealed the part of Sec. 24 — A, Art. 2338-1, V.A.C.S., providing that only District Courts would have jurisdiction to try dependent and neglected child cases. This repeal occurred when the Legislature enacted Art. 2338-15a, V.A.C.S., in 1965, creating the Domestic Relations Court No. 2 of Tarrant County and therein provided that it too would have concurrent jurisdiction with the district and other domestic relations courts to try dependent and neglected child cases. The following is from 53 Tex.Jur.2d 146, Statutes, Sec. 100: “A new enactment, even though it contains no repealing clause, abrogates any former act on the same subject with which it clearly and manifestly conflicts, to the extent of the inconsistency or repugnancy between the two. This constitutes a repeal by implication, or, more properly speaking, by necessary implication. “Implied repeal is a matter of legislative intent, that is, a statute is repealed by implication when it clearly appears that this was the intention of the legislature. The passage of a statute that is conflicting and inconsistent with, and repugnant to, former acts on the same subject, shows an intent to repeal these acts.” When the legislature passed more than 30 additional statutes giving newly created courts other than district courts the jurisdiction to try such cases it is not difficult to ascertain that the legislature had determined that the time had arrived when it was best that the jurisdiction to try such cases not be limited to just the district courts. The legislature obviously intended by the enactment of these new statutes to repeal Sec. 24-A of Art. 2338-1, V.A.C.S., in so far as it provided that only district courts could try such cases. In addition to what we have said we call ‘attention to the fact that two of the above referred to statutes that created domestic relations courts and gave them the jurisdiction concurrent with the district courts to try dependent and neglected child cases contained provisions that expressly repealed all laws in conflict therewith. One such statute was Art. 2338-17, V.A. C.S., that created the Domestic Relations Court of Taylor County. This law was enacted by the Legislature in 1963, which was prior to the creation of Domestic Relations Court No. 2 of Tarrant County in 1965. This statute gave that Taylor County Domestic Relations Court jurisdiction, concurrent with the district courts, to try dependent and neglected child cases. It also contained the following provision: “Sec. 20. All laws or parts of laws in conflict herewith are hereby repealed to the extent of the conflict, but otherwise this Act shall be cumulative of existing laws.” The other statute containing such a clause was Art. 2338-19, V.A.C.S., by which statute the legislature created the Domestic Relations Court of Brazoria County, and provided that it too would have jurisdiction concurrent with the District Court to try dependent and neglected child cases. The law was enacted and made effective June 1, 1965, which was also before the creation of Domestic Relations Court No. 2 of Tarrant County. It also had a clause expressly repealing all laws in conflict therewith. The provision contained in Sec. 24-A, Art. 2338-1, V.A.C.S., providing that only district courts could try dependent and neglected child cases was in direct and irreconcilable conflict with the provisions of the two later statutes just referred to above giving these two new courts jurisdiction to try such cases. They gave courts other than district courts the jurisdiction to try such cases. We hold that the Legislature, by enacting these two last mentioned statutes, expressly repealed the part of Sec. 24-A, Art. 2338-1, V.A.C.S., that provided that only district courts had jurisdiction to try dependent and neglected child cases. The following is from 53 Tex.Jur.2d 142, Statutes, Sec. 96: “A general repeal declares, in substance, that all acts and parts of acts in conflict with the new enactment are repealed, .... “In the absence of any constitutional prohibition against such a method, a general repealing clause is effective to repeal prior enactments to the extent that they are inconsistent with, or repugnant to, the terms of the later statute.” For the reasons stated we hold that Domestic Relations Court No. 2 of Tarrant County did have jurisdiction to try the dependent and neglected child case involved here and that the judgment it rendered therein was not invalid. Affirmed.

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Caselaw Access Project

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CATTLE LAND OIL CO., Appellant, v. WILLIS DRILLING COMPANY, INC., Appellee. No. 886. Court of Civil Appeals of Texas, Corpus Christi. April 30, 1974. Porter, Taylor, Gonzalez & Thompson, Corpus Christi, for appellant. Bates & Hendrix, Edinburg, for appel-lee. OPINION PER CURIAM. This is an attempted appeal from the trial court’s order overruling appellant’s plea of privilege. A hearing on the issue of venue was held on February 28, 1974; the trial court notified the parties on March 4, 1974 that appellant’s plea of privilege would be overruled. The judgment overruling same was rendered, signed, and entered on March 14, 1974. The clerk of the district court did not send counsel for appellant the postcard notice notifying appellant of the signing of the order overruling the plea of privilege, as provided in Rule 306d, Texas Rules of Civil Procedure. Appellant, however, received actual notice of the rendition, signing and entry of such order on March 16, 1974, filed notice of appeal and appeal bond on March 21, 1974, and ordered the transcript and statement of facts on March 22, 1974. The transcript and statement of facts were tendered to the Clerk of this Court for filing on April 9, 1974, which was twenty-six days after the judgment overruling the plea of privilege was signed, rendered and entered. Appellant, on April 9, 1974, filed a motion in this Court for an extension of time for the filing of the statement of facts and the transcript “so that same may be filed on or before April 10, 1974”. It is contended by appellant that good cause exists for the granting of such motion because of the failure of the district clerk to comply with Rule 306d. The question thus arises as to the efficacy of the attempted filing of the record by appellant, and the power of this Court to accept the record. Rule 385, T.R.C.P. states: “Appeals from interlocutory orders (when allowed by law) may be taken by (b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof.” The time limits imposed by Rule 385 are mandatory and jurisdictional. Walker v. Cleere, 141 Tex. 550, 174 S.W. 2d 956 (1943). The timely filing of the record in compliance with the Rule is necessary to confer jurisdiction of an appeal of an interlocutory order from the trial court to the Court of Civil Appeals. State v. Gibson’s Distributing Company, 436 S. W.2d 122 (Tex.Sup.1968). The authority of the Court of Civil Appeals to extend the time for filing the record beyond the twenty day period arises only when a motion is filed within the twenty day period or within five days thereafter showing good cause therefor. Homestead Lumber Co. v. Harris, 178 S.W.2d 161 (Tex.Civ.App.—Waco 1944, n. w. h.); Texas State Bank of Alice v. John F. Grant Lumber Co., 169 S.W.2d 224 (Tex.Civ.App.-—San Antonio 1943, n. w. h.). Since the record was not tendered for filing in this Court within the prescribed twenty days, nor was a motion filed to extend the time for filing same within five days after the prescribed twenty days, this Court is without jurisdiction to consider the appeal. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Tinney v. Tinney Produce Company, 324 S.W.2d 268 (Tex.Civ.App.—Houston 1959, writ ref’d); Davis v. Campbell, 319 S.W.2d 758 (Tex.Civ.App.—Amarillo 1958, n. w. h.); Fred Hall & Son v. New, 279 S.W.2d 174 (Tex.Civ.App.—Waco 1955, n. w. h.). See also Edwards v. Hughes, 377 S.W.2d 235 (Tex.Civ.App.-—Corpus Christi 1964, n. w. h.); Thacker v. Thacker, 490 S.W.2d 234 (Tex.Civ.App.—Amarillo 1973, n. w. h.). Appellant’s contention that the failure of the district clerk to send the postcard notice “tolled” the running of time for the filing of this record cannot be sustained. A close look at Rule 385 shows that the record must be filed “within twenty days after rendition of the order appealed from” and not within twenty days after notice to the appellant of the order appealed from. Moreover, Rule 306d further provides: “Failure to comply with the provisions of this rule (by the clerk) shall not affect the finality of the judgment or order”. Good cause is not shown by appellant as to why his motion for extension of time to file the record could not have been filed within twenty-five days, with or without the record. If the quoted provisions of Rule 385 are mandatory, exclusive and jurisdictional, as we hold they are, then the fact that appellant filed the record six days late and his motion for extension of time one day late, regardless of the reason why the record or motion was not sooner filed, all became immaterial insofar as the power of this Court is concerned. The motion for extension of time within which to file the record is denied. The appeal is dismissed.

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KING SON WONG et ux., Appellants, v. CARNATION COMPANY et al., Appellees. No. 955. Court of Civil Appeals of Texas, Houston (14th Dist.). April 10, 1974. Rehearing Denied May 1, 1974. Homer T. Bouldin, Houston, for appellants. Thomas P. Sartwelle, Russell H. Mc-Mains, Fulbright & Crooker, Marvin King, Houston, for appellees. CURTISS BROWN, Justice. This is a personal injury case. Appellants, plaintiffs below, received personal injuries when defendant’s truck struck the car in which they were riding. The jury found, in response to special issues, that the defendant driver failed to keep a proper lookout, failed to make proper application of his brakes, and failed to .yield the right of way. It also found that appellants failed to wear available seat belts, that this was negligence and a proximate cause of their injuries, and that the failure caused fifty percent of the husband’s injuries and seventy percent of the wife’s. The trial court entered judgment for plaintiffs reducing the jury award by fifty and seventy percent respectively. Appellants filed a motion to disregard findings on the seat belt issues, assigned the overruling of this motion as error in their motion for new trial, and assigned points of error in their brief that there was no evidence to support the jury’s findings on these issues. Driving without using available seat belts is neither actionable negligence, Quinius v. Estrada, 448 S.W.2d 552 (Tex.Civ.App. — Austin 1969, writ ref’d n.r.e.), nor contributory negligence that would bar recovery. Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App.- — -Houston [1st Dist.] 1968, writ ref’d n.r.e.). The question in this case is whether a plaintiff’s recovery can be reduced by the amount of damages attributable to his failure to use available seat belts. This question was approached, but not decided, in Mercer v. Band, 484 S.W.2d 117 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ). There the court stated that cases in other jurisdictions have held that there is no duty to use an available seat belt and that such a rule precludes the consideration of failure to use as a mitigation factor. However, the court in Mercer found it unnecessary to decide the issue, because no evidence of probative value was available to show the effect that seat belts would have had on the injuries sustained. In the present case, appellees point to evidence in the record supporting the desirability of the use of seat belts as a safety measure. Appellees also say that the entire front end of the Wong vehicle struck the right front fender of the milk truck head-on, and thus was the type of accident in which the use of seat belts would be most effective. In addition they claim that Mr. Wong’s brain concussion and whiplash, as well as Mrs. Wong’s broken nose and whiplash, were injuries typically preventable by the use of seat belts. The medical proof is scant. The only doctor who testified first stated, “Well, I would have to speculate like anyone else. I think that the seat belts certainly do prevent a lot of these types of accidents” (emphasis added). Thereafter the doctor stated, “Yes. I think seat belts probably without a doubt would reduce the likelihood of a head or facial injury by keeping you off of the windshield or dashboard.” There was no evidence, medical or otherwise, to support the jury’s findings of percentage contribution. The Texas Supreme Court has recently decided Kerby v. Abilene Christian College, 503 S.W.2d 526 (Tex.Sup.1973), which we feel controls our decision in this case. In Kerby, the driver of a delivery van was injured in a collision when he fell through the open door of his van and the vehicle then fell on him. The jury found that his failure to close his door caused thirty-five percent of his injuries. The trial court entered judgment for Kerby, reducing the jury award by thirty-five percent. On appeal, the court of civil appeals held the finding on negligent failure to close his door amounted to a finding of contributory negligence and would completely bar any recovery. The Supreme Court originally reversed the court of civil appeals and affirmed the trial court, but, on rehearing, it withdrew its original opinion and substituted one which reversed and rendered judgment for Kerby for the full amount of the jury award. The present case was tried at a time between the two Kerby opinions. In Kerby, the Court began by distinguishing between negligence contributing to an accident and negligence contributing to damages sustained, stating that the negligence of the latter type, which merely increases injuries caused by another’s negligence, will not bar recovery. It analogized driving with an open door to failure to use available seat belts. The Court then concluded that there was no evidence in the case which would support the jury's finding that the open door caused thirty-five percent of his injuries. The court went on to elaborate on its position: We are aware of the conceptual difficulty of applying the mitigation of damages, concept to Plaintiff’s conduct antedating the negligence of the Defendant. We are aware of holdings in the analogous case of failure to fasten seat belts that such failure would not reduce a non-negligent Plaintiff’s recovery by the amount of additional damages occasioned by his failure to wear seat belts. (Citing cases from other jurisdictions). Cases intimating that a reduction of the Plaintiff’s damages might be proper in such an instance have nonetheless denied reduction of damages on the ground that the Defendant failed to raise the fact issue. (Citing cases from Texas and other jurisdictions). The experts in the instant case confessed an inability to determine what injuries would have been suffered had the door- been closed. Even if there were proof that the particular injury suffered would not have been suffered had Kerby avoided being thrown from his truck, it would not support the jury’s finding of percentage contribution. We reverse the judgments of the courts below, and render judgment for Plaintiff for $94,050. We interpret the second sentence of the Court’s final paragraph to say that contribution to injury cannot be proven by evidence that the particular injury suffered would not have been sustained had seat belts been used. This is tantamount to holding that in Texas law the concept of mitigation of damages has no application to a plaintiff’s actions which antedate the defendant’s negligence. In so rejecting this antedative mitigation of damages defense, the Texas Supreme Court joined the highest state courts in Alabama, Idaho, Kansas, North Carolina, Oregon, and Washington. We therefore hold that there is no duty to mitigate damages by wearing available seat belts. Accordingly, we reverse the judgment of the trial court and render judgment for the appellants for the full amount of the jury’s damage award for physical pain and mental anguish. Reversed and rendered. ON MOTION FOR REHEARING Appellees have pointed out in their motion for rehearing that we incorrectly stated in our opinion that the present case was tried between the two Kerby opinions. Although it has no bearing on our decision in the case, in the interest of accuracy, we note that the present case was, in fact, tried before the Supreme Court’s first opinion in Kerby. Judgment was entered, however, between the two opinions. The motion for rehearing is, in all other respects, overruled.

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COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee. No. 843. Court of Civil Appeals of Texas, Corpus Christi. April 25, 1974. Rehearing Denied May 23, 1974. O. F. Jones, Victoria, for appellant. Daryl Bristow, Baker & Botts, Houston, for appellee. OPINION BISSETT, Justice. This is a suit by one insurance company against another insurance company for a declaratory judgment that the sued company be required to pay the suing company part of a money settlement which the suing company negotiated with a third party in a prior lawsuit. Commercial Standard Insurance Company hereinafter called “Commercial Standard” on April 26, 1972, instituted suit against Southern Farm Bureau Casualty Insurance Company hereinafter called “Farm Bureau” for contribution out of a $52,000.00 settlement which Commercial Standard had negotiated in the prior lawsuit. Following a jury trial, a take nothing judgment was rendered in favor of Farm Bureau. Commercial Standard has appealed. We affirm. Certain facts are undisputed. Át all times pertinent to this appeal, 1) there was in force and effect a policy of general automobile liability insurance that was issued by Commercial Standard to Dye Trucking Company, which policy provided that under certain circumstances the policy was applicable to a truck which was not owned by Dye, but which was being operated in behalf of Dye’s business; and 2) there was in force and effect a policy of general automobile liability insurance that was issued by Farm Bureau to one Aubrey L. Johse. On September 18, 1970 (when both insurance policies were in force), Johse, the owner-operator of a truck while hauling gravel for Dye under a contract, was involved in a collision with a vehicle then being driven by one Jesus Gomez. Suit was filed by Gomez against Johse on November 1, 1971, to recover for severe personal injuries sustained by him in the accident. Johse, who was served with citation on November 9, 1971, promptly delivered the petition and citation to Dye, who, in turn, delivered the same to Commercial Standard. An answer in behalf of Johse was filed by Commercial Standard on November 18, 1971. On March 20, 1972, Commercial Standard made a formal request that Farm Bureau defend Johse in the suit that was filed against him by Gomez. The Gomez-Johse case was set for trial on March 27, 1972. Commercial Standard, by letter dated March 24, 1972, advised Farm Bureau that it had agreed to pay Gomez $52,000.00 in settlement of the suit and demand was made that Farm Bureau pay its part of the settlement figure in accordance with the terms of the policy which it had theretofore issued to Johse. Farm Bureau refused. Commercial Standard contended that it learned of Farm Bureau’s policy on or about December 15, 1971, inquired into the coverage provided by the policy, requested Farm Bureau to assume its liability thereunder, but that Farm Bureau failed to answer the inquiry directly. Farm Bureau disputed that contention. It asserted that it had no notice of the Gomez-Johse litigation until it received a letter from counsel for Commercial Standard dated December 15, 1971, “addressed to Tom Dean, whose area of responsibility did not in any way involve the accident”. It further asserted that no suit papers were delivered along with the letter and no demand was made for a defense until March 20, 1972, which was only a matter of days before the case was set for trial. Johse did not himself forward the suit papers or make a demand for a defense upon Farm Bureau. This was done by counsel for Commercial Standard. The agreement to pay Gomez $52,000.00 in settlement of his case was made without notice to Farm Bureau, and without its approval or consent. Trial to the jury commenced on October 25, 1972. The jury, in response to the special issues that were submitted, in substance, found: 1) Farm Bureau did not in any way effect a waiver of its right to deny coverage for breach of policy conditions; 2) there was no substantial compliance with Farm Bureau’s policy requirement that it immediately be provided with every demand, notice, summons or other process; 3) Johse did not make a demand upon Farm Bureau to provide him a defense but, rather, affirmatively instructed Farm Bureau to refrain from participating in the defense; 4) neither Johse nor Commercial Standard, as soon as reasonably practicable, forwarded every demand, notice, summons, or other process received by them in connection with the Gomez-Johse litigation; 5) the demand for a defense which was made at a time such that Farm Bureau would have been prejudiced in its defense of the case had it assumed responsibility for providing a defense; and 6) Commercial Standard failed to prove that the moneys paid to Gomez were paid under its insurance policy in the interest of Johse or that the $52,000.00 payment was fair and reasonable. The jury verdict was returned on October 27, 1972, but judgment was not rendered until July 9, 1973. Commercial Standard’s brief contains 80 points of error. Most of them cannot be considered since the asserted errors were not preserved for appellate review. Counsel for Commercial Standard, with the consent of all parties and before the charge was read to the jury, dictated certain objections to the court’s charge to the court reporter. Points of error 2-15, both inclusive, complain of the submission of certain special issues over Commercial Standard’s objections to the court’s charge. The original transcript, as filed, does not contain such objections. Counsel for Commercial Standard filed a sworn motion in this Court on February 26, 1974, for leave to file a supplemental transcript that would contain the omitted objections. The following quotations relating to the objections are from the motion: “. . . Said objections to the court’s charge were omitted from the original transcript by the clerk, and the reason why such objections were omitted was because they had not actually been filed at the time the original transcript was completed . . . the objections to the court’s charge were not filed, and was apparently overlooked inadvertently by appellant’s counsel . . . (the objections) were all timely presented to the court . . . but the trial court judge did endorse his ruling thereupon as contemplated by Rule 272 of the Texas Rules of Civil Procedure.” This Court promptly granted the motion; we believed that there had been a compliance with Rule 272, and that the objections had been timely reduced to writing, and were timely presented to the judge and signed by him but that they had not been filed with the clerk because of inadvertence on the part of counsel. The objections, which are now on file with the district clerk of Wharton County, were not filed in that office until February 25, 1974. Such objections, which are contained in the supplemental transcript, show that the objections were not presented in writing to the trial judge for endorsement of his ruling and official signature thereon until February 21, 1974. Rule 272, T.R.C.P., in part, reads: “. . . The requirement that the objections to the court’s charge shall be in writing will be sufficiently complied with if such objections are dictated to the court reporter . . . and are subsequently transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript. .” (Emphasis supplied). The record was due to be filed in this Court on November 20, 1973. That deadline was met by Commercial Standard. Despite the unequivocal statements in the motion that the objections to the charge were “timely presented to the court”, and the “trial judge did endorse his ruling thereon as contemplated by Rule 272”, the inescapable conclusion is that counsel for Commercial Standard did not present the written objections to the trial judge for endorsement of ruling or signature until after the record had been filed in this Court. As already noted, the objections were signed on February 21, 1974, which was more than 7 months after judgment, 5 months after the amended motion for new trial had been overruled by operation of law, and 3 months after the transcript had been filed in this Court. Rule 272, T.R.C.P., fixes a definite time limit within which to have the dictated objections to the court’s charge reduced to writing, presented to the trial judge for endorsement of his ruling and official signature thereon, and filed with the clerk. That time limit is “in time (for the written objections properly endorsed and signed by the judge) to be included in the transcript”. Therefore, the same must be done not more than 60 days after rendition of judgment, or date of order overruling the motion for new trial, or date the motion for new trial was overruled by operation of law, as the case may be. Warner Construction Co. v. Blue Diamond Co., 429 S.W.2d 912 (Tex.Civ.App., Dallas 1968, writ ref’d n. r. e.); Cannon v. Canida, 321 S.W.2d 631 (Tex.Civ.App., Texarkana 1959, writ ref’d n. r. e.). In the case before us, there was no compliance with Rule 272. There is no showing that the failure to comply with the requirements imposed by the Rule was occasioned by an error on the part of the clerk, or that the trial judge refused to endorse his ruling on the written objections, or to affix his official signature thereto, or that the written objections, after having been timely presented to the judge, endorsed and signed by him, were lost or mislaid. Good cause for failure to timely file written objections duly endorsed by the trial judge is not shown to exist. To consider the objections to the court’s charge under this record would require us to completely ignore the plain and specific language contained in the Rule. This, we refuse to do. Under the circumstances, we consider the charge of the court as though no objections were filed. Points 2 to 15 are overruled. Commercial Standard, in its point of error 1, says that the trial court erred in refusing to grant its motion for an instructed verdict. The original transcript shows that the motion was filed on March 19, 1973; it does not, however, show that it was ever presented to, or acted upon by the trial judge. The supplemental transcript contains a copy of a motion for an instructed verdict, and is signed by the trial judge with the language: “Said motion having been presented to me Feb. 21, 1974 the same is herewith overruled.” The motion that appears in the supplemental transcript, like the objections to the court’s charge, was not filed with the district clerk until February 25, 1974. There is nothing in the record to show that the motion was presented to the judge, or ruled on by him before the verdict was returned. On the contrary, the supplemental transcript reveals that the motion was presented to the trial judge and ruled on by him on February 21, 1974, while the original transcript shows that the jury returned its verdict on October 27, 1972. Therefore, no point of error can be predicated on the refusal to grant an instructed verdict. Pan American College v. Rojas, 392 S.W.2d 707, 710 (Tex.Civ.App., Corpus Christi, 1965, n. w. h.) ; Home Insurance Co. of New York v. Dacus, 239 S.W. 2d 182 (Tex.Civ.App., Texarkana 1951, n. w. h.). Although Rule 268, T.R.C.P., does not specify a time limit on presentation of such a motion, it has been said that the purpose of the rule is to raise an attack on the sufficiency of the evidence at a time when the court may remedy the situation. Red River Valley Pub. Co. v. Bridges, 254 S.W.2d 854 (Tex.Civ.App., Dallas 1952, writ ref’d, n. r. e.). The trial court could not remedy the situation after an appeal had been perfected. We do not believe that the action by the trial judge on a motion for instructed verdict which was not presented to or acted on by him until the case is already in a Court of Civil Appeals, as is the case here, can be reviewed by the appellate courts. We so hold. Clearly, the appellate court can review only such actions by the trial court as are shown by the record to have been taken by the trial court when it had jurisdiction of the case. Here, it is conclusively shown by the record that the motion was not presented to or acted on by the trial judge until long after he had lost that jurisdiction. The point is overruled. Commercial Standard’s points of error 16 to 70 and 73 to 78, all inclusive, are each worded in such a way as to be no more than general and abstract propositions of law. These points, as phrased, do not comply with the briefing rules as set out in Rule 418, T.R.C.P. Bauguss v. Bauguss, 186 S.W.2d 384 (Tex.Civ.App., Dallas 1945, writ ref’d, w. o. m.); Dowdy v. Hale Supply Co., 498 S.W.2d 716, 718 (Tex.Civ.App., Ft. Worth 1973, n. w. h.). Nevertheless, we are not unmindful of the mandate of our Supreme Court that a point which does not meet all the requirements of the Rule, can still be considered if the error complained of can be determined from an examination of the statement and argument thereunder. Fambrough v. Wagley, 140 Tex. 577, 169 S.W. 2d 478 (1943). In Commercial Standard’s brief, all 80 points of error are followed by a single section designated “Argument and Authorities under all Points”. This argument comprises 18 doublespaced typewritten pages. It is impossible for this Court to determine with any certainty the exact error complained of or the grounds for reversal relied upon. The statement and argument provides no basis for this Court to intelligently rule, point by point, on the complaints registered. The points, together with the accompanying statement and argument, are too vague and general to be considered. Middleton v. Middleton, 479 S.W.2d 775 (Tex.Civ.App., Austin 1972, writ ref’d, n. r. e.) ; Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex. Civ.App., Dallas 1962, writ ref’d, n. r. e.). Points 16 to 70 and 73 to 78 are all overruled. Commercial Standard asserts, in points of error 71 and 72, that the trial court erred in overruling its motion for judgment non obstante veredicto. The record shows that the motion, although filed, was never acted on, or signed by the trial judge. In that state of the record, nothing is preserved for appellate review. Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App., Waco 1970, writ ref’d, n. r. e.); Barnett v. Woodland, 310 S.W.2d 644 (Tex.Civ.App., Austin 1958, writ ref’d, n. r. e.) ; Finney v. Finney, 164 S.W.2d 263 (Tex.Civ.App., Fort Worth 1942, writ ref’d, w. o. m.). The motion for judgment non obstante veredicto must be acted on by the trial court prior to the time the motion (or amended motion) for new trial has been overruled, either by order of the court or by operation of law. Walker v. S & T Truck Lines, Inc., 409 S.W.2d 942 (Tex.Civ.App., Corpus Christi 1966, writ ref’d); Reed v. Enright, 488 S.W.2d 596 (Tex.Civ.App., Dallas 1972, n. w. h.); Hann v. Life & Casualty Ins. Co. of Tenn., 312 S.W.2d 261 (Tex.Civ.App., San Antonio 1958, n. w. h.). Points 71 and 72 are overruled. Point 79 complains of the unfair jury argument of Farm Bureau’s counsel which, Commercial Standard says, prejudiced the jury. It is impossible for this Court to consider or pass on this point since the arguments of counsel are not included in the statement of facts. Point 79 is overruled. In point of error 80, complaint is made that the trial court erred in allowing Farm Bureau “and its counsel to prejudice the jury by improper tender of evidence, improper insinuations, and improper argument, regarding the ethical and legal propriety of the method of settlement of the Gomez claim”. Commercial Standard makes the argument that it has been unfairly treated because of such matters, but no briefing support is given to the complaints made. Commercial Standard does not point out in its brief where the “improper tender of evidence” and “improper insinuations” are to be found in the statement of facts. As already noted, the argument of counsel does not appear in the statement of facts. It is true that counsel for Commercial Standard in its general statement does say that “it is appellant’s belief that the sole reason for the position taken by the jury in answering the special issues submitted to it was because of the ethical question raised by the appellee’s counsel during the trial of the case concerning the propriety and appellant’s purchasing the claim of Gomez against Johse”. And, it is also true that an ethical question was raised by Farm Bureau’s attorney in the cross examination of the attorney for Commercial Standard. But, that question was not objected to by counsel for Commercial Standard. Therefore, the error, if any, in connection with the allowing of such question, has been waived. The judgment of the trial court is affirmed.

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Hazel FINDLEY, Ind. and as Executrix of the Estate of Frank R. Findley, Deceased, Appellant, v. Robert S. CALVERT, Comptroller, Appellee. No. 7583. Court of Civil Appeals of Texas, Beaumont. April 25, 1974. Dougal C. Pope, Houston, for appellant. Fisher A. Tyler and Marietta M. Payne, Austin, for appellee. KEITH, Justice. This is an appeal from a take-nothing judgment entered in a suit to recover taxes paid under protest. Appellant is the Independent Executrix of the Estate of Frank R. Findley, Deceased, who died on January 17, 1966, leaving a gross estate of $248,367.94. On July 24, 1964, less than two years before his death, he conveyed to his wife, by general warranty deed, his community interest in certain land in Harris County of an agreed value of $15,375. The deed was for “love and affection” and was not supported by any other valuable consideration. Appellant omitted this real property from the inheritance tax return. The Comptroller, not being satisfied, computed and determined the additional tax due on the gross estate with the real property being included therein. After the parties had followed the applicable provisions of Art. 1.032, Vernon’s Ann.Texas St., 20A, Taxation-General, appellant paid the tax under protest with the ground thereof being stated in this language : “This estate and the Independent Executrix of the estate say that this real estate which was given by Frank R. Findley, deceased, to Mrs. Hazel Findley within two years of his death was not given in contemplation of death in that this real estate which is valued at $15,375.00 was not a material part of the Estate of Frank R. Findley, Deceased.” The trial court, sitting without a jury, entered judgment for the State and found that the gift of the land was a material part of his estate made in contemplation of death and in the nature of a final distribution of his estate. Although appellant has presented two points of error, the thrust of the appeal is that the gift of the real estate, amounting to six percent of the net estate, was not of a material part of decedent’s estate. We disagree and affirm the judgment of the trial court for the reasons now to be stated. At the time of decedent’s death on January 17, 1966, Art. 14.01 (V.A.T.S., Vol. 20A) levied an inheritance tax on transfers in contemplation of death in the following language: “Any transfer made by a grantor, vendor, or donor, whether by deed, grant, sale, or gift, shall, unless shown to the contrary, be deemed to have been made in contemplation of death and subject to the same tax as herein provided, if such transfer is made within two (2) years prior to the death of the grantor, vendor, or donor, of a material part of his estate, or if the transfer made within such period is in the nature of a final distribution of property and without adequate valuable consideration.” We are in agreement with the Attorney General when it is suggested that our 1939 contemplation of death provision was lifted from and found its source in the federal statutes on the subject [Acts of Feb. 26, 1926, c. 27, § 302(c), 44 Stat. 70; Mar. 3, 1931, c. 454, 46 Stat. 1516; June 6, 1932, c. 209, § 803(a), 47 Stat. 279] which now appear in 26 U.S.C.A., § 2035. Having accepted this major premise, we move to the holding of our Supreme Court in Blackmon v. Hansen, 140 Tex. 536, 169 S. W.2d 962, 964 (1943), that where a statute is adopted from another jurisdiction, the construction made by the courts of that jurisdiction prior to the adoption may be looked to in its construction and given great weight. Under this rationale, we reach the landmark decision of United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867 (1930), wherein the United States Supreme Court first discussed at length the federal contemplation of death provision. Although death need not be imminent, it is the thought of death, as distinguished from purposes associated with life, which must be the impelling cause of the transfer. Appellant has based her case on the erroneous assumption that a transfer is not taxable even though made in contemplation of death unless the transfer is of a material part of the estate. Thus we also agree with the conclusion of the Attorney General: “Materiality is a factor which causes the presumption of taxability to arise. It is not, per se, definitive of the state of mind of the donor, nor the sine qua non of taxability.” Although no Texas court has passed upon the specific question herein considered, courts of other states have done so under statutes similar to ours taken, no doubt, from the earlier federal laws. In re Stephenson’s Estate, 171 Wis. 452, 177 N. W. 579, 582 (1920), a gift of $23,000 was held to be a material part of an estate of more than $2,791,675. Holding that the question of whether the gift was material presented a judicial question, the Court continued, saying: “Now a large sum of money is a material part of any estate, no matter how large, because it is a matter of substance — a matter that is not immaterial.” In construing a similar statute, the Court of Appeals of Kentucky in Chase’s Ex’x v. Commonwealth, 284 Ky. 471, 145 S.W. 2d 58 (1940), cited both Wells and Stephenson, supra, and concluded that gifts of $40,000 by a donor whose estate amounted to $649,000 was a material part thereof and made in contemplation of death within the meaning of the statute. Holding that the question was one for judicial determination, the imposition of the tax upon the gifts was upheld. We turn now to a consideration of appellant’s subsidiary contention, that we should interpret the statute by changing the word “or” to “and” in the final sentence of the statute. Again, we disagree. Unless otherwise exempt, transfers within two years prior to death are presumed to be subject to inheritance taxes if such transfers are a material part of the estate “or if the transfer made within such period is in the nature of a final distribution of property and without adequate valuable consideration.” It is difficult to conceive a more explicit disjunctivé provision or language more clearly expressing the legislative intent. Ordinarily, the words “or” and “and” are in no sense interchangeable terms; but, if absolutely necessary in order to effectuate the intention of the legislature, grantor, or testator, such can be done. But this construction should never be resorted to except for strong and compelling reasons. See Board of Insurance Commissioners of Texas v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 908 (1944). We find no such compelling reason here. As stated in Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S. W.2d 93, 96 (1957): “Every word of a statute is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and word be given effect if reasonably possible.” (emphasis added) Clearly, the Legislature intended to use the disjunctive “or” in the statute, and we are not at liberty to change it. The statute being clear, it must be given effect as written. State v. Shoppers World, Inc., 380 S.W.2d 107, 110 (Tex.1964). Finding no merit to the contentions advanced by appellant, the judgment of the trial court is in all things Affirmed. . On the same day that the deed was executed and delivered, the decedent made further gifts to his wife and son by executing irrevocable transfers of his community interest in certain life insurance policies on his own life. No consideration was paid for these assignments. We do not consider this fact in reaching our decision. No tax was claimed by the Comptroller on any portion of the insurance policies because the total proceeds thereof did not exceed the exemption of $40,000 afforded by Art. 14.01, V.A.T.S., 20A, Taxation-General. . Acts 1959, 56th Leg., 3rd C.S., p. 187, Ch. 1. This provision was amended by Acts 1971, 62nd Leg., p. 2943, Ch. 974, Sec. 1, eff. Aug. 30, 1971, so as to change the rebuttable presumption period from two to three years. No otlier change was made in this portion of the statute presently carried as Art. 14.01(B). . Acts 1939, 46th Leg., p. 646, Ch. 13, § 1.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Bobby Russell CASEY, Appellant, v. Sidonia Delfine JONES, Appellee. No. 7576. Court of Civil Appeals of Texas, Beaumont. April 4, 1974. Jack K. Allen, Houston, for appellant. John D. Wooddell, Austin, for appellee. KEITH, Justice. This is a venue appeal arising out of an application by the mother-appellee to change the visitation rights of the father-appellant and to increase the child support payments. The father appeals from the order overruling his plea of privilege. The facts are not in dispute and are briefly summarized in order to bring into focus the controlling principles. On December 7, 1964, the Court of Domestic Relations No. 2 of Harris County, Texas, entered a decree dissolving the bonds of matrimony between the parties, awarded the custody of the two minor children born of the marriage to the mother, fixed the father’s visitation rights, and ordered regular monthly child support payments. The mother and children moved to Travis County where they were domiciled and resided at the time she instituted the present proceedings. In this suit the mother sought to terminate the father’s visitation rights with the younger child and an increase in the monthly support payments from $100 to $250. The father’s plea of privilege to be sued in Harris County was regular in all respects, but the mother’s controverting affidavit was unusual. She invoked Subd. 16, Art. 1995, Vernon’s Ann.Civ.St, reading: “Suits for divorce shall be brought in the county in which the plaintiff shall have resided for six months next preceding the bringing of the suit.” She also called to the attention of the court the opinion in Calloway v. Calloway, 442 S.W.2d 926 (Tex.Civ.App., Eastland, 1969, no writ), and Title 2, § 11.04, Family Code, effective January 1, 1974. The father testified that he was a lifelong resident of Harris County. At the conclusion of the hearing, the trial court overruled the plea of privilege and the father has appealed. We reverse and order the case transferred in its entirety to Harris County. In Boney v. Boney, 458 S.W.2d 907, 910-911 (Tex.1970), the Court held: “[F]or venue purposes there is no distinction between a change in custody and a change in visitation” — and—“[VJenue of a suit seeking a readjudication of visitation rights is in the county of the defendant’s residence and is governed by the general venue statute.” Jurisdiction and venue to modify the support order rests exclusively in the court which granted the original divorce and set the amount of the support. Boney v. Boney, supra; Ex parte Mullins, 414 S. W.2d 455 (Tex.1967); Ex parte Hatch, 410 S.W.2d 773 (Tex.1967). See also, Lynde v. Lynde, 492 S.W.2d 641, 642 (Tex.Civ.App., San Antonio, 1973, no writ). Obviously, the mother’s suit was not for a divorce and she cannot maintain venue in Travis County under Subd. 16, Art. 1995. Likewise, her reliance upon the Calloway Case, supra (442 S.W.2d 926) is misplaced. The leading case upon our precise situation is Green v. Spell, 191 S.W.2d 92 (Tex.Civ.App., Beaumont, 1945, error ref.), wherein the Supreme Court in Spell v. Green, 144 Tex. 535, 192 S.W.2d 260 (1946), refused the writ of error and expressly approved the holding of this court that, “where the right to the custody of a minor child had been awarded in a divorce decree and a subsequent suit was brought to relitigate the right to the custody of the child on the ground of alleged change of conditions, the venue of the suit was in the county of the residence of the defendant.” See Branham v. Anderson, 450 S.W.2d 370, 371 (Tex.Civ.App., San Antonio, 1970, error dism.), for a discussion of Spell v. Green, supra, and the later cases on the question. -See also, Calbeck v. Bowen, 475 S.W.2d 607, 610 (Tex.Civ.App., Tyler, 1971, no writ), and Welty v. Welty, 496 S. W.2d 666 (Tex.Civ.App., Amarillo, 1973, no writ). All of the proceedings below which we review occurred before' the new family code went into effect on January 1, 1974. The mother argues that since the new code requires custody litigation to be in the county of the child’s residence, it amounts to an “expression of legislative intent [which] should weigh heavily in any interpretation of pre-existing law.” We make no interpretation of preexisting law in this decision; we simply apply the law in existence at the time of the trial to the undisputed facts in the case at bar. Nor do we agree with the mother when she contends that the new family code has mooted this venue question. She argues that under § 11.06(b), Family Code, the Harris County court — to which this cause will be transferred by our order— “must transfer this cause to Travis County, Texas, due to the undisputed and agreed long residence of said children in Travis County.” In making this argument, counsel overlooks § 11.06(e) which requires a motion to transfer under § 11.06(b) to “be made on or before the day on which answer is required.” It is readily apparent from the sequence of dates set out in footnote 2, supra, that the answer date expired long before the date of the entry of the order on the plea of privilege. Rule 101, Texas Rules of Civil Procedure. Being of the opinion that the trial court erred in overruling the father’s plea of privilege for the reasons herein stated, the judgment is reversed and the cause is remanded for the entry of an order transferring the entire cause to one of the district courts of Harris County, Texas, for further proceedings. Reversed and remanded with instructions. . Family Code — Title 2, Acts 1973, 63rd Leg., Ch. 543, p. 1411, et seq.; Vernon’s Texas Codes Ann., Family Code, §§ 11.01 et seq. . The significant dates are these: Suit instituted September 5, 1973; plea of privilege filed September 18; controverting affidavit to the plea of privilege filed September 27, 1973; the hearing on the plea of privilege was held on October 31, 1973; the order overruling the plea was entered on November 7, 1973. The appeal bond, transcript, and statement of facts were all timely filed and the record lodged in the Third Court of Civil Appeals on November 20, 1973. The case was transferred to this court in an equalization of the dockets of the several courts of civil appeals.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. Mary Ellen SCHMIDT, Appellee. No. 4666. Court of Civil Appeals of Texas, Eastland. March 19, 1974. Rehearing Denied May 17, 1974. Robert D. Batjer, Jr., Pope, Dickenson, Batjer, Glandon & Baker, Abilene, for appellant. Bob R. Hanna, Schulz, Hanna & Burke, Abilene, for appellee. RALEIGH BROWN, Justice. This is a workmen’s compensation case. Trial before a jury resulted in a judgment awarding Mary Ellen Schmidt total and permanent disability benefits. Employers Commercial Union Insurance Company, the insurance carrier appeals. The disabling condition of Mary Ellen Schmidt was diagnosed as a chronic myosi-tis or trapezius syndrome. It was the opinion of her doctor that the condition probably resulted from the position in which she worked at her job. Such position was described as sitting in a rather stooped posture while manipulating small watch components with the hands and wrists while the shoulder musculature and upper arms remained in a fixed rigid position. The record reflects that Mrs. Schmidt developed pain in her neck, shoulder, left arm and hand in May of 1971. Her condition worsened so she took a thirty day sick leave in September of 1971. During this leave, Mrs. Schmidt was hospitalized for two days while tests were administered to determine the cause of her trouble. Following the sick leave, she returned to her job where she worked until February 20, 1972, when she was again hospitalized for a period of time and has never returned to work. The evidence established that Mrs. Schmidt’s employer in addition to carrying workmen’s compensation insurance provided additional coverage for its employees at the employee’s election. The employer sponsored a plan that paid income replacement benefits to employees while disabled from causes not covered by workmen’s compensation and offered a plan which covered medical expenses not covered by workmen’s compensation. Mrs. Schmidt participated in both plans and drew benefits from both plans following her September 1971 hospitalization. Her testimony was that she understood the two plans were for non-occupational conditions. Further, Mrs. Schmidt testified she was aware of the workmen’s compensation insurance coverage provided by her employer. It was stipulated that she filed her notice of injury and claim for compensation with the Industrial Accident Board June 27, 1972. Employers Commercial Union Insurance Company went to trial upon a sworn pleading that Mrs. Schmidt had failed to file her notice of injury and claim for compensation within the time allowed by law and that no good cause existed to excuse such failure. Mrs. Schmidt contended good cause existed to excuse her failure to file her claim within six months from the date of her injury because she did not believe her disabling condition to have arisen out of her employment until immediately before her claim was filed. The jury answered only the following special issues: “ISSUE NO. 1 Do you find from a preponderance of the evidence that Plaintiff incurred an occupational disease? ‘Occupational disease’ means any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or injuries as naturally result therefrom. An ‘occupational disease’ shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment. Answer ‘We do’ or ‘We do not.’ ANSWER: ‘We do’ If you have answered Issue No. 1 ‘We do’ then answer Issue No. 2, otherwise do not answer Issue No. 2. ISSUE NO. 2 Do you find from a preponderance of the evidence that Plaintiff incurred such occupational disease in the course of employment with U. S. Time Corporation? Answer ‘We do’ or ‘We do not.’ ANSWER: ‘We dp’ If you have answered Issue No. 2 ‘We do’ then answer Issue No. 3, otherwise do not answer Issue No. 3. ISSUE NO. 3 Do you find from a preponderance of the evidence that such occupational disease was a producing cause of any total incapacity ? Answer ‘We do’ or ‘We do not.’ ANSWER: ‘We do’ If you have answered Issue No. 3 ‘We do’ then answer Issue No. 4, otherwise do not answer Issue No. 4. ISSUE NO. 4 Find from a preponderance of the evidence the beginning date of such total incapacity. Answer by giving the Month, Day and Year. ANSWER: February 20, 1972 If you have answered Issue No. 3 ‘We do’ then answer Issue No. 5, otherwise do not answer Issue No. 5. ISSUE NO. 5 Do you find from a preponderance of the evidence that such total incapacity is permanent or was, or will be temporary? Answer ‘Permanent’ or ‘Temporary.’ ANSWER: Permanent If you have answered Issue No. S ‘Temporary’ then answer Issue No. 6, otherwise do not answer Issue No. 6. ISSUE NO. 7 Do you find from a preponderance of the evidence that such occupational disease was or will be a producing cause of any partial incapacity ? Answer ‘We do’ or ‘We do not.’ ANSWER: ‘We do’ If you have answered Issue No. 7 ‘We do’ then answer Issue No. 8, otherwise do not answer Issue No. 8. ISSUE NO. 12 Do you find from a preponderance of the evidence that within six months from the date of the cumulative injury (or disease), plaintiff had a reasonable doubt as to whether her condition arose out of the course of her employment with U. S. Time Corporation? Answer ‘We do’ or ‘We do not.’ ANSWER: ‘We do not’ If you have answered Issue No. 12 ‘We do’ then answer Issue No. 13, otherwise do not answer Issue No. 13.” The workmen’s compensation carrier now contends the trial court erred in awarding total and permanent disability benefits to Mary Ellen Schmidt for the reason that as a matter of law the date of Mrs. Schmidt’s “cumulative injury” was more than six months prior to the filing of her notice of injury and claim for compensation with the Industrial Accident Board. Employers Commercial Union Insurance Company argues that Mrs. Schmidt’s cumulative injury was on or about September 7, 1971; therefore, the filing of her claim with the Industrial Accident Board on June 27, 1972, was not within the six months provided by statute. The jury having resolved the “good cause” issue against her appellant says she must now be denied any recovery as a matter of law. The issue before this court is whether the evidence conclusively establishes that Mrs. Schmidt’s condition arose “out of and in the course of her employment” and whether or not her work caused “disability” more than six months prior to June 27, 1972. Article 8306, Section 20, Vernon’s Ann. Civ.Stat., reads in part: “Whenever the term ‘Occupational Disease’ is used in the Workmen’s Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. An ‘Occupational Disease’ shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby.” (emphasis added) The testimony directed to the issue of Mrs. Schmidt’s condition, its disabling effects, and the inception date of such disability was presented by six witnesses. Mrs. Schmidt’s testimony is inconclusive. Basically, she testified that she was concerned about her condition; she felt she was to an extent disabled through October, November and December of 1971 and January of 1972, even though she worked; she had continued to work, meeting her quota until February 1972, when she first became aware of the cause of her physical problem. Mrs. Leggett, a fellow employee, testified only that Mrs. Schmidt complained of pain in her upper body and hurting in her shoulder and arms in 1971. Two supervisory employees, W. A. McDonald and David Hallford, testified for the carrier. Their testimony principally described the working conditions of Mrs. Schmidt and similar employees; the type of equipment with which they worked; the sitting position required to do the job and the efforts of the company to accommodate its employees. Mr. Hallford further testified Mrs. Schmidt did meet her quota. Dr. Davenport, a neurologist to whom Mrs. Schmidt was referred, testified he first saw her in February of 1972; that he obtained a history of Mrs. Schmidt from the discharge summary of the hospital, admission date being February 20, 1972. In his opinion, Dr. Davenport agreed with the aforementioned discharge summary which stated Mrs. Schmidt had “muscle spasm, trapezius, paracervical musculature probably related to this lady’s type of work although, of course, this cannot be definitely proven.” He further testified she was incapacitated. The fairest reading of the testimony of Dr. Casey, Mrs. Schmidt’s treating doctor, was that in his opinion Mrs. Schmidt’s condition at the time of trial was basically the same as it originally had been since September 1971; that it was in his opinion, disabling then and now and was caused by her work. The general rule is that a jury is not bound by opinion testimony and such, testimony does not establish material facts as a matter of law. Hood v. Texas Indemnity Ins., Co., 146 Tex. 522, 209 S.W. 2d 345 (1948); Webb v. Liberty Mutual Insurance Company, 501 S.W.2d 350 (Tex.Civ.App. Eastland 1973, writ ref. n. r. e.). ■The only finding made by the jury as to the date of “disability” was their finding that total incapacity commenced on February 20, 1972. The jury failed to find the beginning date of any partial incapacity. We cannot hold that the evidence establishes as a matter of law that Mrs. Schmidt suffered “disability” more than six months prior to June 27, 1972, as a result of her employment. Employers Commercial Union Insurance Company also urges that Mrs. Schmidt judicially admitted that the date of her cumulative injury was on or about September 7, 1971, thus barring her claim because she failed to file it within the time required by law. This argument is advanced because Mrs. Schmidt proceeded to trial on a pleading that alleged the date of her injury to be September 7, 1971. During the second day of trial, the court granted the following trial amendment on behalf of Mrs. Schmidt: “NOW COMES plaintiff and moves the Court for permission to amend her petition on trial herein and insert the word ‘cumulative’ prior to the date of injury alleged in her petition on file herein, and further to allege in the alternative that the cumulative date of injury was February 20, 1972.” The workmen’s compensation carrier contends that a stipulation entered into by Mrs. Schmidt prohibited her from amending the first alleged date of injury, and she thus judicially admitted the cumulative date of her injury to be September 7, 1971. We disagree. The stipulation stated: “Plaintiff and Defendant further stipulate and agree in open court that the effect of Plaintiff’s Trial Amendment filed on June 12, 1972, is to insert the word ‘cumulative’ between the words ‘sustained’ and ‘accidental injuries’ on the next to the last line of Plaintiff’s Original Petition, Page 1, and shall have no other effect.” The record before this court indicates that the restrictive language of the Astipulation, was meant to refer only to the insertion of the word “cumulative” and not to the amended date of injury. The only point of error is overruled. The judgment is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

KEY LIFE INSURANCE COMPANY OF SOUTH CAROLINA, Appellant, v. Charlie DAVIS, Appellee. No. 7564. Court of Civil Appeals of Texas, Beaumont. April 25, 1974. Wheat, Wheat & Stafford, Woodville, for appellant. Seale & Stover, Jasper, for appellee. KEITH, Justice. Defendant below appeals from an adverse judgment rendered in a suit upon a policy of accident and disability insurance and we will designate the parties as they appeared in the trial court. Plaintiff sought to recover disability benefits in the amount of $35 per week for 100 weeks under the provisions of the policy issued by the defendant. The defendant pleaded certain exclusions to be mentioned hereinafter. The jury found that plaintiff sustained an accidental injury as defined in the policy, which resulted in his total disability for twenty weeks, and fixed the attorneys’ fees at $1130. Upon motion by plaintiff, the trial court entered judgment for the benefits ($700), statutory penalty of twelve percent, interest, and fixed the attorney’s fees at $2000. Defendant contends that no benefits were payable under its policy for disability resulting from a hernia. We disagree. The contract contained this language in the insuring agreement: “The Company hereby agrees to pay benefits to the extent provided herein, and subject to the provisions, exclusions and limitations hereinafter set forth This was followed by several separate sections, each providing for the payment of benefits; namely, Sec. I: “Accident Indemnities for Specified Losses”; Sec. II: “Total Disability”; Sec. Ill: “Hospital and Medical Care Expense”; and Sec. IV: “Dental Service.” The word “hernia” is not to be found in any of these sections of the policy. Defendant relies upon subsection 10 of Section V of the policy, “Exclusions, Limitations and Reductions.” We quote the entire section in the footnote and set out the pertinent language involved here: “Benefits under this Policy shall not be payable for: . . . (10) any procedure involving hernia or hemorrhoids . . . .” As might be expected, the word “procedure” has brought on this lawsuit. In our consideration of the point now urged by defendant, we bear in mind the rule which provides that contracts of insurance are governed by the same rules as other contracts. First Texas Prudential Ins. Co. v. Ryan, 125 Tex. 377, 82 S.W.2d 635 (1935); National Security Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 38 A.L.R.2d 764 (1953); Republic National Life Insurance Co. v. Spillars, 368 S.W.2d 92, 94, 5 A.L.R.3d 957 (Tex.1963); Burns v. American Nat. Ins. Co., 280 S.W. 762 (Tex.Com.App.1926, judgmt adopted); 44 C.J.S. Insurance § 289, p. 1136 (1945); 43 Am.Jur.2d, Insurance, § 257, p. 315 (1969). But, as was said in National Security Life & Cas. Co. v. Davis, supra: “The policy must be considered as a whole and effect be given to each part where reasonably possible. . . . Where there is an ambiguity or uncertainty as to the meaning, that construction must be given which is favorable to the insured. . . .” (257 S.W.2d at 944, citations omitted) Webster’s Third New International Dictionary (G. & C. Merriam, 1967) defines the noun “procedure” as follows: “a particular way of doing or of going about the accomplishment „of something ... a particular course of action ... a particular step adopted for doing or accomplishing something . . . .” Under our Workmen’s Compensation Law, Art. 8306, § 12b, Vernon’s Ann.Civ.St, where liability for compensation exists, the insurer is required to provide the workman with a particular surgical procedure; namely, “by radical operation” to correct the hernia. Under the provisions of Sec. Ill of the policy, “Hospital and Medical Care Expense,” the defendant was obligated to pay “[t]he usual and customary charge made by a licensed doctor of medicine or osteopathy for the necessary treatment of ‘such injuries.’ ” But for the exclusion now under consideration [Sec. V, (10), “any procedure involving hernia”], defendant would have been obligated to pay for the surgical procedure needed to correct the hernia. The quoted language of the exclusion relieved the insurer of the obligation of paying for the surgical procedure necessary to correct the cause of the disability, but such language did not deny the insured the right to recover the weekly benefits for the disability caused by the hernia. Had defendant desired to exclude hernias from the coverage of the disability clause, it had but to use more definite language, just as it did when it denied all benefits from “(6) gunshot wounds.” Its selection of language has created a liability for the disability benefits while denying to it the means of terminating such benefits by paying for a surgical procedure. But, it selected the language of the policy, is bound thereby, and we are required to enforce the contract so made. Republic National Life Insurance Co. v. Spillars, supra (368 S.W.2d at 94). Point one is overruled. As we interpret defendant’s second point, it contends that it is not liable for the statutory penalty and attorney’s fees because of its good faith defense of the suit to recover benefits. We readily concede that the defense was made in good faith but disagree with the conclusion. We also agree that Art. 3.62, Insurance Code, V.A.T.S., is “penal in nature and must be strictly construed.” McFarland v. Franklin Life Insurance Company, 416 S.W.2d 378, 379 (Tex.1967). See also cases collated in Key Life Ins. Co. of South Carolina v. Taylor, 4S6 S.W.2d 707, 711 (Tex.Civ.App., Beaumont, 1970, error ref. n. r. e.). Cases involving rival claimants to the proceeds of a policy are inapposite, as are those where the proof of loss discloses a policy defense. In this case, the statutory requirements were met by the plaintiff and we have held that the policy defense interposed by defendant was not valid. In considering the predecessor statute, the court in First National Life Insurance Company v. Vititow, 323 S.W.2d 313, 316 (Tex.Civ. App., Texarkana, 1959, error dism.), disposed of the contention in this language: “Pursuant to such Article, if a 30-day demand has been made, the penalty is collectible if the insurer is finally adjudged to be liable on the policy regardless of how justifiable its unsuccessful defense of non-liability may have appeared. Lumbermens Mutual Casualty Co. v. Klotz, 5 Cir., 251 F.2d 499. The penalty flows from failure to pay.” Point two is overruled. Plaintiff sought to recover a reasonable attorney’s fee and offered evidence in support of the amount thereof. The trial court submitted an issue inquiring of the jury what would be a reasonable fee “in this cause of action” and the jury answered $1130, the precise maximum amount supported by the testimony. Upon motion made after the verdict had been returned, and without hearing any evidence found in our record, the trial court increased the award to $2000, but ordered such gross sum reduced in the event the case was not appealed, or if appealed, not taken beyond this court. By its third point, defendant contends that the award so made was and is erroneous since it is greater than the amount found by the jury. We agree. It is apparent that plaintiff followed International Security Life Insurance Co. v. Spray, 468 S.W.2d 347, 348 (Tex.1971), in drafting the judgment since the reductions ordered in the total fee are in the exact language quoted by Justice Reavley. However, Spray “was a non-jury case and the [trial] court heard evidence on the reasonableness of the attorney’s fees. The record contains some evidence of probative force supporting the judgment for attorney’s fees.” This latter quotation is taken from the opinion of the Court of Civil Appeals in the Spray Case, 461 S.W.2d 176, 177 (Tex.Civ.App., Eastland, 1970). Justice Reavley noted in Spray, supra, that “it has been decided in Texas that the award of any attorney fee is a fact issue which must be passed upon by the trial court.” (468 S.W.2d at 349) Where there is a trial to a jury, it is the duty of the court to submit the “controlling issues made by the written pleadings and the evidence.” Rules of Civil Procedure, rule 279. In the case at bar, the plaintiff had the burden of establishing by competent evidence the amount of a reasonable attorney’s fee and persuading the jury to return an answer thereon in his favor. This was done — to the extent of $1130 — and the jury verdict received and filed. It thereupon became the duty of the trial court to enter a judgment which “shall conform to the pleadings, the nature of the case proved and the verdict.” Rule 301. Had the trial court followed Rule 301, the judgment would have been for $1130 in fees. Under the record which we review here, there was no evidence which would support a higher award; yet, without hearing evidence, and contrary to the jury finding, the court awarded $2000 with appropriate reductions as the facts might have developed. The rule governing our question is found in 4 McDonald, Texas Civil Practice (1971 Rev. Vol.), § 17.28, pp. 189-190: “The judge may not disregard answers to material issues, set aside findings and make contrary ones, hear additional evidence and make supplementary findings on material issues.” Thus, the increase in attorney’s fees made by the trial judge was an unauthorized act. Having found error in the judgment, we are required to render such judgment as the court below should have rendered and this we proceed to do by reforming the judgment and affirming the judgment as reformed. It is ordered that the allowance of the sum of $2000 as reasonable attorney’s fees, under the state of the record in this case, is deleted and stricken from the judgment of the trial court. In lieu thereof, an unconditional allowance of attorney’s fees in the amount of $1130, as found by the jury, is awarded to the plaintiff. The judgment, as reformed, is now affirmed. All costs in the trial court are adjudged against the defendant; costs on appeal shall be divided equally, one-half thereof being assessed against each party. Rule 435. Reformed and affirmed. . “Benefits under this Policy shall not be payable for: (1) any loss resulting from accidents occurring before the Injured Person’s 18th birthday, or (2) any loss suffered by any person hereunder for Occupational Accidents only unless such loss occurs while the Person is actually engaged in the usual and customary duties of his employment as named in the application attached hereto, or (8) any loss suffered by any person for Occupational Accidents only while such Person is being transported to or from work, unless such Person is being transported by a motor vehicle used in the normal course of the Policyowner’s business as named in the application attached hereto, or (4) any loss for which benefits are payable under any Workmen’s Compensation Act or similar law, or (5) eye refraction or eyeglasses, or (6) gunshot wounds, or (7) prosthetic or orthopedic appliances, or (8) dental surgery, service or repair, except as provided under Section IV hereof, or (9) injuries intentionally inflicted on any person by himself or other persons, or (10) any procedure involving hernia or hemorrhoids, or (11) any treatment or service rendered in a facility owned or operated by any branch of Government.” . The elusive term “controlling issues” is discussed in detail by Justice Garwood in Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 104 (1953). See also, Hodges, Special Issue Submission in Texas, § 35 at 100 (1959) ; 3 McDonald, Texas Civil Practice (1970 Rev. Yol.), § 12.06.1, p. 280.

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Johnny CHARLES, Jr., Appellant, v. Ella Scruggs CAMPBELL, Appellee. No. 16264. Court of Civil Appeals of Texas, Houston (1st Dist.). April 11, 1974. Eddington & Friloux, Warren L. Eddington, Gerald A. Woolf, Houston, for appellant. Talbert, Giessel & Stone, Alice M. Gies-sel, Houston, for appellee. COLEMAN, Chief Justice. This is an action for damages for personal injuries arising out of an intersec-tional collision between a school bus driven by the defendant and an automobile in which the plaintiff was riding as a passenger. In answer to special issues the jury found no primary negligence on the part of defendant; negligence which was the sole proximate cause of the occurrence on the part of the driver of the automobile; and zero damages. A take nothing judgment was entered on the verdict. We affirm. The defendant, Ella Campbell, testified as follows: She was driving approximately 15 miles per hour on Herschelwood. She had been on that street for four or five blocks. Four or five streets cross Her-schelwood and they all have yield signs. She noticed the yield sign on Myrtlewood; she knew the yield sign was on the plaintiff’s side; she did not look at it definitely and does not know if the sign was turned. She was in the intersection when she first saw the other vehicle. The other car was traveling at a terrific rate of speed. She checked the intersection before she entered it and would have seen the other car if it had been close enough. She saw the plaintiff’s vehicle only a split second before impact; she would estimate the speed at 35 to 40 miles per hour, maybe faster. The point of impact was “right in the middle of the intersection”. Her bus ended up about the middle of the block on down Herschel-wood. Nellie Burrell, the driver of the automobile in which the plaintiff was riding, testified as follows: She had picked up her uncle, the plaintiff, at his home on Myrtle-wood and was headed east. When she first saw the bus it was almost in the middle of the intersection. She was traveling at about 30 to 35 miles per hour and was about two car lengths from the intersection when she first saw the bus. The front part of her car hit the side of the bus. The yield sign was facing the bus, so she thought she had the right of way; this is why she did not stop. Officer M. E. Clark investigated the accident. He testified that Herschelwood Street is approximately 26 feet wide and Myrtlewood is approximately 28 feet wide. The automobile had entered the intersection about 5 feet when it made contact with the bus. The point of impact was about 17 feet from the north curb of Myr-tlewood. The bus was struck around the gas tank, a good distance behind the door, in the middle. When the bus was struck, the front end had penetrated the intersection approximately 28 feet. The front part of the bus would have completely gone through the intersection. The evidence is uniform that the yield sign should have been facing the vehicle in which the plaintiff was riding, but that it was not faced in that direction. The evidence is conflicting as to whether the front of the sign was facing toward defendant, opposite defendant or at an angle. The evidence with reference to the yield sign is not crucial on the question of right of way. There is no pleading or evidence to show by what authority the sign was erected. Judicial notice is not taken of municipal ordinances. Yellow Cab & Baggage Co., Inc. v. Mason, Tex.Civ.App., 266 S.W.2d 463, reversed on other grounds, Mason v. Yellow Cab & Baggage Co., Inc., 153 Tex. 344, 269 S.W.2d 329 (1954). All of the points of error on which appellant relies begin: “The trial court erred in failing to disregard the jury’s answer to Special Issue These are no evidence points. A trial court is authorized on motion and notice to disregard any special issue jury finding that has no support in the evidence, but the court may not properly refuse to submit an issue or disregard the jury’s answer thereto merely because the evidence is factually insufficient to support the same.. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Each of the assignments in the appellant’s motion for new trial begins as follows: “The finding of the jury in response to Special Issue No. -is contrary to and not supported by the evidence, in that the undisputed evidence showed . . .” A statement to the effect that the undisputed evidence establishes the existence of a fact asserts that there is no evidence to the contrary and is a no evidence assignment. Royal Indemnity Co. v. Hume, 477 S.W.2d 683 (Tex.Civ.App.—San Antonio 1972, n. w. h.). It is the duty of this court, therefore, to consider only the evidence and inferences therefrom favorable to the jury verdict. There is evidence of probative value sufficient to support the answers made by the jury to each of the challenged special issues. The court of civil appeals has no jurisdiction to consider insufficient evidence points nor to determine any question as to the great weight and preponderance of the evidence where the motion for new trial does not assert that the evidence supporting the jury’s answer to any specific issue was either insufficient or against the great weight of the credible evidence. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969). The judgment is affirmed.

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RELIABLE LIFE INSURANCE COMPANY, Appellant, v. Frances TORRES, Appellee. No. 12115. Court of Civil Appeals of Texas, Austin. May 1, 1974. Rehearing Denied May 22, 1974. John F. Morehead, Gibbins & Spivey, Austin, for appellant. J. Hubert Lee, Kirt H. Kiester, Austin, for appellee. SHANNON, Justice. Appellee, Frances A. Torres; filed suit in the district court of Travis County against appellant, Reliable Life Insurance Company, to recover for accidental death benefits under appellant’s life insurance policy insuring the life of her deceased husband, Johnnie B. Torres. Upon trial to a jury, judgment was entered in favor of appellee for the accidental death benefits of the policy, attorney’s fees, penalty, and interest. Johnnie B. Torres met his death by his own hand in Fort Stockton on February 1, 1971, after a night of drunken carouse. He died of a gunshot wound to his head. Appellant paid the face amount of the policy, but refused to pay the accidental death benefits. Appellee pleaded that Torres shot himself accidentally, and, as a result, appellant was obligated to pay the accidental death benefits. Appellant’s defenses to appellee’s suit were two: (1) the death did not result directly and independently of all other causes from accidental bodily injury, and (2) the death resulted from a game of Russian roulette and that such was suicide, an exclusion under the policy. The court submitted the case to the jury upon two special issues. Special issue number one was appellant’s inferential-rebuttal issue setting up the defense of suicide by way of Russian roulette. Special issue number two, not important here, concerned attorney’s fees. In response to special issue number one, the jury answered that Torres did not shoot himself while playing Russian roulette. The court refused to submit appellee’s tendered issue advancing her theory of recovery that the death resulted from accidental bodily injury- Appellant contends that the judgment should be reversed because there are no findings of fact by the jury to support the entry of judgment for appellee. Appellee seeks to sustain the judgment upon several grounds: (1) the answer of the jury to special issue number one was, in effect, that Torres’ death was the result of accidental bodily injury, (2) the appel-lee’s tendered special issue was an “omitted issue” deemed to have been found in support of the judgment within the meaning of Texas Rules of Civil Procedure 279, and (3) the evidence conclusively established that Torres’ death was the result of accidental bodily injury. The insuring provision of the policy provides as follows: “As a part of the policy proceeds, the Company agrees to pay an accidental death benefit upon receipt of due proof that the death of the Insured or the Insured Wife, (1) resulted directly and independently of all other causes from accidental bodily injury . . . ” Suicide was excluded from the accidental death benefit as one of the risks not assumed. With respect to appellee’s first argument in defense of the judgment, it was appellee’s burden to persuade the jury that the death did not come within one of the policy exclusions, in this instance, suicide. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967). Appellee met that burden by obtaining a favorable answer to special issue one. The answer to special issue one, appellant’s inferential-rebuttal issue, did not discharge appellee’s burden to establish appellant’s primary liability by showing that Torres’ death resulted from accidental bodily injury. Appellee’s second argument is that her tendered issue submitting death by accidental bodily injury was an “omitted issue” deemed to have been found in support of the judgment within the meaning of Tex. R.Civ.P. 279. Appellee claims that issue was one of a cluster of two related issues: accident or suicide. An issue constituting a complete and independent ground of recovery is waived unless requested in a substantially correct form. An “independent ground of recovery” is the total of all the facts necessary for a litigant to recover. Omitted issues, constituting only a part of a complete and independant ground and being merely supplemental or incidental to other issues submitted and answered, are deemed found in support of the judgment. Hodges, Special Issue Submission in Texas, Sections 74, 76 (1959, with 1969 Sup.), Tex.R.Civ.P. 279. The tendered issue submitting death by accidental bodily injury was one submitting an independent ground of recovery, appellant’s primary liability. That issue was not merely a part of an independent ground and was not merely supplemental to other issues submitted and found. In that connection, the only liability issue submitted, suicide, was appellant’s inferential-rebuttal issue which, if found for appellant, would have rebutted appellee’s ground of recovery. Under these circumstances, death by accidental bodily injury was not an omitted issue deemed to have been found in support of the judgment. Appellee argues that by refusing appel-lee’s tendered issue the court must have been of the opinion that the evidence was conclusive that Torres’ death resulted, directly and independently of all other causes, from accidental bodily injury. We are of the opinion that the evidence was not conclusive. Torres was in Fort Stockton on February 1, 1971, as a member of a dance band. One of Torres’ duties with the troupe was to collect proceeds at the door, and as a result, he usually carried a revolver to protect sizable sums of cash which he sometimes collected. Appellee produced three witnesses who were in the motel room with Torres when the shooting occurred, Fernando Guerrero, Rudy Machado, and Joe Carmona. Appellant’s sole witness was Sergeant Antonio Cordova, the investigating officer. Appellee’s three witnesses agreed generally that by the time of the shooting everyone, including Torres, was drunk. Immediately before the shooting, Torres announced that he wanted to play Russian roulette. Guerrero testified that on occasion he and Torres had used the term, Russian roulette, when they played with Torres’ revolver, but that they never pointed the revolver at anyone or at any part of their body. Sometimes he and Torres played that “game” when the revolver was loaded, and sometimes when it was empty. Guerrero testified that Torres took out the “bullets” and threw them on the bed. Machado testified that he saw Torres “empty the gun” of bullets on the bed. The revolver had five chambers. Guerrero said that Torres then pointed the revolver to the ceiling of the room and pulled the trigger which resulted in a “click.” Carmona testified that Torres had pointed the revolver at one of their troupe, Charlie Stevens, who had appeared at the door. He had then squeezed the trigger of the revolver which .resulted in a click. The witnesses afterward heard the fatal gunshot, though none of them said that they saw Torres at the moment of the shooting. Sergeant Cordova testified that Torres was shot on the right side of the face, below the temple. He also testified that there were power burns about the wound. In an attack on the credibility of Guerrero, Machado, and Carmona, appellant introduced into evidence, without objection, the written statements given by those witnesses to the Fort Stockton police shortly after the shooting. Those statements, somewhat inconsistent with the witnesses’ testimony at trial, indicated that Torres took the revolver from under the bed and then took four “bullets” from its chambers. Torres then put the revolver to his head, and though Carmona tried to stop him, Torres pushed Carmona aside. Torres then put the revolver down, but again put the revolver against his head, and “it fired this time.” Though the written statements were not substantive evidence of the truth of the facts stated, 1 McCormick and Ray, Texas Law of Evidence § 688 (1956), the statements did place the credibility of those witnesses in issue. The burden was on appellee to prove that the death of her husband was caused by accidental bodily injury. Combined American Insurance Company v. Blanton, 163 Tex. 225, 353 S.W.2d 847 (1962). Appellee introduced no direct proof that her husband died from accidental bodily injury. She did adduce evidence of the circumstances of her husband’s death from which it could be inferred that he died from accidental bodily injury. Notwithstanding, reasonable minds could draw a different inference. Under such circumstances, a question of fact was presented for resolution by the jury, and the trial court should have submitted appellee’s requested special issue. Southern Underwriters v. Willis, 110 S.W.2d 252 (Tex. Civ.App.1937, writ ref’d), Maryland Casualty Co. v. Williams, 47 S.W.2d 858 (Tex.Civ.App.1932, writ dism’d), Friedman Oil Corporation v. Southern Oil Refining Co., 73 S.W.2d 137 (Tex.Civ.App.1934, writ dism’d), see Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951), Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1 (1940). From what has been said, we think it plain that the evidence did not conclusively establish that Torres’ death was caused by accidental bodily injury. The judgment is reversed and the cause is remanded for another trial. PHILLIPS, Chief Justice (dissenting). I respectfully dissent. When Torres was killed, Guerrero, Ma-chado, Carmona and three other band members were in the room. The latter three were asleep. Torres was in the habit of playing with the pistol. He was also in the habit of pointing it at others and scaring them. The testimony disclosed that on the night of his death (or actually in the early morning) he took four bullets out of the gun, put them on the bed and continued to wave the gun about “clicking” it and even pointing it at one or more of the band members in the room and “clicked” it at them. He laughed when he succeeded in scaring someone. Guerrero testified that at the time of the shooting, he did not see Torres actually point the gun at himself. Nor did he actually see him pull the trigger. “I just saw his hand go up to the air. As it was going up, I heard a shot and he fell, and that is all.” Machado testified that he saw Torres take the gun from the bed. He saw Torres take the bullets out and “I thought he did not leave any bullets in the gun. That is what everybody thought because he emptied the gun on the bed.” Machado further testified that when he heard the shot he turned around. He did not see Torres shoot himself nor did he see anyone else shoot him. Machado stated several times in his testimony that Carmona had tried to stop Torres from playing with the gun immediately before the shot, and then went into the bathroom. Carmona testified that “I just got his hand and told him don’t be playing around with it.” He thought that the gun “clicked” at that time. He did not know whether Torres heard the click or not. It was just a few seconds later that Torres shot himself. Suicide was ruled out of the case with the jury’s answer to the only special issue submitted. Without going into specifics, I find ample testimony to support this finding. Appellee then submitted a substantially correct issue on the question of accident which the court refused to submit to the jury. The court, apparently, thought a finding on this issue unnecessary. Under the evidence before us, there is no question but that Torres himself caused the pistol to discharge the fatal shot. He either intended to shoot himself or did so accidentally. Since suicide has been ruled out, only the latter possibility remains. There isn’t a scintilla of evidence to the contrary. Consequently, it would have been useless to ask the jury to pass on the question. I would hold that the omitted issue was deemed to have been found in support of the judgment. Rule 279, Texas Rules of Civil Procedure; and, I would affirm the judgment.

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Samuel Everett McHARD, Jr., et al., Appellants, v. The STATE of Texas et al., Appellees. No. 952. Court of Civil Appeals of Texas, Houston (14th Dist.). April 24, 1974. Rehearing Denied May 15, 1974. Clark G. Thompson, Richard E. Bartley, Houston, for appellants. John L. Hill, Jr., Atty. Gen., Harold G. Kennedy, Austin, Morgan L. Copeland, Houston, for appellees. TUNKS, Chief Justice. This is a trespass to try title case. The State of Texas and Gulf Oil Corporation were the plaintiffs in the trial court. Samuel Everett McHard, Jr., was the principal defendant. This case involves a tract of land approximately rectangular in shape. The tract is about 2525 feet north and south and 390 feet east and west. The land is alleged by plaintiffs to be in the J. Poitevent Survey # 4 in Fort Bend County, Texas. The defendants alleged that the land does not lie in the Poitevent 4, but instead lies within the Moses Merritt Survey in that county. The Poitevent 4 and the Merritt lie with the east line of the Poite-vent being adjacent to, or east of, the west line of the Merritt. The parties stipulated that the plaintiffs were the owners of the Poitevent 4 and McHard was the owner of the Merritt. The Poitevent 4 is the senior of the two surveys. It is the contention of the plaintiffs that there is an overlapping of the two surveys as to the land in question. If the land lies in the Poitevent 4, since it is the senior survey, they are entitled to judgment for title to the property. That is to say, the plaintiffs claim that the east line of the Poitevent 4 lies to the east of the west line of the Merritt. McHard and his predecessors in title have been in fenced possession of the land for many years. Thus the case involves the establishment by the plaintiffs of the east boundary of the Poitevent 4. The trial court first submitted the case to the jury. After the jury had returned a verdict which was considered to consist of conflicting findings, the case was withdrawn from the jury, and judgment was rendered for the plaintiffs. Thus, to prevail, the plaintiffs were bound to establish their claim as a matter of law. There is attached to this opinion a sketch of that portion of Fort Bend County which is relevant to this discussion of the evidence. That sketch and the figures on it will be referred to in such discussion. It was compiled from maps offered in evidence by the parties. The land in controversy is the rectangle included within the points numbered 7 to 17 to 19 to 20 to 7. The line from 17 to .19 is admittedly the west boundary of the Merritt. It is contended by the plaintiffs that the line from 7 through 20 to 6 is the east line of the Poitevent 4. The oldest survey of those shown on the sketch is the David Bright League. It was surveyed in 1824 by Horatio Chriesman, the surveyor for Stephen F. Austin’s colony. In making that survey, he identified the southwest corner by reference to natural monuments, which were identified trees. The other corners are identified by calls for a course and distance from the southwest corner. The calls are for north 5000 varas from the southwest corner to the northwest corner, 5000 varas east to the northeast corner, 5000 varas south to the southeast corner, and 5000 varas west back to the southwest corner, the place of beginning. Other relevant surveys shown on the sketch are the Hicks Shropshire, the Thos. Hobermaker, the Edward Drew, the J. Poitevent 3, the Thos. W. Thompson, and the Poitevent 4. All lie to the east of the David Bright League; all were surveyed by George Schley. The field notes for all were dated in December of 1874. All of them depend, for the establishment of their eastern and western boundaries, upon the location of the eastern or western boundary of the David Bright League. All of them call, directly or indirectly, for a distance from the western boundary of the David Bright League. None of their field notes call for either any natural or artificial monuments by which any of their eastern or western boundaries can be fixed. The Merritt was surveyed by Schley in 1875. Thus it became necessary, if the eastern boundary of the Poitevent 4 was to be identified, to identify some corner of the David Bright League. It then became necessary to follow the footsteps of George Schley for a distance of about 20,000 feet to the eastern boundary of the Poitevent 4, without the benefit of any monument as none was called for by Schley in making the blocks of surveys. The only surveyor to testify in this case was Harold B. Fisher, a licensed surveyor, called as a witness by the plaintiffs. We shall first examine his testimony as to the identification of the Bright League as a beginning point by which to find the east boundary of the Poitevent 4. Fisher relied, in part, on the field notes of S. M. Fore who made a resurvey of the Bright League in 1891. Those notes recite that Mr. Fore found the witness trees called for by Chriesman in the original survey as identifying the southwest corner. He also marked a new witness tree. His notes indicate that he then proceeded around the boundary and called for crossing certain streams at certain points. H. J. Walger surveyed a part of Fort Bend County, including the Bright League, from 1892 to 1896 for the purpose of locating a county road. His field notes show that he set a railroad iron at the northwest, northeast, and southeast corners. His field notes did not refer to the witness trees referred to by Chriesman and Fore. C. R. Hale made surveys in 1956. He found a railroad iron at what he identified as the common corner of the southeast corner of the Bright League and the southwest corner of the Shropshire survey. He also found such a railroad iron at the northeast corner of the Bright League. Fisher, in his effort to fix the corners and boundaries of the Bright League, did not find any of the witness trees called for by Chriesman and Fore as marking the southwest corner of that league. He found five iron rods set in the intersection of the road beds running along what appeared to be the south line and the west line of the league. He tentatively accepted this as the southwest corner. From there he proceeded north along the line of Farm Road 1092. At 2747 varas he crossed Oyster Creek. Fore had called for this crossing as “about 2700 varas.” At 3967 varas he crossed Red Gully. Fore called for such crossing as 3977 varas. At the occupied north line of the Bright League Fisher found a railroad iron buried in the road which he accepted as the one set to mark the northwest corner by Wal-ger. He then proceeded easterly, crossing Stafford Run Creek at 1526 varas. Fore called for that crossing at 1488 varas. At 3601 varas he found a railroad iron in the north occupied line of the League. Wal-ger’s notes indicate that he set this marker. He proceeded on easterly and at a point 1399 varas further on he found the railroad iron Walger had set as marking the northeast corner of the League. Walger’s notes called for this latter distance as 3884 feet. This point is marked No. 1 on the attached sketch. Fisher found this point to be 5000.37 varas from what he had accepted as the northwest corner. Chriesman had called for a distance of 5000 varas along the north line of the League. This is the point from which Fisher began the east and west computations along the north side of the surveys intervening between the east line of the Bright League and the east line of the Poitevent 4. Fisher then proceeded down the occupied east line of the League to the occupied southeast corner. He did not find the railroad iron that Walger said he set at the southeast corner of the League. However, Hale, an earlier surveyor, had said that he found the iron at a point 35 feet south of and in line with the occupied east line. Fisher accepted that point as the southeast corner of the League. It was from this point that he began his east and west computations along the south edge of the intervening surveys. The point is marked No. 8 on the sketch. From that point Fisher headed westerly along the gravel road lying along the south line of the League. At 1973 varas he crossed Millstead Creek. Fore had called for such a crossing at 1988 varas and Wal-ger at 1976 varas. At 2867 varas he crossed Oyster Creek. Fore had called for such crossing at 2877 varas and Walger at 2860 varas. At 5001 varas he came back to the iron rods at the southwest corner where he had begun. This is the method Fisher used to fix the corners of the Bright League. He did not find the witness trees by which the original surveyor had marked the southwest corner. Fore did, however, find the trees and made calls for various stream crossings, which fit as closely as can be expected with Fisher’s survey, beginning at the accepted southwest corner. The lines so established are the lines fitting the evidence of occupancy as indicated by roads and fences. The lines did not fit exactly the calls for course and distance used by the original surveyor, Chriesman, but they were very close, and the fence lines and roads indicate many years of occupancy in accordance with the calls for course and distance followed by Fisher. In order to establish, as a matter of law, the lines of a survey, it is not necessary to establish them “beyond all peradventure of doubt.” It is sufficient that they be fixed with “reasonable certainty.” Kirby Lumber Corporation v. Lindsey, 455 S.W.2d 733, 740 (Tex.Sup.1970). On the basis of that authority we hold that the testimony of Fisher, corroborated by the recitations in the field notes of earlier surveyors, fixed, as a matter of law, the location of the northeast and southeast corners of the Bright League, the points from which he began his survey to the east for the purpose of fixing the eastern boundary of the Poitevent 4. All of the surveys east of the Bright League up to and including the Poitevent 4 were built off of the east line of the Bright. All were made by George H. Schley. The Drew, the Poitevent 3, the Poitevent 4, the Thompson, and the Hooper were dated December 22, 1874. The Shropshire was dated December 24, 1874. All six were filed on December 31, 1874. In none of the six named surveys was there any call for a natural or an artificial monument. There were calls for ad joinder of the various surveys as shown on the sketch. There were calls for the northernmost boundaries of the Poitevent 3 and the Poitvent 4 to adjoin with the Fort Bend-Harris County line, but the testimony was that such county line had been moved since the date of the surveys. It seems probable, in view of the dates of the six surveys and the absence of calls for monuments, that they were office surveys, made without actually going on the ground. The witness, Fisher, pointed out that Schley may have made the surveys on the ground over a longer period of time and signed his notes on all of them on the same day. Nevertheless, the fact remains that Fisher had nothing to go on from the surveys themselves but calls for course and distance and the calls for adjoinder. Fisher very carefully followed east-west lines along the northern lines of the Drew, Poitevent 3, and the Poitevent 4. He fixed the points shown on the sketch as 1, 2, 3, 4, 5, and 6. He then began at the point marked 8 on the sketch and fixed the points marked 9, 10, 16, 11, 12, 13 and 7. He fixed the eastern boundary of the Poitevent 4 as the line between 6 and 7 shown on the sketch. In his survey of the east and west lines Fisher relied in part on the evidence of occupancy which he found. It is true that in some instances the occupancy on the east and west side of the common north-south boundary lines were by the same owner, the Texas Prison System, but that is not true as to all of the occupancy. The southwest corner of the Poitevent 4, the southwest corner of the Poitevent 3 and tracts adjacent to both the east and west lines of that survey, and the southwest corner of the Drew were not owned by the State. Fisher’s testimony as to occupancy was corroborated by the oral testimony of other witnesses and by aerial photography. , He also gave consideration to the works of earlier surveyors. For instance, at points 6 and 7 he found ¾ inch pipes set by a former surveyor, J. P. Boyles, as marking the northeast and southeast corners of the Poitevent 4. Boyles made surveys in the vicinity in 1919, 1946, and 1953. Fisher, in fixing the eastern boundary at a line between points 6 and 7 on the sketch, was less than 70 feet east of where the line would have been if he had honored all of the calls for distance made by Schley in his surveys of the various tracts between the Bright League and the east line of the Poitevent 4, a distance of more than 20,000 feet. It is certain that the east line of the Poitevent 4 is not as contended by McHard. Schley called the line as running north and south. All of the various surveyors who had surveyed it before called for such line as running approximately north and south. No one has ever called for it as running north and south between the points marked as 6 and 20, then jogging to the west. All of the plaintiffs testimony was un-contradicted except to the extent that such contradiction arose from the previous possession of McHard and his predecessors. In Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288, 300 (Tex.Civ.App. — Beaumont 1928, writ dism’d), the court said: By the “best evidence,” in its application to a boundary issue, is meant that evidence which is the more specific and definite as against that which is merely general and indefinite or descriptive. This may be a question of fact for the jury, or one of law for the court. It is always a question of law when upon the particular facts of the case the rule announced in Stafford v. King [30 Tex. 257] [the preferential order of calls] is controlling. It also becomes a question of law when that rule has no application, but when upon the particular facts reasonable minds cannot differ as to the conclusions legally deducible from the facts. Southwestern Settlement & Development Co. v. Stanberg (Tex. Civ. App.), 248 S.W. 108. When one theory of the case is supported by specific and definite facts, while the other is supported by evidence merely general and indefinite or descriptive, the issue is one of law for the court and not of fact for the jury. Other cases supporting the position of these plaintiffs are Mortgage Investment Company of El Paso v. Bauer, 493 S.W.2d 339 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.), and Wood v. Stone, 359 S. W.2d 68 (Tex.Civ.App. — Houston 1962, writ ref’d n. r. e.). During the trial the court admitted certain corrected field notes of Schley and overruled the defendant’s objection that they were relocations of the relevant surveys. The record does not reflect that the original field notes did not cover the ground included in the corrected field notes. The trial court, therefore, did not err in admitting the corrected notes. Tex. & Pac. Ry. Co. v. Thompson, 65 Tex. 186 (1885). We hold that the plaintiffs have established as a matter of law that the property in controversy lies within the Poitevent 4. Since the Poitevent 4 is senior to the Merritt survey it prevails as to any conflict. It is stipulated, for the purpose of this case, that the plaintiffs are the owners of the land in the Poitevent 4 and the trial court properly adjudged title in them of the land in controversy. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

URBAN RENEWAL AGENCY OF the CITY OF AUSTIN, Appellant, v. GEORGETOWN SAVINGS AND LOAN ASSOCIATION et al., Appellees. No. 12118. Court of Civil Appeals of Texas, Austin. April 24, 1974. Rehearing Denied May 15, 1974. Paul D. Jones, Johnson, Jones & Sheppard, Austin, for appellant. Douglass D. Hearne, Staytori, Maloney, Black, Hearne & Babb, Austin, for appel-lees. PHILLIPS, Chief Justice. The Urban Renewal Agency of the City of Austin sought to condemn a tract of land owned by Georgetown Savings and Loan Association subject to a contract of sale with Pat Cain and Wayne D. Rodgers. The trial court rendered judgment vesting title to the property in the Urban Renewal Agency (hereinafter referred to as the Agency), and awarded the appellees $31,500 based on the jury’s answer to special issues. The appellant Agency has duly perfected its appeal to this Court. We reverse the judgment and remand the cause for a new trial. I. Appellant is before us on twenty-six points of error which present three main questions. The first question is whether the court erred in admitting the testimony of appel-lees’ witness concerning the proposed uses of the subject property which were prohibited by a building code of the City of Austin. We hold that the admission of the testimony under the circumstances, hereinafter described, was error. The lot in question has a total of 8832 square feet of which nearly 7300 square feet, or approximately 82% of the area, is within the bed and banks of Waller Creek. The entire width of Waller Creek crosses this property diagonally from the northwest to the southeast, and the south boundary line of this property is within the banks of Waller Creek. This lot is located at the northwest corner of East 14th and Neches Streets. Where the south property line of the lot coincides with the north right-of-way line of East 14th Street, the middle of Waller Creek is about 16 feet below the street level and the traffic level of a concrete bridge traversing the creek. The only access the property has to any street is a distance of approximately 72 feet along unpaved Neches Street extending southerly from the northeast corner of the lot. At the time of taking a frame structure was situated on the 1500 square feet of the property not within the creek, which, according to both appraisers for the ap-pellees, had no value. Neches Street, along the east side of the property, is unpaved, uncurbed, and dead-ends at East 14th Street where it encounters Waller Creek. The property was zoned for “B” Residence use. Appellees’ case was centered on the proposition that the entire tract was suitable for use and development as an office site. Throughout the presentation of ap-pellees’ case, this was the assumption made, and it was on the basis of this assumption that appellees’ witnesses testified as to the market value of the tract. Section 29-2 of the Austin City Code of 1967 states: “It shall be unlawful for any person- to place, or cause to be placed, any obstruction of any kind in any creek, branch, drainway or watercourse within the city.” Although this restriction is not a zoning ordinance, it falls within the same general type of regulation as zoning and, as such, is unquestionably an exercise of the police power of the City. Consequently, the appellees were under the burden of proving the probability that the restriction would be lifted by the City and that they would be allowed to place the building, or a portion thereof, in the creek bed. City of Houston v. Johnny Frank’s Auto Parts Co., 480 S.W.2d 774 (Tex.Civ.App.1972, writ ref. n.r.e.); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954). The record discloses that the ap-pellees offered no evidence to show a reasonable probability that the construction restrictions imposed by Section 29-2 of the Austin City Code of 1967 would be changed to accommodate use of the creek bed for an office building. II. The second question presented by this appeal is whether the court erred in admitting preliminary drawings of a proposed office building for the lot where the drawings were objected to as being purely speculative. We hold that the admission of the drawings under the hereinafter described circumstances was error. Appellees’ witness Stahl, an architect, was allowed to testify at length concerning plans for an office structure to be built on piers placed in the bed of the creek. However, he testified that nothing had been done to develop the property except the preparation of these preliminary rought sketches which were shown to the jury as evidence that the property was suitable for the proposed office building. The error of admitting these sketches to show the highest and best use of the property is in the fact that the feasibility of using the creek bed for the building, or any part thereof, was not reasonably proved. The evidence discloses that the Director of the City Department of Engineering, whose duty it is to review plans for construction around waterways, testified that the City Code, Section 29-2, was intended not only to protect occupants of the property in question, but also those upstream, downstream, and in the area that might be affected by any change in the flow of water along the channel of the creek. The witness testified that to make any alteration in a creek of the magnitude of Waller Creek, a detailed study by a professional engineer competent to practice in the field of hydrology must be submitted and approved by the City. Consequently, under the present state of the record, it has not been shown from an engineering view point that it is feasible to erect an office building on the site. The proposed office building then falls under the “wholly speculative nature” of the evidence proscribed in Melton v. State, 395 S.W.2d 426 (Tex.Civ.App.1965, writ ref. n.r.e.). III. Appellant’s remaining points concern the sales of nine properties admitted in evidence, over objections, as being comparable to the lot before us. In view of a new trial, we deem it necessary to comment on these points. While the admission into evidence of sales of comparable property is within the discretion of the trial judge, such evidence must be a property which is in fact similar to the property to which it is being compared. We concur in appellant’s objections to the admission into evidence of many of these properties as comparable sales. Although we realize that sales of creek bottom properties may be infrequent and therefore not easily produced as evidence, the trial court seems to have proceeded on the theory that the principal requirements of the admissibility of the sales of comparable properties were their size and general proximity to the State Capitol. It is the latter test that we find objectionable. Of course, for any of the properties to be comparable to the property in issue, we must assume that, on retrial, appellees will offer proof that the creek bottom property can be put to relatively the same uses as those for which the comparable properties were used, or are capable of being used. However, mere distance from the State Capitol in itself does not make property similar to that before us where it is located to the south or west of the Capitol while the subject property is located to the north and east of the Capitol. Generally, properties located south and west of the Capitol are situated in areas more conducive to general business activity than those to the north and east of the Capitol and, consequently, are more valuable. In addition, the sales offered were properties situated on paved and guttered streets, and the witness had to “adjust” the sales prices down to around $3.50 to $3.75 per square foot from prices as high as $12.31 per square foot. In this connection see City of Garland v. Joyce, 462 S.W.2d 86 (Tex.Civ.App.1970, writ ref. n.r.e.) where the court discusses the error of permitting testimony as to sales of tracts which obviously were not similar and in allowing a witness to adjust prices paid so as to permit such sales to be called comparable. Sales to be comparable to the general property in issue should be either in the same neighborhood or in a comparable neighborhood. See State v. Cloud Construction Co. 476 S.W.2d 395, 398 (Tex.Civ.App.1972, writ ref. n.r.e.) and annotation, 85 A.L.R.1d 110. IV. Appellees have a crosspoint wherein it is contended that the court abused its discretion in permitting the witness Frederick to testify to a percentage ratio he had arrived at which was formed by using sales of creek bed property in relationship to sales of nearby property not affected by the creek for the reason that in order to make these sales comparable to the subject tract, the witness was forced to make an adjustment. We overrule this point. In view of another trial we deem it necessary to discuss this point. Appellant’s witness Frederick testified in the following language to the procedure which he employed in arriving at his opinion of the value of the subject tract: “Q. Okay. Now, what sale along Waller Creek did you consider ? “A. Well, the study that I made, I studied the sales along the creek in this neighborhood all the way from 19th Street to 1st Street. Many of those sales were somewhat remote in time. Some of them are very current. But, the purpose of this study was not to use these sales as direct evidence of value, but to see what buyers and sellers in the market were doing, the difference that they were paying for properties that were affected by the creek and properties that were not affected by the creek, and merely to establish a ratio or percentage and not as a direct comparison to this property, because the sales were either more remote in time than I would like for them to be or that they were not in the same neighborhood. So, I just used these sales in this study to establish a percentage of what was being paid for properties that were affected by the creek as opposed to what was being paid for properties outside the creek.” Appellees contend that this testimony is subject to the same objection noted in City of Garland v. Joyce, cited above. We think not. In City of 'Garland the court proscribed the adjusting in money values, the sale of property completely dissimilar to that of the subject property and then using it as a comparable sale. Witness Frederick merely used a number of sales of property in the vicinity of Waller Creek, noted the price differential between that which buyers were paying for properties that were affected by the creek and properties that were not affected by the creek. Then he calculated an average of the difference paid for properties in each ca-tego-ry. Here a study was made of the sales properties situated in a similar situs to that of the subject property and those nearby properties not affected by the creek. It is our opinion that this evidence was admissible to show an average percentage of diminution in value of creek bed property visa-vis property in the same neighborhood above the floodline contours. We reverse the judgment of the trial court and remand the case for a new trial. . Bruner v. State, 391 S.W.2d 149 (Tex.Civ.App.1965, writ ref. n. r. e.); Melton v. State, 395 S.W.2d 426 (Tex.Civ.App.1965, writ ref. n. r. e.). . City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954).

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Eva Flores GONZALEZ, as next friend of Rosa Gonzalez, a minor, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee. No. 18313. Court of Civil Appeals of Texas, Dallas. April 11, 1974. Rehearing Denied May 9, 1974. Edwin J. Lamberty, Jr., Patterson & Lamberty, Inc., Dallas, for appellant. Edward E. Crowell, Jr., Gardere, Porter & DeHay, Dallas, for appellee. GUITTARD, Justice. Our questions are (1) whether an inter-pleading stakeholder, who admits liability and offers to pay money into court but does not actually do so, is protected against further liability by payment of the money to one of the claimants under a judgment which has since been reversed, and (2) whether a recognized illegitimate child is entitled to the death benefits provided for a child of a deceased employee under the Workmen’s Compensation Act by virtue of the Equal Protection Clause of the Fourteenth ' Amendment. We hold that the stakeholder’s liability is not discharged by such payment and that a recognized illegitimate child is entitled to the same benefits as any other child. Accordingly, we reverse a summary judgment for the defendant stakeholder and remand with instructions to grant the motion for summary judgment presented on behalf of the alleged illegitimate child. The present appeal is a sequel to our decision in Flores Gonzalez v. Viuda de Gonzalez, 466 S.W.2d 839 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.), which was a suit for death benefits under the Workmen’s Compensation Act. The claimants in that suit were the mother of the deceased employee, his alleged common-law wife, and his daughter by the alleged common-law wife, all of whom made claim against Texas Employers Insurance Association. The Association filed a counterclaim and interpleader against all the claimants, alleging that it was willing to pay full death benefits but could not determine to which of the conflicting claimants benefits should be paid without subjecting itself to multiple recoveries. It alleged that the full amount payable was tendered into court and prayed that the court make a proper determination and direct the disposition of the funds, but it did not actually pay the money to the clerk. On September 9, 1970, the trial court granted the motion for summary judgment of the deceased employee’s mother and rendered judgment in her favor against the Association for the full amount of benefits on the ground that as a matter of law no common-law marriage existed and the employee’s daughter was illegitimate. The alleged common-law wife perfected an appeal on behalf of herself and her daughter, but filed no supersedeas bond. On October 29, 1970, the Association paid the full amount of the judgment to the employee’s mother and obtained a release from her. The alleged common-law wife proceeded with the appeal and this court reversed the judgment and remanded the case for further proceedings on the ground that a fact issue existed with respect to common-law marriage. After the case was returned to the trial court the employee’s mother, who had received the money, nonsuited her claim. The alleged common-law widow also non-suited her individual claim and disclaimed any right to the benefits on her own behalf, but she continued to prosecute the suit as next friend for her daughter, on whose behalf she claimed the entire benefits as the only statutory beneficiary. The Association then filed a motion for summary judgment, alleging that payment of the benefits under the former judgment discharged it as a matter of law from any further liability. The trial court granted this motion and rendered judgment that the next friend take nothing on behalf of her daughter. She appeals, contending in her single point of error that the trial court erred because the daughter was entitled to the benefits as a matter of law. The Association seeks to uphold the summary judgment in its favor on the theory that in absence of any objection to its pleading admitting liability and offering to pay the money into court, that pleading was equivalent to actual payment of the money and its later payment in compliance with the judgment effected a full discharge of its liability. In support of the contention that the offer is equivalent to payment, the Association cites Williams v. Wright, 20 Tex. 500, 503 (1857), which we do not consider controlling. The question there was whether interpleader relief could be granted to a defendant who had not actually brought the money into court, and the supreme court held that this matter could not be raised by motion to strike the answer or by a general demurrer which did not specify the particular objection. The opinion cannot properly be interpreted to hold that in the absence of such an objection the offer afforded the interpleading party all the protection he would have had by actual payment. The opinion is consistent with the view that in absence of objection the action may proceed, but that no discharge of liability occurs until the money is actually paid. Likewise, in Royal Neighbors of America v. Fletcher, 230 S.W. 476 (Tex.Civ.App.—Amarillo 1921, no writ), the interplead-ing defendant, who admitted liability and offered to pay the money into court, was held to have “placed itself in the attitude of a mere stakeholder,” and thus to have no standing to appeal, but no question was presented concerning discharge of its liability. The Association points out that it was in the position of a stakeholder with no right to appeal and no right to supersede the judgment by giving a bond under Texas Rules of Civil Procedure, rule 364(a), but that the appellant on the former appeal did have the right to supersede, as held in Burch v. Johnson, 445 S.W.2d 631 (Tex.Civ.App.—El Paso 1969, no writ) and Dallas Bank & Trust Co. v. Thompson, 78 S.W.2d 740 (Tex.Civ.App.—Dallas 1935, no writ). Consequently, the Association argues, the duty rested on the appellant as next friend for the minor claimant rather than on the Association to protect the fund pending appeal by a supersedeas bond, and that in view of her failure to do so the minor cannot now complain if payment of the money in accordance with the judgment leaves her only a claim against the party who received the money. This argument might be persuasive if the Association had paid the money into court to abide the result of the litigation and the clerk had paid it out under the court’s order, as was the case in Zachary v. Overton, 157 S.W.2d 405 (Tex.Civ.App.—Galveston 1941, writ ref’d w. o. m.). It does not reach the question of whether the liability of the interpleading party is discharged without payment into court. In Zachary, and all the other cases cited by the Association in which the stakeholder’s liability was held to be discharged, the stakeholder protected itself against multiple liability by paying the money into court in the usual manner of an interpleading party. Forest Park Lanes, Ltd. v. Keith, 441 S.W.2d 920, 940 (Tex.Civ.App.—Fort Worth 1969, no writ); Hartman v. Crain, 398 S.W.2d 387 (Tex.Civ.App.—Houston 1966, no writ); Royal Palms Corp. v. A. Minella Plumbing Supplies, Inc., 355 S.W.2d 585 (Tex.Civ.App.—Houston 1962, no writ). The crucial question is whether payment to a party under a judgment pending appeal is equivalent to payment into court. We hold that it is not, and, more particularly, that payment to one party under a judgment does not discharge liability to a different party that may be established after reversal of that judgment. A judgment is not final so long as an appeal is pending, whether or not it has been superseded. Texas Trunk R. Co. v. Jackson, 85 Tex. 605, 22 S.W. 1030 (1893). Consequently, no right can be asserted under a judgment that has been reversed. On the other hand, if the money is paid into court to abide the result of the litigation, responsibility for the fund is shifted to the court and further liability to the parties is discharged. The Association “points out that if it had paid the money into court, the court or its clerk would have had the same problem concerning payment of the money when the appeal was taken without superseding the judgment. We need not consider what measures would have been available to the court to protect the funds in its hands and the interests of the minor claimant pending appeal. Regardless of whether the court would have had to pay out the funds in the absence of a supersedeas bond filed on behalf of the minor claimant, no additional liability could have been imposed on the Association if it had actually placed the money in the custody of the court. Since the Association chose not to do that but to pay it to one of the parties under a judgment, and that judgment has been reversed, we hold that its liability has not been discharged. Claim of illegitimate child The next friend contends that the trial court erred not only in rendering judgment for the Association, but also in failing to grant the next friend’s motion for summary judgment because the only fact issue remaining is that of common-law marriage and that issue is no longer material because the alleged common-law wife has disclaimed and the minor daughter is entitled to recover the statutory benefits whether legitimate or not under Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), which holds that denial of such recovery to an illegitimate child would be contrary to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. We agree. The Association contends that Weber is not controlling because of the difference between the Texas Workmen’s Compensation Act and the Louisiana Act considered in Weber. It points out that under the Louisiana Act benefits are available only to children shown to be dependent, while under Tex.Rev.Civ.Stat.Ann. art. 8306, § 8a (Vernon Supp.1974) death benefits are payable to minor children “without regard to the question of dependency.” The Association argues further that § 8a provides that death benefits “shall be distributed among the beneficiaries as may be entitled to the same as hereinbefore provided according to the laws of descent and distribution of this State,” and that the Texas law of descent and distribution provides that an illegitimate child shall inherit from his mother but not from his father unless legitimated by the marriage of his parents. Tex.Prob.Code Ann. § 42 (Vernon 1956). Consequently, the Association argues, this case is controlled not by Weber but by Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1917, 28 L.Ed.2d 288 (1971), in which a Louisiana statute excluding illegitimate children from inheritance was held not to be a violation of the Equal Protection Clause. This argument is not persuasive. It bears too close a resemblance to those “finely carved distinctions” advanced unsuccessfully in Weber to distinguish the Supreme Court’s previous holding in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), that an illegitimate child cannot be excluded as a beneficiary-in a statutory action for wrongful death. Under both Levy and Weber the test for determining the validity of state statutes under the Equal Protection Clause is whether the statutory classification bears a rational relationship to the purpose of the statute. The specific holding in Weber is that the inferior classification of dependent unacknowledged illegitimates has no significant relationship to the recognized purposes of the Workmen’s Compensation statutes. Applying that test here, we cannot escape the conclusion that the discriminatory exclusion of recognized illegitimate children bears no significant relation to the purpose of the Texas Workmen’s Compensation Act. No rational basis for this discrimination is found in our statutory provision of benefits to minor children without regard to dependency or by the provision for distribution of benefits according to the law of descent. Neither can a rational basis for such discrimination in this case be found in possible problems of locating illegitimate children and determining uncertain claims of parentage. In Weber those problems were said to be lessened by the statutory requirement of dependency. In this case, although our statute does not require dependency, such problems are lessened to the same extent by undisputed proof that the minor claimant, together with her mother, lived with the deceased employee and was recognized by him as his child. We express no opinion on the rights of an illegitimate child under other circumstances. The Association also insists that we should not apply the Weber ruling retrospectively to this case. It points out that Weber was decided on April 24, 1972, three years after the deceased employee in this case was killed and more than a year after the judgment for the employee’s mother was paid by the Association, and that under the Texas Workmen’s Compensation Act as construed before Weber, illegitimate children were not recognized as beneficiaries. The only authority cited against retrospective application is Stokes v. Aetna Casualty & Surety Co., 232 So.2d 328 (La.App.1969), the very decision reversed in Weber. Although the Supreme Court did not pass expressly on the question of retrospective effect of the decision, it did so by necessary implication in reversing the judgments of the Louisiana courts. Even if we were at liberty to accept the reasoning in Stokes, it cannot prevail here because no rights of the Association became vested before the date of the Weber ruling. The occurrence of this accident before the ruling in Weber does not prevent retrospective application of that decision because, of course, the same situation was presented in the Weber case itself. The judgment of September 9, 1970, in this case created no vested rights so long as it was subject to reversal on appeal, and the Association’s payment under that judgment provided no protection for reasons discussed earlier in this opinion. Decisions of the Supreme Court invalidating state laws on “novel constitutional grounds” can be refused retrospective operation only when a judgment based on a law subsequently declared unconstitutional has become final. See Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801); Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L. Rev. 201 (1965). We hold that a judgment that is not final because of the pen-dency of an appeal does not give rise to vested rights that prevent retrospective operation of a change in the law by judicial decision subsequent to the reversal. A different question would be presented if no appeal had been perfected or even if the Association had paid its money in reliance on a compromise settlement agreement approved by the court or the Industrial Accident Board. For the reasons stated, we hold that the trial court erred in sustaining the Association’s motion for summary judgment and in failing to sustain the motion of the minor claimant. Accordingly, the case is reversed and remanded to the trial court with instructions to sustain the motion for summary judgment of the minor claimant and to render judgment in her favor for the amount of death benefits admitted to be payable, together with interest as pro-1 vided by law. Reversed and remanded with instructions.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

RUDI’S AUTOMOTIVE CORPORATION, Appellant, v. Jolly HEETH d/b/a Jolly Heeth Insurance Agency, Appellee. No. 16296. Court of Civil Appeals of Texas, Houston (1st Dist.). April 4, 1974. On Filing of Remittitur April 25, 1974. Wandel & Bousquet, Thomas G. Bous-quet, Houston, for appellant. Moore & Putnam, O. Bruce Larson, Houston, for appellee. EVANS, Justice. Appellee filed this action as a suit on a sworn account under Rule 185, Texas Rules of Civil Procedure to recover for premiums on insurance policies sold and delivered to appellant. In a trial to the court without a jury, judgment was rendered in favor of appel-lee in the amount of $1994.80 representing the unpaid balance of the account, and for attorney’s fees of $500.00, interest and costs. In its findings of fact, the trial court found that appellee had sold and delivered insurance policies to appellant covering the operation of appellant’s business; that a premium had been charged for each policy issued; that such charges were carried on “open account” and were the usual and customary charges promulgated by the State Board of Insurance. The court further found that appellee kept a regular and complete itemized record of account of the premiums charged for each of the policies sold and delivered; that the account made the basis of the action was correct and that under the uncontroverted evidence the sum of $1994.80 was due and unpaid on such account. The court concluded that the suit was properly filed as a sworn account and that the premiums charged for the insurance policies were within the meaning of the phrase “goods, wares and merchandise” as provided by Rule 185, Texas Rules of Civil Procedure. Appellant’s first point of error is that the trial court erred in determining that the suit was properly brought as a sworn account rather than as a suit for debt. Appellant argues that this was not a sales transaction “whereby title to personal property passes from one to the other”, citing Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962); Radio K O K E v. Arthur Tieman, 378 S.W.2d 952 (Tex.Civ.App., Austin 1964, writ ref., n. r. e.). We do not find the authorities cited by appellant as applicable to the case at bar. In the recent case of Dolenz v. Employers Casualty Company, 504 S.W.2d 625 (Tex.Civ.App., Ft. Worth 1974, n. w. h.), it is said: “It is true, as pointed out by plaintiff, that the courts have held that a plaintiff suing to recover for insurance premiums can properly plead the action in the form of a suit on a sworn account. This is by virtue of Art. 3736, V.A.C.S., which has since been repealed by the adoption of Rule 185, T.R.C.P., which was at first worded exactly the same as was Art. 3736. See Moore v. McKinney, 151 S.W.2d 255 (Dallas, Tex.Civ.App., 1941, no writ hist.) and Crowe v. Union Automobile Ins. Co., 79 S.W.2d 168 (El Paso, Tex.Civ.App., 1935, writ dism.).” We hold that appellee’s suit was properly brought as a suit on a sworn account under Rule 185, Texas Rules of Civil Procedure. See also Langdeau v. Boukniglit, 162 Tex. 42, 344 S.W.2d 435, 441 (1961). We overrule appellant’s first point of error. In its next four points of error appellant argues that the trial court’s findings as to the debt evidenced by the appellee’s account are not supported by any probative evidence; that they are not supported by sufficient evidence and that they are against the great weight and preponderance of the evidence; appellant further argues that the trial court erred in admitting in evidence appellee’s ledger sheet evidencing the status of appellant’s account. The ledger sheet in question bears appellant’s name and address and in seven coded columns are indicated the invoice dates, expiration date, policy number, premium charged, payments credited, and balance due. Appellee testified that his agency wrote a number of insurance policies covering appellant’s garage business on “open account”, but that finally all policies were terminated because of appellant’s “lack of interest” in paying anything on the account. Appellee explained that when a policy “came in”, under his bookkeeping system, the invoice was put into a bookkeeping machine and posted on the ledger card; the balance was then carried forward minus any credits applicable to the account. Appellee testified that the ledger cards were made in the regular course of business and the entries posted within several days of the occurrence by an employee in his office operating under his direct control and supervision. Appellee testified that the ledger sheets offered in evidence were the original ledger sheets from his office “on the open account for Rudi’s Automotive Corporation” and that the amounts shown were the rates set by the State Board of Insurance for the particular insurance coverages indicated. Appel-lee was further permitted to testify without objection that at the time he severed his business relations with appellant he was owed $1994.80 as shown by the ledger cards and that the cards reflected all the payments made by appellant and the credits allowed thereon. He further testified that such amount represented a reasonable charge for the insurance premiums indicated in Harris County, Texas, during the years recorded. An account must show with reasonable certainty the name of each item, the date and the charge therefor. Benthall v. Goodwin, 498 S.W.2d 510 (Tex.Civ.App., El Paso 1973, n. w. h.). Appellee tes tified without objection that it had sold and delivered the insurance policies reflected by the ledger account to the appellant; that its charges as reflected by the account were reasonable and based upon the rates set by the State Insurance Board and that all lawful credits had been made and were shown on the account. We believe the trial court was justified in finding the account met the requisite tests of certainty and, subject to the matter discussed below, accurately reflected the amount owing by the appellant. See Goodman v. Art Reproductions Corporation, 502 S.W.2d 592, 594 (Tex.Civ.App., Dallas 1973, n. w. h.), and authorities cited therein. We further note that the appellant’s denial of the account is insufficient as a verified denial under Rule 185 and Rule 93 (k) of the Texas Rules of Civil Procedure. See Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App., Houston, 14th, 1972, n. w. h.); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App., Houston, 14th, 1971, n. w. h.). Thus it ap pears that appellee’s sworn petition under Rule 185, Texas Rules of Civil Procedure, established a prima facie case on sworn account even though appellee proceeded to prove the account as at common law. McDonald v. Newlyweds, Inc., 483 S.W.2d 334 (Tex.Civ.App., Texarkana 1972, ref. n. r. e.). We overrule appellant’s points of error two through five, but suggest remit-titur as to the item of the account discussed below. In appellant’s sixth point of error it asserts the trial court erred in awarding attorney’s fees to appellee’s attorney, contending that appellee’s suit was not sued upon a sworn account and that appellee would, therefore, not be entitled to recover attorney’s fees. The account before us reflects a relationship of debtor and creditor created by a general course of dealing between the parties and does not reflect that these transactions rest upon a special contract. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). The account shows entries for premium charges made from timé' to time during the parties’ relationship over a period of years and credits for payments were made on the account and applied to the general indebtedness reflected by the account and not against any particular charge reflected thereby. The course of conduct reflected by this account indicates that the insured’s indebtedness was carried by appellee on “open account” and is therefore within the definition of a “sworn account” as set forth in Meaders, supra. Compare Dolenz v. Employers Casualty Company, supra; Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961); wherein it was held, under the facts there presented, that a “sworn account”, as defined in Meaders, was not shown. Appellant’s sixth point of error is overruled. Appellant’s seventh point of error complains that the trial court erred in failing to grant an offset to appellant based on appellee’s “admitted negligence which proximately caused defendant $1700.00 in damages.” Under this point appellant argues that appellee was negligent in failing to report appellant’s accident claim to the insuring company, Miller’s Mutual, who subsequently refused to pay the claim on the ground that it had not been filed within a period of six months. Rule 97(g), Texas Rules of Civil Procedure, provides: “Tort shall not be the subject of set-off or counterclaim against a contractual demand nor a contractual demand against tort unless it arises out of or is incident to or is connected with same.” There is no indication that the claim which appellant seeks to have offset against appellee’s account “arises out of or is incident to or is connected with” any of the items pertaining to the account. Furthermore, the issue of appellee’s “negligence” was not admitted, but on the contrary was a disputed issue. It was appellee’s testimony that in discussion with appellant, he was advised by appellant that the other party to the accident had insurance and that appellant had been in contact with their insurance representatives and expected the claim to be paid by the other party’s insurance carrier. Appellee further testified that he advised appellant “if there was any problem in that nature” to let him know and that he heard nothing further until six months had elapsed. The trial court was at liberty to determine these controverted facts in favor of appellee’s contention. Appellant’s seventh point of error is overruled. While we have determined that the trial court properly found appellee’s account to be correct, the face of the account reflects that an item of $304.54 is shown as the beginning balance of the account and such item is not shown to be attributable to any insurance premium charge made with respect to any of the policies reflected on the face of the account. It appears likely that this beginning balance was for some charge made prior to the first invoice date reflected by the account but neither the account nor the evidence presented in explanation thereof reflects the particulars with respect to such item. Accordingly we find the account to be excessive in the amount of such item and we suggest remit-titur in that amount. The judgment of the trial court is found to be excessive in the amount of $304.54 and the cause is therefore reversed for that reason only. If appellee shall remit said sum of $304.54 within 10 days from the date hereof the judgment will be reformed by reduction in said amount and as so reformed shall be affirmed. ON FILING OF REMITTITUR On April 4, 1974 we indicated by a written opinion that if appellee would file a re-mittitur of $304.54 by April 14, 1974 the judgment of the trial court would be reformed and as reformed would be affirmed. Appellee has filed the suggested remittitur of $304.54 within the time provided and the judgment of the trial court is, therefore, reformed by deducting said amount of $304.54 and as so reformed is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jack BRYANT, Appellant, v. L. H. MOORE CANNING CO. et al., Appellees. No. 856. Court of Civil Appeals of Texas, Corpus Christi. April 30, 1974. Joe W. Walsh, Joe W. Walsh & Associates, Brownsville, for appellant. Asa V. Bland, Jr., Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, Marshall W. Graham, Adams, Graham, Lewis, Jenkins & Graham, Harlingen, for appel-lees. OPINION NYE, Chief Justice. This is an appeal from an order dismissing plaintiff’s suit for damages. Jack Bryant, the appellant, sold a crop of beets to L. H. Moore Canning Company, the ap-pellee. The appellee failed to make payment for the beets whereupon the appellant made claim against the appellee under the provisions of the Agricultural Protective Act, Article 1287-1, Vernon’s Ann.Civ.St. The commissioner ultimately made findings m favor of the appellant. Whereupon the appellant brought this suit for damages against the appellee and Hartford Accident and Indemnity Company, as surety on the bond for the canning company, to enforce the findings of the Commission of Agriculture. The canning company did not appeal from the order of the commissioner. This present suit was brought to enforce the findings, the conclusions, and the order of the Commissioner of Agriculture. The appellees excepted to any reference in the appellant’s petition to any decisions or action taken by the Texas Department of Agriculture and any reference to violations by appellant of the Agricultural Protective Act. These exceptions were sustained. The plaintiff refused to amend his pleadings and his cause of action, whereupon his suit was dismissed by the trial court. The appellant was the producer, seller and owner of vegetables and appellee canning company was a dealer in vegetables within the meaning of the Agricultural Protective Act. The facts set forth in this opinion are taken from appellant’s petition. On November 14, 1967 the appellant and the canning company entered into a contract for the sale of a beet crop from the appellant to the canning company. The appellant grew the beets and complied with the contract but the canning company allegedly refused to designate a harvest date while the beets were of marketable size, harvested only a small part of the crop, and failed and refused to harvest the rest of the crop. The appellant filed his verified complaint with the Commission of Agriculture on or about July 2, 1968 complaining of appellees. The commissioner conducted a hearing whereby the parties appeared and were represented by counsel. On November 5, 1968 the commissioner by letter announced his conclusions and rulings and made certain findings of fact in favor of appellant. Under date of March 31, 1970 the commissioner entered his order in complete favor of appellant and found that Moore Canning Company was indebted to appellant in the sum of $26,760.00. The canning company did not appeal this order. This suit was then brought on June 11, 1970 to enforce the conclusions and findings and order of the Commissioner of Agriculture. Appellant’s only point of error is that the trial court erred in dismissing this cause because the appellant had a right to enforce the findings and order of the Commissioner of Agriculture against the appel-lees. The appellant argues that the sole question on this appeal is whether the appellant had the right to enforce the findings and order of the Commissioner of Agriculture made under the provisions of the Agricultural Protective Act (Article 1287-3, V.A.C.S.). The Agricultural Protective Act (article 1287-3, V.A.C.S.) is a licensing and penal statute. The purpose of the act is to protect fruit and vegetable producers, handlers, and dealers from dishonest or financially irresponsible buyers. Treon v. Richter, 265 S.W.2d 125 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). The article requires licensing and provides as a prerequisite therefor that the licensee shall have surety bonds in various amounts in order to provide financial responsibility in the event of a breach of contract. (See Section 6 of the act). The article establishes a system of licensing and bonding requirements for dealers who purchase produce from the growers. It empowers the Commissioner of Agriculture of Texas to issue such licenses. In the event a license is refused or revoked, the applicant may appeal this determination to the state courts. However, it is important to note that appellant’s suit is not an appeal from the commissioner’s determination, as provided for or contemplated by the statute. The commissioner’s order revoking the appellee canning company’s license was never contested by the canning company. The nature of this suit is not to enforce the order of the commissioner since the question of the cancellation or reinstatement of the canning company’s license is not in dispute. Instead, this suit attempts to make an administrative order res judicata as to those fact findings and issues upon which the order of suspension was based. At one time it was regarded as the general rule that the doctrine of res judicata did not apply to administrative decisions. Killingsworth v. Broyles, 300 S.W.2d 164 (Tex.Civ.App.—Austin 1957, n. w. h.); Moore v. Thompson, 131 F.Supp. 658 (S.D.Tex.1953). However, the Supreme Court of the United States held out the possibility of application of the rule to certain types of administrative decisions when it stated: “. . . Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah Construction and Mining Co., 384 U.S. 394, 421-122, 86 S.Ct. 1545, 1559-1560, 16 L.Ed.2d 642 (1966). (Emphasis supplied.) Texas courts have followed the rationale of the Supreme Court’s statement of the rule. The Austin Court of Civil Appeals states: “. . . It is quite true that certain types of administrative actions are properly within the scope of the principal of res ad judicata. It is the nature of the action, however, which is •controlling. We quote from 2 Am.Jur.2d, p. 307: ‘In general, the answer given by the courts to the question whether an administrative determination is capable of being res judicata depends upon the nature of the administrative action involved, and the doctrine of res judicata has been applied to administrative action that has been characterized by the courts as “adjudicatory,” “judicial,” or “quasi-judicial,” while to administrative determinations of “administrative,” “executive,” “legislative,” or “ministerial” nature of the rules of res judicata have been held to be inapplicable.’ ” Railroad Commission v. Phillips, 364 S.W.2d 408 (Tex.Civ.App.—Austin 1963, n. w. h.). (Emphasis added.) The appellant argues that the findings of the Commissioner of Agriculture in the administrative proceeding in question operate by way of collateral estoppel against the appellees in this subsequent court proceedings as to the matters that were actually and legally determined in the administrative proceedings. Citing Globe Indemnity Company v. White, 332 S.W.2d 454 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.) and Treon v. Richter, 265 S.W.2d 125 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.) as authority for the protection of the producers of farm products. These cases are not in point with the case before us. The order of the commissioner which the appellant urges as being res judicata of the issue of contract liability is one made pursuant to the regulatory licensing statute. Article 1287-3, V.A.C.S., provides, in Section 7, a certain procedure for hearing complaints for violation of the act. Subsection (d) states: “(d) Upon the conclusion of said hearing and the introduction of all evidence by the respective parties thereto, the Commissioner shall make his decision on the basis of the evidence introduced therein, and shall, if the evidence warrants, issue his order canceling the license of the person complained of.” In Section 14 of the act, the Commissioner of Agriculture is given the power to investigate violations and conduct certain hearings. The latter portion of this section is addressed to the enforcement of orders and reads: . . The Commissioner shall take such action and hold such public hearing as in his judgment are shown to be necessary after such investigations, and shall take the proper action with reference to the cancellation or suspension of the license of any dealer hereunder shown to have been guilty of a violation of the terms of this Act. . . (Emphasis added.) Nowhere is the commissioner given the power to determine or assess money damages, to adjudicate the relative rights of the parties, to interpret or determine contract law, or to enforce money judgments. His power is limited within the framework of the act. Where a prescribed power is granted and the method of its exercise prescribed, the precise method set forth in the act excludes all others and must be followed. Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex.Sup.1968). The Texas Agricultural Protective Act must not be confused with the Perishable Agricultural Commodities Act of the United States Government. The Perishable Agricultural Commodities Act, 7 U.S.C.A. Section 499g(c) provides that when a suit is brought for a violation of the Act “such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and orders or orders of the Secretary shall be prima-facie evidence of the facts therein stated.” It should be noted in conclusion, that our opinion should in no way invalidate the Agriculture Commissioner’s order. It was within his power to determine that the act had been violated and that the violator should be punished by the revocation of his license. Such determination, however, cannot now be used as a basis of liability or as a measure of damages in a subsequently filed suit in a court of law. As for the appellant, he must assert a cause of action against the appellees, independent of any determination made under the Agricultural Protective Act, before he can attempt to obtain a legally enforceable remedy. The order of dismissal by the trial court was correct. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Edward F. GODDE, Appellant, v. John H. WOOD, Jr., Appellee. No. 835. Court of Civil Appeals of Texas, Corpus Christi. April 30, 1974. Rehearing Denied May 23, 1974. David B. Connery, Jr., Rockport, for appellant. Melvin A. Krenek, San Antonio, Wm. H. Bloch, Rockport, for appellee. OPINION BISSETT, Justice. This is a statute of limitations case. Involved is a debt alleged to be due under an oral building contract. Edward F. Godde, the contractor, filed suit on December 16, 1971 against John H. Wood, Jr., the owner, to recover $6,547.05 claimed to be due him for building a home for defendant on Key Allegro Island, Rockport, Texas. After a jury trial, the trial court rendered judgment that plaintiff take nothing by his suit on the ground that plaintiff’s cause of action accrued more than two years before commencement of suit, and was, therefore, barred by Article 5526, Vernon’s Ann.Civ. St., and that the lien theretofore asserted by plaintiff against defendant’s property was null and void. Plaintiff has appealed. We affirm. The parties will be referred to as plaintiff and defendant as they were in the trial court. Plaintiff alleged that he and defendant entered into an oral contract for the building of a house for defendant, which called for him to furnish the “time, labor and materials” required under the plans and specifications, that he fully performed under the contract, and that defendant refused to pay him $6,547.05, which he alleged to be the balance due him under the contract. Defendant, in addition to pleading that plaintiff agreed to construct and complete the home on or prior to November 15, 1969, for a maximum contract price of $27,000.00, also raised the defense of the two year statute of limitations. Plaintiff, in his supplemental petition, alleged that defendant was absent from the State of Texas during the month of December, 1969, and that he was entitled to have excluded from the limitation period all of the time during which defendant was out of the State. The case was submitted on 10 special issues. The jury, in response to Special Issues 1, 2, 4, 5 and 10, found: that the parties entered into an oral contract on or about May 15, 1969, whereby plaintiff undertook to construct a residential dwelling and other improvements for defendant in accordance with certain plans and specifications furnished by defendant (Special Issue 1); that such agreement obligated defendant to make progress payments to plaintiff and ultimately to pay to plaintiff the total cost of the materials used, the plaintiff’s time, labor and related costs (Special Issue 2); that defendant was indebted to plaintiff on December 26, 1969, in the amount of $6,547.05 (Special Issues 4 and 5) ; and that the house had not been finished on or before December 11, 1969 (Special Issue 10). Those answers are not attacked in this appeal by anyone. The jury, in response to Special Issues 3, 6, 7, 8 and 9, further found: that plaintiff “constructed the residential dwelling and related improvements for the defendant and completed the obligations required of him” under the oral contract on December 19, 1969 (Special Issue 3); that plaintiff “finished the work comtemplated by the parties’ oral contract and delivered possession thereof to the defendant Wood on or prior to November 17, 1969” (Special Issue 6); that plaintiff “finished the work contemplated by the parties’ oral contract and delivered possession thereof to defendant Wood on or prior to December 11, 1969” (Special Issue 8); that defendant, in his letter of November 24, 1969 to plaintiff, notified plaintiff that he did not intend to make any further payments to plaintiff (Special Issue 7); and, that defendant’s wife advised plaintiff on December 12, 1969 that defendant, in effect, did not owe plaintiff any more money for building the home (Special Issue 9). Neither plaintiff nor defendant objected to the court’s charge, to the form or substance of any issue contained therein, or to the submission of any issue. No one requested the submission of any additional issues. Plaintiff relied solely upon the alleged oral agreement. He did not plead in the alternative for recovery on quantum meruit for the construction of defendant’s home, or for the value of any extra or additional materials, labor or services furnished or performed in addition to those required of him under the oral agreement. He requested no issue thereon and obtained no finding as to the reasonable value of the work generally, or of such “extras” or “additional items”. No contention was made in the trial court and none is made in this Court that the parties did not enter into a contract for the building of defendant’s home. Plaintiff, by seven points of error, complains that the trial court erred in refusing to disregard the jury’s answers to Special Issues 6 and 8, because there was no evidence to support such findings (Points 1 and 3), and that such findings were against the overwhelming weight and preponderance of the evidence (Points 2 and 4) ; that the trial court erred in refusing to disregard the answers to Special Issues 7 and 9 because the issues were evidentiary in nature and were immaterial as a matter of law (Points 5 and 6); and, that the trial court erred in overruling plaintiff’s motion for a mistrial because there was a fatal and irreconcilable conflict between the jury’s finding in response to Special Issue No. 3 and the jury’s findings in response to Special Issues 6 and 8 (Point 7). During the course of construction, progress payments, pursuant to plaintiff’s requests, in the total amount of $32,000.00 were made by defendant to plaintiff. The last of such payments, in the sum of $4,000.00, was made on November 12, 1969. The contract did not provide for fixed dates for the making of progress payments, nor did it specify the date final payment was to be made to plaintiff. There is evidence from defendant, his wife, and from disinterested persons, that at sometime between November 8 and November 11, 1969, plaintiff represented to defendant that the $4,000.00 would be the last, full and final payment due him under the contract, and that plaintiff assured defendant that if defendant paid him that sum of money that he (plaintiff) would pay all outstanding bills for labor and materials and all other completion costs. Defendant, on November 24, 1969, wrote plaintiff a letter, wherein the statement was made: “. . . Of course I now expect you to completely finish my house for the amounts which I have paid to you.” On December 12, 1969, plaintiff asked defendant’s wife for $600.00, which he said he needed in order to pay $400.00 to the painters as their wages for the work week which ended on that day, and $200.00 to “clean up what was left there for incidentals”. Mrs. Wood refused and, in her own words, told plaintiff: “We’re not going to pay you another dime, because we’ve put out all the money we can.” Plaintiff, in his brief, says that the fact of completion of the project on December 19, 1969 “is established by the only credible evidence of record, namely invoices for material supplied by Bracht Lumber Company on December 19, 1969 ... as augmented by the plain fact that at least one subcontractor, Moody Electric, billed plaintiff for the ‘balance on job complete’ in the sum of $250.00 on December 20, 1969”. We disagree. Plaintiff, when asked on cross-examination if he alleged in his petition that the work required of him under the oral contract had been substantially completed in November, 1969, answered: “You said ‘completed in November’. It wasn’t completed. We had to finish up the painting outside, which the weather was holding us up on. And the little incidentals that she (Mrs. Wood) thought of later. When I moved to these other jobs, I thought it was complete.” It is undisputed that plaintiff commenced other jobs sometime prior to December 5, 1969. When asked: “And you were totally finished by Thanksgiving?”, he replied: “No, other than painting outside, and little odds and ends, and he (Mr. Wood) was satisfied with that.” Plaintiff was asked by defendant’s counsel to state exactly what was done on the home after November 23, 1969. In addition to saying that the painters “touched up on the inside” and that the “touching up” was done “just before — around the 15th of December, somewhere thereabouts”, his answer was: “Well all I did out there was put that dryer in when it came . . . The dryer and the electric heater . . . Alex Lerma repainted some of the outside railing and bannisters because the foggy weather had caused the original paint to come off. ...” When asked on direct examination the date that the entire project was completed, plaintiff stated: “Oh, let’s see, the last part of December or around . . . well, I returned some stuff there to Wagley’s ... or to Bracht’s, I mean, after Christmas. I got my last credit check . . . credit slip”. The record shows that the last credit slip from Bracht was made on December 23, 1969. Bracht Lumber Company furnished materials in the amount of $14,277.67. Plaintiff paid Bracht $10,000.00 on account. All of the materials were delivered before December 11, 1969, with the exception of two quarts of paint ($7.28) which were bought on December 13, 1969, and a gallon of paint ($5.62) which was purchased on December 19, 1969. According to plaintiff’s own testimony, the painter, on or after December 12, 1969, was ordered to paint the “railing that the water or the dew had washed off” and to do “some touching up around there on the cabinets or something inside”. Plaintiff was invoiced by Bracht on December 29, 1969, for the balance of $4,277.67 due on the materials bill. Moody Electric Company, the electrical subcontractor, was paid a total of $1,200.00 (for wiring the house and renovating the chandeliers) up to and including November 21, 1969. On December 20, 1969, it invoiced plaintiff for $250.00, with the notation “balance on job complete”. After examining the entire statement of facts (922 pages) and the exhibits (73), we conclude that this Moody Electric Company invoice was for materials and services in connection with the installation of 1) an electric outlet at the fish cleaning stand back of the house, 2) a conduit for a battery charger alongside the boat dock, and 3) an electric plug and light socket on a creosote pier piling located on the canal front. The evidence shows that such materials and services were furnished prior to December 11, 1969. We hold that the materials and services covered by Moody’s invoice dated December 20, 1969 were not required by the oral contract. On December 26, 1969, plaintiff demanded an additional $6,547.05 of defendant as the final sum of money due him on the contract, which defendant refused to pay. No useful purpose will be served by a discussion of all the invoices that make up the demand. It did, however, include the Bracht and Moody bills as well as a claim by plaintiff for $190.00 due Alex Lerma for labor (painting). All of the other invoices involved in plaintiffs demand were either for services and materials that were furnished under the oral contract before December 11, 1969, or for materials and services that had no connection with the contract, or both. Apparently, the $190.00 for painting included $110.00 for painting defendant’s furniture that was not called for by the contract, and which was paid by defendant directly to Lerma in 1970. Plaintiff testified that the cost of “touching up” was no more than $25.00. Presumably, the remaining $55.00 was the cost of repainting the outside stairs, railing and bannisters. Defendant testified that the house was completed in accordance with contract specifications by November 17, 1969 except for some painting and the tarvia paving, (which tarvia paving was not required by the contract), and that the outside stairs, railing and bannisters had been completely repainted by December 14, 1969. Several disinterested witnesses testified that the house was finished by November 11, 1969. There is no testimony from plaintiff, or from anyone else, that the work required by the oral contract.was not finished until December 19, 1969, or that any work was performed thereon on that day. The paint that was obtained on December 19, 1969 was not used to complete the painting required by the oral contract, but, evidently, was purchased to correct a slight or trivial defect in the original painting that had developed as a consequence of adverse weather conditions which occurred in late November and early December, 1969. The repainting, regardless of the date when it was done, was strictly remedial in scope. There is no evidence that the paint which was purchased on December 19, 1969 was ever actually used in repainting any part of the improvements. Defendant admitted that “extras” were incorporated in the improvements in December, 1969, but he says that they were not furnished by plaintiff by virtue of the contract upon which suit was brought, but that all such items were additional to the materials, labor, or services required by the oral contract to be supplied by plaintiff. Such “extras”, according to defendant, consisted of: 1) the installation of a clothes washer and dryer sometime after December 8, 1969, which appliances were purchased by defendant; 2) the enlargement of a platform in the washroom area for the washer and dryer; and 3) the installation of electric plugs and outlets at the fish cleaning stand, on the boat dock, and on pier pilings along the canal front. Defendant further admitted that plaintiff, in December, 1969, did do some repainting. The inference, however, from his testimony is that the repainting was completed by December 14, 1969. Plaintiff says in his brief that during the time “Alex Lerma, the painter, finished up the painting” that defendant requested “at least three additional things: finishing up of the storage and washroom area, installation of the dryer yet to arrive, and ‘also, if it is not too late’ the installation of an all weather plug on top of the pier pilings and electrical work on his fish cleaning stand”. There is no evidence that such “extras” or “additional items”, constituted any part of the specifications incidental to the oral contract, and there is no evidence that those items were furnished as a result of changes in the original specifications which were authorized by defendant. The overwhelming weight and preponderance of the evidence supports defendant’s contentions that at the time the oral contract was made it was understood by both parties that the house was to he totally finished, paid for and possession delivered to defendant by November 15, 1969, and that defendant was fully moved into the house by November 11, 1969. The builder’s risk policy of insurance was can-celled on November 17, 1969, and a home owners’ hazard insurance policy was issued to defendant, effective November 17, 1969. In an 'action for debt under an oral contract, limitations begin to run when the cause of action accrues. Article 5526, V. A.C.S. That statute applies to this case. “The accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued”. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 721 (1946); Dunn v. Reliance Life & Accident Insurance Company, 405 S.W.2d 389 (Tex.Civ.App.—Corpus Christi, 1966, writ ref’d n. r. e.). The cause of action does not accrue until facts exist which authorize the claimant to seek relief in a court of competent jurisdiction from the person due to make reparation. Hartman v. Hartman, 135 Tex. 596, 138 S.W.2d 802 (1940); Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929 (1935); Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 148 S.W. 283, 150 S.W. 884, 152 S.W. 629 (1912). Since defendant invoked the provisions of Article 5526, V.A.C.S., as a defense to plaintiff’s suit, the debt sought to be recovered is barred if plaintiff filed his suit more than two years after his cause of action accrued. Defendant testified that he left the State of Texas on December 11, 1969, spent December 12 and 13 in the States of New York and New Jersey, and returned to Texas on December 14, 1969. There is some indication that defendant was in New York City on December 15, 1969, and that he returned to Texas on that day. That, however, was not conclusively established by the evidence. Plaintiff did not request a jury issue on the number of days that defendant was absent from the State, and no complaint was lodged for the failure to submit any such issue. We hold that the evidence shows that defendant was absent from the State for two days, and no more. Therefore, his suit is barred under the statute as a matter of law if the record reveals that his cause of action under any legal theory accrued on or at any time prior to December 13, 1969. Under the record before us, both plaintiff and defendant clearly contemplated a continuing contract, i. e., the contract was to continue until plaintiff had completed the improvements in accordance with the plans and specifications. Where a claim for work, labor, or materials performed or furnished is the outgrowth of an entire contract for continuous work, labor or materials (until the work project has been completed), the claim will be treated and considered as an entire demand and limitations will not commence to run until the contract has been finished. Alexander & Polley Construction Co. v. Spain, 477 S.W.2d 301 (Tex.Civ.App.—Tyler 1972, n. w. h.); City and County of Dallas Levee Improvement Dist. v. Halsey, 202 S.W.2d 957 (Tex.Civ.App.—Amarillo 1947, n. w. h.); Rich v. Arancio, 277 Mass. 310, 178 N.E. 743 (1931); 13 Am.Jur.2d, Building and Construction Contracts, § 114, pp. 106-107; 58 Am.Jur., Work and Labor, § 56, pp. 556-557. The rule of “substantial performance” with respect to building contracts has long been recognized in Texas. By reason of this rule, a contractor who has in good faith substantially performed a building contract is permitted to sue under the contract, substantial performance being regarded as full performance, so far as a condition precedent to a right to recover thereunder is concerned. Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869 (1912); Atkinson v. Jackson Bros., 270 S.W. 848 (Tex.Commn.App.1925); South Texas Building Co. v. Ideal Engineering, Inc., 402 S.W.2d 292 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Hen-nemuth v. Weatherford, 278 S.W.2d 271 (Tex.Civ.App.—Waco 1955, writ ref’d n. r. e.); 10 Tex.Jur.2d, Building Contracts, § 21, pp. 25-26. There is ample evidence of probative value that the work contemplated by the oral contract was substantially finished on or prior to both “November 17, 1969” and “December 11, 1969”, as found by the jury in their answers to Special Issues 6 and 8. Those answers are not against the overwhelming weight and preponderance of the evidence, as urged by plaintiff in his second and fourth points of error. Plaintiff admits in his pleadings that the house was “substantially” completed in “November, 1969”. We further hold that the evidence, when viewed in its entirety, conclusively shows that the work contemplated by-the oral contract was totally completed by December 12, 1969. We next consider plaintiff’s point of error concerning the asserted conflict between the jury’s answer to Special Issue 3 (that plaintiff completed the work contemplated by the contract on December 19, 1969), and the answers to Special Issues 6 and 8 (that plaintiff completed the work contemplated by the agreement on or before November 11, 1969, and on or before December 11, 1969). If there is a conflict between the answers to special issues, we are required to examine the entire verdict returned by the jury and to indulge every reasonable presumption in favor of the judgment that was rendered on the verdict. See 57 Tex.Jur.2d, Trial, § 549, pp. 277-287. Where the jury findings are reasonably susceptible of two constructions, one of which would reconcile the findings in favor of the judgment, such reconciliation is mandatory in favor of the judgment that was rendered on the jury verdict. Missouri Pacific Railroad Company v. Tide LPG, Inc., 462 S.W.2d 106 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). Before a judgment based on a verdict containing conflicting answers will be set aside, it must be shown that the conflict between the answers is such that one answer would establish a cause of action, while the other would destroy it. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). There are three reasons why plaintiff’s point relating to conflicting answers cannot be sustained. In the first place, the answer to Special Issue 3 has no support in the evidence. It was not necessary to submit that issue. The trial court properly disregarded the answer to that issue. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966); Angelina County Lumber Company v. Reinhardt, 285 S.W.2d 446, 450 (Tex.Civ.App.—Beaumont 1955, writ ref’d n. r. e.). In the second place, the apparent conflict can be reconciled. Special Issue 10, about which there is no complaint, inquired if “the Wood house had been finished by the Contractor Godde on or before December 11, 1969”? The jury said “No”. That issue, however, was not confined solely to an inquiry of work furnished under the oral contract, but the issue of completion of the “work” generally was submitted. It is reasonable to conclude that the jury found by their answer to Special Issue 10 that only the “work” required by the “extras”, had not been finished on or prior to December 11, 1969. Special Issue 3 inquired into the completion date of the house and “related improvements” under the contract. Special Issues 6 and 8 inquired only into the completion date of the “work” contemplated by that contract. The jury could have construed “related improvements” as being the admitted “extras”. Moreover, as the jury found that the house was finished under the oral contract and possession delivered “on or prior to November 17, 1969”, it is axiomatic that the house was still completed under the contract, “on or prior to December 11, 1969”, and also “on December 19, 1969”. An irreconcilable conflict between the answers does not exist. In the third place, we do not find in the record that plaintiff’s motion for mistrial on account of the asserted conflict between the answer to Special Issue 3, and the answers to Special Issues 6 and 8, although filed on May 14, 1973, was ever presented to or acted on by the trial judge. In that state of the record, nothing is presented for appellate review and we cannot consider the point. Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.); Barnett v. Woodland, 310 S.W.2d 644 (Tex.Civ.App.—Austin 1958, writ ref’d n. r. e.); Finney v. Finney, 164 S.W.2d 263 (Tex.Civ.App.—Fort Worth 1942, writ ref’d w. o. m.). Under the general rule, when money is payable on demand, it is payable immediately, and no demand is necessary to start the running of the statute of limitations. Cook v. Cook, 19 Tex. 434 (1857); Foreman v. Graham, 363 S.W.2d 371 (Tex.Civ.App.—Beaumont 1962, n. w. h.). However, if a demand is an integral part of a cause of action, or a condition precedent to the right to sue, the statute does not begin to run until a demand is made, unless the demand is waived or is unreasonably delayed. Condor Petroleum Co. v. Greene, 164 S.W.2d 713 (Tex.Civ.App.—Eastland 1942, writ ref’d w. o. m.); Hansen v. Hidalgo & Cameron Counties Water C. & I. D., 319 S.W.2d 765 (Tex.Civ.App.—San Antonio 1959, n. w. h.); 54 C.J.S. Limitations of Actions § 125b, p. 41. In the case at bar, demand for payment was not, by the terms of the contract between the parties, made a condition precedent to plaintiff’s right to sue. Plaintiff, in his brief, argues that limitations “does not begin to run until the time for Wood’s performance was at hand on Godde’s making demand for payment, and Wood’s refusal, on December 26, 1969”. However, we cannot consider that argument in disposing of this appeal. Plaintiff’s brief does not contain a point where it is contended that the trial court erred in its conclusion and holding that plaintiff’s cause of action is barred by the two'year statute of limitations. An examination of all points brought forward, leads us to hold that they are not broad enough to be equivalent of a point that the trial court erred in holding that plaintiff’s cause of action was barred by limitations. The first six points complain of the asserted error in refusing to disregard the jury’s answers to Special Issues 6, 7, 8 and 9; the seventh and last point of error concerns the asserted error in overruling plaintiff’s motion for mistrial because of conflict in certain answers. None of the points furnish a basis that supports the argument. Plaintiff’s position in this matter constitutes unassigned error. “The right of an appellate court to reverse a trial court judgment on unassigned error is limited to situations in which the error can properly be classified as ‘fundamental error’ ”. Newman v. King, 433 S.W.2d 420 (Tex.Sup.1968). Generally speaking, fundamental error is either error which directly or adversely affects the interest of the public generally, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947), or error in assuming jurisdiction where none exists, McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). Errors occurring in the trial process and errors which a trial judge may make in deciding issues or making conclusions of law during the course of a trial have been consistently held not to be fundamental. State v. Sunland Supply Co., 404 S.W.2d 316 (Tex.Sup.1966); Kimbrough v. Walling, 371 S.W.2d 691 (Tex.Sup.1963). The complaint made by plaintiff did not affect the interest of the public generally. Neither did it deprive the trial court of jurisdiction, once obtained, to proceed to judgment. Therefore, since fundamental error is not presented and as plaintiff did not attack the trial court’s conclusion by a point of error, his right to complain on the ground evidenced by the argument was waived. City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1955); Dorbandt v. Jones, 492 S.W.2d 601 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). We do not deem it necessary to write at length on either points 5 or 6. Suffice it to say, the jury finding in response to Special Issue 7, that defendant, in his letter of November 24, 1969, “notified plaintiff Godde that he did not intend to make any further payments to Plaintiff Godde for building defendant’s home under the house building contract”, and the jury finding in response to Special Issue 9, “that defendant’s wife (Mrs. Wood) on December 12, 1969, advised plaintiff Godde that the Woods, in effect, did not owe plaintiff Godde any more money for building the home on the oral home building contract”, in view of the favorable fact findings for defendant relating to the date that the improvements were finished in accordance with the oral contract (which formed one basis for the rendition of the judgment that was rendered), could not have resulted in any harm to plaintiff. Moreover, it is established conclusively by the evidence that the house was fully completed no later than December 12, 1969 (when the painters finished), which formed another basis for the conclusion and holding that plaintiff’s cause of action was barred by limitations. This Court must affirm the judgment of the trial court if the judgment can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). The jury’s answers to Special Issues ? and 9 did not cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. The conclusion by the trial court that “plaintiff’s alleged cause of action accrued more than two years before the commencement of this suit and that the same is barred by and under Article 5526, Revised Civil Statutes of Texas” is supported by the record. The debt being barred, the lien dependent thereon is unenforceable and was properly decreed to be null and void. University Savings & Loan Ass’n v. Security Lumber Co., 423 S.W.2d 287 (Tex.Sup.1967); Hubert Lumber Co. v. Baumgart, 464 S.W.2d 728 (Tex.Civ.App.—Houston 1st Dist.1971, n. w. h.). We have carefully reviewed all the evidence. All of the points of error brought forward by plaintiff have been considered, and all are overruled. The judgment of the trial court is affirmed.

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The BANK OF NORTH TEXAS, Appellant, v. RED HENRY PAINTING COMPANY et al., Appellees. No. 853. Court of Civil Appeals of Texas, Corpus Christi. April 3, 1974. Robert W. Dupuy, Corpus Christi, for appellant. Paul Hill, Zarksy & Hill, Franklin L. Smith, Corpus Christi, for appellees. OPINION YOUNG, Justice. This is a summary judgment case. Red Henry Painting Company brought garnishment proceedings against Oscar Soliz, District Clerk of Nueces County, Texas, as garnishee, seeking funds held by him. Garnishor alleged that these funds belonged to J. B. Price and Sam Higbee, doing business as Price Construction Company, and that garnishor had an unsatisfied judgment against Price and Higbee. Garnishee answered that he was indebted to Price and Higbee. The Bank of North Texas, Hurst, Texas, intervened setting up a claim of ownership of those funds. The painting company filed a motion for summary judgment. The bank answered with an affidavit in opposition. The trial court, after a hearing, granted the motion of the painting company. In its judgment, the trial court recited that the court considered the pleadings on file and that they show an absence of any genuine issue as to any material fact. The bank appeals. In its application for writ of garnishment in this case, the plaintiff painting company alleged that it had, in cause no. 111.185-E, on the docket of the 148th District Court, styled Red Henry Painting Company, Intervenor, v. J. B. Price and Sam Higbee, doing business as Price Construction Company, obtained a judgment (being a default and interlocutory judgment) against Price and Higbee for $5,469.32 with interest, attorney’s fees and costs; that the judgment remains unsatisfied; that the garnishee clerk is indebted to Price and Higbee by reason of the fact that on April 10, 1973, a judgment (final) was entered in favor of Price and Higbee against Housing Authority of the City of Corpus Christi and Fort Worth Lloyds in cause no. 111,185-E awarding to Price and Higbee and the Bank of North Texas, Hurst, Texas, the sum of $126,350.41, which sum has been paid into the registry of the court; and that garnishee as clerk of the court is the custodian of such funds and he is, therefore, indebted to Price and Higbee. This cause in garnishment was numbered 118,095-E in the 148th District Court, Nueces County, Texas. The garnishee clerk answered the plaintiff’s application for writ by stating, in substance, that the garnishee is indebted to Price and Higbee by reason of cause no. 111.185-E in the amount of $126,350.41, plus some accrued interest; that these funds were paid into the registry of the court in satisfaction of a judgment signed April 10, 1973, providing, among other matters, as follows: . . the sums shall be held by the Clerk of this Court, subject to the following provisions of this judgment: (a) The sum of $32,989.91 plus interest thereon at the rate of $4.39 per day from the 10th day of April, 1973, shall be paid by the Clerk of this Court to the Department of Treasury-Internal Revenue Service of America. (b) The sum of $30,000 shall be paid by the Clerk of this Court to Stone & Berryman, Inc., and Michael Thompson. (c) The sum of $16,850.00 shall be held by the Clerk in the registry of this Court, pending final judgments in Cause No. 117,352-E, Celanese Coating Company, Devoe Paint Division Vs. The Housing Authority of the City of Corpus Christi, et al, and Cause No. 117,345-E, Red Henry Painting Company Vs. The Housing Authority of the City of Corpus Christi, et al, on the docket of this Court. (d) The balance of said funds, including any balance remaining in the registry of this Court out of the funds held under paragraph (c) hereof, shall be paid by the Clerk of this Court to the Plaintiffs herein, J. B. Price and Sam Higbee, doing business as Price Construction Company, and Bank of North Texas, Hurst, Texas.” The bank intervened, in answer to the pleadings in garnishment of the painting company and the clerk, and alleged that it, the bank, owns the judgment and funds resulting from the judgment of cause no. 111,185-E; that Price and Higbee have no interest in the proceeds of that judgment; that Price and Higbee assigned all interest in that judgment of cause no. 111,185-E before the rendition of any judgment in favor of the plaintiff painting company; and that, therefore, the clerk should be ordered to pay all sums he now holds to the bank. The garnishor painting company then filed an answer to the bank’s plea in intervention. Thereafter, the painting company filed its motion for summary judgment and a later amended motion for summary judgment alleging there that the assignment of funds (by Price and Higbee to the bank) is prohibited by Art. 5472e, Vernon’s Ann. Civ.St.; that there is no genuine issue as to any material fact, all according to certified documents attached to the motion. To its amended motion for summary judgment, the painting company attached a copy of its application for writ of garnishment (which we have described above); a copy of the writ of garnishment with return thereon; and a copy of its default judgment in cause no. 111,185-E. This default judgment, signed and entered May 16, 1972, was in favor of the plaintiff painting company against Price and Hig-bee for $5,469.32 plus interest and attorney’s fees of $1,825.00. The bank opposed this motion by an instrument denominated “Affidavit in Opposition To Plaintiff’s Motion for Summary Judgment”. This affidavit was executed by Bill Daniel, who stated that he was the president of the bank; that the funds being held by the clerk resulted from a judgment, in cause no. 111,185-E, the bank obtained against Fort Worth Lloyds and the Housing Authority of the City of Corpus Christi; that the cause of action arose by virtue of a valid assignment by Price and Higbee to secure funds advanced to Price and Higbee. Appellant, in three points of error, asserts that the trial court erred in granting the appellee’s motion for summary judgment in the following respects: “(a) Appellee failed to establish that ‘there was no genuine issue as to any material fact’ that Appellant did not own or have an interest in the garnished fund. (b) Appellee failed to present summary judgment evidence which would entitle it to the protection of Article 5472e, V.A. T.S. (c) Appellee failed to present any summary judgment evidence rebutting the applicability of the exceptions to the protection of Article 5472e, V.A.T.S.” At this point of our discussion, we note that the only summary judgment evidence offered (i. e., attached to its motion) by the appellee in support of its motion was a certified copy of the default judgment in cause no. 111,185 — E, and certified copies of its application for writ of garnishment and writ of garnishment, both in cause no. 118,095-E. There is included in the transcript copies of other instruments: 1) appellee’s petition in intervention in cause no. 111,185 — E; 2) appellee’s first amended petition in intervention in cause no. 111,185 — E; 3) a motion and order regarding a clerk pro tempore; 4) bond of clerk pro tempore; 5) answer in garnishment of the clerk in cause no. 118,095-E; 6) petition in intervention of the appellant in cause no. 118,095-E, which has attached a judgment in cause no. 111,185 — E; 7) ap-pellee’s answer to appellant’s plea of intervention. There is nothing in the record to indicate that these copies of other instruments were exhibits before the trial court in connection with the summary judgment proceedings. We are, therefore, confined to the consideration of the default judgment (attached to appellee’s motion) in cause no. 111,185 — E and we cannot take into account the pleadings and final judgment (included in transcript only) in that prior suit. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Serna v. Reyna, 418 S.W.2d 701 (Tex.Civ.App.—Corpus Christi 1967, n. r. e.). In resolving this dispute, we follow the principles regarding summary judgment proceedings as set out by our Supreme Court in Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup.1965), some of which are: “. . . the burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. . evidence must be viewed in the light most favorable to the party opposing the motion . . . ” We now look to the movant’s motion and attached documents. One of the attached documents is the application for writ of garnishment. It is signed, under oath, by Red Henry as plaintiff. So the instrument would seem to comply with the evidence requirements of Rule 166-A, Texas Rules of Civil Procedure, which rule is the basis for summary judgment practice. Among other recitals, the application states: “. . . Affiant has reason to believe and does believe that the garnishee [district clerk] is indebted to the judgment defendants [Price and Higbee] by reason of the fact that on April 10, 1973, a judgment was entered in favor of the judgment defendants and against Housing Authority of the City of Corpus Christi, and Fort Worth Lloyds in the 148th District Court of Nueces County, Texas in Cause No. 111 — 185—E awarding to said judgment defendants and the hank of North Texas, Hurst, Texas, [appellant] the sum of One Hundred twenty-six thousand three hundred fifty and 41/100 ($126,350.41) dollars, which judgment is now final.” (Emphasis supplied). At the outset, we see that the appellee painting company has raised an issue as to a material fact; i. e., the ownership of the funds in the registry of the court. By stating that the judgment of April 10, 1973, awarded to Price and Higbee and the Bank of North Texas the sum of $126,350.-41, the appellee recognized the appellant bank as having an interest in the fund. The amount of interest in the fund owned by each, the painting company and the bank, is not reflected by the evidence. The trial court in its order, entered October 24, 1973, granting the painting company’s motion for summary judgment, directed the garnishee clerk to pay out of the registry of the court to the painting company and its attorney: “(a) The sum of $5,469.32 with interest thereon at the rate of 6% per annum from May 16, 1972, until paid. (b) The sum of $1,825.00 as attorney’s fees, with interest thereon from May 16, 1972, until paid. (c) . . .all costs expended in Cause No. Ill 185 — E, . . . and all costs expended in this cause. . . . ” From the evidence, we find no basis for the payment of those specific amounts out of the funds held by the clerk. If it evolves that Price and Higbee owned less than the total of $5,469.22 with interest and $1,825.00 with interest and costs, then the trial court has directed payment to the painting company and its attorney of part of the funds owned by the bank. Therefore, we hold that there is a genuine issue whether the appellant bank fawns an interest in the garnished fund and that resolution of this issue requires more evidence than was properly before the trial court at the summary judgment hearing. Appellant’s first point is sustained. In its second point, the appellant complains that the appellee failed to present any summary judgment evidence which would invoke the protection of Art. 5472e, V.A.C.S. This article provides that all monies paid to a contractor, and others named in the article, under a construction contract for the improvement of specific real property are declared to be trust funds for the benefit of laborers, and others named in the article, who furnish labor or material for the construction or repair of any structure, described in the article upon such real property. There is no admissible summary judgment evidence by the appel-lee in the record that funds were paid to anyone pursuant to a construction contract for the improvement of specific real property; nor is there such evidence that ap-pellee was a laborer, or one named in the article, who furnished anything for the construction or repair of any structure, described in the article. Appellant’s second point is sustained. In that Appellant’s first and second points have been discussed and sustained by us, there is no necessity of our resolving appellant’s third point. The judgment of the trial court is reversed and the cause remanded for trial.

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COMMUNITY SAVINGS AND LOAN ASSOCIATION OF FREDERICKSBURG, Texas, Appellant, v. LUBBOCK SAVINGS AND LOAN ASSOCIATION OF LUBBOCK, Texas, Appellee. No. 8452. Court of Civil. Appeals of Texas, Amarillo. April 15, 1974. Rehearing Denied May 13, 1974. Small, Crain & Werkenthin, Ed C. Small, Austin, for appellant. Turner, Rodgers, Sailers, Jordan & Cal-loway, Frank E. McLain, Dallas, for appel-lee. REYNOLDS, Justice. A plea of privilege, controverted on the ground that actionable fraud was committed in the county of suit, was overruled. As a matter of law, the venue facts fail to establish actionable fraud. Reversed and rendered. Lubbock Savings and Loan Association of Lubbock, Texas, referred to hereafter as Lubbock, filed this suit in Lubbock County against Community Savings and Loan Association of Fredericksburg, Texas, hereafter referred to as Community. The suit is for damages arising out of a loan participation transaction. Lubbock alleges it was fraudulently induced by Community to enter into the transaction. Community filed its plea of privilege seeking to remove the suit to Gillespie County, its domiciliary county. Controverting the plea, Lubbock asserted its right to maintain the suit in Lubbock County under subdivision 7 of the general venue statute, Vernon’s Ann.Civ.St. art. 1995. The litigable transaction is the fifty percent participation by Lubbock with Community in a $900,000 loan made by Community to Joe Novotny for his purchase and development of Bandera County land which secured the payment of the loan. Lubbock alleges that it was induced to participate in the loan by various material misrepresentations; but, to maintain venue in Lubbock County, Lubbock depended on its evidence of a representation that the land “had a value of $1.25 million” as being the false representation that Lubbock believed to be true, and acted in reliance on, to its damages because the loan was not paid when due and the land, as shown by a later independent appraisal, was worth only $350,000 on the date of the loan. According to Sid Lowery, then president of Lubbock and one of the three members of its executive committee, the representation that the land had a value of $1.25 million was made to him by Ray Cowan during a long distance telephone conversation Cowan originated to ask that Lubbock participate with Community in making the loan. At that time, Cowan was a major stockholder in, and a previous president of, Community; moreover, Cowan then was the controlling stockholder of Lubbock, owning more than seventy-five percent of its permanent capital stock, and he was one of the three members of its executive committee. Lowery understood that Cowan was representing Community in the transaction because Cowan was a principal stockholder and had represented Community in previous loan participation transactions with Lubbock, although Lowery conceded that whatever Cowan was doing in representing Community, he was doing the same thing representing Lubbock. Lowery stated that he believed Cowan’s representations to be true and that he acted in reliance thereon; and, after the conversation with Cowan, “We agreed to enter into the participation at that particular time.” The participation transaction was approved by Cowan and Lowery in their official capacities as members of Lubbock’s executive committee, and Lubbock’s board of directors had nothing to do with the transaction. The executive committee was the only body authorized to make loans in excess of $35,000, and it was authorized by the board of directors to transact business, including participations in loans, between board meetings. The venue facts compel the conclusion that, under the applicable principles held operative in Goldstein v. Union Nat. Bank, 109 Tex. 555, 213 S.W. 584 (1919), Cow-an’s knowledge of the loan transaction was, as a matter of law, imputable to and binding on Lubbock. The consequence is that Lubbock did not prove actionable fraud permitting the retention of venue in Lubbock County under subdivision 7, V.A. C.S., art. 1995. Lubbock was engaged in the business of lending money. The authorization for and the approval of a loan participation of the magnitude of the instant loan was solely within the authority of its executive committee. Cowan was a member, if not the dominant member, of that committee when it, acting through Cowan and Lowery, approved the transaction for Lubbock pursuant to the knowledge of, and on the representations made by, Cowan. There is no evidence that Cowan had any personal interest in the loan transaction that would render it inequitable to charge Lubbock with his knowledge; there is no evidence that Cowan was disqualified from exercising the authority entrusted to him as an executive committee member. It is not contended, and it cannot be assumed, that Cowan, as the owner of seventy-five percent of Lubbock’s capital stock, was acting adverse to Lubbock’s interests which were, in fact, his own interests. Clearly, Cowan was acting in the scope of his authority as an executive committeeman in giving his approval to the loan participation transaction for Lubbock. Thus, through Cowan, Lubbock had constructive notice of, and became chargeable with, the knowledge that Cowan acquired during the course of the transaction. Lubbock, having authorized Cowan to take the action he did, cannot escape the consequences of his act by denying notice of, and claiming fraud resulting from, the material facts known to Cowan, its authorized agent, which are imputable to Lubbock. The judgment of the trial court is reversed, and judgment is here rendered ordering the cause transferred to Gillespie County. . Although Lowery said he had discretionary power respecting the loan participation and that if Cowan had not given a reasonable explanation of the land value, he would not have funded it, he acknowledged that Cowan was his boss and that if Cowan told him to make the participation, he would make it; furthermore, Lowery admitted that Cowan originated the loan and both associations were depending on him as their major stockholder to make the loan, and that the loan was made at Cowan’s direction.

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Isias ROSAS, Appellant, v. BUDDIE’S FOOD STORE, Appellee. No. 17492. Court of Civil Appeals of Texas, Fort Worth. April 26, 1974. Rehearing Denied May 24, 1974. Bean, Francis, Ford, Francis & Wills, and Charles Ford, Dallas, for appellant. Crumley, Murphy & Shrull, and Roswald E. Shrull, Fort Worth, for appellee. OPINION LANGDON, Justice. This is a slip and fall case. On the day of the accident, the entrance to appellee’s store became wet as a result of water dripping from customer’s clothing, and water being tracked in on customer’s shoes. The appellant stepped from his car, walked across the wet parking area between his car and the store.entrance at a time when it was raining and fell shortly after entering appellee’s store. After the depositions of Isias Rosas, the appellant, and Dudley Knox, the appellee’s manager of the store in question, were taken, the appellee filed a motion for summary judgment which was answered in writing by the appellant. The trial court, based upon the depositions mentioned above and appellee’s motion for summary judgment, found that (1) there was no genuine issue as to a material fact; (2) there was no proof of a dangerous condition existing in appellee’s store; and (3) that the proof was no more than proof of a normal and natural condition during a rain. Accordingly, the trial court granted the appellee’s motion for summary judgment that appellant take nothing. Appellant has perfected this appeal from the court’s ruling contending that it erred in granting the summary judgment because (1) there is a genuine issue as to a material fact, and (2) there is proof of a dangerous condition existing in appellee’s business which caused the injuries to appellant. We affirm. The deposition of Isias Rosas, age 54, of 532 Elm, Arlington, Texas, is summarized in the paragraphs next following. He drives a tractor for a Mr. Green, a farmer; he did not work the day of the accident because it had been raining. The accident was on Friday, April 25, 1970, at Buddie’s Supermarket, about 5:00 P.M. The weather was raining, streets were wet, and the sidewalk in front of the store was wet. He had gone to the store to buy groceries. He stepped through the automatic opening doors and fell a few feet inside the door, beyond a rubber mat. Mr. Cruz Lopez, a friend of Mr. Rosas was with him. Mr. Rosas testified: that the tile floor was wet “From the water that was being tracked in in the rain.” He did not see the water on the floor as he went in, only after he fell did he see it. The water was just in front of the door where the people come in and go out, it did not extend very far into the store, just right there by the door. Mr. Rosas was wearing sneakers or tennis shoes. The record is not clear on this point. The deposition of Dudley Knox, night manager of Buddies No. 8, located at 1516 East Abrams, Arlington, Texas, is summarized in the paragraphs next following. He was on duty on April 25, 1970, date of accident in question. He remembered “it had been raining that day people walk in . from the parking lot or sidewalk, well, they naturally carry water with them. . . . And you have to keep continually mopping, but it doesn’t serve a purpose, it’s impossible, we had a mop up front, and was continually doing it (mopping up). ... I did a lot of it myself. . . . Every time you would see some water and get an opportunity, you would mop it up; but it still won’t serve your purpose, because you have got to sweep it, . . . .” Knox further stated that no mats were put down; no one was continually mopping but the floor was mopped “real frequently.” Mr. Knox was asked, “Did you observe him, prior to his fall or just prior to his fall, doing anything that would have been, in your opinion, careless about his own behavior? A. Oh, no. He just walked straight into the store, and didn’t get as far as here from there (indicating) until his feet flew out. He just walked in naturally like you would anywhere, and his feet went yonder.” He further testified that the floor was “slick.” He could tell that the floor was slick from where he was sitting in the office. On cross-examination Knox was asked: “And you were then performing, on this occasion . . . the proper maintenance on the front of the store, and that is to mop and keep the water .... A. To a minimum.” Mr. Rosas had entered the store about six or eight feet before he fell. Mr. Knox had mopped the floor a few minutes before Mr. Rosas fell. The duty owed to an invitee by an occupier or proprietor during inclement weather conditions was set forth in an opinion by Justice Pope in the case of Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (San Antonio Civ.App., 1952, ref., n. r. e.). This was a slip and fall case in which an instructed verdict in favor of the defendant building owner was affirmed by the San Antonio Court of Civil Appeals. The court in Camp v. J. H. Kirkpatrick Co., supra, held that, “Rather than proof of a danger, this is no more than proof of a normal and natural condition during a moderate rain. There is no duty on a proprietor to stay the elements, nor to continuously mop during a shower.” The law concerning slip and fall cases during inclement weather conditions as promulgated in Camp v. J. H. Kirkpatrick Co., supra, was followed in Hodge v. Quik-Pik Icehouse, 445 S.W.2d 266 (San Antonio Civ.App., 1969, no writ hist.) wherein the Court stated: “The facts of this case are very similar to those considered by this Court in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (1952, writ ref’d n. r. e.). There, as here, there was evidence to the effect that the surface on which plaintiff fell was wet from water tracked in by people with wet shoes. Rather than proof of a danger, this is ‘no more than proof of a normal and natural condition’ resulting from rain.” Appellant contends that the deposition testimony of appellee’s store manager that the floor was wet and looked slick is sufficient to raise a fact question for jury determination. We think not. This testimony is not a material fact issue unless the trial court finds that there was a duty and that the danger was not open and obvious. Under all of the facts presented by this appeal the danger, if any, was open and obvious and there was no duty. In his brief the appellant attempts to explain why he failed to see the water on the floor by referring to the appellee’s store manager’s deposition testimony that the color of the floor was brown, the worst color you could get. The store manager did not testify that it was hard to see water on this brown floor. In the case of Parker Food Stores, Inc. v. Pierce, 374 S.W.2d 699 (Fort Worth Civ.App., 1964, ref. n. r. e.), a slip and fall case, the court held that, “A dark colored floor is not inherently dangerous. If, however, it may be assumed that there is something dangerous about a dark colored floor, appellant nevertheless cannot be held liable to appellee for any injury resulting therefrom. The color and condition of the floor was open and obvious to appellee, and appellant had no duty to protect him...." Appellant’s deposition testimony reflects that he had been to this store before and undoubtedly was familiar with its floor. Appellee’s brown floor is not inherently dangerous and it cannot be held liable to appellant therefor. We are of the opinion and hold that the facts of this case are governed by the holdings in Camp and Hodge. To the same effect see Spragins v. Jiffy Food Stores, Inc., 492 S.W.2d 719 (Fort Worth Civ.App., 1973, no writ hist.). Accordingly the judgment of the trial court is affirmed.

sw2d_509/html/0453-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Mamye Lura LAWLER et al., Appellants, v. R. A. NEATHERY et al., Appellees. No. 8413. Court of Civil Appeals of Texas, Amarillo. April 29, 1974. Sanders, Miller & Baker, Hugh Russell, Amarillo, Sheehan & Dubuque, Dumas, for appellants. Lovell, Lyle, Cobb & Renfer, R. A. Renter, Jr., Dumas, R. A. Neathery, Dallas, for appellees. ROBINSON, Justice. This is an appeal from a judgment of August 20, 1971, and from an order denying a default judgment against one defendant in the same cause entered on May 29, 1973. A holding that the August 20, 1971 judgment is final requires dismissal of that portion of the appeal because it was not timely perfected. Because the order of May 29, 1973, was entered after the trial court lost jurisdiction of the case, the portion of the appeal regarding it is reversed and judgment rendered dismissing the motion for default judgment. This appeal is from the third suit in this intra-family litigation. The original suit was brought by plaintiffs Fred, Phillip, Cris, Donna and David Speaker against defendants Mamye Lura Lawler and Jack Speaker to set aside a deed to the defendants from their mother, Martha Ann Speaker. The trial court cancelled that deed on grounds of duress and ordered that plaintiffs “have their title” to the land in question. That judgment was affirmed upon appeal, Lawler v. Speaker, 446 S.W.2d 888 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.). The second suit was brought under the declaratory judgment statute, Article 2524 — 1, to interpret the judgment rendered in the original suit. On appeal, the court stated that a trespass to try title suit was an adequate remedy in which to raise such issues and held that Article 2524-1 was unavailable for interpretation of a prior judgment, Speaker v. Lawler, 463 S.W.2d 741 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). This present suit, a trespass to try title action, was then brought by Mamye Lura Lawler and Jack R. Speaker against R. A. Neathery, R. A. Renfer, Donna Speaker Hill and Fred Speaker. Fred Speaker was personally served with citation in Moore County, Texas, on July 22, 1971. That same day the return of citation was filed in accordance with Rule 107. Fred Speaker filed no written pleadings. The other defendants (Neathery, Renfer and Hill) filed a plea of “not guilty” subject to a motion denominated Defendants’ Motion to Dismiss and Abate which contains the following allegation: “This suit is in all things res judicata, and all questions of law and of fact between the parties hereto as to the lands in controversy have been settled by prior litigation and this Honorable Court has no jurisdiction herein.” After a hearing, the trial court entered its judgment of August 20, 1971, which reads in part: “BE IT REMEMBERED THAT ON THIS the 20th day of August, 1971, came on to be heard Defendant’s Motion to Dismiss and Abate the Plaintiff’s Original Petition to trespass to try title and came the Plaintiffs by and through their attorneys of record and came Defendants by and through their attorneys of record, and all the evidence and other matters submitted to him in the said cause; . . . .” “IT IS THEREFORE ORDERED, ADJUDGED and DECREED by the Court that Plaintiff’s suit above entitled and numbered is in all things dismissed and abated for want of jurisdiction in that such prior judgment in cause No. 4811, styled Phillip Speaker, et al vs. Mamye Lawler, et al, dated May 20, 1968, and July 10, 1968, is in all things res judicata to all of the title to the land above described.” Plaintiffs gave notice of appeal of this August 20, 1971 judgment of dismissal of the present suit. Bond for 'costs was not filed and the appeal could not be perfected. Plaintiffs then filed a motion for Judgment Nunc Pro Tunc which was denied by the trial court on October 21, 1971. On December 17, 1971, still in the present suit, plaintiffs filed a motion requesting that the court enter a default judgment against Fred Speaker. On May 29, 1973, the trial court denied that motion by an order reading in part as follows: “ . . . (T)he Court is of the opinion and finds that the Default Judgment against Fred Speaker should not be granted in any respect and the allegations in Plaintiffs’ Motion are not true as Fred Speaker appeared and answered by his attorneys in that hearing of August 20, 1971, and the Order of this Court dated August 20, 1971, included Fred Speaker as a Defendant in such Order. “IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that Plaintiffs’ Motion be in all things overruled and denied.” The question of the jurisdiction to hear an appeal is fundamental and should be resolved before consideration of the merits. Articles 1822 and 2249; Pioneer American Ins. Co. v. Knox, 199 S.W.2d 711 (Tex.Civ.App.—Austin 1947, writ ref’d). Appellants (plaintiffs in the present case) contend that the trial court did not have personal jurisdiction of Fred Speaker, that he was an indispensable party, and that therefore the trial court order of August 20, 1971, dismissing the suit was interlocutory. It is apparently also the position of appellants that this judgment of dismissal became final and appealable when the order denying a default judgment against Fred Speaker was entered on May 29, 1973. In this state, it is well settled that plaintiffs’ filing of their petition with the clerk of the proper court commenced this suit and vested that court with subject matter jurisdiction of the suit. Rule 22 (formerly Article 1971); Hughes v. Atlantic Refining Company, 424 S.W.2d 622 (Tex.1968); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). The court acquired personal jurisdiction of defendant Fred Speaker when he was served. Gunter’s Unknown Heirs and Legal Rep. v. Lagow, 191 S.W.2d 111, 113 (Tex.Civ.App.—Austin 1945, writ ref’d); A. J. Hill Co. v. Tex-Tan of Yoakum, 235 S.W.2d 945 (Tex.Civ.App.—Galveston 1951, writ dism’d). The judgment of the trial court plainly and unambiguously states that “plaintiff’s (sic) suit” is in all things dismissed, thus effectively disposing of all issues and all parties. Such a judgment is a final judgment. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). Any error committed by the court entering the judgment was subject to appellate review. Since, however, appeal was not timely perfected, the portion of this appeal challenging the judgment of August 20, 1971, must be dismissed for lack of jurisdiction. The order of the trial court overruling and denying plaintiffs’ motion for default judgment was entered more than 21 months after the entry of a final judgment disposing of the entire cause and after the trial court lost jurisdiction to modify its judgment. Rule 329b. In overruling that motion the trial court correctly recognized that there was no remaining cause of action before it; however, the proper procedure would have been to dismiss the motion for lack of jurisdiction rather than to have denied it. On appeal to the court of civil appeals of a cause of which the trial court did not have jurisdiction, the proper practice is not to dismiss the appeal, but to reverse the judgment and render the order that the trial court should have entered, which, in this case, is an order dismissing plaintiffs’ motion for default judgment against Fred Speaker. Rule 434; Martin v. Commercial Standard Fire & Mar. Ins. Co., 505 S.W.2d 799 (Tex.1974); Perkins v. United States Fidelity & Guaranty Co., 299 S.W. 213, 219 (Tex.Comm’n App.1927, jdgmt. adopted). For the reasons above stated, the attempted appeal from the final judgment of August 20, 1971, is dismissed; the order of May 29, 1973, is reversed and judgment rendered dismissing plaintiffs’ motion for default judgment. . All references to rules are to the Texas Rules of Civil Procedure, and citations to statutes refer to Vernon’s Annotated Civil Statutes.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

The KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Respondent. No. 57511. Supreme Court of Missouri, Division No. 1. May 13, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied June 10, 1974. Robert D. Youle, Daniel M. Dibble, Kansas City, for appellant The Kansas City Southern Railway Co., Lathrop, Koontz, Righter, Clagett, Parker & Nor-quist, Kansas City, of counsel. Thomas E. Deacy, Jr., Spencer J. Brown, Deacy & Deacy, Kansas City, for respondent, St. Louis-San Francisco Railway Co. HIGGINS, Commissioner. Appeal (taken prior to January 1, 1972) from judgment for defendant and against plaintiff on plaintiffs petition for $155,077.60 damages. Plaintiff’s southbound freight train and defendant’s eastbound switch engine collided at a crossing and intersection of rail tracks of the two railways at the “South Frisco Crossing” in Joplin, Missouri, February 12, 1965. Plaintiff sustained damages of $155,077.60, for which it brought this suit alleging both primary and humanitarian negligence against defendant. Defendant’s answer alleged plaintiff’s contributory negligence and a defense of contract. Defendant also counterclaimed for damages of $10,000. Plaintiff replied in denial of the contract defense and alleged defendant’s contributory negligence. On December 14, 1888, the parties’ predecessors, the St. Louis and San Francisco Railroad Company and the Kansas City, Fort Smith & Southern Railway Company, entered into an Agreement whereby the Frisco gave Southern the right to operate over, upon, and across Frisco’s right of way, roadbed, and tracks (the “South Frisco Crossing”) at Joplin, Missouri, in consideration of which Southern agreed to construct and maintain, at its expense, a good and sufficient crossing at the point of intersection. On May 6, 1960, Frisco and Southern entered into a Supplemental Agreement, supplementing the original Agreement and several intervening agreements, “covering installation of crossing gates at Pittsburg, Kansas, and installation of crossing gate and automatic interlocking plant at Joplin, Missouri.” It was provided that “This supplemental agreement shall take effect as of July 7, 1959, and shall continue in effect so long as said gates and interlocking plant are maintained * * * Article I provides that Southern shall, at its own expense, install and maintain four crossing gates, three at crossings in Pitts-burg, Kansas, and one at a crossing in Joplin, Missouri. “The normal position of said crossing gate[s] shall be across the track of Frisco, and when so positioned shall be authority for * * * Southern to move over said crossing without stopping. * * * Frisco, upon approaching said crossing, shall be brought to a full stop and kept at a safe and lawful distance therefrom until * * * Frisco shall have determined that * * * Frisco may be properly and safely moved over said crossing, and shall cause said gate to be placed or set across the track of Southern, whereupon * * * Frisco may be moved over said crossing; and immediately after * * * [Frisco] shall have cleared the crossing * * * Frisco shall restore the crossing gate to its normal position across the track of Frisco.” Article II, “as a further consideration for the privilege extended to Southern” by Article I, provides that “Frisco may, at the sole cost and expense of Southern, furnish and install an interlocking plant at the [“South Frisco Crossing”] at Joplin, * * * subject, however, to mutual agreement * * * as to when the work shall be performed within four (4) years from the date hereof; it being further understood and agreed that in the event Frisco is unable for any reason to install said automatic interlocking plant within said four (4) year period * * * or if a mutual agreement as to the date of installation * * * shall not be reached * * * during the said four (4) year period, Frisco shall have the right, at Southern’s cost and expense, to furnish and install said automatic interlocking plant * * * at any time Frisco may desire to do so after the expiration of said four (4) year period.” The crossing gates at Pittsburg were installed and placed in operation by Southern July 7, 1959, and have been in operation since. The automatic interlocking plant at “the South Frisco Crossing” has not been installed. Article III provides that the supplemental agreement pertains to “all loss or damage arising upon or adjacent to said crossings, or either of them.” Loss or damage due to the concurring negligence or wrongful acts or omissions of the sole employee or employees of the parties “shall be borne by each party” as to its own property. The parties stipulated that the Supplemental Agreement “if applicable to the collision occurring at the [“South Frisco”] crossing * * * shall be construed so as to preclude either party hereto submitting its claim against the other under the Missouri Humanitarian Doctrine and instead requires that if either party recovers against the other it must be on the basis of the other’s primary negligence and such party so recovering must be free from contributory negligence. Plaintiff * * * contends that said contract is not applicable to the collision * * * and defendant * * * contends that it is. * * * that the applicability of the contract is a question of law for determination by the Court.” By supplementary stipulation, the parties agreed that both plaintiff and defendant were guilty of contributory negligence as a matter of law, precluding recovery by either; and that if the court should find the Supplemental Agreement not applicable, plaintiff would submit on the humanitarian doctrine only. The court determined that the Supplemental Agreement was in full force and effect and applicable to the collision in question; that Article III was controlling as to the legal rights of the parties; that it precluded plaintiff from submitting its humanitarian case; and that the parties were precluded from submitting their primary negligence claims by their stipulated contributory negligence as a matter of law. Accordingly, the court adjudged that defendant have judgment against plaintiff on plaintiffs petition; and, upon defendant’s voluntary dismissal of its counterclaim, adjudged that it be dismissed without prejudice. The sole question is whether the Supplemental Agreement in evidence was applicable and controlling as to the legal rights of the parties at the South Frisco Crossing in Joplin at which the collision occurred on February 12, 1965. If it was applicable, as found by the trial court, the judgment of dismissal shall be affirmed; if it was not applicable, the judgment shall be reversed to permit plaintiff to submit its humanitarian case. Appellant contends the agreement is not applicable because the contract is divisible and the applicability of Article III to this crossing at the time of collision is subject to a condition precedent which has never been met, namely, installation of the interlocking plant at the South Frisco Crossing. Appellant refers to the tests of a divisible contract in Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111 (1937), and Rexite Casting Co. v. Midwest Mower Co., 267 S.W.2d 327, 331-332 (Mo.App.1954): “Whether a contract is entire or severable is a question of intention, to be gathered from the language used and the subject-matter of the agreement. Tests which have been applied are whether the subject-matter of the contract is divisible, whether the consideration is entire or apportioned, whether the obligation is due at the same time to the same person, whether the contract is to take the whole or none, and whether the parties assented to all the promises as a single whole so that there would be no bargain whatever if any promise or set of promises were stricken out.” Appellant refers to the general nature of conditions precedent in Globe American Corp. v. Miller Hatcheries, 110 S.W.2d 393, 396 (Mo.App.1937): “ ‘It seems to be agreed that in regard to all conditions whether in a deed or will or in simple contracts, when the condition is in the nature of a consideration for the concession, its performance will be regarded as intended to precede the vesting of any right, and so a condition precedent. A condition precedent implies an existing fact, or a state of facts, which must be so changed as to bring it into a condition desired. A condition which involves anything in the nature of consideration is, in general, a condition precedent.’ ” Proceeding from these quoted principles, appellant argues that the Supplemental Agreement was a severable contract in that Article I dealt with crossing gates and called for immediate performance, while Article II dealt with an interlocking plant at a different location with performance left to the indefinite future. Similarly, in appellant’s view, Article III, changing legal rights between the parties from what they would otherwise be under Missouri law from time to time, applied to the locations of track crossings only at the respective time for performance applicable under Ar-tide I and for Article II. The condition precedent for application of the limitation of plaintiff’s rights by Article III, as to this collision, was the accomplished installation of the interlocking plant. There are two difficulties in this position: the elements of divisibility present in some contracts, e. g., the contract in Swinney v. Continental Bldg. Co., supra, are not present here; and the law does not favor conditions precedent and courts will not construe contract provisions to he such unless required to do so by plain, unambiguous language or by necessary implication, Miran Investment Co. v. Medical West Building Corp., 414 S.W.2d 297 (Mo.1967); 17 Am.Jur.2d Contracts § 321, p. 752. “A contract or a deed must be construed as nearly as may be by the intention of the parties, to be ascertained within the four corners of the instrument, the surrounding circumstances and conditions. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262. Consideration must be given to what the deed or contract actually says and not what the grantor intended secretly or without stating or what he might have said if he had decided to further explain his intention.” Kerrick v. Schoenberg, 328 S.W.2d 595, 599 (Mo.1959). The Supplemental Agreement between Frisco and Southern supplements the earlier contract between the parties dated December 14, 1888. The older Agreement contained no provisions with respect to loss and damage at the crossing in question at Joplin, Missouri. It simply was a grant from Frisco to Southern whereby Southern obtained the right to operate its trains over Frisco’s Joplin crossing. The Supplemental Agreement elaborates on the rights and privileges of the parties to provide, among other things, the legal positions of the parties at the South Frisco Crossing in Joplin, mentioned in the older Agreement, and four other crossings as well. See prior quotations from Article III, Supplemental Agreement. The “loss or damage” mentioned in and governed by Article III referred to “said crossings,” and could refer only, and to all the crossings described in Articles I and II, i. e., the crossing in question and the four gate crossings. See prior quotations from Articles I and II, Supplemental Agreement. Nowhere does the Supplemental Agreement provide that the effect of any of Article III would be deferred until a future time or until a particular occurrence or incident, and the agreement is lacking any provision that Article III or any part of the Agreement was to be ineffective until the interlocking plant at the South Frisco Crossing in Joplin had been constructed. Had such been the intention of the parties, it would have been a simple matter to so state. It is clear from the language employed and the sequence of provisions in the Supplemental Agreement, that the provisions governing rights and liabilities of the parties respecting damage to their property caused by their separate and concurring negligence were engrafted on the prior and existing agreements. The Supplemental Agreement shows on its face reference to the prior crossing provisions at Pittsburg and Joplin, and it recites the prior and existing agreements. If any of the crossings were to be omitted from any of the provisions of the Supplemental Agreement, this, too, would have been a simple matter to express. Glove American Corp. v. Miller Hatcheries, supra, also noted that although it is not always necessary to introduce conditions precedent by such terms as “on condition,” “provided that,” “so that,” conditions are usually accompanied by such words unless the contract is of such nature as to show that it was the intention of the parties to provide for such a condition. Neither the “magic” words nor the nature of the contract compels a construction including a condition precedent of the Supplemental Agreement between Frisco and Southern. Appellants argument that the effect of Article III was to be deferred until installation of the interlocking plant also disregards the parties’ express provision that the Supplemental Agreement, even though finally executed May 5, 1960, took effect on July 7, 1959, the date the crossing gates mentioned in Article I were placed in operation. The date is significant to the total effectiveness of the Supplemental Agreement. It marks the start of the flow of consideration supporting the contract to the Southern from the Frisco, i. e., from that date Southern’s main-line trains could thenceforth move over and through Frisco’s crossings without stopping. It is true, as suggested by appellant, that safety of operation over these crossings was increased by reason of the gates. However, as also stated by appellant, “It is apparent that the gates were in favor of the Kansas City Southern and against the Frisco because the tracks were the mainline of the former and a switchline of the latter.” Again, if it was intended that effectiveness of any part of the Supplemental Agreement was to be deferred until a later date, it would have been a simple matter to exempt that part from the effective date of the total agreement or to specify a date for effectiveness of that part. The indivisibility of the contract is further shown by the provision for further consideration flowing from installation of the locking gate. See prior quotation from Article II, Supplemental Agreement. Such provision shows that the privilege granted Southern to install crossing gates against Frisco was further considered by the right recognized in Frisco to install the interlocking plant at Southern’s cost. Frisco’s election to date not to exercise its right with respect to the interlocking plant does not constitute a waiver or serve to defeat any of the express provisions of Article III governing rights and liabilities of the parties in connection with subject collision. 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.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

John DODSON, Respondent, v. MFA INSURANCE COMPANY and Countryside Casualty Company, Appellants. No. 57286. Supreme Court of Missouri, Division No. 1. May 13, 1974. Motion for Rehearing or to Transfer to Court en Banc Denied June 10, 1974. Lantz Welch, Kansas City, Martha Sperry Hickman, Independence, for respondent. Thomas A. Sweeny, Kansas City, for appellants ; Popham, Popham, Conway, Swee-ny & Fremont, Kansas City, of counsel. WELBORN, Commissioner. Action for malicious prosecution. Jury awarded plaintiff $15,000 actual damages and $200,000 punitive damages. Defendants’ motion for new trial was overruled; judgment entered on verdict; defendants appealed. In March, 1962, plaintiff John Dodson resided at Brookfield, Missouri. He was then some 36 years of age, a veteran of World War II who had lost a leg in that war, and had had less than one year of high school education. In November, 1961, Dodson purchased a 1961 GMC truck from Gilbert Motor & Oil Co. of Brunswick. The price of the truck was $4,342. Dodson paid $525 cash and traded in a pickup truck for which he was allowed credit of $1,117. He financed the balance of the purchase price through Yellow Manufacturing Acceptance Corporation (YMAC), by means of a chattel mortgage on the truck to secure an indebtedness of $3,279.90, which was to be paid at the rate of $109.33 per month, beginning January 4, 1962. Dodson obtained comprehensive insurance coverage of the truck through an MFA Insurance Company agent in Marceline. The policy was written by the Countryside Casualty Company, a subsidiary of MFA. Dodson used the truck in a general hauling operation, principally of farm products. On March 21, 1962, a YMAC representative told Dodson that he had made only-one payment and that he was delinquent in two payments. Dodson told the YMAC man that he had made a second payment for which he had not received credit. At around 5:00 A.M., March 22, 1962, the Brookfield volunteer fire department responded to a call that a truck was burning on what was known as Cemetery Road, a gravel road outside the city limits of Brookfield. A member of the fire department notified Sergeant Conyers of the State Highway Patrol of the fire. Cemetery Road was in poor condition and the fire truck was unable to get through a mud-hole some distance from where the truck was burning. Firemen took dry chemicals to the scene of the blaze and extinguished the fire. The truck was Dodson’s and Dodson was present. Sergeant Conyers arrived at the scene at about the time the fire was extinguished. He asked Dodson about the fire and Dodson told him that he was driving west and the truck backfired a couple of times. “I smelled something and got out and lifted the hood and there was fire around the carburetor. It started spreading into the cab so I left and tried to get help.” That was the statement which the trooper put in his accident report and “Report of Burned Vehicle” which he prepared after he had been at the scene and had taken Dodson to the Brookfield police station where the reports were prepared. A little after 8:00 A.M. a tow truck was dispatched to remove the burned truck. Sergeant Conyers also returned to the scene of the fire. The tow truck operator found a cork gasket at the rear of the truck. The gasket had the odor of fresh gasoline and was turned over to Conyers. Conyers and a Brookfield policeman made a further search of the area. In a field some 90 feet to the rear of the truck and 75 feet from the road, Conyers found a five-gallon gasoline can that contained a little more than a gallon of gasoline. The filler cap of the can was removed. It had no gasket. The gasket found behind the truck fit the filler cap. The morning was frosty and neither the gasket nor the can had frost on it. The discovery of the gasket and can, coupled with the fact that the fire had been concentrated in the cab of the truck, led Conyers to suspect that the fire had been set. Conyers had learned from Dodson that the truck was insured by MFA. Conyers knew Harry Hansen who was employed by MFA as a special investigator to investigate fire losses when there was evidence of the questionable origin of a fire. Hansen was a former member of the highway patrol and had been Conyers’ troop commander for about three years when Con-yers joined the patrol in 1942. Conyers got in touch with Hansen and Hansen came to Brookfield around noon on March 22. Conyers drove Hansen to the scene of the fire and then took Hansen to the place where the burned truck had been towed. Hansen examined the vehicle and took photographs of it. Hansen and Conyers then went to Dodson’s residence. Dodson refused to talk in the presence of Conyers. Conyers and Hansen went back into town and Hansen returned alone. Although Dodson had said he would talk to Hansen if he was alone, Dodson was not at home when Hansen returned. Hansen returned to the house several times during the evening, but Dodson was not there. At around 8:00 A.M. on March 23, Brookfield police picked up Dodson and took him to the police station. Hansen was at the station and he assisted Dodson in the preparation of a sworn statement in proof of loss, in which Dodson set forth his claim for loss under his insurance policy of $2,500. On either March 22 or 23, Conyers and Hansen talked with Robert Devoy, the prosecuting attorney of Linn County, and laid before him the information which they had gathered. Devoy filed a complaint in the Linn County Magistrate Court, charging Dodson with arson of insured property. § 560.030, RSMo 1969, V.A.M.S. Dodson was arrested on the afternoon of March 26 on a warrant issued on the complaint. De-voy and Conyers saw Dodson after his arrest and, after advising Dodson of his rights, asked him if he wanted to make a statement. Dodson said that he had nothing to say except that he was innocent. Dodson was jailed and later released on bond. After preliminary hearing, Dodson was bound over to the circuit court. Hansen testified at the preliminary hearing. An information was filed and the case was tried before a jury on January 16 and 17, 1963. The jury returned a verdict of not guilty. The cause of action for malicious prosecution was filed February 17, 1965. Dodson testified to the purchase of the truck about four months before the incident in question. He had trouble with the truck backfiring. The truck was worked on but it continued to backfire. Dodson testified that, on the evening of March 21, 1962, he went to the Do Drop Inn and Wilma’s Tavern where he stayed till midnight. Then he went to the Duck Inn where he ate dinner and visited over coffee till two or three A.M. When he left he headed east on Highway 36 and encountered a motorist out of gas. Although the motorist said that he had already sent for help, Dodson volunteered to drive back to the Duck Inn Service Station for gas. There was no other station within 15 or 20 miles that was open. Dodson asked for a gallon of gasoline, and gave the attendant a dollar. The attendant ran “a gallon or so” in a five-gallon MFA can and since there was a deposit on the can, he kept the dollar. Dodson put the can on the right-hand seat of the truck, drove back to where he had left the motorist and he was gone. Dodson, having no job for the next day and being separated from his wife, decided to drive around. He drove past his room and then westbound on Cemetery Road. He experienced “quite a bit of trouble” getting through the first mudhole encountered, both the wheels spinning and the motor backfiring. Dodson went a “ways farther” and encountered another mudhole. The truck was still backfiring and the wheels spinning. He pulled it through but the “truck seemed like it was getting hot and I smelled something.” He stopped, got out, raised the hood and “it was on fire around the motor someplace.” He went around to the right side of the cab, “took the can of gasoline out and started up the road to get away from it” and “threw it over into a field.” Dodson then headed back up the road and attempted to summon help at one house with no success and continued on to the second house, that of “Peg” McCollum. He knocked on the door but McCollum didn’t respond right away. Dodson knocked again and yelled, “Good God, man get up — my truck’s on fire.” McCollum responded this time and Dodson came in, called the fire department, then “set down on the porch and held his head down in his hands.” Harold “Peg” McCollum, who lived within fifty feet of the first mudhole, was awakened by a terrific noise like a motor backfiring, raised up out of bed and saw a truck that was smoking with its “underneath part — all lit up like it could have been on fire.” The mudhole had been caused by the melting of a big snowdrift and a number of vehicles had been “stuck in this low place.” McCollum testified to Dodson’s coming to his house and calling the fire department. Audra Borron, an employee of the Duck Inn Service Station, testified that he sold thirty cents’ worth of gasoline to Dodson in the early morning of March 22. Sergeant Conyers testified for the defendants that, when he first went to the scene of the fire and spoke with Dodson, he did not suspect arson. His original accident report made no reference to Dodson’s” statement that he had been accompanied by a woman, but the report did note the finding of the gas can and suspicion of arson. When Conyers returned to the scene, his suspicion was aroused by the finding of the gas can, the loose gasket, the fact that the right door of the truck was open and the left door closed. He wrote an investigation report in which he noted those factors, as well as the MFA insurance and Dodson’s being delinquent in his payments on the note. This report was dated March 24. Conyers acknowledged that, although he suspected a crime had been committed, he did not ask patrol experts to study for evidence but instead got in touch with Hansen. Mr. Robert Devoy, Linn County Prosecuting Attorney, testified that he was told first by Conyers about the suspicious circumstances surrounding the fire and later talked with Conyers and Hansen. He testified that he would not have instituted a criminal charge without expert testimony that the fire was of incendiary origin and that he relied upon Hansen for such expert testimony. Hansen did not testify in the malicious prosecution case. Plaintiff’s evidence in the case was that Hansen did testify at the preliminary hearing on the charge against Dodson. He testified to his opinion as to whether the fire could have started from a backfire and as to how the fire started. Just how he testified on these matters was not actually shown, but the clear inference was that his testimony was favorable to the state on both issues. Hansen also testified at the trial of the arson charge. Hansen’s deposition testimony was used by plaintiff in the malicious prosecution action. In it Hansen stated that in his investigation he interviewed only Dodson, and made no effort to speak to McCollum or to locate the source of the gasoline can. He took no steps to have scientific tests made of the ground under the truck or of the unburned portion of the seat padding in order to establish evidence of the presence of an accelerant. He denied that he talked to Devoy before Devoy filed the arson charge. He denied that he made any recommendation against payment of the claim of Dodson or about repossession of the burned truck. He denied that he got the sworn proof of loss from Dodson in order to provide the basis of a criminal prosecution. He stated that he formed the opinion that arson had been committed from the way the truck burned and the presence of the gasoline can. Plaintiff introduced in evidence portions of a “Confidential and Privileged” memorandum, dated March 23, 1962, written by Hansen, and taken from the file of the prosecuting attorney. The memorandum dealt with Hansen’s investigation and included the following: “About 8:00 a.m., March 23, 1962, the Brookfield Police picked our insured up and brought him to the police station and I interviewed him there. I took from him a loss report which he signed, which is in the file and also had him sign a proof of loss and affidavit form. Before he signed this I went over the affidavit in great detail and he stated he understood it perfectly. “Sergeant Conyers and I talked to the Prosecuting Attorney of Linn County, Robert DeVoy and we explained to him why we felt this was not an accidental fire. Sergeant Conyers later told me he thought the prosecuting attorney was going to file arson charges against our insured concerning this fire. This is one reason why I wanted to be sure that our insured gave us a sworn statement in proof of loss and he understood it thoroughly before he signed it. This was in case he decided to withdraw his claim to avoid prosecution. “If the net payoff of this truck to Y.M. A.C. is below what we determined to be the actual cash value at the time of the loss, I think we should settle with Y.M.A. C. as loss payee only and not include our insured. Then, require them to endorse their note and mortgage to Countryside Casualty of Columbia, Missouri, without recourse and in the event our insured is prosecuted while we are able to decline the coverage as far as he is concerned, then I think we could repossess this truck and rebuild it and dispose of it and recover part of the money we have paid Y.M.A.C. We can also file suit against our insured as being advisable and get a judgment against him.” An expert witness called by plaintiff at the trial testified that, based on the photographs of the burned vehicle and the available evidence as to the fire’s inception, there was nothing to indicate that the fire was of incendiary origin. He testified that in investigation of arson cases involving automobiles the soil underneath the burned vehicle is routinely examined very carefully to find traces of accelerant which might have been used. The gas chromatograph is widely used for such purpose in arson investigations. Another expert testified that backfiring through the carburetor could have caused a fire such as here involved. He was of the opinion that the fire did not start in the cab of the truck and spread to the motor. An expert testified on behalf of the defendants that, based on the information he had about the case and examination of the photographs of the burned vehicle, the fire was an arson fire. He was of the opinion that the extreme burning of the cab area indicated either that it was a long burning fire or the fire had been stimulated by an accelerant. He was of the opinion that the condition of the motor area in numerous regards did not indicate a fire of such intensity in that area as would have spread from the motor to the cab. Appellants assert that the trial court should have sustained their motions for a directed verdict at the close of all the evidence because plaintiff failed to prove that the criminal prosecution was without reasonable grounds. This is, in effect, an assertion that the evidence on the existence of reasonable grounds was undisputed, leaving the question of the legal effect of such evidence for the court, not the jury. Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78, 96 (1907); Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 483-484 [7-9] (Mo.1972). Inasmuch as respondent charged that MFA, acting through Hansen, instigated the prosecution and appellants do not question that the evidence supports a finding favorable to respondent on that issue, the question becomes one of Hansen’s having probable cause for his action, not whether the prosecuting attorney had probable cause for filing the complaint and carrying on the prosecution. There can be little question that the occurrence did involve circumstances giving rise to suspicion that the fire was the result of arson — -the time and place of the fire, the presence of the accused, the fact that the accused was having difficulty in making the payments due on the truck, the discovery near the scene of material which might have been used as an accelerant for the fire, the discovery of the gasket which indicated that a container for an accelerant had been opened near the scene of the fire, and the nature of the damage to the truck. Hansen had knowledge of these facts and circumstances when he presented the matter to the prosecuting attorney and expressed the opinion that the fire was of incendiary origin. The evidence of the existence of the circumstances relied upon by Hansen was basically uncontradicted. Respondent denied having opened the gasoline can at the scene of the fire and made no effort to explain the presence of the gasket. However, the evidence that such a gasket was found was uncontradicted. Basically, respondent’s position is that the above-cited circumstances were not sufficient to provide reasonable grounds for Hansen’s actions because of what respondent claims were deficiencies in the investigation conducted by Hansen. He enumerates such deficiencies as follows: “ * * * Hansen, the arson expert, violated all the axioms of criminal investigation. He failed to secure physical evidence; failed to utilize scientific tests available to him; failed to determine the source and amount of the hypothesized offending accelerant; failed to interrogate the suspected arsonist regarding the source and amount of the hypothesized offending accelerant; failed to determine the preexisting condition of the truck when witnesses to such information volunteered such information to him; failed to check the scene or interview witnesses; failed to exercise any of his expertise other than to make a cursory inspection of the truck and perfunctorily interview Dodson.” The charge that Hansen “violated all the axioms of criminal investigation” was based upon the testimony of respondent’s expert witness, Joseph D. Nicol, Professor of Criminal Justice at the University of Illinois, and a former advisor to the President’s Commission on Law Enforcement and Criminal Justice and consultant to the Warren Commission on the assassination of President Kennedy. The test of probable cause is whether the facts and circumstances would warrant a belief in an ordinarily cautious person that another had committed a crime. Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 513 [10] (1942); Higgins v. Knickmeyer-Fleer Realty & Investment Co., 335 Mo. 1010, 74 S.W.2d 805, 813 (1934). Failure to make such investigation as the circumstances reasonably warrant will result in the issue of probable cause being considered in the light of knowledge on the part of the prosecutor of the facts which such investigation would have disclosed. Carp v. Queen Ins. Co., 203 Mo. 295, 101 S.W. 78, 91 (1907). In this case there is no evidence of what the scientific tests which respondent says should have been made would have disclosed. Hansen’s deposition testimony was not clear as to whether or not he asked respondent about the gasoline can. However, respondent’s own testimony was that Hansen did ask him and that he lied to him about it. It is difficult to see how respondent may take advantage of this aspect of the claimed lack of investigation. Insofar as facts subsequently are concerned, investigation might have uncovered McCollum’s account of the truck passing his house shortly before the fire. Mc-Collum’s house was ¾ of a mile from where the truck came to a stop. Except for the evidence that the truck was backfiring, McCollum’s account is difficult to reconcile with any other version of the inception of the fire, including respondent’s. The only other factual evidence was the filling station attendant’s story of the sale of gasoline to respondent. The knowledge of such transaction would not have been necessarily inconsistent with the belief of Hansen in the guilt of respondent. Earlier knowledge of the attendant’s story might have resulted in a closer analysis of the volume of gasoline in the can found near the scene, but, as a matter of common knowledge, only a small quantity of gasoline is necessary to start a fire. The testimony of neither McCollum nor the attendant was exonerative and failure to learn of the two witnesses prior to the presentation of the matter to the prosecuting attorney is not such lack of diligence as would impugn a good faith belief in the guilt of Dodson on the basis of the known facts and circumstances. Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 513 [10] (1942). On the facts and information before Hansen, this court concludes as a matter of law that reasonable cause for his action existed. There was no occasion to submit to the jury for its determination the circumstances under which Hansen acted. Those circumstances are revealed by evidence on which there was no conflict and the only question under the evidence was whether or not Hansen’s “conduct measured up to the standard of a reasonable man,” a question of law and not one of fact in a case such as this. 3 Rest, of Torts § 673, p. 436 (1938). Some states have adopted the rule, suggested by respondent, that the issue of probable cause is for the jury “where more than one conclusion may be drawn as to the reasonableness of the defendant’s conduct * * *Prosser on Torts, § 119, p. 847 (4th ed. 1971). Missouri, however, adheres to the rule here applied. Hoene v. Assoc. Dry Goods Corporation, 487 S.W.2d 479, 483 [7-9] (Mo.1972); Hanna v. Minnesota Mut. Life Ins. Co., 241 Mo. 383, 145 S.W. 412 (1912). There were statements in the confidential memorandum of Hansen which indicate a major concern on his part with avoiding payment of an insurance claim. However, such improper purpose on his part is not evidence of lack of probable cause. “The fact that the defendant initiated or continued the prosecution, or procured it, for an improper purpose, such as to put pressure on the accused and compel him to-make payment of a private debt, is not in any way inconsistent with his reasonable belief in the guilt of the accused, and the existence of grounds reasonably justifying that belief. It cannot be assumed that even for such an improper purpose the defendant has taken the risk of bringing to criminal prosecution one whom he does not believe to be guilty, and against whom he does not believe that there is sufficient evidence to obtain a conviction. Accordingly, it may not be inferred from evidence of an improper purpose alone that there was not probable cause; and the burden of proving the latter by independent evidence remains upon the plaintiff.” Rest, of Torts, Second, Tent. Draft No. 13, § 669A, p. 168 (1967). See Smith v. Glynn, 144 S.W. 149, 151 (Mo.App.1912). Judgment reversed. 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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M & A ELECTRIC POWER COOPERATIVE, a corporation, Plaintiff-Appellant, v. Robert A. NESSELRODT et al., Defendants-Respondents. No. 9579. Missouri Court of Appeals, Springfield District. May 3, 1974. James C. Bullard, Dalton, Treasure & Bullard, Kennett, for plaintiff-appellant. James E. Reeves, Ward & Reeves, Ca-ruthersville, for defendants-respondents. TITUS, Judge. Plaintiff condemned an easement across a farm owned by defendant Gee for the purpose of erecting and maintaining an electrical transmission line. Among other defendants named relative to the Gee tract was W. L. “Cowboy” Ramsey, Jr., a tenant on the farm and also sheriff of New Madrid County. A jury returned its verdict to the Circuit Court of New Madrid County assessing defendants’ damages at $15,240. Plaintiff’s motion for new trial was denied and it appealed. The penultimate and last points relied on in plaintiff’s appeal brief are: “II The trial court erred in failing to excuse for cause possible jurors whose relationship with the parties would prohibit them from being impartial. Ill The trial court erred in failing to set aside the verdict and judgment herein because of the cumulative effect of the intentional prejudicial inflammatory statements and arguments of counsel for respondent.” Neither point preserves anything for appellate review and both violate the requirements of Rule 84.-04(d) V.A.M.R. which are mandatory. State ex rel. Zimmerman v. Quinn, 429 S.W.2d 7 [2] (Mo.App.1968). Point II does not identify the “possible jurors,” it does not advise what “relationship” existed, and it does not identify which parties were concerned with the unknown relationship. The point does not attempt to illustrate how the failure of the trial court to excuse the unidentified “possible jurors” constituted error “against the appellant, materially affecting the merits of the action.” Rule 84.13(b). In other words, plaintiff’s second point does not undertake to explain “why” the relationship (whatever it might be) prohibited the “possible jurors” (if indeed it would) from being impartial. “Nakedly stating what the alleged errors are without elucidating ‘why’ they are errors neither satisfies the rule nor preserves anything for review.” Freshour v. Schuerenberg, 495 S.W.2d 116, 118[7] (Mo.App.1973). In short, who the possible jurors were, what their relationship was, or “why” it may have prevented them from being impartial to some undes-ignated party, is left to conjecture and sheer speculation, and this court is not obliged to thresh the transcript or argument portion of appellant’s brief to remove the guesswork inherent in the point by reason of plaintiff’s failure to heed the rule. In re Estate of Barks, 488 S.W.2d 928, 930[5] (Mo.App.1972). Although point III, supra, expresses displeasure with the trial court’s refusal to set aside the verdict and judgment by reason of statements and arguments of defendants’ counsel, it nowhere identifies what the statements or arguments were nor labors to explain why plaintiff believes them to be intentional, prejudicial or inflammatory. Compliance with Rule 84.04(d) required plaintiff, at least, to specify the statements and arguments and to particularize why the allowance of such was prejudicial to it. Lawson v. Cooper, 475 S.W.2d 442, 447[7] (Mo.App.1972); Epperson v. Nolan, 452 S.W.2d 263, 267[7] (Mo.App.1970); Hays v. Proctor, 404 S.W.2d 756, 761 [6] (Mo.App.1966). While point III preserves nothing for review, our inquisitorial nature prompted us to con the statement of facts and argument portions of plaintiff’s brief to see what statements and arguments may have been made by defendants’ counsel to deserve the vitriolic adjectives attributed thereto by appellant. All our judicial curiosity uncovered was another appellant faux pas when we found that plaintiff, contrary to the mandate of Rule 84.04(h), nowhere alluded to a single page reference in the transcript on appeal whereby an appellate court could find the condemned expressions. It was plaintiff’s duty to point out distinctly in its brief the specific statements and arguments it had reference to, to state wherein and why such statements and arguments were improper, and to indicate where the statements and arguments could be found in the transcript. Because of plaintiff’s utter failure to comply with either Rule 84.04(d) or 84.04(h), we decline to review point III. State v. Sibley, 411 S.W.2d 187, 190[8] (Mo.1967). The only remaining point relied on by plaintiff is: “I The trial court erred in allowing the sheriff and/or the sheriff’s deputies to summons [sic] the prospective jurors because the sheriff was a named party defendant in the case.” This is predicated on § 58.190 RSMo 1969, V.A. M.S., and the evidence relative thereto arose when, on the day of the trial and before the regular jury panel was called and sworn, it was determined by counsel and the special judge assigned to try the cause that several panel members would no doubt be disqualified because of their associations with plaintiff and customers of plaintiff. The following ensued: “The Court: . Well, I think we are already two short. I will tell the Sheriff to start looking. He will have to look some more before we qualify eighteen jurors. Mr. Sheriff, I am informed you are a tenant on the farm of Mr. Gee, is that correct? The Sheriff: Yes, sir. The Court: And the objection has been made to you picking up extra jurors which we will need in great numbers. Which [deputy] do you want to do that? The Sheriff: I better check to see who is here, Walter Ivy. The Court [to Deputy Sheriff Ivy]: You have been designated as Sheriff of the day to take care of the court. We are going to need a good many jurors apparently. You have an alternate list of jurors? As near as possible get these people we are going to need from that list. . . . Any other preliminaries ?” Thereafter the regular panel members were called, sworn and subjected to voir dire examination. All save three members of this panel were excused. Following this, 26 veniremen were called, sworn, examined on voir dire and counsel made their strikes, or scratches, as the process is known in Southeast Missouri. It was then that this occurred: “Mr. Bul-lard [for plaintiff] : We would like to ask prospective juror Howard be stricken for cause. We have just learned he is an employee of Sheriff Ramsey who is not only a tenant on this farm and was originally named in the lawsuit and it was Sheriff Ramsey’s office that picked up this pick-up juror. The Court: I don’t want any inferences here. We called the Sheriff up here and he had nothing to do with it and you agreed that his deputy could call the jurors. I don’t want any inferences. Mr. Bullard: I did not mean to infer that. I did not find it out until just now.” The trial court was never presented with a motion to quash the jury panel, to disqualify the sheriff and his deputies from serving process in the case, or from summoning the regular jury panel. No objection of any character relative to the sheriff was made until the court determined that additional jurors would be needed. Although in its brief plaintiff lays claim to the objection obliquely referred to by the judge, the transcript does not indicate who made the objection. Proof as to this cannot be based upon a printed statement in an appellant’s brief which has no other record basis. Gonseth v. K & K Oil Company, 439 S.W.2d 18, 25 [12] (Mo.App.1969). Nevertheless, even if we grant plaintiff credit for the objection to the sheriff summoning the extra jurors, there is no indication that plaintiff objected to the deputy’s services. Rather, as observed by the trial court, plaintiff agreed the sheriff’s deputy could call the extra jurors that were needed, and plaintiff is now in no position to complain of alleged error in which he joined and acquiesced. Benjamin v. Benjamin, 370 S.W.2d 639, 643[11] (Mo.App.1963). In its first point, supra, plaintiff has seemingly additionally complained of the qualifications of the sheriff and his deputies to summon the original panel. To this we say: plaintiff was aware of the identity of the persons it named as defendants in the cause, one of whom was the sheriff. Therefore, “the proper rule is that the [plaintiff] should [have] presented its] challenge [to the jury panel or to the qualifications of the sheriff and his deputies to act in the case] at the first reasonable opportunity.” State v. Parker, 378 S.W.2d 274, 279 [2] (Mo.App.1964). Plaintiff did not challenge any juror in the polls because of anything in reference to summoning. Plaintiff did not make any objection to the summoning (if we credit it therewith) until after the regular jurors had been summoned, sworn and examined on voir dire; it did not indicate any objection to the summoning of the additional jurors by the deputy until after the strikes had been made. In view of plaintiff’s acquiescence in the procedure followed and the tardiness of all action which should have been pursued before the trial proceedings were underway, we cannot see that any prejudice resulted to plaintiff or that the trial court erred in the manner suggested. Briefly stated, plaintiff’s objection to the procedure followed came too late to be effective. Mannon v. Frick, 365 Mo. 1203, 1211, 295 S.W.2d 158, 165[11] (1956); State v. Parker, supra, 378 S.W.2d at 279[3]. The judgment is affirmed. HOGAN, C. J., STONE and BILLINGS, JJ., and DOUGLAS W. GREENE, Special Judge, concur. . Sec. 58.190. “Every coroner, within the county for which he is elected or appointed, shall serve and execute all writs and precepts, and perform all other duties of the sheriff, when the sheriff shall he a party, or when it shall appear to the court out of which the process shall issue, or to the clerk thereof, in vacation, that the sheriff is interested in the suit, related to or prejudiced against any party thereto, or in any wise disqualified from acting; in sucli case, the county court may require the coroner to give an additional bond.” . When this request was made, juror Howard had already been struck by plaintiff via a preemptory challenge.

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John H. BROWN, Appellant, v. STATE of Missouri, Respondent. No. 35394. Missouri Court of Appeals, St. Louis District, Division 2. April 16, 1974. Motion for Rehearing or for Transfer is Denied May 14, 1974. Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, Public Defender Bureau, St. Louis, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent. CLEMENS, Judge. Movant appeals from an order of the circuit court denying his petition for credit for jail time. The state charged movant with first-degree murder and first-degree robbery with a deadly weapon. On November 14, 1967 movant entered a plea of guilty to the robbery charge and was sentenced to twelve years’ imprisonment. The first-degree murder charge was reduced to second-degree murder and movant entered a plea of guilty. The state recommended twelve years’ imprisonment to run concurrently with imprisonment on the robbery charge. Movant requested credit for jail time but the court denied this request and sentenced him to twelve years’ imprisonment on the murder charge to run concurrently with the sentence imposed on the robbery charge. The court stated that the sentence imposed was lenient and jail time had been taken into consideration in the sentences imposed. On April 10, 1969 movant wrote the trial court asking that he be credited with jail time but acknowledging that such matters were discretionary. The court replied by letter that consideration had been given to the request for jail time at the time sentence was imposed. On May 10, 1971 mov-ant filed a motion requesting credit for jail time but this was denied. On December 7, 1972 movant filed a petition in the circuit court to secure jail-time credit contending denial would deny him equal protection of the law. Movant’s petition for jail-time credit was denied and he has appealed. The sole issue here is whether Section 546.615, RSMo.1969, V.A.M.S. as amended effective September 28, 1971, is to be applied retroactively. It provides: “A person convicted of a felony . . . shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the department of corrections.” Before the 1971 amendment allowance of jail time was discretionary with the circuit court. The amendment made such allowance mandatory in felony cases. In re Turley, 496 S.W.2d 865 (Mo.App.1973). There is no dispute here that movant was sentenced before the amendment when credit for jail time was discretionary with the circuit court. However, movant now contends the amendment of Section 546.615 should be retroactively applied to his 1967 sentences. Denial of credit for jail time under Section 546.615 before the amendment has been held not to deny a defendant constitutional right to equal protection of the law. State v. Crockrell, 470 S.W.2d 507 [3] (Mo.1971); Gillis v. Swenson, 495 S.W.2d 658 [3] (Mo. Banc 1973). Because the constitutional objections to denial of jail-time credit have been considered and denied by our courts, mov-ant attempts to require retroactive application by calling amended Section 546.615 “remedial.” Although this statute did change the concept of credit for jail time from discretionary to mandatory, movant has failed to demonstrate any legal basis for retroactive application. Generally statutes operate prospectively unless the legislative intent that they be given retroactive operation clearly appears from the language of the acts, or by necessary or unavoidable implication. State ex rel. Clay Equipment Corp. v. Jensen, 363 S.W.2d 666 (Mo. Banc 1963). No such intent appears in Section 546.615. Several other states have held that statutes requiring credit for jail time do not operate retroactively. State v. Williams, 262 La. 769, 264 So.2d 638 (1972); Housand v. Sigler, 186 Neb. 414, 183 N.W.2d 493 (1971); Harrel v. Wingo, 434 S.W.2d 49 (Ky.1968); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). Here, the trial court exercised its discretion under the then existing statute and denied credit for jail time. The court considered movant’s jail time by sentencing him to a term far short of the maximum sentence possible under the applicable statutes. Finding no error, the judgment is affirmed. SMITH, P. J. and GUNN, J., concur.

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STATE of Missouri, Plaintiff-Respondent, v. Robert BEA, Defendant-Appellant. No. 35152. Missouri Court of Appeals, St. Louis District, Division Two. April 16, 1974. Motion for Rehearing or to Transfer to Supreme Court is Denied May 14, 1974. Shaw & Howlett, Charles M. Shaw, Clayton, for defendant-appellant. John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. McMillian, judge. This is an appeal by the defendant Robert Bea from a judgment of conviction entered by the Circuit Court of St. Louis County, Missouri, on a jury verdict. Defendant was convicted of manslaughter, pursuant to § 559.070, RSMo 1969, V.A.M. S., and sentenced to two years in the custody of the Department of Corrections, § 559.140. On this appeal defendant claims that the court committed error for the following reasons: (1) permitting the prosecution to circumvent a previous ruling of the court by allowing the prosecutor to cross-examine defendant relative to certain incriminatory statements which the court has previously suppressed; (2) giving of Instruction No. 6 for the reason that said Instruction contains improper legal definition of the willfully, feloniously, premeditatedly, malice and malice aforethought and that said Instruction contains an improper statement of the law and shifts the burden of proof from the state to the defendant; (3) giving of Instruction No. 7 for the reason that said Instruction was an improper statement of the law of manslaughter and was confusing to the jury, particularly that section of the Instruction dealing with justifiable homicide; and (4) improperly deleting the words “striking, knocking, hitting and beating” from both the oral instruction and the written instruction. We affirm. Our review will be confined to the allegation of error contained in ground number one. Ground number 2 is so lacking in particularity and detail that it preserves nothing for appellate review. State v. Richardson, 321 S.W.2d 423, 427 (Mo.1959); Rule 27.20(a), V.A.M.R. Nor, are we inclined to consider this allegation under our plain error rule because defendant was not convicted of murder in the second degree, the offense submitted in Instruction No. 6, and thus there has been no manifest injustice or miscarriage of justice in the submission of this instruction. State v. Auger, 434 S.W.2d 1, 4 (Mo.1968); Rule 27.20(c), V.A.M.R. Ground number 3 also fails to comply with Rule 27.20(a) and consequently saves nothing for review. State v. Murray, 280 S.W.2d 809, 813 (Mo.1955). We are informed neither as to how or why the instruction is an improper statement of the law defining manslaughter, nor in what manner the instruction confused the jury. Ground number 4 likewise fails to state briefly and concisely what action of the court is sought to be reviewed and wherein or why the action of the court was erroneous. Rule 84.04(d), V.A.M.R. Accordingly, nothing is preserved for our review. Since defendant does not question the sufficiency of the evidence, we will set out only those facts which will make for an intelligent understanding of the controversy. On September 12, 1971, defendant and his stepson, Carl Jones, after having been informed of a fight between his son, Kevin, and Mr. Hildred Dillard’s son, Stephen Bost, went to the Dillard residence to see what the fight was all about. As the defendant and Mr. Dillard were discussing the matter on the front porch, Steve and Carl exchanged words and began to fight. According to the state’s evidence the fight began at defendant’s suggestion. When Mr. Dillard attempted to break up the fight, defendant advanced upon him with a hammer and said, “Nigger, I’ll kill you.” Immediately defendant struck and broke Mr. Dillard’s finger. Mr. Dillard jumped off the porch with defendant in pursuit. Defendant then ran back up the stairs and struck Mrs. Dillard on the head, inflicting a mortal wound from which she died on September 17, 1971. After Steve and Carl began to fight, according to defendant, Mr. Dillard threatened him with a knife and chased him to his car. There he obtained the hammer and attempted to defend himself. His explanation for the hammer was that he was a part-time craftsman, and the hammer and other tools were in his tool box in the back of his station wagon. Also, at the time he received the information that his son, Kevin, was hurt, he had just returned from a job. His reason for attacking Mrs. Dillard was that she brandished a pistol; putting him in fear of his own life and his son’s life. Shortly thereafter defendant flagged down one Officer Merlin Guyot of the Pagedale Police Department. He told Officer Guyot, “I just hit a bitch in the head with a hammer down here. I think she’s dead.’ ” Seeing the claw hammer on the front seat, Officer Guyot seized it for evidence. On direct examination defendant testified that — he would not carry a hammer for protection; he did not take a hammer to protect himself or to use it as a weapon when he went to the Dillard home. On cross-examination he denied that he car-ride the hammer in his belt when he went upon the Dillard’s front porch the first time; or that he ever told anyone in the presence of either Officer Guyot or Moses King that he had a hammer at the time he first confronted Mr. Dillard on the porch. Likewise, defendant denied that he urged Carl and Steve to fight, or that he took the hammer along to keep anyone from interfering while the boys fought. On rebuttal the state recalled Officer Moses King who testified that during an argument between Steve and defendant at the police station he heard defendant say that he brought Carl Jones over to whip Steve and had the hammer along to keep anyone from interfering with the fight in case trouble should start. The statement testified to in rebuttal by Officer King during a voir dire hearing had been suppressed by the court because defendant had not been provided with any notice or information concerning any statement by him while in police custody. The evidence showed that the prosecutor had a record of the purported statement in the form of a grand jury transcript. State v. Scott, 479 S.W.2d 438 (Mo.1972). The court held the state to be in violation of Rule 25.195, V.A.M.R., for its failure to permit discovery on defendant’s motion to inspect. Defendant argues that because the statement was initially suppressed it was error either to cross-examine him or to permit rebuttal testimony pertaining thereto. In support of his contention defendant cites State v. White, 440 S.W.2d 457 (Mo.1969); State v. Williams, Mo., 376 S.W.2d 133 and State v. Moser, 423 S.W.2d 804 (Mo.1968). In the White case, supra, the issue was the propriety of a prosecutor to argue either matters not in evidence or testimony that the court had excluded. The Williams case, supra, held that in oral argument commenting on or referring to evidence which the court had held inadmissible is improper, even though exclusion of the evidence is erroneous. The Moser case dealt with the proposition that even if cross-examination of a defendant is not strictly within the scope of direct examination, it will not be grounds for a reversal unless it is material or prejudicial to defendant’s substantial right. None of these cases is apposite. Here, the question for decision is, whether or not a defendant who has taken the stand and testified in his case in chief can be impeached by a prior inconsistent stateemnt which had been suppressed ? In State v. Huffer, 424 S.W.2d 776, 778 (Mo.App.1968), the court declared that a defendant who testifies on his own behalf is subject to cross-examination on his direct testimony, and that he could be impeached and contradicted as any other witness. § 546.260 RSMo 1969, V.A.M.S. No objection was made at trial or on this appeal to the state’s first cross-examination wherein defendant was questioned as to any prior inconsistent statements made by him in the presence of Officer Guyot or King. Obviously, then the court cannot be convicted of error for the examination that purported to lay the foundation for the subsequent rebuttal testimony. State v. Stevens, 467 S.W.2d 10, 18 (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971). Thus we reach the threshold question, may a defendant be impeached by a prior inconsistent statement which the court had suppressed because the state had failed to permit discovery in obedience to the court’s order to permit an inspection. We deal here with neither a statement that was suppressed because it was the product of an in-custody interrogation where the interrogator failed to give the Miranda warning. Nor do we deal with a statement which claims to be coerced or involuntary. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), where the prosecutor was permitted to impeach the defendant’s credibility by the use of a confession that had been suppressed in the state’s case in chief for failure to observe the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the Harris case, supra, is not altogether analogous, the same principle is applicable; i. e., any material prior inconsistent statements may be shown to impeach a defendant’s credibility, and the shroud of protection given defendant by sustaining his motion to suppress because of a breach of duty on the part of the state should not be perverted into a license for a defendant to use perjury by way of a defense, free from the risk of confrontation with prior material inconsistent utterances. Here, defendant testified that he did not carry a hammer for protection; and did not carry it with him as a weapon at the time he visited the Dillard home. Furthermore, he testified that he ran to his car to obtain the hammer to protect himself from a knife assault by Mr. Dillard, and that after Mr. Dillard fled, he was confronted by the victim who put into fear for his own life because she brandished a pistol. All of this testimony not only was material, but necessary to establish defendant’s right of self-defense. The court was placed in a dilemma. Was it to permit the positive assertions of defendant to go unchallenged by the state, and thereby pervert justice? We think not. We hold that it was proper for the state under the circumstances of this case to use defendant’s previously suppressed statements to attack his credibility in order that the jury could not only properly evaluate his testimony, but also aid them to reach a just verdict. To hold otherwise is to permit defendant to assume a virtue which according to the evidence he possesses not. We have examined the whole record and find no manifest injustice or miscarriage of justice, pursuant to our plain error rule, 27.20(c), V.A.M.R., therefore the judgment is affirmed. CLEMENS, Acting P. J., and GUNN, J., concur.

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Alerd S. HAWKINS, d/b/a Hawkins Electronics, Plaintiff-Respondent, v. GREAT CENTRAL INSURANCE COMPANY, An Illinois Corporation, Defendant-Appellant. No. 35159. Missouri Court of Appeals, St. Louis District, Division One. April 9, 1974. Rehearing Denied May 14, 1974. Gregory D. O’Shea, St. Louis, for plainti f f-respondent. Amelung, Wulff & Willenbrock, St. Louis, for defendant-appellant. PER CURIAM. This is an action on a policy of burglary insurance issued by Great Central Insurance Company to Alerd S. Hawkins, d/b/a Hawkins Electronics in Arnold, Missouri. This “multi-peril” policy was issued to Hawkins on November 25, 1968 for a total premium of $1,968.00 for three years and was in force in November, 1971. Attached to the policy was a burglar alarm warranty which provided “In consideration of the premium charged, it is hereby agreed that the insured will maintain and keep in proper working order and connected at all times when the premises are not open for business while this policy is in force, an approved Burglar Alarm system, which protects the screens ... all accessible windows, and all doors . . . and is connected with an outside central station or an alarm gong on the outside of the premises Local Gong. . . . ” A “contact” system was installed and approved by agents of the defendant Great Central. On or about November 18, 1971, Hawkins’ store was broken into by “jumping” the system and some $4,280.62 of merchandise taken. Hawkins made an inventory, reported the loss to the insurance agent, and eventually received a communication from the company which denied coverage because “It is necessary that the burglar alarm sound before any merchandise loss, which is taken from your place of business occasioned by burglary to be covered under your Great Central Policy. . . . ” The defendant’s defenses consisted of (1) that the plaintiff did not comply with the conditions of the warranty, in that the burglar alarm did not sound, and (2) a settlement was reached by the parties in the amount of $1,500.00 which was paid to plaintiff or his attorney. Eventually the cause was tried to the court and jury. Judgment was rendered for Hawkins in the amount of $3,000.00 under the policy, $240.00 interest, $300.00 penalty and $500.00 attorney fees. Motion for judgment in accordance with a motion for directed verdict and motion for a new trial were both overruled. Great Central appealed. It urges that the plaintiff failed to make a submissible case and there were certain errors in the instructions given by the court. We affirm. There is no doubt that plaintiff made a submissible case under the allegations of the petition. Taking the evidence in the light most favorable to plaintiff, it disclosed that there was a policy in force, an approved burglar alarm system was installed, the alarm system was checked prior to the burglary, the burglars “jumped” the system, a loss occurred and plaintiff performed the conditions necessary to recovery. The defense that the burglar alarm must sound before the policy becomes effective is not, as defendant contends, the test. The test is whether there is, as the warranty states, an approved burglar alarm system maintained, and kept in proper working order and connected. The instructions, while not perhaps perfect in all respects, were substantially correct. Absolute perfection is not the test. Rieke v. Brodof, Mo.App., 501 S.W. 2d 66. Furthermore, taking the evidence most favorable to the defendant, the evidence did not support a finding' that the plaintiff “did not comply with the conditions of said warranty” for the reason that the defense that the alarm must sound before the policy becomes effective is not a legal, valid defense. Plaintiff’s evidence indicated that the alarm was approved, armed and in working order. There was no evidence to refute this contention. Nor did the evidence support a finding that plaintiff and defendant “agreed to settle plaintiff’s claim against defendant.” Even the testimony of the agent was “we never discussed settlement.” Hence, since appellant was not under the circumstances entitled to the “affirmative defenses”, there was no prejudicial error in the instructions given. We have read the entire transcript, examined all of the exhibits furnished us, read the briefs and decisions cited by the parties and conclude: (1) the judgment rendered by the trial court was supported by the evidence, (2) the evidence did not show a “settlement” was reached by the parties, (3) the instructions were not prejudicially erroneous and were supported by the evidence, (4) that a detailed recitation of all the facts would serve no useful purpose for the disposition of this cause, and (S) that a lengthy opinion would have no precedential value. We are convinced that there was no error “materially affecting the merits of the action.” Rules 84.13 and 84.16, V.A.M.R. The judgment is affirmed. All the Judges concur. . The record indicates that plaintiff or his attorney has a check in the amount of $1500.-00. Of course, we presumed that this would be returned or credited to the judgment.

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Sandra Lynn KLAUS, Appellant, v. Delbert C. KLAUS, Respondent. No. 34951. Missouri Court of Appeals, St. Louis District. Division Two. April 9, 1974. Motion for Rehearing or Transfer to Court En Banc is Denied May 14, 1974. Cundiff & Turken, St. Charles, for appellant. Ralph H. Schnebelen, St. Louis, for respondent. SMITH, Presiding Judge. Plaintiff-mother appeals from the trial court’s judgment granting defendant-father’s motion to modify a divorce decree by transferring the custody of the parties’ eight year old son to the father. The parties were divorced in September 1970, and the mother was awarded custody of the child. The father was granted and exercised frequent temporary custody and visitation rights. In June 1972, in part due to urging of the boy’s maternal grandfather, defendant brought his motion to modify. Much of the testimony had little or nothing to do with questions of parental fitness and the boy’s welfare. The trial court specifically attached no significance to testimony concerning “animals, animal hairs, alleged allergies, firearms or rifles, cleanliness, or the condition of the clothes of the minor child.” We are similarly unimpressed with that testimony. The trial court also “to a large extent, disregard [ed] the testimony of the maternal grandfather.” We shall do likewise, for even from a cold transcript, his obsessive zeal to interfere in the affairs of his daughter because of his dislike for her life style is apparent. Although we review court-tried cases de novo on both the law and the evidence, we defer to the findings of fact made by the trial court unless they are clearly erroneous. We therefore accept the trial court’s finding that the home of the father and his new wife is “better” than that of the mother. Were we dealing with an original award of custody of a child who has been living with both parents and following a divorce is to be placed with one or the other, the “better” home would be a relevant consideration in making the placement. Where custody has once been placed the “better” home question is of little significance. Before a change of custody is granted there must be evidence that a change of circumstances has occurred and that the child’s welfare calls for a change in custody. Although “change of circumstances” is ostensibly rooted in doctrines of res judicata, it also reflects the courts’ concern that children not be moved from one environment to another upon slight changes in the status of the parents. It is only where the change of circumstances or conditions is such that the welfare of the child requires it that custody should be transferred. Irvine v. Aust, 193 S.W.2d 336 (Mo.App.1946). We therefore treat the court’s finding that the father’s home is “better” as pertinent only in determining whether that home constitutes an acceptable respository for the child and not as evidence supporting any need for change. We turn then to the reasons given by the court for its order. Those reasons were: (1) the mother’s morals, marriage and remarriage of short duration, (2) open and notorious association with a married man having a family, (3) the absence of plaintiff from her home and the minor child on numerous occasions, and (4) the total failure of plaintiff-mother to provide any moral or religious instruction for the minor child. The burden of establishing the existence of facts warranting a transfer of custody is on the party seeking such change. Dupree v. Dupree, 357 S.W.2d 241 (Mo.App.1962). The party originally awarded custody is prima facie capable of handling that responsibility. Irvine v. Aust, supra. The mother remarried after her divorce from the defendant and, two months after the remarriage, divorced this second husband. She divorced him because of his unfatherly attitude toward her son. There is no evidence that the marriage and divorce in any way affected her son. It is difficult to understand how a divorce obtained because her new husband was unresponsive to her son can furnish a basis for concluding that the mother is unfit or is jeopardizing the son’s welfare. Following her second divorce the mother began dating a married man, Mr. Geldbach, then separated from his wife. Plaintiff admittedly slept with him when her son was gone for weekend visitations with his father and on some occasions the man stayed overnight in the mother’s mobile home when the son was there, but slept by himself on a couch. At the time of the custody hearing Geldbach’s divorce action was pending and by the time of an after-trial hearing he had married plaintiff and was actively participating in her son’s scouting and school activities. Adultery in and of itself, does not mark a parent as unfit. It is the effect upon the child which is important. J_ F.R. v. R_ R., 482 S.W.2d 543 (Mo.App.1972). Here there is no evidence that the child was aware of any misconduct or that it had any adverse effect upon him. The evidence indicates that Geldbach provided to the boy a considerate and interested father figure. We need not condone plaintiff’s conduct to conclude it does not establish unfitness nor detriment to the child’s welfare. Aside from her association with Geldbach there is no evidence of plaintiff’s bad morals. She did not run around with men promiscuously, drink, take drugs or misbehave in public. The absence from home conclusion is based upon testimony that plaintiff frequented a tavern in which Geldbach had an interest for two weeks. The evidence was clear that she did not drink excessively, if at all, nor misbehave while there and the record is silent about where her son was at the time or in whose care. She testified she was there on three or four occasions helping with matters involving the opening of the place for business. Mere absence from home does not establish unfitness, particularly where the record fails to reflect that the child was left without adequate care. J_ F.R. v. R_ R., supra. The alleged absence of moral and religious training is based solely upon testimony that plaintiff did not take her son to church. Moral training is not dependent on formal religious services nor do we know of any rule of law that the absence of formal religious training warrants a change of custody. The record here is replete with evidence of the love existing between mother and son, of her concern for his health and schooling, and of her discipline of him. Certain school problems have disappeared since the boy was returned to medication and he was happy and progressing well in school at the time of the custody hearing. Testimony of the father that the boy had said his mother told him to lie and that she would lie was pure hearsay and cannot form a basis for a determination of unfitness. Upon our review of the record and granting credibility to all testimony favorable to the court’s finding, we are unable to find a sufficient evidentiary basis to warrant removal of the child from the environment into which he was placed by the original decree of divorce. The order of the trial court granting the motion to modify is reversed. McMILLIAN and GUNN, JJ., concur.

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STATE of Missouri ex rel. John CRITES et al., Plaintiffs-Appellants, v. John S. WEST et al., Defendants-Respondents. No. 9569. Missouri Court of Appeals, Springfield District. May 3, 1974. L. Joe Scott, Poplar Bluff, for plaintiffs-appellants. Ted M. Henson, Jr., Poplar Bluff, for defendants-respondents. DOUGLAS W. GREENE, Special Judge. This appeal is from an order of the Circuit Court of Butler County dismissing an alternative Writ of Mandamus which had been issued by the trial court on February 14, 1973. We affirm. In Missouri, a county fire protection district is a creature of statute. The Butler County Fire Protection District exists by virtue of authority granted by chapter 321, RSMo 1969, V.A.M.S. On January 9, 1973, initiative petitions were submitted to the board of directors of the fire district ordering them to call a special election to submit to the voters of the district the proposition: “Shall the Butler County Fire Protection District of Butler County be dissolved?” Appellants were signatories to the initiative petitions and are voters who reside in the district. Respondents, as members of the board of directors of the fire district, refused to call the election. Appellants then filed a petition for a Writ of Mandamus in the Circuit Court of Butler County. The petition requested the trial court to order respondents to call a special election for the purpose of submitting the dissolution proposition to the voters of the district. The trial court issued an alternative Writ of Mandamus. Respondents filed a motion to dismiss the petition and the alternative writ They contended that they, as the board of directors, had no legal right, power, or duty to call the election in question, and that appellants had adequate remedies at law if they wished to submit the proposition to the voters. The trial court sustained the motion and dismissed the alternative writ, and appellants appealed from such order. Section 321.220, RSMo 1969, V.A.M.S., sets out in detail the powers that may be exercised by the board of directors in providing fire protection. Subsection (14) gives the board the power to have arid exercise all rights and powers necessary or incidental to or implied from the specific powers granted, and states that the specific powers granted shall not be considered as a limitation upon any power necessary or appropriate to carry out the intent and purpose of chapter 321. There is no express statutory language in Section 321.220, or in any other section in chapter 321 that gives the board of directors the right to call an election for the purpose of attempting to dissolve the fire district. Section 321.490, RSMo 1969, V.A.M.S., states that all powers which may be exercised by the board of directors of the fire district may be exercised by the duly qualified electors of that district by initiative or referendum. • It necessarily follows that if the board had the right to call a dissolution election, the qualified voters, by initiative petition, had a right to do so. Appellants concede that the statutes do not specifically grant the board the power to call the election. They do contend that the question of whether or not the fire district should continue to operate was incidental to the operation of the district; that the board was given the statutory power to operate the district, and therefore the board has incidental, implied or inherent power to dissolve the district. We do not agree. The legislature has specifically provided the method for dissolving a fire district. See Sections 321.390-321.410, RSMo 1969, V.A.M.S. The law provides that if at least one hundred owners of real estate located in the district file a petition in the circuit court of the county in which the district is located, asking for dissolution of the district, the court may order a hearing on the issue of whether or not it is in the best interest of the people to dissolve the district. If the court concludes that the district should, in the interest of public safety and welfare, be dissolved, it orders the submission of the issue to the qualified voters of the district. If two-thirds of the voters favor dissolution, the circuit judge orders the dissolution and appoints a trustee to liquidate the affairs of the district. It is interesting to note that the procedure requires a two-thirds affirmative voting majority to dissolve, while a referendum vote under Section 321.500, RSMo 1969, V.A.M.S. which appellants are asking us to order, requires only a simple affirmative majority. This is a logical reason to explain why appellants have blatantly ignored an expressed statutory mandate prescribing the method of dissolution of a fire district, and have chosen to ride an implied horse. A fire protection district is, in a broad sense, a municipal corporation, as it is designed for the performance of an es-' sential public service. See Laret Inv. Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65 (banc 1939), where the Supreme Court stated school districts and special road and drainage districts were municipal corporations. Municipal corporations only possess expressly granted powers, and powers implied from or incident to those expressly granted powers. Any reasonable doubt concerning whether or not a municipal corporation possesses a given power must be resolved in the negative. Further, where the legislature has authorized a municipal corporation to exercise a power, and prescribed the manner in which it should be exercised, any other manner of exercising the power is denied to it. State ex rel. City of Blue Springs v. McWilliams, 335 Mo. 816, 74 S.W.2d 363 (banc 1934). The powers and duties that appellants are requesting the court to delegate to the board of directors by judicial fiat, namely the power to order a dissolution election under the procedures of Sections 321.490 —321.500, RSMo 1969, V.A.M.S., are not incidental or necessary to carry into effect the specific legislative grant providing the method whereby the district may be dissolved. On the contrary, the method by which dissolution would be accomplished under appellants’ scheme flies directly in the face of the specific legislative grant in at least two vital areas. The first is the hearing before the circuit court to determine whether dissolution is in the best interest of the welfare and safety of the people. The second is the margin of victory necessary to carry the day. There is a big difference between a two-thirds’ majority and a simple majority in an election, as appellants’ attorney candidly admitted in his appellate argument. In order to dissolve or disincor-porate a municipal corporation, the procedures prescribed by statute must be followed. County of Platte v. James, 489 S.W.2d 216, 218 (Mo.1973); In re City of Kinloch, 362 Mo. 434, 439, 242 S.W.2d 59, 62 (1951). Appellants have failed to do so. Instead, they rely on the nebulous claims of implied and inherent rights, unsupported by statutory authority or case law, to circumvent the plain and concise directive of the legislature. Their claim of a right to proceed as they did is dubious at its best. Mandamus will not lie in doubtful cases. State ex rel. Coffman v. Crain, 308 S.W.2d 451 (Mo.App.1958). In addition, mandamus will not lie where the party seeking it has a specific, adequate and efficient legal remedy. State ex rel. Coffman v. Crain, supra. In this case appellants have such a remedy. If appellants desire to seek the dissolution of the Butler County Fire Protection District, they should follow the specific statutory procedure as granted and expressed by the legislature in Sections 321.-390-321.410, RSMo 1969, V.A.M.S. The judgment is affirmed. All of the Judges concur.

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STATE of Missouri ex rel. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Relator, v. The Honorable John R. RICKHOFF, Judge of the Circuit Court of the County of St. Louis, Missouri, Respondent. No. 35775. Missouri Court of Appeals, St. Louis District, Division One. April 9, 1974. Motion for Rehearing or Transfer is Denied May 14, 1974. Muehlenkamp & Murray, Harold P. Heit-mann, Crestwood, for relator. Robertson, Ely & Wieland, St. Louis, Chester B. Hayes, Ferguson, Donald R. Carmody, Clayton, for respondent and Ford Motor Co. SIMEONE, Acting Chief Judge. Original Writ of Prohibition seeking to restrain respondent from proceeding on his sustaining a motion to produce under Rule 58.01, V.A.M.R. On October 29, 1973, Relator, State Farm Mutual Automobile Insurance Company filed a petition for an original writ of prohibition in this court. The petition alleged that there was pending in the Circuit Court of St. Louis County, a certain cause, No. 321572, wherein Dr. Gaetano Valenza and his wife were plaintiffs and Ford Motor Company was the defendant. This cause of action arose out of an automobile collision between an automobile driven by Dr. Valenza and Mrs. Hilda Gi-ganti’s vehicle. Dr. Valenza and his wife sought damages against Ford alleging that the accident was the result of Ford’s negligence in that the carburetor of the Ford driven by Mrs. Giganti was defective, malfunctioned, and thereby caused the collision between the Giganti and Valenza vehicles. State Farm insured the Giganti’s Ford. State Farm intervened in the Valenza suit as a party plaintiff seeking to recover its subrogation interest. State Farm also alleged that its damages were the result of Ford’s negligent design and manufacture of the carburetor. On September 21, 1973, the defendant, Ford Motor Company, filed a motion on State Farm “To Produce Carburetor For Examination.” The motion urged the court to “order and direct State Farm Mutual Automobile Insurance Company, Inter-venor-Plaintiff, to produce the carburetor of the Giganti automobile for inspection by Ford Motor Company at the offices of Ford Motor Company in Dearborn, Michigan. . . . ” The motion alleged as grounds therefor that the carburetor is “under the control” of State Farm and “in order to prepare its defense” to the claim, it is necessary that Ford “examine the carburetor, and for the most effective examination, it is necessary that this be done at the facilities of Ford Motor Company in Dearborn, Michigan, where the experts and the necessary facilities for such examination are located.” The motion continued that the “carburetor nor its parts will be altered in any way [sic] by the examination, unless necessary to a complete examination, in which event a further order would be requested of the Court for whatever alteration might be required.” (Emphasis supplied.) On October 23, 1973, respondent sustained the motion of Ford and ordered State Farm “to produce [the] carburetor for examination.” “Defendant is to bear all expenses of the crating or packaging, shipment and insurance of the carburetor and shall return the same within a period of 30 days from the date of the 25th of October, 1973.” Thereafter, on October 29, 1973, State Farm filed its petition in prohibition seeking to prohibit the respondent “to desist from any further proceeding requiring relator to deliver the said carburetor to FORD MOTOR COMPANY. ...” We issued our preliminary writ on November 7, 1973. Relator contends that the respondent-judge lacked “authority to order State Farm to Turn Over the Carburetor to the Custody of Ford Motor Company.” The respondent contends otherwise. The facts are simple, the issue narrow, but the legal resolution is complex. The issue involves competing interests— the interests of a plaintiff to retain control and custody of a tangible object necessary to his case and the right of the defendant to prepare a defense. We deal here not with the right of defendant to inspect the object, but only with the narrow issue of whether plaintiff is to be com pelled to transfer custody and control of the carburetor by an unconditional order to the defendant for inspection in the defendant’s facilities located out of state. It is to be noted that the Motion to Produce the object is broadly worded. Ford seeks to produce the carburetor for inspection by Ford at its plant in Dearborn, Michigan, that “for the most effective examination” (it does not indicate that an effective examination can be made in the forum) it is necessary that this be done in Dearborn, and further it is to be noted the motion indicates that the carburetor will not be altered unless necessary to a complete examination in which event a further order would be requested. We deal with the specific motion to produce and order issued by respondent before us. Rule 58.01, which respondent by his return acknowledges is the Rule pursuant to which his order was made provides: . . . [A]ny party may move the court . . . for an order upon another party (1) to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 57.01(b) and which are in his possession, custody, or control. . . . The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.” The respondent urges that the passing of control from one party to another is subject to the discretion of the court, rather than the Rule being construed as providing that the trial court lacks power to transfer custody. We believe that our preliminary writ should be made absolute because of reason and precedents. In State ex rel. Emge v. Corcoran, 468 S.W.2d 724 (Mo.App.1971) this court confronted with the narrow issue of whether the Circuit Court has “authority to order a party to deliver its original books and records into the hands of its adversary,” held that “produce” in Rule 58.01 is not a synonym of “turn over” or “give”. “The rule contemplates that the possession, custody and control shall remain in the party producing, and the moving party shall have the opportunity to inspect. . . . The rule does not contemplate that the moving party shall receive the possession, custody or control of the thing produced. Respondent, throughout his brief, has treated the order entered as one of ‘production and inspection.’ It is not.” Emge, supra, 468 S.W.2d at 725-726. In State ex rel. Crawford v. Moody, 477 S.W.2d 438 (Mo.App.1972) the Springfield District granted a writ of prohibition to prohibit respondent judge from ordering defendants to remove and deliver to plaintiffs a certain pipe where one end of the pipe emerged through a concrete wall and the other entered an underground boiler and filter room through a wall of concrete blocks. The Springfield District said Rule 58.01 “nowhere provides that a court may require delivery of the possession of the object to the movant; neither does it extend authority to permit the moving party ‘to remove and take possession of’ the tangible thing sought for inspection. ...” 477 S.W.2d at 440. Respondent seeks to distinguish these two cases for a reinterpretation of Rule 58.01. But we believe these decisions are sound and the Rule as written does not contemplate the transfer of custody and possession of tangible objects to the adverse party. The Rule contemplates only that one party must “produce” in the sense of “bring forward, or to offer to view, or exhibit” rather than to “turn over” or “give.” A reconsideration of this interpretation is rather more suitable for the Rules Committee of the Supreme Court. Under the present Rule an unfettered transfer of custody and control to the adversary is not contemplated. Our preliminary writ is made absolute. WEIER and KELLY, JJ., concur. . “The word ‘inspection’ lias a broader meaning than just looking. The dictionary . . . defines ‘inspect’ as ‘to examine carefully or critically, investigate and test officially . . . especially, a critical investigation or scrutiny’.” Martin v. Reynolds Metals Corp., 297 F.2d 49, 57 (9th Cir. 1961) quoted in 8 Wright & Miller, Federal Practice and Procedure, § 2206, p. 611, fn. 10 (1970). . It may be noted that Rule 34 of the Federal Rules of Civil Procedure as amended in 1970 is in some respects different than our Rule 58.01. Under Rule 34, the federal courts have allowed inspection of tangible objects but it is not clear whether the custody and possession was transferred to the moving party. Sladen v. Girltown, Inc., 425 F.2d 24, 25 (7th Cir. 1970)—a garment; Fisher v. United States Fidelity & Guaranty Company, 246 F.2d 344, 350 (7th Cir. 1957)—a motor vehicle; Quinn v. Chrysler Corporation, 35 F.R.D. 34, 35 (W.D.Pa.1964)—a handbrake assembly; City of Kingsport, Tennessee v. SCM Corporation, 352 F.Supp. 287 (E.D.Tenn.1972); See 4A Moore, Federal Practice, § 34.09 (1970) and 8 Wright and Miller, Federal Practice and Procedure, § 22.06, pp. 611-612 (1970). Cf. the New York scheme under its CPLR 3102, 3103, 3104, 3120 and comments, 7B McKinney’s Consolidated Laws of New York (1970) and Nasoff v. Hills Supermarket, Inc., 40 Misc.2d 417, 243 N.Y.S.2d 64, 65-66 (1963); Empire Mutual Ins. Co. v. Independent Fuel & Oil Co., 37 Misc.2d 905, 236 N.Y.S.2d 579, 580-581 (1962).

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STATE of Missouri, Plaintiff-Respondent, v. Ralph L. VOEGTLIN, Defendant-Appellant. No. 35410. Missouri Court of Appeals, St. Louis District, Division One. April 30, 1974. Christopher Hexter, Donald L. Schmidt, Legal Aid Society, St. Louis, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for plaintiff-respondent. WEIER, Judge. Defendant was found guilty of the offense of burglary in the second degree. Having been charged under the Second Offender Act, he was sentenced by the court to a term of ten years. On this appeal, he raises two issues concerning the impropriety of remarks made by the state’s attorney in his final argument. We affirm. Defendant’s first contention of error is directed to the court’s allowing certain comments to be made in the presence of the jury with regard to defendant’s failure to testify. In the first instance, the state’s attorney said: “The officers testified and for the purposes of the record I’m looking at State’s Exhibit Number 6, that is a photograph of the window. Now true it’s not all the way open now. Whether it pushed back down after they are in or slid down, that is not the important thing. The officers testified that that was the window that was pried open. Now when you come in on a case as this and the evidence is overwhelming as Mr. Wendt (defendant’s attorney) knows it is . . . ” To this, defendant’s attorney objected generally without setting forth any ground. The state’s attorney then interjected, “This is argument.” To this, the court replied: “Well not that type of argument, Mr. Chancellor.” Sometime later, after calling the attention of the jury to the amount of evidence which he, the prosecutor, had brought before them, some of which he admitted might have been boring to the jury, he commented: “Let me say also to you and I harken back to what I was saying before, I gave you evidence. I gave you plenty of evidence and when I finished Mr. Wendt had that same opportunity.” At this time defendant’s attorney objected generally without stating grounds, and requested a mistrial. The request for mistrial was denied and the objection sustained by the court. Following a discussion at the bench, the state’s attorney resumed his argument by saying: “The evidence you have before you is completely uncontra-dicted.” Agkin, defendant’s attorney objected without setting forth his reasons, and the court overruled the objection. Urging that these statements call the attention of the jury to his failure to testify, defendant argues that the facts of this case come within the scope of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), holding that such comments violate the accused’s rights under the Fifth Amendment to the United States Constitution. He also correctly points out that § 546.270, RSMo.1969, V.A.M.S., and Supreme Court Rule 26.08, V.A.M.R. both specifically prohibit comment upon a defendant’s failure to testify. As pointed out, however, in State v. Hutchinson, 458 S.W.2d 553, 555 (Mo. banc 1970), both Griffin and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) involved situations wherein there were direct and certain references to failure of the accused to testify. So here too, the argument in this case did not contain direct and certain reference to the failure of defendant to testify. A reference to the failure of the accused to offer evidence is not prohibited. State v. Sechrest, 485 S.W.2d 96, 98 [2, 3] (Mo.1972); State v. Pruitt, 479 S.W.2d 785, 789 [8] (Mo. banc 1972). Defendant further maintains that when you consider all three statements together, their cumulative effect was to call the jury’s attention to the fact that the defendant did not testify. “Cumulative effect” of statements by a prosecutor, not unlike those made here, was considered in State v. Thompson, 425 S.W.2d 80, 85 [10] (Mo.1968) and found not to be in violation of the constitutionally protected privilege to remain silent. We find no merit in this argument. The three statements of the prosecutor do no more here than point out that while the defendant’s attorney had the opportunity to present evidence, the testimony on behalf of the state was not contradicted. Defendant’s second contention of error is directed to that portion of the closing argument where the prosecutor directed his comment toward law enforcement in the community, the free will of the defendant in engaging in illegal activity, and the propriety of sending a person to the penitentiary. He then stated: “When you decide to live in this community and you decide to follow its laws then you are properly there, but when and if those people, the Gary Williams, the Ralph Voegtlins don’t, and when they violate the rights of others, the only thing that you can do is to take them out of the community. To remove them and put them in a place where they cannot molest and violate the laws of the community until such time that someone in authority deems they should return. That’s all you’re doing.” Defendant contends that the quoted remarks contained references to the need for his incarceration in order to prevent him from committing crimes in the future. This, he argues, amounts to reversible error. Particularly emphasized is the plea “[t]o remove them and put them in a place where they cannot molest and violate the laws of the community * * *.” No objection, however, was raised by appellant to these remarks when made nor was the supposed reference to his de-terence from future crime noted in his motion for new trial. On this ground alone, defendant’s second point should be dismissed. State v. Martin, 411 S.W.2d 241, 242 [4], (Mo.1967). But defendant claims the benefit of “plain error” under Rule 27.-20(c), particularly under the ruling in State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), where at p. 115 the prosecutor is quoted as saying: “ ‘Should this man ever be allowed to walk the streets, will he ever be able to walk into society without all of us being afraid.’ ” We do not read the statement by the prosecutor in Heinrich to be the same as that of the prosecutor here. In the summation here complained of, the reference is directed toward law enforcement and the necessity of taking violators of the law and placing them in prison. He is not directing his remarks specifically to defendant Voegtlin and urging the jury to put him away because of fear of future crime which he might commit upon them or other members of the community. Rather he is talking about what should be done with people like Voegtlin. In this respect, the prosecutor’s remarks are somewhat like those quoted in State v. Crawford, 478 S.W.2d 314 (Mo.1972) at p. 320, where the remarks complained of were: “ ‘A society, a community only gets the type of law enforcement that it wants and you gentlemen are the Society. You are going to decide in this case whether this community wants this type of conduct going on and whether you want this type of man to be walking the streets and—.’ ” As pointed out by the court there, this was not suggestive of personal danger to the jurors or to members of their families if defendant was acquitted. It was construed as a permissible call for law enforcement and discouragement of the type of crime that the defendant was accused of. Finding a lack of significant difference between the prosecutor’s comments in that case and the one at bar, we determine that the statements in question do not constitute reversible error. The judgment is affirmed. SIMEONE, Acting C. J., and KELLY, J., concur. . Article I, Section 19, Mo.Const.1945, V.A. M.S., accords defendant the same right. . As pointed out in the concurring opinion in State v. Hutchinson, supra, 458 S.W.2d 553, 556, most jurors are well aware of an accused’s right not to testify but tend to be suspicious of those who do not. An instruction on this right of a defendant must now be given if requested. MAI-CR 3.76.

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STATE of Missouri, Plaintiff-Respondent, v. Richard J. SCATURRO, Defendant-Appellant. No. 35179. Missouri Court of Appeals, St. Louis District, Division 1. April 30, 1974. James S. Collins, II, Whalen, O’Connor, Collins & Danis, St. Louis, for defendant-appellant. Thomas W. Shannon, Pros. Atty., Kenneth S. Kochmann, Asst. Pros. Atty., St. Louis, for plaintiff-respondent. KELLY, Judge. Appellant was convicted of Driving While Intoxicated in violation of Sec. 564.-440 RSMo 1969, V.A.M.S., after trial to the court without a jury and after his motion for new trial was overruled he was sentenced to pay a fine of $125.00 and court costs. This appeal followed. In this Court the appellant contends that the evidence was insufficient to support a finding of guilt and that a medical doctor should not have been permitted to read from a hospital record an entry wherein a resident physician noted “appears inebriated.” We find no error and therefore affirm. Briefly stated there was substantial evidence to support a finding by the trial court that at approximately 12:45 a. m. on November 13, 1972, appellant was operating a motor vehicle in an eastwardly direction over and along Cook Avenue at or near its intersection with Sarah Street in the City of St. Louis, Missouri. That at the same time and place Craig Feldmeier, a St. Louis Police officer, was operating a police vehicle southwardly on Sarah Street. That appellant in the motor vehicle he was operating violated a stop sign at the intersection of Cook and Sarah and drove the motor vehicle into the side of the police vehicle being operated through the intersection in a southwardly direction on Sarah Street by Officer Feldmeier and then continued southwardly on Sarah Street until he collided with another motor vehicle which was parked along the curb-line of Sarah Street and then came to a stop. Officer Feldmeier alighted from the police vehicle, approached the motor vehicle with appellant therein, and from his observations of the appellant formed the opinion that the appellant was in an intoxicated condition. Two other police officers arrived on the scene, observed the appellant and they too concluded that he was in an intoxicated condition. Appellant was placed under arrest for driving while intoxicated, advised of his rights and the Missouri Implied Consent Law and he consented to take the Breathalyzer test. He was thereafter conveyed to the St. Louis City Hospital where he was diagnosed as a hemophiliac and he was then conveyed to the Jewish Hospital of St. Louis where he was treated by a Dr. Robert Frye, an intern in the emergency room, for a laceration on the chin. Dr. Frye formed the opinion that appellant was intoxicated when he saw him in the emergency room of the hospital. An appellate court does not weigh evidence or judge the credibility of the witnesses, but determines only if there is substantial evidence to support the verdict of the jury or of the trier of the facts and a verdict so supported will not be disturbed on appeal. State v. Campbell, 292 S.W.2d 297, 299 [5] (Mo.1956); State v. Hicks, 438 S.W.2d 215, 219 [5] (Mo.1969). Substantial evidence means evidence from which the trier of fact reasonably could find the issue in harmony therewith. State v. Taylor, 445 S.W.2d 282, 284 [4] (Mo.1969). Appellant argues that evidence of his guilt is purely circumstantial. We hold otherwise. Circumstantial evidence has been defined by the courts of this State as proof of facts and circumstances from which a jury may infer other connected facts according to common experience of mankind. State v. Blankenship, 330 Mo. 792, 50 S.W.2d 1024, 1026 [2] (1932). Direct evidence is evidence which, if believed, proves the existence of facts in issue without inference or presumption. State v. Cox, 352 S.W.2d 665, 670 [3] (Mo.1961). The Missouri courts hold that evidence obtained by any one of the five senses is direct evidence. State v. Dalton, 23 S.W.2d 1, 6 [15] (Mo.1929). It has long been settled that opinion evidence as to the fact of intoxication may be given even by a layman. State v. Edmonds, 468 S.W.2d 685, 688 [6] (Mo.App.1971); 7 Am.Jur.2d, “Automobiles and Highway Traffic,” § 331, p. 874; 3 Charles E. Tor-cia, Wharton’s Criminal Evidence, § 607 (13th ed. 1972). The cases are legion which hold that evidence to the extent adduced by the State in this case through the testimony of the police officers who had opportunity to observe and form an opinion as to appellant’s intoxicated condition, together with that of Dr. Frye, support a conviction of Driving While Intoxicated. State v. Persell, 468 S.W.2d 719, 721 [1] (Mo.App.1971); and cases in 4A Mo. Digest, Automobiles, [6]. We rule this point against appellant. Appellant’s final point is that the trial court erred in permitting Dr. Frye, over objection, to read from the hospital record an entry made by another Doctor that the appellant “appears inebriated.” The thrust of his argument is that the word “appears” constitutes this entry a “conclusion” and not a statement of fact and further that the qualification of the doctor making this entry to form such an opinion was not established in the record prior to admission of this evidence. During the trial, and when Dr. Frye was on the stand as a State’s witness, counsel for the appellant, during cross-examination, had the records of the Jewish Hospital of St. Louis marked as Defendant’s Exhibit 4 and inquired of the doctor whether he recognized any of the writing on the emergency room records and the records of the first day of hospitalization as being his. Dr. Frye responded that the only writing in that report by him was that describing the laceration of the chin; that the rest of the report was filled in by the emergency room and followed thereafter by a written report of the medical doctor. Attention was later directed to the “third page” — “What the history physical examination of progress note means, what is that report for and how is it made up?” Dr. Frye responded that it was “a residence (sic) report, the medical resident,” which would have been made up “on the floor” immediately after appellant’s arrival there. He identified the resident at that time as a Dr. Englebert, a first year medical resident, whose duty it was to take a history from the patient relative to the nature of his injuries, how they were caused and note his condition. Referring then to the doctor’s notes — i. e., those made by the resident, Dr. Englebert, and not Dr. Frye, appellant’s counsel inquired: “Q. And, the doctor’s notes on that page there as to the patient’s ability to give a history is what ? A. Yes, he did. Q. What did he say? A. Patient is unable to give history.” Attention was then directed to some past medical history and an entry that patient was unable to give a history which Dr. Frye stated was probably entered after appellant arrived “on the floor.” Almost immediately thereafter, when counsel for appellant announced that he had no further questions, the Assistant Prosecuting Attorney, on re-direct examination made the following inquiry: “Q. Now, you were asked doctor to read statements out of here with reference to the patient- — he was unable to give history. I presume that that’s what that meant. Will you read the next following sentence, (sic) A. On the chief complaint, it says — ‘Patient is unable to give history, he appears inebriated and-’ ” At this point counsel for the appellant interrupted and interposed an objection “to ‘what appears’ for the reason that that is a conclusion by the doctor' — on the doctor’s part.” He further complained to the trial court that there was no testimony shown as to the competency of that doctor to give an opinion. The court’s response was that he had opened the door to that report and the State was entitled to offer anything in the report once he opened the door. In his argument appellant’s contentions are that the word “appears” constitutes the evidence a conclusion and not a statement of fact. As we view the entry, it is an opinion, and like all opinions, con-clusory in nature, but based upon an observation made by the doctor at the time and admissible as such. He next argues that there was no showing that the Doctor was qualified to make such a judgment. As we have stated heretofore, even a layman may form an opinion and express it with respect to intoxication, provided that a basis for his opinion is laid. State v. Edmonds, supra. Here, appellant sponsored the expertise of the same absent doctor to state that appellant was unable to give a history. He prevailed upon Dr. Frye to read this entry from the hospital record although Dr. Frye testified that it was not in his hand-writing and was made by Dr. Englebert. It is quite evident that what took place was that appellant’s counsel had the witness read that portion of a hospital record entry which he thought was helpful to him and then omitted a following portion which would explain why appellant was unable to give a history. The exhibit itself was never offered nor received into evidence and except for those portions read into the record we are unable to determine whether the phrase “he appears inebriated” followed immediately that portion of the record read by appellant’s counsel and as a phrase of the same sentence, or whether it was in a separate entry on the same page of the exhibit. Where one party brings into court and reads into evidence certain portions of a hospital record without any reservation of the right to object to other portions thereof and thus affirms the admissibility of the hospital record, he cannot thereafter object to his opponent’s offer of remaining portions of the hospital record which are relevant and explanatory of the portions already read into evidence by the party first sponsoring the hospital record. Dorn v. St. Louis Public Service Co., 250 S.W.2d 859, 865 [2] (Mo.App.1952). This has been referred to as the “doctrine of curative admissibility.” Young v. Dueringer, 401 S.W.2d 165, 167 [1] (Mo.App.1966); Sigman v. Kopp, 378 S.W.2d 544, 547 [1, 2] (Mo.1964). We hold that any error in admitting the entry in" the hospital record by Dr. Englebert with reference to the condition of appellant when seen by the same doctor “on the floor” of Jewish Hospital was obviated under the doctrine of “curative admissibility” because the record in this case demonstrates that it was invited and waived by appellant’s use of the hospital record entries without a proper foundation having been laid and was merely explanatory of evidence already adduced from the same record by appellant. We rule this point against appellant. Appellant included among his “points Relied On” a request that if his contentions were well-founded that after the judgment was reversed he be discharged. This has no place in this portion of the brief. Nevertheless, since we are affirming the judgment of the trial court we necessarily cannot grant his request. We have examined those matters which we are required to consider pursuant to Rule 28.02 VAMR and find them to be sufficient and in proper form. The judgment of the trial court is affirmed. DOWD, C. J., and SIMEONE and WEIER, JJ., concur. . Appellant’s first contention, to-wit: “The trial court erred in finding the defendant guilty as the verdict is against the weight of the evidence as the state did not prove beyond a reasonable doubt that defendant was driving while intoxicated and further the case against defendant was entirely circumstantial and the state did not successfully rule out every possibility excei>t that of defendant’s guilt,” did not preserve anything for review by this Court. State v. Campbell, 292 S.W.2d 297, 298 [1, 2] (Mo.1956). However, we shall view these contentions as presenting the question whether the evidence is sufficient to support a conviction or driving while intoxicated. . While there was evidence in the case of a blood alcohol test showing .25% blood alcohol the trial court stated prior to announcing its finding that he was going to exclude the results of that test and no issue has been made of the results of the test on this appeal. . See Beck, Evidence — Curative Admissibility in Missouri, 32 Mo.L.R. 505 (1967).

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Clarence WILSON v. TOWN OF GREENEVILLE and Greeneville Civil Service Board. Court of Appeals of Tennessee, Eastern Section. Dec. 11, 1973. Certiorari Denied by Supreme Court May 6, 1974. N. R. Coleman, Jr., Greeneville, for appellant. O. C. Armitage, Jr., Greeneville, for ap-pellee. OPINION SANDERS, Judge. Both sides have appealed from a decree of the Chancery Court of Greene County sustaining the action of the Civil Service Board in upholding the suspension and dismissal of the Complainant from the police department in the Town of Greeneville. The Complainant was suspended and discharged from the police force in the Town of Greeneville after 18 years of service because he erected a restaurant on his property and applied for a license to sell beer. Upon being notified of his discharge from the police force, the Complainant requested and was granted a hearing before the Civil Service Board of the Town of Greeneville. After an extended hearing was held, the Civil Service Board, on December 6, 1972, by a vote of two to one, upheld the action of the City to terminate the Complainant. The Complainant, on December 29, 1972, gave notice of an appeal from the decision of the Civil Service Board to the Chancery Court of Greene County. On March 15, 1973, the Chancellor dismissed the Complainant’s appeal on the grounds that the court was without authority to review the case upon appeal and holding that the only way the case could be brought into the Chancery Court was by a common law writ of certiorari, as provided in T.C.A. § 27-914. After dismissal of his appeal, the Complainant filed a petition in the Chancery Court of Greene County on March 21, 1973, for a common law writ of certiorari. The Defendants, Town of Greeneville and the Civil Service Board, filed an answer to the petition of the Complainant for certiorari insisting that the petition was not filed within 60 days after the entry of the order of the Civil Service Board, as provided in T.C.A. § 27-902. The Chancellor granted the writ of cer-tiorari and, after reviewing the record, filed a memorandum opinion finding that there was material evidence to support the finding of the Civil Service Board and affirmed its action. A decree was entered in keeping with the findings of the Chancellor and both sides have appealed and assigned error. For a proper disposition of the case, we must consider first the assignment of error by the Defendants, which is: “The Court erred in ordering a writ of certiorari of Clarence Wilson to issue after the appeal had been dismissed in accordance with the memorandum opinion of the court of March 15, 1973.” The Civil Service rules and regulations for the Town of Gheeneville were created by a private act of the legislature in 1953. The act provides that any discharged or suspended employee may request an investigation for a determination concerning his discharge, and it further provides that: “From an order adverse to the accused the latter may appeal to the Chancery Court of Greene County, Tennessee. Such appeal shall be taken by serving the Board, within ten (10) days after the entry of such order, with a written notice of appeal, stating the grounds thereof and demanding that a certified transcript of the record and of 'all papers on file in the office of the Board affecting, or relating to such order be filed by the Board in such court.” It was in pursuance of this provision of the private act that the Complainant gave notice of his appeal to the Chancery Court of Greene County on December 29, 1972. However, T.C.A. § 27-914 provides as follows : “Proceedings Involving Public Employees. — No court of record of this state shall entertain any proceeding involving the civil service status of a county or municipal employee when such proceeding is in the nature of an appeal from a ruling of a city or county official or board which affects the employment status of a county or city employee, except such proceeding be one of common law certiorari. Any such proceeding shall be heard by a judge or chancellor without the intervention of a jury. This section shall supersede and displace provisions of city charters to the contrary.” T.C.A. § 27-902 provides that the application for certiorari shall be made within 60 days from the entry of the order or judgment. Although T.C.A. § 27-914 was enacted by the legislature in 1949 and the private acts setting up the Civil Service rules and regulations was passed in 1953, the provisions of the private act do not have the effect of repealing the public act. Since there is a conflict in the private act and T.C.A. § 27-902 and § 27-914 as to how a review of the chancery court can be secured, the provisions of the statute will control. Complainant argues that, since he had appealed from the decision of the Civil Service Board within 60 days, this was a substantial compliance with §§ 27-902 and 27-914. We cannot agree. By appealing instead of filing a petition for certiorari, he was doing the very thing that the statute prohibits. The statute says, “ . . .no court . . . shall entertain any proceeding . . in the nature of an appeal. . . .” Since the order of the Civil Service Board was entered on December 6, 1972, and the petition for certiorari was not filed until March 21, 1973, we think the court was without authority to grant the writ. Carter v. Board of Zoning App. of Nashville, 214 Tenn. 42, 377 S.W.2d 914; Culbertson v. Metropolitan Government, etc., Tenn., 483 S.W.2d 716. This court dislikes to deny the Complainant a review of his assignments of error but, “ . . . we have here a statute which expressly provides a condition precedent, compliance with which is essential in order to confer jurisdiction”. Auto Sales Co. v. Johnson, 174 Tenn. 38, 45, 122 S.W.2d 453, 456. It results that the assignments of error of the Town of Greeneville and the Civil Service Board are sustained. The assignments of error of Clarence Wilson are overruled and his petition for certiorari is dismissed. The cost of this appeal is taxed to the Appellant, Clarence Wilson. COOPER, P. J. (E.S.), and PARROTT, J., concur.

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Elias SKOVRON and Georges Skowron, Complainants-Appellants, v. (Paula Bogacki Reichert, Intervening Petitioner, Appellant), THIRD NATIONAL BANK IN NASHVILLE and W. Raymond Denney, etc., Defendants-Appellees. Court of Appeals of Tennessee, Middle Section. Aug. 31, 1973. Certiorari Denied by Supreme Court, May 6, 1974. Gracey, Buck, Maddin & Cowan by John K. Maddin, Jr., Nashville, for complainants-appellants. Waller, Lansden, Dortch & Davis, by Lawrence Dortch, Nashville, for intervening petitioner. Stanley M. Chernau, Nashville, for defendants-appellees. OPINION TODD, Judge. The complainants, Elias Skovron and Georges Skowron, and intervening petitioner, Paula Bogacki Reichert, have appealed from the Chancellor’s decree interpreting the will of David Bogatzky contrary to the contentions of appellants. David Bogatzky died without issue on March 26, 1932, leaving a substantial estate subject to his will, the material text of which was as follows: “ITEM 2. I will, devise and bequeath to my wife Lilian Bogatzky all of my property of every nature and kind, real, personal and mixed, wherever the same may be located, or found, to have and to hold for and during the full term of her natural life, with right to use and employ, all of said property and the income and profits arising or in any way derived from same, for her use and benefit, except as provided in Item 3 hereof, and upon her death, such of said property as may remain, shall go to and become the property of my brother, Hyman Bogatz-ky, (written in Polish language Bogacki) of Golin, Kaliska, Poland, and his children, in equal shares or interests; and in event any of his children should be dead, leaving child or children surviving them, then such surviving child or children, shall take the share of such deceased parent. In event however, that my said brother, Hyman Bogatzky should die before this will becomes operative, then in such event the bequests in his favor, under Items 2 and 3 hereof, shall go and enure to the benefit of his said children and the child or children of any deceased child of the said Hyman Bogatzky, in equal shares or interests, the child or children of a deceased child of said Hyman Bo-gatzky, to represent and take the share of the deceased parent. “ITEM 3. I further will and direct my said wife Lilian Bogatzky (Hereinafter named as my Executrix) shall during the term of her natural life, beginning one month after my death, pay to my said brother, (Hyman Bogatzky, for the equal use and benefit of himself and his children, and the child or children of any deceased child or children of said Hy-man Bogatzky, share and share alike, the sum of $100.00 per month, to be divided equally among said beneficiaries and the estate hereinbefore under Item 2 hereof, willed and bequeathed to my said wife Lilian Bogatzky, is expressly charged with said monthly payment or allowance $100.00. Said Payment of $100.00 per month to be made as hereinbefore provided by my said wife, Lilian Bogatzky, shall during the lifetime of my said brother Hyman Bogatzky be made to him for the equal division and distribution to himself and the other beneficiaries; and upon his death, such payment shall thereafter, during the life of my said wife, be made to such individual beneficiary as may be designated by the other beneficiaries, to receive and make distribution of said sum of $100.00 per month among those entitled thereto thereunder. “ITEM 4. I further will and direct that my said wife Lilian Bogatzky shall have, and is hereby expressly given the right, authority and power, from time to time, when in her judgment, such is best, to sell any of the personal property herein given and bequeathed to her, particularly bonds, stocks or other securities, and in event of any such sale, the proceeds arising therefrom shall be reinvested in other like personal property, such as bonds and securities of recognized stability and value, to be held, used, enjoyed and applied by my said wife, as hereinabove provided in Items 2 and 3 hereof; however, my said wife shall not be liable for any loss resulting from error of judgment on her part, nor shall the purchaser of any such property be in any way obligated to see to the reinvestment of the proceeds of any such sale.” Appellants first complain 'that the Chancellor erred in holding that the foregoing will vested in Lilian Bogatzky an absolute estate in the property of David Bo-gatzky without limitation over to remain-dermen. The conclusion of the Chancellor was based principally upon the case of Marsh v. Porch, 35 Tenn.App. 62, 242 S.W.2d 691 (1951) wherein the will consisted of a letter which read in part as follows: “ . . .1 am leaving this statement as a general guide (as near as I can tell now) as to how I would like for my estate to be disposed of. I want my wife who has at all times been good and kind to me to have all my personal property— and real estate located in Waverly, Tenn. also, my one half interest in the Luten, Jim Turner and Arkansas farms for and during her natural life. If thought best convert the real estate into some other class of property. After her death I desire that this property go in equal parts to Mildred Marsh, Mary Joe and Christine Turner. . . .”35 Tenn.App., pp. 65, 66, 242 S.W.2d p. 692. In that case, the Trial Judge found: “I am of the opinion that a construction of the letter written by the late C W. Turner on January 23, 1926 and filed as Exhibit to the petition in this cause is determinative of all matters involved. This is especially so when construed in the light of all the surrounding circumstances, the settlement of C. W. Turner’s estate by his widow on June 2, 1941, and the previous settlement and agreement made between the parties relative to the real estate. “First, considering the construction to be placed on that portion of the letter wherein personal property was mentioned, I am of the opinion that the statement ‘I am leaving this statement as a general guide (as near as I can tell now) as to how I would like for my estate to be disposed of. I want my wife, who has at all times been good and kind to me, to have all my personal property and real estate located in Waverly, Tennessee,’ in the absence of any thing further conveyed to his wife his personal property and real estate in Waverly without any limitations. Any other constructions would in my opinion be inconsistent with all the facts disclosed in this record. The certified photostatic copy of the record from the Department of Finance and Taxation discloses that a large portion of the personal estate in the name of C. W. Turner belonged to and was the separate (sic) of Mrs. Nell C. Turner. There is an affidavit by-Mrs. Turner and one by the cashier of Citizens Bank of Waverly, both being-signed and the affidavit of Mrs. Turner being sworn to“. Furthermore the following statement in the will that ‘also my one-half interest in the Luten, Jim Ttirner, and Arkansas farms for it during her natural life/ only adds additional property to Mrs. Turner with the additional property being limited to her use during her life. These statements in Mr. Turner’s will, or the letter that was probated as a will, show definitely that he wanted her taken care of out of his estate and to hold that he did not give her the personal property without limitations would, in fact, be a finding that he did not take care of her out of his estate.” 35 Tenn.App., pp. 70, 71, 242 S.W.2d, p. 694. (Emphasis Supplied) This Court concurred in the finding of the Trial Judge that, under the circumstances of the case, the personalty and real estate in Waverly were received by the widow without limitation, but that the other real estate was received by the widow for life only. A further study of the will in Marsh v. Porch, supra, discloses that the testamentary sentence was divided into two parts, divided by the word, “also.” The first part stated, “I want my wife ... to have all my personal property — and real estate located in Waverly, Tennessee.” The second part stated, “also my one half interest in the Luten, Jim Turner and Arkansas farms for and during her natural life.” The first part was held to vest an absolute estate in the property described therein, and the second part was held to vest only a life estate in the property described therein. The will in the present case states, “I will, devise and bequeath to my wife all of my property ... to have and to hold during the full term of her natural life . . .” There is no interruption or change of subject from the words “will, devise and bequeath” to the words “during . . . her natural life.” The natural meaning and legal effect of the words of the subject will is “Unto my wife, I will, devise and bequeath a life estate in all of my property.” Appellees insist that the initial words, “I will, devise and bequeath to my wife . '. all of my property . . .” creates a fee absolute estate which cannot be diminished by the subsequent words, “to have and to hold for and during the full term of her natural life.” In support of this insistence, appellees cite Smith et al. v. Reynolds et al., 173 Tenn. 579, 121 S.W.2d 572 (1938). In that case, the first paragraph of the will read as follows: “I, Matt B. St. John, this April 12th, 1933, being of sound mind do hereby will and bequeath to my wife, Agnes Kerwin St. John, my entire estate with both real and personal property inclusive, except my medical library, which I leave to Dr. L. B. Snapp of Bristol, Tennessee.” After a second, immaterial paragraph, the third and last paragraph states: “At Agnes Kerwin St. John’s death this estate is by my wish returned to my nearest blood kin. This revokes previous will.” The Supreme Court held that the first paragraph created an absolute estate which could not thereafter be limited by the third paragraph. In the present case, the limitation was stated in the course of creating the estate, indeed the kind and character of estate is stated in the same breath as the creation of the estate. Appellees rely upon Item III of the will, supra, charging the estate willed to his wife with the monthly $100.00 payments to his brother. Said charge is neither consistent nor inconsistent with absolute or limited estate in the widow. Either estate was subject to such a charge, and there is no reason why the deceased should not have felt the need to assure that his widow would make required payments to his brother during her lifetime, whether her estate be absolute or for life. Appellees next rely upon Item IV of the will, supra, giving her the power of sale of any personal property bequeathed to her, as indicating the intent to create in her an absolute estate. Said Item IV also provides, however, that: “in event of any such sale, the proceeds arising therefrom shall be reinvested in other like personal property, such as bonds and securities of recognized stability and value, to be held used, enjoyed and applied by my said wife as herein-above provided in Items 2 and 3 hereof.” The foregoing quotation indicates an intent to limit the power of disposition to a mere power of conversion to other forms of property to replace that which was sold and to be held for the purposes set out in the will. The remainder of Item IV confirms this interpretation as it relieves the widow of liability for misjudgment in reinvestment. Without a valid reservation of an enforceable remainder interest, the widow would at all times have dealt with her own property without accountability to anyone, and there would have been no occasion for such exculpatory provision in her favor. It is true, as insisted by appellees, that the opinion in Marsh v. Porch, supra, states that an unlimited power of disposition indicates an absolute estate. However, as already pointed out, under the circumstances of said case, the Supreme Court held only part of the estate to be absolute and the remainder to be limited to life. Furthermore, Marsh v. Porch does not take into account Section 64-106, T.C. A., quoted below. Appellees cite Cox v. Sullins, 181 Tenn. 601, 183 S.W.2d 865 (1944). In that case, the pertinent part of the will read as follows : “Fourth: I give, devise and bequeath to my husband Dr. Thos. ap. R. Jones, my Government Bonds, stock in Appalachian Mills, Standard Knitting Mills, Eldridge Imp. Co., Cherokee Spinning Co., Fidelity-Bankers Trust Co. Any of these bequests that are still in his possession at his death must be given to my nephew David Sullins.” 181 Tenn., p. 603, 183 S.W.2d, p. 865. The Supreme Court said: “(1,2) Since, according to the stipulation of facts, David Sullins died before the testatrix and left no issue, any interest he might have taken under Item Four of the will had lapsed when the will became effective at the death of the testatrix. (Citing authorities) There is here, therefore, no question of the validity of a remainder over, or of an execu-tory bequest. The only question is whether Dr. Jones became the absolute owner of the securities in Item Four, or took only a life estate in them. The language of the first sentence of the he-q%iest is unconditioned and all-inclusive: T give, devise and bequeath by my husband Dr. Thos. ap R. Jones, my Government Bonds, stock in Appalachian Mills, Standard Knitting Mills, Eldridge Imp. Co., Cherokee Spinning Co., Fidelity-Bankers Trust Co.’ We can conceive no language which would more clearly and fully give Dr. Jones the absolute ownership of these securities, and the words, ‘Any of these bequests that are still in his possession at his death,’ merely fortify a conclusion that he was being given an absolute power of their disposition.” 181 Tenn., p. 605, 183 S.W.2d, p. 866 (emphasis supplied) Apparently, the decision in Cox v. Sul-lins was influenced by at least two factors, mentioned in the foregoing quotation, viz: (a) The bequest to the remainderman had lapsed by death of the remainderman without issue prior to the death of the testator. (Sec. 32-306 T.C.A. preserves lapsed legacies only where the deceased legatee dies with issue) (b) The absolute estate was created in the first sentence of the paragraph. The attempted limitation over occurred in a subsequent sentence. Repeating: The limitation in the present will was not in a separate sentence, but in the very part of the very sentence which created the estate. Appellees also cite Haskins v. McCampbell, 189 Tenn. 482, 226 S.W.2d 88 (1850) wherein the will stated: “Second, — After the payment of debts and funeral expenses as aforesaid, I give, devise and bequeath to my wife, Jannie Haskins, all my person (sic) property, except a small lot of jewelry now in my possession as family ‘keepsakes.’ This jewelry I desire turned over to my brother, T. W. Haskins, at the death of my said wife, to be delivered to his children when they become of legal age. “Third, — I desire and also direct that my said wife remain undisturbed in our home and retain a life estate in the entire tract of land on which the home or residence is situated so long as she may live. “Fourth, — I desire and hereby direct that my real estate and whatever may remain of my estate, after the death of my said wife, go to my said brother, if he survive me, otherwise, to my next of kin, according to the laws of inheritance. ...” 189 Tenn., p. 485, 226 S.W.2d, p. 90 As in the case of Smith v. Reynolds, supra, Haskins v. McCampbell is distinguishable from the present case because the absolute estate in Haskins was created without reservation in one paragraph and the limitation over was stated in a subsequent paragraph; whereas, in the present case, the limitation of the estate was stated in the creation and definition. Appellees further cite Bradley v. Carnes, 94 Tenn. 27, 27 S.W. 1007 (1897), wherein the will stated: “I give and bequeath to my wife, Sarah J. Carnes, all the remaining property, both personal, & real for her special comfort, benefit and support. If she thinks it advisable, she may sell & convey the right of the land. If anything remains at her death it shall go into the hands of my Executor and shall & divide equally in half of (sic) the proceeds between my wife Sarah J. Carnes, brothers & sisters, and the other half shall be divided equally between my own, G. W. Carnes, brothers & sisters with the exception of the heirs of Martha B. Hill and I will them one dollar & no more.” 94 Tenn., pp. 27, 28, 27 S.W., p. 1007. In Bradley v. Carnes, the first sentence created an absolute estate, unless the words, “for her special comfort, benefit and support,” imply a limitation. The Court held that they did not. In the present case, the limiting words are, “for and during the full term of her natural life” which are considerably different from the limiting words in Bradley v. Carnes. Appellees attach significance to the fact that the charge for $100.00 monthly payments to a brother was placed in a subsequent portion of the will, rather than in the clause creating the estate of the widow. The latter arrangement may have been better draftsmanship, but perfect draftsmanship is not required to produce a valid will or clause thereof. Jones v. Jones, 225 Tenn. 12, 462 S.W.2d 872 (1971), is somewhat, but not precisely in point. In Jones the question was not the estate held by the widow, or the disposition to be made of property after her death, but whether the widow had the power to convey an absolute estate during her lifetime. The opinion of the Supreme Court states: “The complainants have perfected their appeal to this Court alleging as error (1) the Chancellor erred in disallowing the amended bill, and (2) the Chancellor erred in his finding that Dovie Jones was given an unlimited power of disposition under the terms of her husband’s will. “The second issue as to whether under the terms of the will Dovie Jones had a power of disposition so that she could convey an absolute fee under Tennessee Code Annotated 64-106, calls for the construction of the will of the late R. M. Jones. “/2/ For the construction of a will of the nature of the case at Bar no hard and fast rule can be laid down for each case is a law unto itself. Many authorities have been examined and the prevailing view is that the court in such cases will keep an eye singled toward what was the meaning or desire of the testator at the time the will was executed. That is the test, and if there are provisions in the will that tend to conflict, we must look to that provision which in our opinion more nearly conveys the testator’s wishes and reconcile or disregard the conflicting portions. The primary intent must override the secondary one if either must fail. “Under authorities hereinabove recited and especially on the basis of the authority of Redman v. Evans, supra [184 Tenn. 404, 199 S.W.2d 115], it is concluded that this will gave the life beneficiary, Dovie Jones, a power of disposition so that she could convey an absolute fee under Tennessee Code Annotated 64 — 106.” 225 Tenn., pp. 15, 16, 17, 462 S.W.2d, p. 873 Section 64 — 106 T.C.A., referred to above, reads: “64-106. Estate with unlimited power of disposition. — When the unlimited power of disposition, qualified or unqualified, not accompanied by any trust, is given expressly, in any written instrument, to the owner of any particular estate for life or years, legal or equitable, such estate is changed into a fee absolute as to right of disposition, and rights of creditors and purchasers, but subject to any future estate limited thereon or ex-ecutory devise thereof, in event and so far as the power is not executed or the property sold for the satisfaction of debts during the continuance of the particular estate. /Code 1932, Secs. 7603, 8093./” At this point, it should be noted that, prior to the enactment of Section 64 — 106 T.C.A., supra, the rule in Tennessee was: If the first taker is given an estate in fee or for life coupled with an unlimited power of disposition, the fee or absolute estate vests in the first taker, and the limitation over is void.” Bradley v. Carnes, supra. The preceding strict rule generally known as “The Rule in Shelley’s Case,” was not in effect in Tennessee on the date of probation of the subject will on March 21, 1932, because, on January 1, 1932, the Code of 1932 became effective containing therein Sections 7603, and 8093, now T.C. A. Sec. 64-106. The resolution of the present controversy cannot be based upon the holding of Bradley v. Carnes, supra, which was modified by statute prior to the probation of the will herein. Abernathy v. Adams, 31 Tenn.App. 559, 218 S.W.2d 747 (1948). Rather, the decision must rest upon the question of whether the words, “for and during her natural life” are severable from the words, “I will devise and bequeath to my wife,” occurring in the same sentence. In Overton v. Lea, 108 Tenn. 505, 68 S.W. 250 (1902), the will stated: “And as to all the rest, residue and remainder of my estate ... I give, devise, and bequeath the same unto my mother, Rebecca Salmons Lea, to and for her own use and benefit absolutely, provided that she does not marry again; but if she marries again, I give, devise, and bequeath the same from the time of her remarriage to my cousin, Overton Lea, Jr., son of Overton Lea, Sr., of Nashville, Tenn. “In case my mother, Rebecca Salmons Lea, dies during my lifetime, or in case she dies intestate, or in case she gives or bequeaths to my sister, Bessie Kelly, or her husband, or any descendant of hers, or any one bearing the name of Kelly, any portion of my estate, I give, devise, and bequeath the said rest, residue, and remainder of my estate and effects, whatsoever and wheresoever, both real and personal, whether in possession, reversion, remainder, or expectancy, unto the said Overton Lea, Jr., to and for his own use and benefit absolutely.” 108 Tenn., p. 539, 68 S.W., p. 258 The Supreme Court said: “The words ‘to and for her own use and benefit absolutely,’ do not imply an unlimited power of disposition, because the language is immediately coupled in the same sentence with the proviso, ‘that she does not marry again.’ “The words are all to be read together. The very words and sentence which creates the estate limit it, and make it a conditional determinable fee.” 108 Tenn., pp. 546, 547, 68 S.W., p. 260 In Jones v. McMurrey, 25 Tenn.App. 47, 150 S.W.2d 713 (1941), the will of deceased stated: “Secondly — I give to my wife Annie McMurrey, all my property both personalty and real that I have at my death to be used as she see fit, as long as she lives, (but I advise that the money be loaned with two security and none of it loned to anny myne and her Kinsfolk.)” 25 Tenn.App., p. 49, 150 S.W.2d, p. 714 This Court held: “/2, 3/ The testator thus expressed an intent to make two gifts, (1) to give all his property to his wife ‘to be used as she see fit, as long as she lives,’ and (2) to give what property should be left at her death equally to the four named; and he empowered his executor to carry out these gifts. It is clear if he had intended his wife should take the entire estate in all the property absolutely to the exclusion of the others named, he would have made no gift over to them at all. But it is equally clear he did intend she should take all the property ‘to be used as she see fit, as long as she lives.’ Does this right in her to all the property ‘to be used as she see fit, as long as she lives,’ include also an unlimited power to dispose of it and defeat the gift over? Or it is only a right to take the rents, income and corpus for her personal use during her lifetime and thus to consume all of it, if necessary, for her maintenance and support? We think the intent of the testator was that she should have the right to use all the property, the rents, income and the corpus, for her support and maintenance during her life, and if at her death any of it was left it should go to the remaindermen. That is to say, the will vested in her a life estate coupled with the power to dispose of all the property only if and when she might find it necessary for her personal use. Such a limited or qualified power of disposition did not enlarge the life estate into a fee simple.” (Citing authorities) 25 Tenn.App. pp. 49, 50, 150 S.W.2d, p. 714 In Young v. Insurance Company, 101 Tenn. 311, 47 S.W. 428 (1898), the will stated: “I give, devise, and bequeath my estate and property, real and personal, as follows : That is to say my farm, located on Mission Ridge, and described and bounded as follows: (here follows description) I also give, devise, and bequeath all my personal property and effects. I also devise and wish my wife, S. J. Young, to have full and complete control, — to transfer and reinvest or otherwise dispose of the property, or any part of the same, as she may wish. I further desire that at the decease of my wife the property as above described, or the proceeds thereof, shall become the property of my daughter, Essey May Young.” 101 Tenn., p. 313, 47 S.W., p. 429 and the Supreme Court said: “Taking the whole instrument together, while it is indefinite and informal, in not naming the devisee, it was clearly a devise to the wife, with remainder to the child, — with power in the mother, however, to sell and reinvest. Upon this branch of the case we need not dwell. This is not in conflict with Bradley v. Carnes [10 Pickle, 27], 94 Tenn. 27, 27 S.W. 1007, as is argued.” 101 Tenn., p. 314, 47 S.W., p. 429 In Waller v. Martin, 106 Tenn. 341, 61 S.W. 73 (1901) the will stated: “I give and bequeath to my daughter, Mary E. Omohundro, my farm near the grade in the twenty-third civil district of Wilson County, Tennessee /describing it/, to have and to hold during her natural life, and at her death to go to her legal heirs. Now I intend, and hereby will and direct, that all the lands I give to my daughters shall be under her control, and free from the debts of her husband; hut, should any of them at any time desire to sell their lands, they may do so, provided they reinvest the proceeds in other lands, taking a deed to her and her legal heirs, with the same provisions contained in this will; and I hereby appoint my son Joshua C. Logue, trustee, to see that this part of my will is strictly complied with.” 106 Tenn., pp. 343, 344, 61 S.W., p. 74 and the Supreme Court said: “It is insisted that such a power of disposition is given to Mrs. Omohundro by this will as must vest in her an absolute estate in the land. We think this position is not well taken, since the power of disposition is restricted to a sale for reinvestment on precisely the same terms under which the original property is held. It is not an unlimited power of disposition, and the case is not brought within the rule laid down in Bradley v. Carnes [10 Pick., 27], 94 Tenn. 27, 27 S.W. 1007.” 106 Tenn., p. 344, 61 S.W., p. 74 Except for the provision of a trustee to monitor compliance with the restrictions on alienation, the foregoing will is strikingly similar to that of the present case in that it uses the phrase, “to have and to hold during her natural life,” and the litigants apparently conceded that the estate was created as a life estate. It was insisted that the life estate was enlarged by subsequently granted power of disposition, under Bradley v. Carnes, supra, which is no longer applicable. ' In Carson v. Carson, 115 Tenn. 37, 88 S.W. 175 (1905) the will stated: “Secondly. I give, devise, and bequeath to my husband, W. M. Carson, the tract of land upon which I now reside, containing one hundred and sixty-five acres, (describing same) and at his death I direct that after his funeral expenses and just debts are all paid, the remainder of said tract to go to the Board of trustees of the Cumberland Presbyterian Church in the United States of America, . . . ” 115 Tenn., pp. 39, 40, 88 S.W., p. 175 and the Supreme Court held: “We are of opinion that, under this clause of the will, W. M. Carson does not take an absolute or unlimited estate, such as will defeat a valid devise over. “We are of opinion, therefore, that the chancellor was in error in holding that W. M. Carson took the land mentioned in the second item in fee simple and absolutely, but he should have held that he took only a life estate, with remainder over.” 115 Tenn., p. 44, 88 S.W., p. 177. In Williams v. Coldwell, 172 Tenn. 214, 111 S.W.2d 367 (1937), the will provided: “I give, desire (devise) and bequeath to my wife, Sarah Ann Terry, all of the property of whatever nature of which I may die seized and possessed, after all my just debts shall have been paid, (describing property) to her full and free use and benefit, during her natural life, with all profits, interest and gains arising and accruing on said property. “The said Sarah Ann my wife shall have the full and free and unlimited control and management of all of said property after my death, . “Now if at the death of my wife, the said Sarah Ann, there shall be anything left of my property, then I desire that two-thirds of the same shall be equally divided between (naming remaindermen) ...” 172 Tenn., pp. 218, 219, 111 S.W.2d, p. 368. It was apparently conceded that the above langugage did not create an absolute estate in the widow. The dominant question was the extent of the widow’s power to convey. The Supreme Court said: “Our conclusions are that the power of disposition conferred by the will upon Sarah Ann Terry was a limited power, in that the real estate could be sold only for consumption of proceeds of sale by her, as for conversion into personalty for the convenient or desirable use and enjoyment by her of her life estate, without enlargement of her life estate in the property; that she held the proceeds of sale in trust for the ultimate beneficiaries, subject to her own use thereof under the terms of the will; that R. H. Dowell took a valid title, in fee, to the lands in question by virtue of the two deeds executed by Sarah Ann Terry conveying the same to him.” 172 Tenn., p. 225, 111 S.W.2d, p. 371. In Hair v. Farrell, 21 Tenn.App. 12, 103 S.W.2d 918 (1936), the will provided: “I will and devise that I give and bequeath to my present beloved wife all the lands, tenements, and real estate that I own at my death including (describing property) and all of said property, is willed by me subject to limitations and conditions as follows: “(A) That she is to have the absolute control of during her natural life all the lands I own at my death, so as to cultivate and have cultivated, and receive the full benefit of the rents and profits derived therefrom, to be used by her for her own support and maintenance.” 21 Tenn.App., p. 15, 103 S.W.2d p. 920. This Court said: “/l, 2/ It is an elementary rule of will construction that the intention of the testator will be given effect unless it contravenes some rule of property or public policy. We think the will in question reflects the clear intention of the testator to make ample provision for the proper support and maintenance of his wife during her lifetime. This intention is expressed in several items of the will. He also makes it clear that she is to have the full and unlimited use and control of the property and the management of the same, both real and personal, for her lifetime, but with the express restriction that such use of said property shall be for her proper support and maintenance and for no other purpose or use. “This intention by the testator is clearly reflected by the terms and provisions of the will.” 21 Tenn.App., p. 19, 103 S.W.2d p. 922. Under the pronouncements of the foregoing authorities, and under the clear intent of the testator as revealed by his entire will, the widow Lilian Bogatzky, received a life estate in all of the property of the deceased with power of disposition during 'her lifetime. This conclusion is at vari-anee with that of the Chancellor, supra, and with respectful deference to him. The first complaint of appellants is sustained, and the holding of the Chancellor will be revised accordingly. The decision of the Chancellor, adjudging that the widow, Lilian Bogatzky, received an absolute, fee simple interest in her husband’s estate, enabled him to preter-mit a number of thorny secondary questions. The reverse conclusion by this Court leaves said questions for consideration and disposition. A brief statement of family history will serve as a background of the questions to be considered. The deceased, David Bogatzky, and his wife, Lilian Bogatzky, had no natural children. David Bogatzky had one brother, Hyman Bogatzky (Bogacki), a resident of Poland, who died before David, leaving several children, of whom only two survived World War II. A son, leek Bogacki, now deceased, is represented in this litigation by his only daughter, Paula Bogacki Reichert. A daughter, Soja Skowron, now deceased, is represented in this litigation by her two sons, Elias Skovron and Georges Skowron. Upon the death of David Bogatzky, his widow, Lilian Bogatzky, qualified as executrix of his estate and served as such until final settlement and discharge on December 17, 1937. On April 9, 1940, Lilian Bogatzky adopted Elias Skowron, grandson of Hyman and grand-nephew of David. On March 19, 1954, leek Bogacki executed an instrument purporting to “release, relinquish and forever discharge any and all claims which he has or may have against the estate of David Bogatzky, deceased, or against Lilian Bogatzky, and does specifically release and disclaim any claim which he has or may have against the estate of David Bogatzky, deceased, or against the estate of Lilian Bogatzky, following the death of the said Lilian Bogatz-ky.” On June 15, 1964, Elias Skovron and Third National Bank became co-conservators of the estate of Lilian Bogatzky and continued as such until her death on December 21, 1966. Upon the death of Lilian Bogatzky, Third National Bank and W. Raymond Denny became co-executors of her will. Said will contains eighteen specific bequests, of which the following are material : “Edgar H. Bauman one hundred (100 shares of stock of the National Life & Accident Insurance Company, of Nashville, Tennessee, together with any declared stock dividends thereon since the date of this Will. Dr. Thomas Frist, of Nashville, Tennessee, one hundred (100) shares of stock of the National Life and Accident Insurance Company, fifty (50) shares of stock of The Texas Corporation, all my shares of stock of the Third National Bank in Nashville, and all my shares of stock in Coca Cola Company that I may own at the time of my death, together with any declared stock dividends thereon on all of the above stocks bequeathed, from the date of this Will.” After specific bequests, the residue of the • estate is disposed of as follows: (a) Georges Skowron 30% (b) Paula Bogacki Reichert 35% (c) William David Epstein 15% (d) National Jewish Hospital 20% Said will also provided: “Elias Skovron is a grandnephew of my late husband. He was brought to this country from Poland by me and I later adopted him, and through these years I have made very substantial gifts to him, both in securities and money, and as he has through these years been amply provided for by me, I have omitted him as a beneficiary herein.” The remaining issues relate to the rights of the beneficiaries of the will of Lilian Bogatzky as against the claims of the re-maindermen under the will of David Bo-gatzky. As to the beneficiaries of specific bequests, the issue relates to whether the specific property was subject to the will of Lilian Bogatzky or was held by her as life tenant only with remainder to the remain-dermen under the will of David Bogatzky. As to the rights of the residual legatees, the issue is how much or what part of the assets held by Lilian Bogatzky was subject to her will, and how much or what part of said assets were held by her as life tenant only, subject to the remainder provisions of the will of David Bogatzky. On this subject, the appellants assign as error that: “The trial court erred in failing to find that the will of David, even if giving Lilian the power to use principal as well as income, nevertheless did not give her the power to make inter vivos or testamentary gifts.” As to the power of the widow to defeat by her will the remainder interests created by her husband’s will, there can be little doubt. The will of David Bogatzky speaks effectively in the words, “for and during her natural life,” which create a life estate. It could hardly be contended that the owner of a bare life estate has any power to make testamentary disposition of the remainder. The power to sell or convert the assets during lifetime does not include the power to dispose of assets by will. Thompson v. Turner, 186 Tenn. 241, 209 S.W.2d 25 (1948) The case of Leach v. Dick, 205 Tenn. 221, 326 S.W.2d 438 (1959) involved a deed which recited: “This conveyance is executed to second parties, J. E. Dick and wife Ella Dick with the right to transfer, sell, convey, assign or encumber as they see fit with fee simple to go to J. E. Dick if Ella Dick dies before he dies, and if J. E. Dick dies before Ella Dick dies, a life estate to vest in Ella Dick for the rest of her natural life and on her death to go to the heirs at law of J. E. Dick in fee simple.” 205 Tenn., p. 223, 326 S.W.2d, p. 439. The Supreme Court held that Ella Dick was a life tenant only, that a taking by eminent domain was not tantamount to a sale under the testamentary power of disposition, and that the named remaindermen were entitled to share in the proceeds of the condemnation. The power to make inter vivos gifts is likewise controlled by the terms of the will of David Bogatzky. The power of disposition, as set out in Item 2, supra, is “with right to use and employ for her use and benefit . . . . ” Such power, as set out in Item 4, supra, is, “to sell . . . proceeds . . . shall be reinvested in other like personal property . . . to be held, used, enjoyed and applied ... as hereinabove provided . ” Nothing in the quoted portions of said will confers any power of disposition by gift. The power of disposition extends only to (a) “use and employ . for her use and benefit” and (b) “to sell” (for conversion to like property). In 51 Am.Jur.2d, Life Tenants and Re-maindermen, Section 63, p. 291, is found the following text: “It is a general rule that a life tenant who is given the power to consume or anticipate the corpus of the estate if necessary for his support, maintenance, or comfort has no right or power to dispose of all or part of such corpus by a gift inter vivos. . . .” 51 Am.Jur.2d, p. 291 The foregoing text is supported by a number of authorities, including annotations in 2 A.L.R. 1243, 27 A.L.R. 1381 and 69 A.L.R. 825. In the case of Brown v. Brown, 213 Iowa 998, 240 N.W. 910 (1932), it was held that where a widow receives by will all of her husband’s property for her use and benefit during her natural life, with full power to sell, convey and dispose . to invest and reinvest . . . and to use income and proceeds thereof for her maintenance, care and support, the widow is without power to make any gift of any property, income or proceeds. The insistence of appellants, that Lilian Bogatzky had no power to dispose of property received by her under the will of David Bogatzky, either by will or inter vivos gift, is sustained. This decision will naturally activate and make relevant the issues of what inter vivos gifts and testamentary gifts of Lilian Bogatzky involved her own property, as to which she had unlimited power of disposition, and what involved property received from her husband as to which she had no power of disposition by gifts or will. As to this issue, the Clerk and Master was directed to hear proof and report on a number of evidentiary facts, however the facts as reported by the Clerk and Master do not conclusively determine the ultimate facts of the controversy under discussion. An example of facts yet to be determined is as follows: During the lifetime of Lilian Bogatz-ky, what gifts were made by her out of assets received by her under the will of David Bogatzky or derived therefrom? The answer to the foregoing question depends upon (a) factual information, (b) inferences therefrom, and (c) legal principles applicable to said facts and inferences. Upon remand, (a) and (b) will address themselves to the Master on reference and to the Chancellor on motion to confirm the Master’s report, (c) is a proper area for discussion in this opinion. At the death of her husband, Mrs. Bogatzky was the owner of some assets in her sole and separate name. Property held with husband as tenants by the entireties and insurance on his life became her sole estate upon his death. As to these assets, clearly belonging to Mrs. Bogatzky, so long as she continued to own them, she had the right to make inter vivos gifts. Such of these assets as belonged to her at her death were subject to her testamentary power; i. e., could be disposed of by will, unless she became liable to remaindermen by unauthorized gifts of property subject to their interests, and the claims of re-maindermen required the application of such sole and separate property for satisfaction. There were other assets in existence at the death of David Bogatzky as to which the evidence of ownership is uncertain. It will be necessary for the finder of fact to determine the ownership of such assets from the available information and reasonable inferences to be drawn therefrom. Such inferences may point to sole ownership by either spouse, or joint ownership. In the event of the latter finding, an estate by the entireties may be found, which would result in absolute ownership by the widow after the death of her husband. Assets which were the sole property of David Bogatzky at his death passed under his will to his widow for life only, and re-maindermen would be entitled to same at her death imless consumed by her for her own benefit under the terms of the will. Any such assets converted to other forms would be subject to the same rule. Here arises the difficulty of identifying the resultant holdings as having their origins in the assets of the testamentary life estate. The executors insist that the remaindermen have the burden of proof that any particular asset or fund originated in or was derived from the assets of testamentary life estate. The evidence shows that the widow failed to segregate and keep separate the life estate assets from her sole and separate assets. This failure of the widow places an impossible burden upon the re-maindermen, for the needed information was available to the life-tenant and not the remaindermen. Under these circumstances, the executors who represent the widow are not in a position to profit from the failure to produce that evidence which their testator failed to record and preserve. The remaindermen are not to he penalized for the failure to preserve information. Neither should the estate be arbitrarily or unduly penalized by severe application of rules applicable to trustees who commingle trust funds with their own. Rather, the issue should be determined from a consideration of all available information and the inferences reasonably to be drawn therefrom. Of some assistance will be the inference reasonably deducible from the circumstances that all assets not consumed in livelihood or gifts continued in some form, and that, subject to such use and gifts, and increments from income, the proportion of sole and separate assets to life-estate assets would remain approximately the same. Here arise two serious interrelated questions; i. e., the ownership of income derived from life-estate assets, ergo the ownership of assets acquired through such income, and the source from which the widow’s expenses were paid. In Hair v. Farrell, 21 Tenn.App. 12, 103 S.W.2d 918 (1936), it was held that where the estate for life is limited to necessary support and maintenance, the remainder-men are entitled to the unexpended income received during the lifetime of the life tenant. To the same effect is Emert v. Blair, 121 Tenn. 240, 118 S.W. 685 (1908). In Harris v. Alderson, 36 Tenn. (4 Sneed) 251 (1856) it was held that, under a trust provision that “use and increase thereof should be taken care of for the express use and benefit of” certain beneficiaries, was intended for the “joint maintenance” of such beneficiaries. In Jones v. McMurrey, supra, the words, “to be used as she sees fit so long as she lives” were construed to mean the right to use all the property, the rents, income and the corpus for her support and maintenance during her life. The wording of the will in the present case was: “with right to use and employ all of said property and the income and profits arising or in any way derived from same for her use and benefit. . . . ” emphasis supplied The foregoing is deemed to have conferred upon the widow the right and power to apply income and profits to her present use and present benefit, and not the power to accumulate such income and profits for gifts, inter vivos or testamentary. As a result, such parts of the income and profits of the life-estate property as were not consumed by the widow in providing for her own keep and comforts remained a part of the estate reserved for the remaindermen at her death. It will be for the finder of fact to determine the monetary source used by Mrs. Bogatzky to provide for her needs. In view of the aforementioned intermingling, this decision will be difficult, but not impossible. Certain separate bank accounts kept by her will be of some assistance; and, if necessary, the finder of fact may resort to inferences based upon her proven conduct or practices on other occasions. There is no basis for applying absolute presumptions which one side or the other must overcome. Rather, the resolution of this fact issue should be upon the basis of proven facts, reasonable inferences, and common sense. In the absence of evidence or circumstances indicating otherwise, the finder of fact would be justified in indulging an inference that the widow, a woman of financial astuteness, would use a fund provided for her rather than her own funds. Appellants insist that, because of the commingling of estates by the widow, the burden is placed upon her estate to identify the assets belonging to her, failing which, all must be presumed to be the residue of her husband’s property in which she enjoyed only a life estate. This insistence is based upon the hypothesis that a life tenant is a trustee for the remaindermen. It is true that a life tenant in some respects occupies a position of trust toward remaindermen. However, the relationship is more one of quasi-trustee. Vaden v. Vaden, 38 Tenn. (1 Head) 444 (1858); King v. Sharp, 25 Tenn. (6 Humph.) 55 (1845). The term “trustee” has been used more as an analogy in order to apply certain principles of trusteeship in reaching an equitable result. It is not considered that all of the rules of trusteeship, including that regarding commingled funds, are applicable to life tenants. Appellees cite 51 Am.Jur.2d, Life Tenants and Remaindermen, Sec. 281, p. 572, which is supported only by Robb v. Berryman, 215 Md. 161, 137 A.2d 135 (1957). In said case, the headnote quoted in Am. Jur.2d is: “Where widow, who was given a life estate with unlimited power to use, consume and dispose of husband’s estate, had no other source of income other than assets owned by her at time of husband’s death and estate left by her husband, award to executor of widow’s estate, of total assets established as belonging to her individually and awarding of remainder to remaindermen under husband’s will was proper.” 137 A.2d, pp. 135, 136 However, neither the words nor the substance appears in the text of the opinion, which states: “As we have held that Mrs. King could not accumulate the income from the life estate and expend the corpus of Mr. King’s estate, and the above figures show that she consumed all of the income from, and a part of the principal of, the life estate, it follows as a necessary consequence that the chancellor was correct in the amount that he decreed was distributable to the remaindermen.” 137 A.2d, p. 139 Thus it is seen that Robb v. Berryman supports appellant’s insistence only to the extent that an analogous result was reached by the finder of fact under the particular circumstances of the case. Appellants do insist, correctly, that the estate of Lilian Bogatzky should be liable to the remaindermen to the extent of any inter vivos gifts made out of the property in which they had a remainder interest. King v. Sharp, 25 Tenn. (6 Humph.) 55 (1845). Appellant, Paula Reichert, insists that the instrument signed by leek Bogacki on March 19, 1954, was not effective to release, surrender or assign his remainder interest under the will of David Bogatzky. It will be remembered that the will of David Bogatzky conferred two rights upon Hyman Bogacki and his descendents (including leek Bogacki and his daughter, Paula Reichert). These rights were: (a) Participation in the $100.00 monthly payments required by the will, and (b) Participation in the division of the remainder of the estate of David Bogatzky after the death of his widow. At the time of said release instrument, leek Bogacki had become entitled to total monthly payments of $8,500.00, of which $3,500.00 had been paid, leaving a balance of $5,000.00 accumulated and unpaid. $5,000.00 was the amount paid as consideration for said release. Under these circumstances, a release of claims “against the estate of David Bogatzky, deceased . Lilian Bogatzky ... or the estate of Lilian Bogatzky . . . ” should not be construed to be a surrender, release or assignment of the remainder interest created by the will of David Bogatzky. Insofar as the other remaindermen might profit from the surrender or release of the remainder interest of leek Bogacki, the question is moot, for complainants and Paula Reichert have compromised and settled any conflicting claims between themselves. Insofar as the estate of Lilian Bogatzky might benefit from an assignment to her of the remainder interest of leek Bogacki, it appears that his remainder interest was not subject to assignment. Hobson v. Hobson, 184 Tenn. 484, 493, 201 S.W. 659 (1946). At the time of said release, the persons to be entitled to the remainder of the estate of David Bogatzky were not determined. See text of will, supra. The release of March 19, 1954, will therefore have no effect upon the claims of Paula Reichert to the remainder of the estate of David Bogatzky. Another problem presented by the briefs on appeal is represented by the inter vivos gifts made by Lilian Bogatzky to the complainant, Elias Skovron. To the extent that such gifts were made out of the sole and separate estate of Lilian Bogatzky, same are completed and final, and no refund of same or credit against the claims of Elias Skovron may be asserted by the executors. However, to the extent, if any, that such gifts to Elias Skovron exceeded the sole and separate estate of Lilian Bo-gatzky, and thereby encroached upon the estate of David Bogatzky, the donee would be under a duty to refund or otherwise account for such excess. Appellants further insist that some judgment should be rendered herein in consideration of possible death taxes which may be imposed upon the remaindermen as a result of the manner in which the estate of David Bogatzky was handled by his widow. Such application seems to be premature, since no such imposition or the amount thereof is shown. However, the remand of this case will be without prejudice to the right of appellants to assert such a claim. Appellants urge this Court to make a final factual ruling based upon the Master’s report as confirmed by the Chancellor. Said report contains voluminous exhibits without sufficient findings of fact upon which judgment might be rendered in this Court. Upon remand, a further reference will be in order to establish the following facts: (a) Corpus of estate of David Bo-gatzky at his death subject to remainder provisions of his wi 11. $ (b) Income, increase, profit or other increments to said estate from the death of David Bogatzky to the death of Lilian Bogatzky $_____ Total $ (c) Amount of corpus and income of estate of David Bogatzky spent by Lilian Bogatzky after his death for her use and benefit.$_____ (d) Remainder subject to claims of remaindermen under will of David Bogatzky. $ (e) Corpus of sole and separate estate of Lilian Bogatzky immediately after death of David Bogatzky. $ (f) Income, Increase, profit or other increment on separate estate of Lilian Bogatzky from death of David Bogatzky to death of Lilian Bogatzky. $_____ Total $ (g) Amount of corpus and income of separate estate of Lilian Bo-gatzky consumed by her for her use and benefit. $ (h) Amount of corpus and income of separate estate of Lilian Bo-gatzky given away by her after death of David Bogatzky. $_____ (i) Total $_____ (j) Balance (deficit) in separate estate of Lilian Bogatzky at her death. $ (k) If (j) shows a deficit, list names of donees, and amount by which each of their gifts exceeded the estate of Lilian Bogatzky and encroached upon the estate of David Bogatzky. _$ _$ _$ -$_____ (I) Total Depletion $ Other issues which must be resolved by reference to the Clerk and Master are: (m) Shares of National Life stock owned by Lilian Bogatzky at the death of David Bogatzky. _____ (n) Shares of National Life stock acquired by Lilian Bogatzky after the death of David Bogatzky by profits from shares shown in (m), above, and/or by purchase with funds of her sole and separate estate independently of any income from her life estate in assets of David Bogatzky estate_____ (o) Total ______ (p) Shares of above National Life stock sold or given away by Lilian Bogatzky after the death of David Bogatzky. ______ (q) Remainder of National Life shares belonging to sole and separate estate of Lilian Bogatzky at her death. ______ (as previously stated, the total shown in (q) above, will be subject to the provisions of the will of Lilian Bogatzky unless required to supply deficit in remainder estate of David Bogatzky or other prior needs of the estate of Lilian Bogatzky). The Clerk and Master should be required to report the same information [(m), (n), (o), supra] as to stock of The Texas Corporation, Third National Bank in Nashville and Coca Cola Company, with the same limitations upon effect of bequests in the will of Lilian Bogatzky. Upon the receipt and confirmation of the Response of the Clerk and Master to the foregoing issues, the Chancellor should be in a position to render a final decree upon the issues herein. The decree of the Chancellor is reversed. The cause is remanded for further proceedings consistent with this opinion. The costs of this appeal are taxed against the estate of Lilian Bogatzy, deceased. The Trial Court costs will be adjudged on remand. Reversed and Remanded. SHRIVER, P. J., and PURYEAR, J., concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

WALKER SUPPLY COMPANY, INC., Appellee, v. CORINTH COMMUNITY DEVELOPMENT, INC., et al., Appellants. Court of Appeals of Tennessee, Western Section. Jan. 29, 1974. Certiorari Denied by Supreme Court May 6, 1974. W. J. Reynolds, Selmer, for appellants. James A. Hopper, Savannah, for appel-lee. NEARN, Judge. This appeal is by the defendant from the Decree of the Chancery Court of Hardin County. In the complained of Decree the Chancellor held that the plaintiff, a fur-nisher of building materials, had a valid mechanic’s or furnisher’s lien on the defendant owner’s property. The facts of the matter are not in real dispute, it is the Chancellor’s interpretation of the applicable statute that is called into play by this appeal. Defendant Corinth Community Development, Inc. is the owner of the certain building lots in Hardin County. The defendant Development Company agreed with one Jerry Phillips as general contractor, to construct homes on six of the lots or parcels owned by the defendant Development Company. The lots in question were not contiguous. Phillips, in turn, agreed with the plaintiff that plaintiff was to furnish certain building materials for the project. There was no contract between plaintiff, Walker Supply Company and the defendant Development Company. For reasons immaterial to this Opinion, work ceased prior to completion of the six houses for which Walker was furnishing material. Plaintiff had not been paid for all of its materials furnished for the construction. Consequently, plaintiff, by certified mail, notified the defendant owner that a lien was claimed for the unpaid amounts. Simultaneously with the mailing of the notice, plaintiff filed a sworn notice of lien in the Register’s Office of Hardin County. The notice filed in the Register’s Office did not apportion the unpaid balance between the several, non-contiguous lots, but was a “blanket” lien on the six lots involved known as “Lots 15, 18, 19, 21, 22 and 31 of the Bellemeade Subdivision”. The notice to the owner was mailed and notice was filed in the Register's Office on September 19, 1972, and suit was filed and attachment levied within ninety days thereof, on November 27, 1972. Default judgment was taken against the contractor, Jerry Phillips. Non-suits have been taken as to various other of the original defendants. Other lien holders yet remain as defendants, but by stipulation of the parties and agreement of the Chancellor, the sole issue determined was whether or not Walker Supply Company possessed a lien on the property of Community Development Company. The question of the priority of liens as between other lienors has been left for determination at some future hearing. Therefore, this matter will be treated as if there were no other parties or dispute but that between Walker and Community Development. It is the position of the appellant that § 64-1118 T.C.A. is applicable to this case and that the Code section requires the notice filed in the Register’s Office show an apportionment of the unpaid balance due between the various lots on which the lien is claimed. Since the notice does not apportion as required by the statute, the notice was ineffective to perfect the lien. Therefore, the suit could not be maintained as the plaintiff had not complied with an absolute prerequisite of suit. Section 64 — 1118 T.C.A. provides as follows : “Claim against more than one improvement.^ — Where the amount due is for labor performed or materials furnished for more than one (1) improvement on a single lot, parcel, or tract of land, or for a single improvement on contiguous or adjacent lots, parcels, or tracts of land, or for more than one (1) improvement to be operated as a single plant, but located on separate lots, parcels, or tracts of land, and made or to be made in each case under the same direct contract or contracts, a lienor shall be required to file only one (1) claim of lien covering his entire demand against such real property. If two (2) or more lots, parcels, or tracts of land are improved under the same direct contract or contracts and the improvements are not to be operated as a single plant, a lienor who has performed labor or furnished materials therefor shall, in claiming a lien, apportion his contract price between the several lots, parcels, or tracts of land and improvements thereon and file a separate claim of lien for the amount demanded against each lot, parcel, or tract of land and the improvements thereon. In such latter case proof of delivery, at the order of the purchaser, to any of such lots, of materials to be used in one (1) or more of such improvements shall, prima facie, be sufficient proof of delivery to support a claim of lien on any of such lots.” It is the appellee’s position that § 64— 1118 T.C.A. is not applicable to this case, but §§ 64-1115 and 64-1117 T.C.A. are applicable; that plaintiff complied with them and the notice is valid. Sections 64 — 1115 and 64 — 1117 T.C.A. are as follows: “64-1115. Mechanic’s lien — Notice to owner. — Every journeyman or other person contracted with or employed to work on the buildings, fixtures, machinery, or improvements, or to furnish materials for the same, whether such journeyman, furnisher, or other person was employed or contracted with by the person who originally contracted with the owner of the premises, or by an immediate or remote subcontractor acting under contract with the original contractor, or any subcontractor, shall have this lien for his work or material; provided that, within ninety (90) days after the demolition and/or building or improvement is completed, or the contract of such laborer, mechanic, furnisher, or other person shall expire, or he be discharged, he shall notify, in writing, the owner of the property on which the building is being erected or improvement is being made, or his agent or attorney, if he reside out of the county, that said lien is claimed; and said lien shall continue for the period of ninety (90) days from the date of said notice in favor of such subcontractor, journeyman, furnisher, mechanic, or laborer, and until the final termination of any suit for enforcement brought within that period.” “64 — 1117. Registration of abstract. — ■ Such lien shall have precedence over all other subsequent liens or conveyances during such time; provided, a sworn statement of the amount due and/or approximating that to accrue for such work, labor, or materials, and a reasonably certain description of the premises, shall be filed, within said first mentioned period of ninety (90) days, or in the case of liens acquired by contract executed on or after April 17, 1972, by virtue of § 64 — 1143 within ninety (90) days after completion of the structure which is or intended to be furnished water by virtue of drilling a well, with the county register, who shall note the same for registration, and put it on record in the lien book in his office, for which he shall be entitled to the sums specified in § 8-2138, which sums shall be paid by the party filing the same; but said fees shall be receipted for on the statement of account, and shall be part of the indebtedness or charge secured by the lien, and this registration shall be notice to all persons of the existence of such lien.” We are of the opinion that neither § 64 — 1117 nor § 64 — 1118 are in any manner applicable to this case. The issue tried and on appeal is one between the owner and furnisher and does not involve the right of any subsequent purchasers or lien holders. In essence, § 64 — 1115 T.C.A. provides that one who furnishes materials on the order of a general contractor shall have a lien therefor, provided that within ninety days of the contract termination the owner shall be notified in writing of the claim. It further provides that the lien shall continue for ninety days from date of notice and shall continue thereafter until resolved by law if suit is filed before ninety days from date of notice. In so far as a dispute between the owner and furnisher is concerned, the statute does not provide for any filing of any notice with any County Register. The written notice to the owner is sufficient to perfect the lien as between furnisher and owner. This has clearly been heretofore held in Brantingham v. Beasley (1926 M.S.) 2 Tenn.App. 598; Reeves v. Henderson & Co. (1891) 90 Tenn. 521, 18 S.W. 242; Green v. Williams (1892) 92 Tenn. 220, 21 S.W. 520. Of course, the furnisher’s lien could be lost if suit were not filed within ninety days of the written notice. The failure to register the notice in compliance with § 64 — 1117 or § 64 — 1118 only affects the rights of the furnisher as to any subsequent purchaser or lienor. Brantingham v. Beasley, supra; Chattanooga Lumber & Coal Corp. v. Phillips (1957) 202 Tenn. 266, 304 S.W.2d 82. Therefore, in so far as the issue before us is concerned, the filing of the notice in the Register’s Office was surplusage. The notice mailed to the defendant notified defendant of the lien and the property upon which the lien was claimed. Such notice was sufficient in form and content. See and compare Bassett v. Bertorelli (1893) 92 Tenn. 548, 22 S.W. 423. Let the Decree of the Chancellor be affirmed and the cause remanded to the Chancery Court of Hardin County for further proceedings not inconsistent herewith. Costs of the appeal are adjudged against the appellant and surety. CARNEY, P. J., and MATHERNE, J., concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Robert STINSON, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. March 7, 1974. Certiorari Denied by Supreme Court May 6, 1974. David M. Pack, Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashvifre, Henry F. Swann, Dist. Atty. Gen., Dandridge, Edward F. Hurd, Special Prosecutor, Newport, for defendant in error. Ray H. Jenkins, Knoxville, Franklin Park, Jefferson City; R. B. Hailey, Sev-ierville, and John R. Conkin, Jefferson City, for plaintiff in error. OPINION GALBREATH, Judge. This case is before us on a motion to dismiss the appeal which in turn is predicated on the action of the trial judge in overruling a motion for an acquittal and/or a dismissal of the State’s case. The undisputed facts upon which the trial judge’s allegedly erroneous action was based are as follows: the defendant, Dr. Robert Eugene Stinson, is presently free on bond after two trials by jury ended in mistrials due to the inability of the juries to agree, and a third trial which, by consent of both defendant and State, ended in a mistrial. After the third trial aborted, the defendant filed a motion for acquittal and dismissal, alleging that a fourth trial would be in violation of the defendant’s constitutional rights. A hearing was had on this motion, and the motion was overruled. The defendant has appealed the overruling of this motion, and the court has granted an appeal. It is alleged that a fourth trial will be violative of the constitutional rights of the defendant under the 5th, 6th, 8th and 14th Amendments to the Constitution of the United States dealing with double jeopardy, speedy trials, cruel and inhuman treatment and due process. We must sustain the State’s motion and dismiss this appeal which, to say the least, is untimely and improvidently granted since the order complained of is not a final judgment and as such is not appeala-ble. See State v. Bonhart, 223 Tenn. 582, 448 S.W.2d 669. Although in rare instances where there are no adequate and speedy remedies available to one aggrieved by an interlocutory order and it is alleged that the action complained of is unlawful, arbitrary, capricious or outside the jurisdiction of the trial court we can review the lower court ruling on application for certiorari, unless the proceeding to be reviewed is so completely illegal as to make it substantially arbitrary and without the form of law the writ will not be issued. See Helton v. State, 194 Tenn. 299, 250 S.W.2d 540. A motion seeking termination of the prosecution based upon the grounds alleged, or any other that suggest themselves as proper, of course may and should be carefully considered by the trial court if properly renewed as a plea in abatement as a possible bar to further prosecution in this case. However, we will not be able to reach the merits of the issues raised unless and until a final judgment of guilt is entered. To attempt to resolve the issues at this point would be outside the appellate jurisdiction of this Court since there has been no appeal presented to us from a final judgment. It may be that the State will elect not to prosecute the defendant further. If so, this will render moot any opinion we might have on the issues raised by the motion to acquit. It may be that a future trial will result in a not guilty ver-diet which would dispense with the necessity of an appeal. In granting the motion of the State to dismiss this appeal, we must call attention to a complete disregard by counsel of the first two rules of this Court as adopted from the Rules of the Supreme Court. These rules provide: “Counsel are required in all cases, when practicable, to abridge the records to be certified on an appeal, or an appeal in the nature of a writ of error, to this court, by stipulation; eliminating all pleadings, testimony, orders, and other parts of the record, which do not bear upon or affect the rights of the parties and the questions to be here determined. “Counsel for appellant, or plaintiff in error, in the absence of a stipulation as above provided, shall proceed in accordance with the provisions of Tennessee Code Annotated, sections 27-323 to 27-325, inclusive, designating in writing the portions of the record desired by him to be included in the transcript. If the counsel for the appellee, or defendant in error, having first had five days’ notice in writing of the action of the opposite party given by said party, his counsel or the clerk, shall fail to designate in writing any part of the record, the clerk will copy in the transcript only that part designated by counsel for appellant, or plaintiff in error, which shall constitute the record upon which the case will be tried in this court. No part of the record shall be copied into the transcript not so designated. Costs accruing for failure of counsel to comply with this rule will be adjudged against the party whose counsel is in default. (Lieberman v. Bowden, 121 Tenn. 496, 503, 119 S.W. 64.)” Rule 1. “Counsel in the preparation of bills of exceptions in the trial court, in all cases, shall omit therefrom all that is immaterial or which is no longer controverted, or does not bear upon any ground assigned in the trial court for a new trial. Proceedings had in the organization and impaneling of juries, and arguments of counsel, must not be included unless the same were seasonably objected to, and then only the portion complained of and the action of the court in regard to the same, shall be stated. When counsel fail to comply with this rule, an abstract of the record may be required to be made and filed before the hearing of the case, and such other orders made as may be necessary to enforce the rule.” Rule 2. We have before us as completely useless and unnecessary parts of the record the verbatim transcripts of not just the last trial resulting in a mistrial, but the first and second trials in which the juries could not agree on their verdicts. Not one jot of any of these hundreds of pages — over 15 pounds — should have been designated by counsel for either party since none of it bore any materiality at all to the issues involved in this appeal even if we had addressed ourselves to them. Costs accruing for failure of counsel for plaintiff in error to comply with the rules will be taxed against the plaintiff in error. Counsel in this and future cases would be well advised to abide by the rules of appellate procedure. OLIVER, J., concurs in result only, but not in the dictum regarding abridgement of records or taxing costs. MITCHELL, J., concurs.

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Clabon Z. WELLS and Bennie Ruth Wells, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Aug. 29, 1973. Affirmed by Supreme Court May 6, 1974. Anthony J. Sabella and Jef Feibelman, Memphis, for plaintiffs in error. David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Don Young, Asst. Dist. Atty. Gen., Memphis, for defendant in error. OPINION GALBREATH, Judge. Plaintiffs in error, Clabon Z. Wells and his wife, Bennie Ruth, were convicted in the Criminal Court of Shelby County on three separate indictments charging them with violations of the Drug Control Act of 1971 for the possession of marijuana, cocaine and heroin with intent to sell, and appeal. For the heroin conviction the defendants were ordered to pay fines of $5,000 and sentenced to the penitentiary for not more than ten years; for the cocaine conviction the fines were $3,000 and the imprisonment for not more than eight years; for the marijuana conviction the fines imposed were $3,000 and the sentences were for not more than five years. All the sentences were ordered to run consecutively. The defendants were found in possession at their home of rather large quantities of the drugs involved when officers searched armed with a warrant the trial judge found to be valid, and there is no merit to the assignments of error challenging the sufficiency of the evidence. See McBee v. State, 213 Tenn. 15, 372 S.W.2d 173. Nor do we find any substance to the contentions advanced that the statutes under which the defendants were indicted and convicted are unconstitutional as being vague and uncertain. The statutes set out with clarity just what is proscribed and are quite definite in terms. We also overrule an assignment based on the trial judge’s refusal to declare a mistrial when one of the State’s witnesses in cross examination as to whether or not Mr. Wells was an addict in an unresponsive answer stated that he knew the defendant sells drugs. The trial judge sustained the objection made and promptly instructed the jury to disregard the answer. This is the approved manner to treat this often encountered situation. See Buchanan v. State, 2 Tenn.Cr.App. 398, 454 S.W.2d 178. Also without merit is the insistence that the name of the reliable informant, upon whose information that she had purchased drugs from the home of the defendants the search warrant was issued, should have been disclosed. While we have held, as did the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, to the effect that if the informant is also a material witness whose testimony may be of benefit to the defense that his identity must be made known (see Roberts v. State, Tenn.Cr.App., 489 S.W.2d 263), the facts of this case do not indicate that the informant was other than just that — an informant whose identity should have been withheld. All other assignments have been carefully considered and found unmeritorious except those relating to the sentences imposed. We agree with the defendants’ position that they should not have been sentenced to a combined total of twenty-three years for their criminal activity. The defendants were found by the jury to be in the unlawful business of trafficking in drugs. The fact that the drugs were of three different kinds, all of which are substances defined in the statutes, T.C.A. § 52-1413 et seq., and that different punishments may be imposed does not alter the fact that the activities resulting in the defendants’ arrests were all part of one illegal transaction. In pointing out that both convictions for armed robbery and murder at about the same time could not be sustained, our Supreme Court said in Acres v. State, Tenn., 484 S.W.2d 534: “There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other, Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690; Cronan v. State, 113 Tenn. 539, 82 S.W. 477; State v. Covington, 142 Tenn. 659, 222 S.W. 1; Patmore v. State, 152 Tenn. 281, 277 S.W. 892; Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794; English v. State, 219 Tenn. 568, 411 S.W.2d 702. ⅜ ⅜ ⅝ ⅝ ⅜ “When this Court finds that only one of the two judgments can stand, the judgment for the greater offense should be allowed to stand. This is the accepted rule.” We therefore void the two lesser convictions and affirm the convictions for the possession of heroin with the intent to sell m which punishment was imposed, as noted above, of ten years in the penitentiary and fines of $5,000. O’BRIEN, J., concurs. MITCHELL, J., filed an opinion, concurring in part and dissenting in part. MITCHELL, Judge (concurring and dissenting) . I concur in so much of the majority opinion as affirms the conviction for possession of heroin with intent to sell and a penitentiary sentence of ten years and a fine of $5,000.00. I am unable to agree that the two lesser offenses of possession of cocaine and marihuana with intent to sell should be voided and reversed and dismissed. Therefore I respectfully dissent. The proof shows that these controlled substances were found at various places on the premises of the defendants. Heroin was found in the front bedroom of the house. Some of the substance was found in a shed on the premises. Marihuana was found in the bathroom where Mrs. Wells was trying to flush it down the drain. Heroin, cocaine and marihuana were found in the locked Buick car belonging to Mr. Wells, which was on the driveway in the defendant’s premises, and Mr. Wells had the keys to the car. Mr. Wells admitted he was a drug addict and that he possessed the drugs for his own personal use. Mr. Wells was evasive when asked on cross-examination about the drugs found in his car. We quote a part of defendant Clabon Wells’ testimony on cross-examination: “Q. Are these items that you’ve seen introduced into evidence, were they all in your house or out in the shed? A. I don’t recall all of them being taken from the house. Some of those probably were taken from the house. Now, its been testified that and identified that these two, 3A, 3B and 3C, these two are Cocaine and this one is Heroin found in your car in a pouch on the side, is that true ? a I don’t know, Sir. I don’t know where they found it. > Well, are you — (INTERRUPTED) © I wasn’t at the car during the time that they searched it. I was in the house. > Well, is it yours and was it in the car? a I don’t know, Sir. I can’t tell. I don’t know because I wasn’t you know, at the car during the time of the search. Also they found a hottle of empty capsules in the car. Is this yours ? © It’s possible. < It’s possible. Now, that was your automobile, wasn’t it ? a Yes, sir. > ’69 Buick Electra. © Right. > Yet you’re telling this Court and jury you don’t know what was in the pouch. © I’m not saying that that came out of the pouch. I don’t know. Q. Well, I’m asking you — (INTERRUPTED) A. Cause I didn’t see it come out. I didn’t see the officers take it out, I don’t know. Q. You didn’t see it come out. Well, are you saying somebody else put it in there ? A. No, I’m not saying that anybody else put it in there. Q. OK, now, these — this Exhibit ‘6’ identified as Heroin, the officer described as decks, found in your social security — a little packet here with your social security card, is this yours ? A. Yes, Sir. I did have three of those in there. Those were taken from my pocket. Q. OK, so you say these are yours? A. Yes, Sir. Q. And, what about the Heroin found in the bedroom, this packet here ? A. Yes, Sir, that’s mine. Q. That’s yours? A. I did have some. Q. And, what about the marihuana, is that yours ? A. That package did come from the house, but I don’t know. Q. You’ve never seen this before? A. No more than just seeing it sitting here in Court. Q. Now, it’s been testified that your wife was in the bathroom trying to flush this down the commode and it was in the houce. You’ve never seen this before ? A. I saw it here. Q. But you didn’t know it was in your house ? A. No, Sir. Q. OK, but you used marihuana, is that correct ? A. I guess so. Q. Well, did you have any marihuana of your own? A. Yes, Sir, I did have marihuana of my own.” I cannot agree that the possession of these three classes of controlled substances shown in the proof is one continuing act. The defendants did not raise this question in their motions for a new trial. In addition to their many assignments of error, which were overruled in the majority opinion the principal contention of the defendants was that the trial court abused his discretion in ordering the sentences to be served consecutively or cumulatively. I am unable to find where the defendants contended they could not legally be convicted and punished in three cases. In the cases at bar, in order to find the defendants guilty of possession of heroin for sale, it was not necessary that they be found guilty of possession of cocaine or marihuana for sale. In Acres v. State, Tenn., 484 S.W.2d 534, cited in the majority opinion, it seems that it was necessary to find the defendant guilty of robbery in order to find him guilty of first degree murder. I would not void the two convictions of possession of cocaine and marihuana for sale. I would affirm the convictions in all three of the cases.

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Timothy William ABBOTT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Nov. 14, 1973. Certiorari Denied by Supreme Court May 6, 1974. J. Nelson Irvine, Chattanooga, for plaintiff in error. David M. Pack, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Stephen M. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for defendant in error. OPINION WALKER, Presiding Judge. In a two-count indictment the Hamilton County grand jury charged the defendant, Timothy William Abbott, and a codefend-ant, Henry L. Hines, with receiving stolen property and with concealing stolen property over the value of $100. On their trial only the second count was submitted to the jury. It found both the defendant and his codefendant guilty of concealing stolen property over the value of $100 and fixed their punishment at five years in the penitentiary. The trial judge sustained Hines’ motion for a new trial and granted his motion for a directed verdict. He overruled the defendant’s motion and sentenced him to three to five years in the penitentiary, from which the defendant appeals in error. Neither the defendant nor Hines testified or offered any evidence. The state’s proof showed that on or about January 5, 1973, a business house in Leesburg, Florida, was burglarized and a 1972 Harley-Davidson Sportster motorcycle belonging to Mrs, Dorothy White was stolen. It had been left there for servicing. At about 5:00 A.M., January 12, 1973, two Chattanooga policemen noticed a motorcycle parked in front of the Union Gospel Mission there. One had noticed the motorcycle the day before and on this morning decided to run a routine check on its ownership. That disclosed that it had been stolen in Leesburg, Florida. Evidence at the trial showed it belonged to Mrs. White. The night manager of the mission led the officers to where the defendant was sleeping. In a brief conversation there, the defendant said that the motorcycle was his but he had no registration papers and that it was “sort of” stolen. The officers then asked the defendant and Hines to step outside. On the sidewalk the officers arrested them and advised them of their rights. After Miranda warnings the defendant said he saw two people push two motorcycles out of a motorcycle shop in Leesburg, Florida; one motorcycle would crank and the other would not; the two men got on the one that would crank and drove off; the defendant and Hines were able to start the other; when they got it cranked they drove to Chattanooga. Hines said he rode behind the defendant. In a later statement, after further Miranda warnings, the defendant repeated his account of how they obtained the motorcycle and said they drove to Knoxville intending to get registration papers from a friend but could not get them. He also said they planned to go to California. Mrs. White, the owner, and also the operator of the Florida motorcycle business, testified about the ownership of the motorcycle and the burglary of the business house resulting in the larceny of the motorcycle. The defendant contends the evidence does not show that he concealed stolen property in Hamilton County. He says that the evidence does not show that he knew the motorcycle was stolen or that he intended to deprive the true owner of it. From the evidence the jury could infer the defendant knew the goods were stolen. Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450. By going to Knoxville to get “papers” for it, the jury could infer he intended to deprive the owner of the motorcycle. The crime of concealing stolen property does not require an actual hiding or secreting of the property but any acts which render its discovery more difficult and prevent identification or which will assist those stealing it in converting the property to their own use, is sufficient. See Jones v. State, 219 Tenn. 228, 409 S.W.2d 169. The evidence supports the offense of concealing stolen property in Hamilton County and this assignment is overruled. In his contention that venue was improperly laid in Hamilton County, the defendant urges that the prosecution, if any, should have been under T.C.A. 39-4220 proscribing the bringing of stolen property into the state. He cites no authority to support the claim that he cannot be prosecuted for concealing stolen property under this indictment. A defendant has no right to choose the crime for which he will be prosecuted. Venue was properly laid in Hamilton County although he could have been prosecuted in Florida. We find no merit in this assignment. Out of the presence of the jury, the trial judge held a hearing on the admissibility of the defendant’s statements and decided,,that question adversely to him. The officers’ initial questions at the Union Gospel Mission were not part of a custodial interrogation and Miranda warnings at that time were not required. See State v. Morris, 224 Tenn. 437, 456 S.W.2d 840. Before custodial interrogation, the officers thoroughly warned the defendant of his constitutional rights. The trial judge did not err in admitting the statements. All assignments are overruled and the judgment is affirmed. GALBREATH and DWYER, JJ., concur.

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Bob E. SMITHSON, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. Court of Criminal Appeals of Tennessee. Feb. 1, 1974. Certiorari Denied by Supreme Court May 6, 1974. Lionel R. Barrett, Jr., Nashville, for plaintiff in error. David M. Pack, Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, O’Brien Price, Dist. Atty. Gen., Springfield, for defendant in error. OPINION OLIVER, Judge. Convicted of selling marijuana and sentenced to pay a fine of $50 and to imprisonment in the penitentiary not less than one nor more than three years, Smithson has duly perfected an appeal in the nature of a writ of error to this Court. Reiterating and urging the only error raised in his motion for a new trial, the defendant’s only Assignment of Error complains the trial judge refused his special request that the jury be instructed concerning the provisions of TCA § 52-1432(a) (2) and (3)(b). Marijuana is classified in Schedule VI (TCA § 52-1422). Punishment for unauthorized and unlawful manufacture, delivery, sale, or possession with intent to manufacture, deliver or sell the controlled substances classified in Schedule VI, prescribed in TCA § 52-1432(a)(1)(F), is not less than one nor more than five years and “may be fined not more than three thousand dollars ($3,000).” The trial judge instructed the jury accordingly. But TCA § 52-1432(a)(2) and (3)(b) (1) provide as follows: “(2) It may be inferred from the amount of controlled substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. It may be inferred from circumstances indicating a casual exchange among individuals of a small amount of controlled substances that the controlled substances so exchanged were possessed not with the purpose of selling or otherwise dispensing them in violation of the provisions of subsection (a) of this section. Such inferences shall be transmitted to the jury by the trial judge’s charge and the jury will consider such inferences along with the nature of the substance possessed when affixing the penalty. “(3) Any person who violates subsection (a)(1)(F) of this section by distributing a small amount of marihuana, not in excess of one-half (½) ounce, shall be subject upon conviction to the provisions of subsection (b) of this section. “(b) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by §§ 52-1408— 52-1448. “(1) Any person who violates this subsection shall be guilty of a misdemeanor and, upon first conviction, be sentenced to confinement in a county jail or workhouse for a period not to exceed eleven (11) months, twenty-nine (29) days and/or fined an amount not to exceed one thousand dollars ($1,000) or may have the sentence pending upon him for this violation suspended and may as a condition of the suspension be required to participate in a program of rehabilitation at a drug treatment facility operated by the state or a comprehensive community mental health center.” The proof showed that the defendant sold less than one-half ounce of marijuana to an undercover agent working for the Gallatin Police Department. Plainly, his offense was only a misdemeanor punishable by confinement in the county jail or workhouse not in excess of 11 months and 29 days, and/or a fine not in excess of $1,000. Just as plainly, the trial judge committed prejudicial error in refusing to charge the provisions of the statute above quoted when requested to do so by defense counsel. Let the judgment of the trial court be reversed and this case remanded thereto for a new trial. WALKER, P. J., and O’BRIEN, J., concur.

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James E. BOND, Appellant, v. Harold Fay SHEPHERD and Sara F. Shepherd, Appellees. Court of Appeals of Kentucky. March 15, 1974. As Modified on Denial of Rehearing May 24, 1974. Edward C. Airhart, Schaefer & Air-hart, Louisville, for appellant. Stanton Baker, Carrollton, for appellees. JONES, Justice. Appellees Harold Fay Shepherd and Sara F. Shepherd, the maternal grandparents of Grace Kelly Bond, age six, filed this action in the Carroll Circuit Court on August 29, 1972, seeking custody of Grace Kelly Bond from her natural parents, Maureen Bond and James E. Bond, who both resisted the action in the circuit court. Maureen, the natural mother, was granted custody of Grace Kelly in an uncontested divorce in the Henry Circuit Court in January 1968. She then returned with Grace Kelly to Carrollton to the home of her parents, the appellees. At that time, Grace Kelly Bond was approximately nine months old. This matter was assigned by the trial court to a special commissioner to hear evidence and make recommendations. After prolix depositions and a lengthy hearing, the special commissioner made findings of facts and conclusions of law in which he recommended that the grandparents, Harold Fay Shepherd and Sara Shepherd, be granted the custody of Grace Kelly Bond. The court followed the recommendation of the special commissioner in this respect, and the Father, James E. Bond, appeals. James E. Bond contends that since he is the natural father and was found by the special commissioner to be fit and suited to the trust, the trial court erred. It is significant, we think, to quote the pertinent portion of the special commissioner’s report, upon which James relies, and which was ignored by the trial court. He states: “Though there are differences in what can be afforded the child by her father and grandparents, these differences are minor and of no consequence to the basic issue of this case. Both the father and grandparents have good homes and are able to supply the physical necessities required by the child. The proof establishes that the Shepherd’s have performed a good job caring for the child, and indeed the father makes no complaint of their care of the child. The same is true as to the father, and the evidence indicates that he and his present wife would properly take care of the child, if custody were awarded the father.” Maureen, the mother, had a long-standing history of instability. She had a drinking problem; and for several months, she had lived with a man to whom she was not married. On two occasions after the award of the custody of Grace Kelly Bond to her she was a patient in a mental institution for emotional problems. The trial court followed the recommendation of the special commissioner and made a specific finding that Maureen was unfit to have the custody of her daughter. The presentation of a problem such as is manifested here is vexatious. However, the thread that runs so true in all matters relating to custody of children is that when a natural parent and one not the natural parent are equally fit, the natural parent shall prevail. We do not construe KRS 403.270, enacted in 1972, as affecting the ordinary preference accorded by the law to the natural parent as against a nonparent. In James v. James, Ky., 457 S.W.2d 261 (1970), we stated that in the many custody cases brought to the attention of this court, particularly between a natural parent and a person not a natural parent, our rule has been indefinite and confusing. We undertook in James, supra, at 263 to redefine our rule as it should apply as between a natural parent and one not a natural parent when we said: “Accordingly, we hold that the natural parent is entitled to the custody of his child unless it is shown that the natural parent (1) is unsuitable to have custody, or (2) is harmful to the child, or (3) has contracted to give his child away, or is clearly estopped to claim custody.” Although the special commissioner found that the father acquiesced in the arrangement for his daughter to stay with her grandparents, and although the trial court adopted that finding, we are not persuaded that the father was estopped to claim custody of his daughter. From the evidence presented, it is abundantly clear that James E. Bond, the father, has a good relationship with Grace Kelly Bond. Pictures taken of Grace Kelly with her father and stepmother and filed as exhibits depict a wholesome, healthy, happy little girl. The father through the years had kept up child support payments and had been granted liberal visitation rights. In fact a reading of the evidence heard before the trial commissioner indicates that visitation rights precipitated this action, that this action was instituted because the father had too much visitation. The appellees both testified that they wanted only temporary custody until Maureen was capable of taking care of the child. Mr. and Mrs. Shepherd now contend that the factual circumstances surrounding the status of James Bond at the time of the trial have changed because of a pending divorce action between him and his present wife. They indicate that this shows that James is no longer suited to the trust. We do not agree. The special commissioner made his findings on January 31, 1973. These findings were incorporated in a judgment signed and entered by the trial court on June 18, 1973. Matters respecting the parties since that date are not before the court for review. We are convinced from the evidence that James E. Bond is better qualified, as a matter of law, from the standpoint of age and financial condition to have the custody of his daughter, Grace Kelly Bond. Our conviction is bolstered by the fact that the mother, who was found morally unfit to have custody, will still reside in her parents’ home, and that were the grandparents to have custody the child still would be under the mother’s influence in a great measure. The judgment is reversed for proceedings consistent with this opinion. All concur.

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CITY OF AUSTIN, Texas, Petitioner, v. W. C. COTTEN, Jr., Respondent. No. B-4053. Supreme Court of Texas. March 20, 1974. Rehearing Denied June 12, 1974. Don R. Butler, City Atty., Richard E. Tulk, Asst. City Atty., Austin, for petitioner. Stayton, Maloney, Black, Hearne & Babb, Douglass D. Hearne, Austin, for respondent. GREENHILL, Chief Justice. The plaintiff, W. C. Cotten, Jr., a consulting engineer, was employed by the City of Austin to design a street improvement project. Cotten has performed his services and has been paid $37,400 by the City. In this suit, Cotten seeks additional compensation from the City. When Cotten was first employed to design the project, he and the City entered into a written contract, prepared by Cotten, which provided that Cotten would be paid 8.1% on the total cost to the City of the project, “provided, however, that the total fee shall not exceed” a stated sum. The ultimate cost of the project substantially exceeded the expectations of both Cotten and the City. Cotten’s contention is that this mistake is grounds for rescission of the contract, and that he should be paid the reasonable value of his services without regard to the maximum fee provided in the contract. Trial was to a jury which found that the parties were mistaken as to the project’s anticipated cost. The jury also fixed the amount of the reasonable value of Cotten’s services, which amount substantially exceeded the maximum fee in the contract. The trial court thereupon rescinded the contract and awarded Cotten the larger sum as damages, less the amount already paid. The court of civil appeals affirmed. 493 S.W.2d 580. We reverse. Our concern is the effect in contracts of provisions for maximum amounts to be paid, and for maximum fees to be charged. The trial court set aside the maximum fee provision in this case because the jury found that the parties were “mutually mistaken” with respect to their estimate of the probable construction cost. However, both parties realized, at the time they agreed to the contract, that they did not know what the total project cost would be and that the pre-design estimate was not a reliable prediction. Under these circumstances, the City had a right to insist upon a maximum fee provision to protect itself from uncertainty as to the engineering fee based on project cost. Having agreed to the maximum fee provisions, Cotten cannot now rescind the contract merely because, in the light of subsequent developments, the provision operated to his disadvantage. The “mutual mistake” based on information which both parties knew was unreliable is not such a mistake as will entitle Cotten to a rescission of the contract. As will be discussed, the case was not submitted to the jury upon the basis of changes by the City in the duties of Cotten, nor do we find evidence in the record which would have supported a finding that any such changes were made, except for those changes for which Cotten was allowed additional compensation by contract amendment. The pertinent facts are these: The City determined to extend and improve 26th Street in Austin from Guadalupe Street to Interstate Highway 35. Officials of the City approached Cotten, a reputable Austin consulting engineer of some 38 years of experience, to design the project. They showed him strip maps indicating the location and width of the proposed street. They also showed him a preliminary cost estimate, made by a City employee, of $358,000. These maps and the cost estimate were all the information of substance the City had at the time. Both the City and Cotten recognized that the cost estimate of $358,000 was unreliable. Cotten testified that he could not take the maps and information furnished him and make an accurate estimate of the cost at that time, and that the $358,000 figure “is not reliable in relation to the project, or it wasn’t at the time.” He understood at that time that on a project of this scope and nature, “those cost estimates” would not “have been reasonably reliable estimates.” Cotten was employed as an engineer to design the entire project, and he had not yet begun his work. Cotten submitted a written fee proposal which stated that, “Assuming the construction cost to be $358,000 as estimated by the Department of Public Works [of the City],” he would undertake the design work for a fee of 8.1% of the construction cost. Cotten’s fee proposal was derived from the recommendations of the Consulting Engineers’ Council of Texas, which suggests that engineers should fix fees for design type projects as a percentage of construction cost. The Consulting Engineers’ Council has developed a curve, introduced in evidence by Cotten, which indicates the suggested fee for any given level of construction cost, generally indicating a larger percentage fee for smaller projects and a smaller percentage as the project cost increases. Cotten’s proposed fee of 8.1% was derived from the 8.4% figure recommended for a project cost of $358,-000, with adjustments reflecting usual services to be omitted and additional services to be performed at the request of the City. Minutes of the City Council of Austin were placed in evidence. They show that Councilwoman Emma Long and Councilmen Janes and LaRue thought the suggested engineering percentage fee was too high, and the Council wanted a maximum or ceiling figure placed upon the fee. Cot-ten recognized that the Council wanted this fee limitation. There is some indication in the minutes, which are not complete, that a member of the Council expressed the feeling that if the maximum fee were “too arbitrary,” that Cotten could “come back.” The fee limitation was apparently satisfactory to Cotten at the time of the contract. He was not a lawyer, but he prepared the contract which was accepted by the City. It read in part, “City agrees to pay Engineer, as full compensation for the basic services herein contracted for, the fee equal to 8.1% of the actual cost of the construction of the work designed, provided that the total fee shall not exceed the sum of $28,800.” The contract does not refer to the $358,000 estimate or to the fact that the 8.-1 % was based on that estimate. The contract was twice amended when the City requested Cotten to undertake additional work. In particular, a contract amendment in April of 1969 provided for additional widening of Swisher Street between 26th Street and Manor Road and the widening of Guadalupe Street between 25th Street and 27th Street. In a letter agreement prepared by Cotten incorporating these changes, the maximum fee was raised to $31,300. In July of 1969 the agreement was again amended to provide for additional storm sewers needed to drain the new streets westward to Waller Creek. Again in a letter agreement which Cotten prepared, the engineering fee was left at 8.1% of the construction cost; but the maximum fee was changed to $40,100. By December of 1969, it became obvious that the project would cost substantially more than anticipated. The City had already let construction contracts for parts of the project, and these contracts called for an actual cost of $410,644.34. No bids had yet been taken on other segments of the project estimated to cost an additional $299,890. At this point Cotten wrote to the City Manager to request a further contract amendment deleting the maximum fee provision. In February of 1970, the City’s Superintendent of Public Works advised Cotten that he would not recommend an amendment; and the contract was not amended. The evidence shows that after the City declined to raise or eliminate his maximum fee provision, Cotten continued to work diligently until the completion of the project in the belief [or hope] that the City would renegotiate his fee- contract. His testimony was that he could not believe that the City would not compensate him adequately. He testified that his “labor cost,” actual expenses, for engineering design and engineering draftsmen was $36,511.62. On the other hand, there is no evidence that the City had any intention of misleading Cotten, and there is no finding that he was misled into believing that the maximum fee provision would be amended or deleted. The City did not represent to Cotten that the total cost of the project would be any particular figure, or that “this is all that the project will cost.” From the standpoint of the City, the final decision to change the fee contract was the responsibility of the City Council. That body, upon the recommendation of its engineers, chose to stand on the contract as finally amended to provide for the maximum fee of $40,100. When all bids had been taken, the total construction cost was $980,646.11. Cotten, by this time, had been paid $37,400 by the City. He sent the City a statement of charges in the additional amount of $30,985.96, based on a total engineering fee of $68,385.96. Relying on the maximum fee provision of the contract, the City refused payment of any amount over the contracted maximum of $40,100. Cotten then brought this suit. The jury issue upon which the judgments of the courts below rest is that “both parties to the contract believed that the cost of the construction of the West 26th Street project would be $358,000.” If this is a finding that the parties thought, when they made the contract, that they knew what the project actually would cost, or even that the parties considered $358,000 to be a reliable estimate, there is not a scintilla of evidence to support it. All the witnesses, including Cotten himself, testified that the pre-design estimate was not based on any preliminary study and thus was not a reliable prediction of construction costs. As noted above, both Cot-ten and the City’s engineers testified that they realized, when they made the contract, that the estimate was unreliable. There is, of course, evidence that the parties believed that the project would cost $358,000 in the sense that this was their best guess of the probable cost, based on the meager information available before any design work had been done. Obviously it was a mistaken guess. However, an error in predicting a future fact known to be uncertain is not the kind of mistake which will relieve a party from a contract. Houston & T.C.R. Co. v. McCarty, 94 Tex. 298, 60 S.W. 429 (1901); Crandall v. Moss, 252 S.W.2d 491, 494 (Tex.Civ.App. 1952, writ ref’d n. r. e.); Walton v. Stef-fens, 170 S.W.2d 534 (Tex.Civ.App. 1942, writ ref’d w. o. m.). The Restatement of Contracts says: “Where the parties know that there is doubt in regard to a certain matter and contract on that assumption, the contract is not rendered voidable because one is disappointed in the hope that the facts accord with his wishes.” Restatement of Contracts, § 502, comment f (1932). Many authorities, in dealing with mistake, draw a distinction between mistakes concerning “past or present facts” and those concerning factual occurrences in the future. For example, in dealing with a mistake of fact, the Restatement of Restitution sets out a definition of “facts.” It says that “Facts include the existence or non-existence, in the present or in the past, of persons or tangible things, their condition or location in space, states of mind, relations of things and persons, and the happening of events.” Section 6, comment a (1937). We do not rest our decision on any distinction between past, present, and future facts, however. It is not necessary to say, and we do not hold, that a mistaken expectation concerning a future state of facts will never justify equitable relief. Rather, we rely upon the undisputed fact that, in this case, the parties bargained on the assumption and realization that the “future fact,” the ultimate total cost of the project, was uncertain. Recognizing this uncertainty, the parties contracted against the possibility of mistake, deliberately placing the risk of mistake upon Cotten. To repeat, the contract provided: “CITY agrees to pay ENGINEER, as full compensation for the basic services herein contracted for, the fee equal to 8.-1% of the actual cost of construction of the work designed, providing however that the total fee shall not exceed the sum of $28,800.00.” [Emphasis ours] It is difficult to see how the parties could have said more clearly that, whatever the construction cost might be, plaintiff would not be entitled to a greater fee than $28,800, — later amended to $40,100. Cotten had originally proposed an 8.1% of cost “open-end” fee. No reason is perceived why the City would have insisted that plaintiff’s proposal be qualified by a stated maximum fee except that the City foresaw that construction costs might exceed the estimate and was unwilling to assume the risk of higher engineer’s fees. As stated in Williston on Contracts, “The courts have recognized that where a party has agreed to be bound regardless of any mistake that may be made and assumes ‘the risk of every chance occurrence,’ there will be neither reformation or rescission.” 13 Jaeger, Williston on Contracts, § 1S43A, at 85 (3d Ed. 1970). In Walton v. Steffens, 170 S.W.2d 534 (Tex.Civ.App.1942, writ ref’d w.o.m.), a landlord sued to collect rent. The tenant offered as a defense the alleged mistake of the parties in believing, when they agreed to the lease, that the road adjacent to the leased premises would be improved and would become the principal access road to a military post. The Court of Civil Appeals affirmed the trial court’s refusal to submit to the jury an issue embodying this defense. The court reasoned that when the tenant made an unqualified promise to pay rents on the land, knowing the proposed military road might not be built, he entered into a speculative contract in which he assumed the risk that developments contrary to his expectations would make his bargain an unfavorable one. In Bell v. Kirby Petroleum Co., 269 S.W. 170 (Tex.Civ.App.1925, writ dism’d), Bell sold an oil and gas lease to Kirby Petroleum Co. under a contract requiring Kirby to pay Bell five-eighths of gross production up to the sum of $80,000, with the further unusual provision: “That, in case said $80,000' is not paid to said Bell within one year from the date of this assignment, then and in that event the said Kirby Petroleum Company agrees to pay on said date in cash the balance then due, so as to fully and finally pay said Bell the full sum of $80,000 within one year from the date of this instrument.” 269 S.W. at 171. The land covered by the lease proved to be non-productive or “dry.” After one year had expired, Bell sued for $80,000. Kirby alleged as a defense the mistake of the parties in believing the land to be productive land. The court awarded Bell the $80,000, holding that the provision for cash payment was put in the contract to provide for the possibility of the very mistake alleged as a defense. The maximum fee provision in Cotten’s contract seems intended for the same purpose. Similarly in Denver & S. L. Ry. Co. v. Moffat Tunnel Improvement District, 35 F.2d 365 (D.Colo.1929), modified on other grounds, 45 F.2d 715 (10th Cir. 1930), a tunnel district agreed to lease a tunnel then under construction to a railway for a rental based on the construction cost of the tunnel, subject to a stated maximum rental figure. When the construction cost exceeded estimates, the tunnel district sought rents in excess of the contractual maximum, contending as Cotten does here, that the parties had contracted in reliance on cost estimates. The court refused to reform the contract, holding that the tunnel district had expressly assumed the risk of higher construction costs. Affirming the district court’s decision on the mistake of fact issue, the tenth circuit said: “The trial court found that there had been no mutual mistake, and the record fully bears out its finding. In fact, the lease itself completely repudiates the District’s claim of mistake, either mutual or otherwise. Mistake is claimed primarily because the parties underestimated the cost of the tunnel, and the time of its completion. But the lease discloses that the parties contemplated that the tunnel might cost indefinitely more than the amount of bonds outstanding, for the lease provides that in the event the tunnel does cost more than contemplated, the rental shall be augmented by payments made after January 1, 1974, but puts a maximum of $1,000,000.00 on such excess rental. When the lease contemplated the possibility of the tunnel costing more than the outstanding bonds, and provided for an increase in the rental to take care of that particular contingency, there can be no justification in a court prescribing a different and additional rental on account of the same contingency.” 45 F.2d at 731-732. See also Flippin Materials Co. v. United States, 312 F.2d 408, 160 Ct.Cl. 357 (1963); United States v. Hathaway, 242 F.2d 897 (9th Cir. 1957); American Casualty Co. v. Memorial Hospital Ass’n., 223 F.Supp. 539 (E.D.Wis.1963); Raddue v. Le Sage, 138 Cal.App.2d 852, 292 P.2d 522 (1956); Friedman v. Grevnin, 360 Mich. 193, 103 N.W.2d 336 (1960); 17 C.J.S. Contracts § 144, at 896; 3 Corbin on Contracts, § 598, at 584-86 (1960); Rabin, A Proposed Black-Letter Rule Concerning Mistaken Assumptions in Bargain Transactions, 45 Tex.L.Rev. 1273, 1292-94 (1967). Plaintiff argues that the “speculative contract” doctrine of Walton v. Steffens does not apply to personal services contracts. We find no authority supporting any such exception. Numerous decisions hold that a person who agrees to contingent compensation for services is bound by his agreement even though the resulting compensation is less than the reasonable value of his services. See Shaw v. Ryan, 58 S.W.2d 3 (Tex.Com.App.1933, judgm’t adopted) (geologist’s fee); Hogan v. Wright, 356 F.2d 595, (6th Cir. 1966) (attorney’s fee); Ingram v. State Property and Bldg. Comm’n, 309 S.W.2d 169 (Ky.1957) (architect’s fee); Blassingame v. Greenville County, 150 S.C. 167, 147 S.E. 848 (1929) (excavation contractor’s compensation). Finally, Cotten’s counsel has argued to this court that the City expanded the scope of the work required of plaintiff after the contract was signed. There are cases which hold that parties are entitled to reasonable compensation for services rendered outside and beyond the scope of the contract. This case, however, was not submitted on this theory. Neither party requested any issues concerning additional services. Furthermore, we do not find any evidence which would support a finding that plaintiff did compensable extra work. The contract describes, in language chosen by Cotten, the work which he was to design as follows: "Improvements, hereafter referred to as the work, shall include clearing, grading, widening, relocating, paving, drainage systems and structures, curbs, walks, approaches, turn-outs, provisions for lighting and traffic control, landscaping as required, and any appurtenances necessary to construct arterial streets as required by the CITY within the limits and locations as heretofore described.” [Emphasis ours] We have carefully examined the record and have found no testimony that plaintiff did any work not substantially included within that description except the work covered by the two contract amendments. This was not a construction contract where the contractor bids on the basis of detailed specifications. This was a design contract. Cotten was employed to take the City’s general idea of what it wanted and to figure out exactly how it could be built. The description of the project conceived before any design work had been done was necessarily vague. Many of the complications to which Cotten testified were the very problems plaintiff was hired to solve. He testified in detail concerning the difficulties, he encountered in designing the project. These difficulties, however, related to “drainage systems and structures, curbs, walks, approaches, turn-outs, provisions for lighting and traffic control, landscaping” and other “appurtenances necessary” to construct an arterial street which the contract called for. Thus all of the work he did was included within the contract description of what he promised to do for the fee provided in the contract. The judgments of the courts below are reversed, and the cause is remanded to the trial court for the entry of a judgment in accordance with this opinion. McGEE, J., notes his dissent. . This larger fee was approximately what the Consulting Engineers’ Council’s curve would have indicated for a project costing $980,000. The jury found the value of Cotten’s services to be $101,164.49, and the judgment of the trial court was based on that figure.