author: PER CURIAM.

text:
    O. H. BRANDON, Appellant, v. J. E. QUISENBERRY, Appellee.
    No. 7250.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 13, 1962.

      Warren D. Pruitt, Vernon, for appellant.
    Jack E. Hightower, Vernon, for appellee.
   PER CURIAM.

This is a contest of an election of a County Commissioner of Precinct Number Four, Hardeman County, Texas. The election under consideration was the second primary of the Democratic Party held June 2, 1962. The Democratic Party canvassing board declared that O. H. Brandon and J. E. Quisenberry each received ninety-eight (98) votes. Lots were cast in the presence of the two candidates and Appellant O. H. Brandon, was declared and certified as the Democratic nominee. Quisenberry timely filed this suit contesting the election. The District Court, sitting without a jury, found Brandon received eighty-two (82) legal votes and Quisenberry received eighty-three (83) legal votes and concluded Quisenberry was the duly elected Democratic nominee. Brandon has appealed.

The trial court held a total of thirty-one (31) ballots were illegally cast and that sixteen (16) of the illegal ballots had been cast for Brandon and fifteen (15) had been cast for Quisenberry. After deducting the illegal ballots, the court concluded Quisen-berry was the Democratic nominee by one (1) vote. Counsel for both parties agreed and stipulated that twenty-one (21) of the ballots cast were illegal. Appellant brings forward two points of error challenging the trial court’s ruling that the ballots cast by H. P. Cansler and wife, Audie Cansler, were illegal and that Albert Spears, Jr. was not entitled to vote. The court held the votes cast by H. P. Cansler and Audie Cansler were void on the ground that they “did not possess valid poll tax receipts or exemption certificates as required by law.”

The record shows Mr. and Mrs. Cansler were residents of Knox County, Texas, on January 1, 1961, but were residents of Hardeman County on the day of the election, June 2, 1962. It is undisputed they had been residents of Hardeman County since November 1, 1961. At the time the Canslers voted, they each presented a current poll tax receipt to the election official and were permitted to cast their ballots. Certified poll tax lists from both Knox and Hardeman Counties were introduced into evidence but neither list contained the names of the Canslers. The record is silent as to what county issued the poll tax receipts.

The burden of proof in an election contest rests upon the contestant. State ex rel. Lukovich v. Johnston, 150 Tex. 174, 238 S.W.2d 957; Solis v. Martinez, (Tex.Civ.App.), 264 S.W.2d 956, (Dismissed.). When an election official permits a person to vote, a presumption arises that such action was proper and that such person is a legal voter. Willow Hole Independent School District v. Smith, (Tex.Civ.App.), 123 S.W.2d 708. Quisenberry, contestant, had the burden to prove the Canslers were not qualified to vote. The proof consisted only of the.fact the Canslers failed to pay their poll taxes in either Knox or Hardeman Counties; and that they were not of exempt age. In our opinion, this question has been decided against contestant, Quisenberry. In Greaves v. Driggers, (Tex.Civ.App.), 252 S.W.2d 782, (N.W.H.), the court there held the contestant must affirmatively prove that the contested electors were not entitled to vote without the payment of the poll tax. We conclude Quisenberry failed to sustain the burden of proof and totally failed to show Mr. and Mrs. Cansler cast invalid ballots. The trial court erred in holding the Canslers cast invalid ballots. See also Neil v. Pile, (Tex.Civ.App.), 75 S.W.2d 899, (N.W.H.).

The next point concerns the trial court’s ruling that Albert Spears, Jr., was not a qualified voter at the time he presented himself at the polls. The election official denied Spears the right to vote. It is undisputed he did not possess a poll tax receipt, but the contention is made he was exempt on the ground he was permanently disabled. In this instant the burden is upon Appellant Brandon to prove the qualifications of Spears to vote. Appellant totally failed to discharge this burden. The trial court correctly held Spears was not a qualified voter. Paredes v. Martinez, (Tex.Civ.App.), 264 S.W.2d 958, .(N.W.H.).

Appellee by his cross ássignment of error contends the court erred in holding the votes cast by Mr.’ and Mrs. Quisenberry and Mr. and Mrs. Wade were void. ■

Subdivision 2 of Article 5.05, Texas Election Code, V.A.T.S., provides in part as follows:

“An elector desiring to vote absentee shall make written sworn application for an official ballot to the county clerk of the county of his residence, which application shall be signed by the elector, or by a witness at the direction of said elector in case of the latter’s inability to make such written application because of physical disability. Such application shall state the ground on which the applicant is entitled to vote absentee and in case of an application by mail shall give the necessary information to enable the clerk to determine whether the applicant is entitled to vote by mail. Such application shall be accompanied by the poll tax receipt or exemption certificate of the elector, or, in lieu thereof, his affidavit in writing that same has been lost or mislaid.”

Subdivision 6 of Article 5.05 determines that the Special Canvassing Board shall open the jacket envelopes, announce the elector’s name, and ascertain in each case if the voter is qualified to vote in that election and if he has complies! with^ll applicable provisions of this section to entitle his ballot to be cast. The Special Canvassing Board is not to open the envelope containing the ballot and count the votes for each candidate as was done here. Mr. and Mrs. Quisenberry and Mr. and Mrs. Wade did not accompany their application for an official ballot with their poll tax receipt or exemption certificate nor did they make affidavit in writing that their poll’tax or exception certificate had been lost or mi'sláid. ’ Farrell v. Jordan, Tex.Civ.App., 338 S.W.2d 269, holds that the requirements of Article 5.05 are mandatory; and if the statutory requirements were not complied with, • the votes were void and should not be counted. We affirm the judgment of the trial court holding the votes cast by Mr. and Mrs. Quisenberry and Mr. and Mrs. Wade were void.

As previously indicated, we are of the opinion the trial court correctly held the votes cast by Mr. and Mrs. J. E. Quisen-berry and Mr. and Mrs. J. C. Wade were void and that Albert Spears, Jr. was not a qualified voter; but that the court was in error in voiding votes cast by Mr. and Mrs. Cansler. The record does not reveal how the Canslers voted in the commissioner’s race under consideration. We therefore reverse the judgment of the trial court and remand it with instructions to validate the two votes cast by Mr. and .Mrs, Cansler. Upon determining for whom these two votes were cast, the trial court is directed to declare the duly elected nominee of the Democratic Party for the office of county commissioner, Precinct Four of Hardeman County, Texas. The trial court is further directed to notify the county clerk of Hardeman County of the result in order that the name of the one so elected may be placed on the official ballot to be used in the general election to be held on the 6th day of November, 1962.

A motion for rehearing will not be entertained and the mandate of this Court will issue forthwith.

. Reversed and remanded with instructions.


source: Caselaw Access Project

author: NORTHCUTT, Justice. •

license: Public Domain

text:
    BRUCKNER TRUCK SALES, INC., Appellant, v. Chris GIBBS, Appellee.
    No. 7177.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 15, 1962.
    Folley, Snodgrass & Calhoun, Amarillo, for appellant.
    “ Monning & Monning, Amarillo, Hugh Umphres, Amarillo, of counsel, for appellee.
   NORTHCUTT, Justice. •

Bruckner Truck Sales, Inc. will hereafter be referred to as appellant and Chris Gibbs as appellee. Bruckner Truck Sales, Inc. was in the business of selling Mack Trucks. When sales were made on credit, the paper belonged to the Mack Truck Company, but was endorsed by the Bruckner Truck Sales, Inc.; and after such sales were made, Bruckner Truck Sales, Inc. then acted as collection agent for Mack Truck Company, which had its office in Oklahoma City.

Pursuant to such procedure, the appellant had sold to appellee’s son, Charles Gibbs, a number of trucks over a period of years. Payment on three of the trucks and other obligations owing by the son were in default, and appellant was in the process of repossessing the trucks on June 12, 1960, when appellee called on Bruckner to intercede in behalf of his son. Bruckner told appellee exactly what sum would have to be paid and for what items if repossession of the trucks was to be avoided. Appellee left to procure a cashier’s check for that sum, since appellant had refused to accept appellee’s personal check, and Bruckner left with his bookkeeper an itemized statement of the payments required. The statement was introduced as Plaintiff’s Exhibit No. 1 and is as follows:

B61T-15362 5-15 6-15 315.13 315.13
B61T-13951 5-5 6-5 317.70 317.70
B61T-22051 5-10 358.03
(W. L. Robinson) 2484.05
Calhoun June 1 126.80 ANB
Recover 150.00
Bal. open acct. adjustment on Norton truck 459.88
June 13-60 Paid 3220.73
BRUCKNER TRUCK SALES, INC. 701-703 N. Fillmore — P.O. Box 388
Amarillo, Texas
/s/ B. M. Bruckner”

Appellee returned and gave to appellant’s bookkeeper a cashier’s check for $3,220.73, the amount shown by the statement.

The two payments due on Truck B61T-15362 in the total sum of $630.26 and the two payments due on Truck B61T-13951 in the total sum of $635.40 as shown by the statement was not paid by appellant to Mack Truck Company, owner of the indebtedness. Appellee thereafter paid Mack Truck Company the indebtedness against the trucks which included the $1,265.66 that appellant had not paid. Thereafter appellant applied $1,087.00 of the $1,265.66 to other indebtedness owed by appellee’s son but in no way connected with the statement above mentioned and sent appellant’s check for the remaining $178.66 to appellee.

Appellee brought this action to recover the $1,265.66 which he had paid to appellant to apply to the two $315.13 payments and the two $317.70 payments included in the above mentioned statement. Judgment was entered in favor of appellee for the sum of $1,-087.00 which was the difference after deducting the $178.66 from the $1,265.66 and from that judgment appellant perfected this appeal.

• Appellant presents this appeal upon the following two points of error:

“POINT OF ERROR NO. ONE
“The trial court erred in rendering judgment for the appellee herein, for the reason that said judgment is not supported by the evidence in that the evidence is conclusive that the money advanced by the appellee was either a loan, gift, or an investment to Gibbs Grain & Steel.
“POINT OF ERROR NO. TWO
“The trial court erred in rendering judgment for the appellee for the reason that the evidence was conclusive that Virgil Belcher had apparent authority to act for appellee as his agent, and appellee is now estopped to deny it.”

There is no question under this record how the $3,220.73 was to be applied. The payments were to be applied to the specific items listed in the statement. Appellant had no option but to make application of the payment as directed and agreed upon. Gourley v. Iverson Tool Co. et al., Tex.Civ. App., 186 S.W.2d 726, writ refused WM. Appellee did not make a direct loan or gift to his son to go and settle with appellant, but appellee personally paid the items listed that appellee was to pay to Bruckner Truck Sales, Inc. on the mortgage. When appellee paid for the items appellant was to pay but did not, appellee was entitled to recover from appellant such sum. There is no evidence that Belcher ever worked for appellee in any manner, and all of the evidence shows that in all transactions the appellant had with Belcher he was acting as the agent of appellee’s son and not as agent of appellee. We think the trial court was justified under this record in holding Belcher had no authority to act for appellee. Judgment of the trial court is affirmed.


author: CHAPMAN, Justice.

text:
    Robert Wallace KNIGHT, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7182.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 15, 1962.

      Kolander, Moser & Templeton, Amarillo, for appellant.
    A. W. Lair, Canyon, for appellee.
   CHAPMAN, Justice.

Robert Wallace Knight, within the period required under the provisions of Section 22(c) of Article 6687b Vernon’s Ann.Tex. Civ. St., filed in the county court of Randall County, the county of his residence, a written instrument pointing out that he did not consent to the decision of the Texas Department of Public Safety in suspending his driving privileges for two months, beginning August 25, 1961, and asked for a jury and a trial de novo in said court. The appeal was from an administrative hearing in the Corporation Court of Amarillo.

The Texas Department of Public Safety, acting through the Criminal District Attorney of Randall County, filed a general denial in which he styled the case, “Texas Department of Public Safety v. Robert Wallace Knight,” and in which he only denied “all and singular the allegations contained in Defendant’s Appeal of Licensee.” This is the only pleadings the Department has in the record before us on the appeal from county court.

On December 7, 1961, the cause came on for trial. No further pleadings were filed by the Department and no trial amendments were requested. Appellant, after all parties had announced ready, moved the court for judgment for the .reason that the Department had not filed sufficient pleadings to state any cause of action. The court overruled the motion. The Department then proceeded to introduce evidence and exhibits to show appellant was an habitual violator of the traffic laws. This evidence was all introduced over the objection' o'f appellant'oil the ground's that-no cause of action'was stated against appellant and that the pleadings. were insufficient to permit the introduction of any evidence that appellant was an habitual violator of the traffic laws. At the conclusion of the testimony of the Department all parties rested and the court instructed the jury to find that appellant was an habitual violátor of the traffic laws of the State of .Texas. The jury made the finding in accordance with the court’s instruction and a-judgment was rendered thereon. From that judgment appeal is perfected upon two points of error.

' The first point asserts error in failing to grant judgment for appellant for the reason that the burden- of proof was upon the Department and by the mere filing of a general denial no cause of action was shown and appellee was not apprised of the nature of the case against him. In his second point appellant urges error in admitting any testimony and exhibits- seeking to show appellant to be an habitual violator of the traffic laws because siich proof and exhibits constituted a variancp between the allegations, and proof in that no’affirmative allegations were made against the appellant.

Section (c)- óf Article 6687b provides in part as follows: .

“Any licensee who is not willing and . . does not consent to abide by the final ruling or decision of the Department suspending said license, * * * may, within thirty (30) days after the date of receipt of notice of the suspension ■ of such license from the Department, bring suit in the county court, or county court at law, of his residence to vacate and set aside said final ruling and decision suspending said license, which suit shall be either before the court or a jury at the election of the licensee, and said court shall, ■in either event, determine the issues in such cause, instead of the Department, %t,pon a trial de novo, and shall he tried the same as if there had been no prior hearing on the matter of suspension of said , license and in the same manner as a trial in the county court on appeal from the justice court, and the rights of the parties thereto shall be determined by th'e court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening ad- • ministrative or executive action or decision. Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.” (Emphases added)

We are told by brief that the only pleadings filed by appellant was a general denial. That pleading is in the record and asserts no cause of action against appellant for suspension of driver’s license or for any other cause. Therefore, there was no allegation upon which to apprise appellant of the charges against him and no pleading by which he could offer evidence showing appellant to be an habitual violator of the traffic .law.

The Department of Public Safety has not honored us with a brief nor did they appear for oral argument. Under such circumstances we may accept as correct the statements contained in appellant’s brief which relate to the facts and the record. Rule 419 V.A.T.R.; Clement v. Frantz, Jr., Tex.Civ.App., 333 S.W.2d 190 and the cases therein cited under syl. 1.

No provision is made in Article 6687b for a transcript in appealing from the administrative hearing to the county court. As shown in the above quote, part of Section (c) thereof provides:

“Under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to • appeals prosecuted under the provisions of this Act.”

Therefore, we are bound by the record made in the county court. Appellant has told us by brief there was no pleading in county court alleging' appellant to be an habitual violator. Under the authorities above cited we may take this statement from the brief as a correct statement of the record in county court.

Part of Section (c) quoted above also provides the appeal from the administra,-tive body shall be tried in the same manner as a trial in the county court on an appeal from the justice court. Rules 525, 589, V.A. T.R. provides that in an appeal from the justice court to county court all pleadings in a cause which are not already written shall be reduced to writing!

Our courts have held that when an appeal from a judgment of a justice court to the county court is perfected such appeal vacates and annuls the judgment appealed from and the cause of action asserted shall be tried de novo in the county court, and the burden is on plaintiff in the case to obtain a new judgment. Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan et al., 65 Tex. 395; Greenfield et a-I. v. Chas. K. Horton, Inc. et al., Tex.Civ.App., 64 S.W.2d 369.

We believe under the cases the statute and rule above cited it was incumbent upon the Department to plead in writing its cause of action, if any it had, before it could prove in the county court the legal grounds justifying the court in finding appellant to be an habitual violator of the traffic laws.

In 33 T.J., Sec. 96 under “Pleading” it is textually stated in effect that the rule that the allegata must conform to the probata is as ancient as the common law itself, and still obtains in our practice notwithstanding distinctive forms of action have been abolished.

Under this record before us there was not any pleading upon which to base any proof that appellant was an habitual violator of the traffic laws. Therefore, we must conclude that the evidence admitted under the ruling of the court to that effect was improper. Accordingly, the judgment of the court below is reversed and remanded for another trial.


author: GRISSOM, Chief Justice.

text:
    Lillie V. MILLER et al., Appellants, v. Dorcas PIERCE et al., Appellees.
    No. 3744.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 12, 1962.
    Rehearing Denied Nov. 2, 1962.

      T. C. Wilkinson, Brownwood, for appellants.
    Griffin, Griffin & Old, Woodruff & Wood-ruff, Brownwood, for appellees.
   GRISSOM, Chief Justice.

Dorcas Pierce and others sued Lillie V. Miller, her husband and others to set aside two deeds executed by Mrs. M. A. Pierce, deceased, to one of her daughters, Lillie V. Miller, conveying all the land she owned. It is a suit by the heirs of Mrs. M. A. Pierce, as such, against an heir, Mrs. Miller, who claims the land not as an heir but under said deeds. Mrs. M. A. Pierce died intestate. Plaintiffs sued to set aside the deeds on the grounds that when they were executed (1) Mrs. Pierce did not have the mental capacity to execute them and because (2) their execution was induced by the undue influence of the Millers. Based on a jury finding of undue influence, the court rendered judgment cancelling the deeds. The Millers have appealed.

Appellants’ first point is that the court erred in refusing to permit Hon. Darrell Shelton, an attorney, to testify as to what was considered by the court to be confidential communications between attorney and client when the deeds were executed and delivered, including Mr. Shelton’s opinion that Mrs. Pierce was then capable of understanding the nature and consequences of her acts. Since the jury found that Mrs. Pierce was capable of understanding the nature and consequences of her acts that portion will not be further considered because such exclusion does not appear to have been harmful. Part of his proffered testimony was excluded on the ground that it revealed confidential communications between attorney and client. Mr. Shelton would have testified that he explained the deeds to Mrs. Pierce, explained that she was giving her land to Mrs. Miller and that Mrs. Pierce said that was what she wanted to do; that Mrs. Pierce asked him if he had included the land that was her separate property and Mr. Shelton said he had and Mrs. Pierce said that she wanted it that way, and that he explained to Mrs. Pierce the legal steps essential to execution and delivery of deeds, and the like.

Appellants contend that the circumstances surrounding execution of the deeds do not indicate that the communications were made in confidence, that secrecy was desired, or that admission of the excluded testimony would have violated any confidence reposed in the attorney by Mrs. Pierce. Appellants say the deeds were placed of record; that Shelton was merely acting as a notary in explaining the deeds and that her statements to the attorney show that she understood what she was doing; that the deeds carried out her wishes and that she acted freely and was not unduly influenced. The deeds were not recorded until after Mrs. Pierce died, about 6 years later. Mr. Shelton certainly gave her legal advice.

The court permitted the attorney to testify that he prepared the deeds; that he did not represent the Millers; that he held Mrs. Pierce’s hand so that she could make her mark on the deeds and that he took her acknowledgment; that he was acquainted with Mrs. Pierce; that he was a notary; that the deeds were executed in a home where Mrs. Pierce was visiting; that present were Mrs. Pierce, the attorney and Mr. McCurdy, who signed as a witness and was evidently brought there by the attorney for that purpose; that the attorney signed Mrs. Pierce’s name to the deeds in her presence, that he made her mark while Mrs. Pierce held the end of the pen and that Mr. McCurdy signed the deeds as a witness; that after execution of the deeds Mrs. Miller appeared and he saw the deeds in her possession.

The established rule is that an attorney cannot testify as to confidential communications made to him in his professional character by his client over the objection of the client, or his heirs. 58 Am.Jur. 259; 44 Tex.Jur. 1071. Art. 713 of the Texas Code of Criminal Procedure provides that “an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.” This is a statutory declaration of the common law rule of evidence. It applies to both civil and criminal cases. Cochran v. Cochran, Tex.Civ.App., 333 S.W.2d 635 (Ref. N.R.E.); Foster v. Buchele, Tex.Civ.App., 213 S.W.2d 738 (Ref. N.R.E-.) ; 1 McCormick & Ray Texas Law of Evidence 400.

Appellants contend that, in addition to existence of the client-attorney relationship, the circumstances must disclose that the communications were made under circumstances indicating a confidential relationship. We think it does. The deeds were explained to Mrs. Pierce. She executed them while she was away from home, where she was visiting. Although her children were available, none of them was present. Mrs. Miller appeared immediately after their execution and Mrs. Pierce delivered them to her. Apparently no child, except Mrs. Miller, knew of their execution and did not learn thereof until after Mrs. Pierce’s death, about 6 years later. Regardless of the motive, the circumstances indicate a well planned secrecy. In addition, Mr. and Mrs. Miller testified, in the absence of the jury, that the deeds were not placed of record until after the death of Mrs. Pierce because she so requested; that Mrs. Pierce told them not to record the deeds because she did not want the other children arguing with her about them. Mr. Shelton testified that he did not represent the Millers. The information requisite to writing the deeds was obtained from other deeds delivered to him by Mr. Miller. There is no evidence that Mrs. Pierce ever told anyone about the deeds. We conclude that the record shows that the excluded testimony would have revealed confidential communications between attorney and client. Gulf Production Co. v. Colquitt, Tex.Civ.App., 25 S.W.2d 989; Cochran v. Cochran, Tex.Civ.App., 333 S.W.2d 635, (Ref. N.R.E.) ; McGrede v. Rembert National Bank, Tex.Civ.App., 147 S.W.2d 580 (Dis.C.J.), 44 Tex.Jur. 1072 ; 97 C.J.S. Witnesses §§ 276, 290, pp. 782, 819

Appellants’ second point is that the court erred in refusing to permit Mr. Miller to testify to the circumstances under which Mrs. Pierce came to live with them; that they cared for her; that her friends were free to visit her; that neither he nor his wife attempted to influence her to execute the deeds and that Mrs. Pierce was capable of understanding the nature of her acts when she executed the deeds. Appellants ably argue that Article 3716 is not applicable because Mrs. Miller was claiming the land under deeds from her mother, not as her heir. The statute expressly extends to actions by or against heirs in which judgment may be rendered for or against them as such. Appellees sued as heirs. Any judgment rendered had to be rendered for or against them as heirs. Art. 3716 has been held applicable to an action to cancel a deed. Fusion v. Wilson, 144 Tex. 588, 192 S.W.2d 444; Whatley v. Whatley, Tex.Civ.App.; 169 S.W.2d 989, (Writ Ref.). Under different circumstances, for instance, if the deeds had shown that the conveyances were for the benefit of Mrs. Miller’s separate estate; that the consideration was paid out •of her separate estate, and- the like, Mr. Miller’s testimony might have been admissible. Lehmann v. Krahl, 155 Tex. 270, 285 S.W.2d 179. In the absence of such a situation, since the deeds were executed and delivered to Mrs. Miller during her marriage to Mr. Miller, and 'land is presumed to be community property. Mr. Miller, therefore, had a real interest in the issue to be decided. The action falls clearly within the statute. The admissibility of Mr. Miller’s testimony is not affected by the fact that the Millers’ claim to the land is based on the deeds. Potier v. Cook, Tex.Civ.App., 158 S.W.2d 582 (Ref. W.M.); Miller v. Miller, Tex.Civ.App., 285 S.W.2d 373; Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801. The court did not err in excluding the testimony of Mr. Miller as to transactions with, or statements by, Mrs. Pierce. Another point presents the same contention with reference to the excluded testimony of Mrs. Miller. The stated rule applies to her testimony. The point is overruled.

Appellants contend the court erred in rendering judgment for appellees on the jury’s finding that Mrs. Pierce was induced to execute the deeds by the undue influence of the Millers because such finding is not supported by the evidence. Although, as is usual in such cases, the .evidencé was circumstantial, under the authorities, it was ample to support the finding. Undue influence may be, and usually is, established by circumstantial evidence. The evidence raised a fact issue. There was evidence 'of probative force to support the verdict. If appellants raise the point that the finding of undue influence is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, applying the rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we are compelled to overrule the point. Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1038; Griffin v. Camp, Tex.Civ.App., 272 S.W.2d 129, 132 (Ref. N.R.E.); Ellis v. Mathews, 19 Texas 390. The judgment is affirmed.


author: FANNING, Justice.

text:
    Rufus Hardy BOND, Appellant, v. Thomas VEALE, a minor by next friend, D. M. Veale, et al., Appellees.
    No. 7461.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 16, 1962.
    Rehearing Denied Nov. 13, 1982.

      Tom Alexander, Butler, Binion, Rice & Cook, Houston, for appellant.
    Thomas E. Lucas, McClure & Lucas, Houston, for appellees.
   FANNING, Justice.

This is a plea of privilege case. Suit was filed by D. M. Veale, individually and as next friend for his minor son, Thomas Veale, and by Eugene L. Rinehart, individually and as next friend for his minor daughter Cheryl Kressley, against Rufus Hardy Bond, to recover damages for personal injuries allegedly received by the minors and for property damages allegedly received as a result of a motor vehicle collision occurring in Harris County, Texas.

Appellant, a resident of Freestone County, Texas, filed a statutory plea of privilege.

The plea was controverted by appellees, seeking to maintain venue in Harris County, Texas under Exception 9a of the venue statute. The plea of privilege was overruled and defendant Bond has appealed.

Appellant contends that the trial court erred in overruling appellant’s plea of privilege because appellees’ controverting plea and affidavit are insufficient. An examination of the controverting plea reveals that it is defective, as nowhere in the plea is there a direct sworn allegation that an act or omission of negligence occurred in Harris County, Texas, where the suit was filed. Plaintiffs’ petition contains sufficient averments in this respect but the petition is not incorporated in the controverting plea by reference. Appellees’ contention that the omission is cured by the language in paragraph III of plaintiffs’ controverting plea, which .reads in part as follows: “ * * * Inasmuch as plaintiffs’ petition further alleges that the collision and resulting injuries occurred in Harris County, Texas,” is deemed to be foreclosed by the case of A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619. Also in this connection see Buchanan v. Jean, 141 Tex. 401, 172 S.W. 2d 688; and Chapman v. First National Bank of Wellington, Tex.Civ.App., 221 S.W.2d 318.

Defendant raised the question of the insufficiency of the controverting plea and objected to the evidence which showed that the collision occurred in Harris County, Texas. Thus it can not be said that the issue was tried by implied consent as provided for under Rule 67, Texas Rules of Civil Procedure.

The proof admitted however did conclusively show that the collision in question occurred in Harris County, Texas. The evidence was also sufficient to show negligence and proximate cause.

Appellant also contends that appel-lees failed to prove damages on the part of Cheryl Kressley and her next friend Rine-hart. Plaintiff Thomas Veale testified that Cheryl Kressley was injured in the collision — this testimony was objected to by defendant — however before the trial court could rule on the objection plaintiffs withdrew this testimony. There was also hearsay evidence in an accident report which indicated Cheryl Kressley was injured; however the portions of the report introduced in evidence by plaintiffs were objected to as hearsay by defendant. As the record stands we hold that there was no evidence of probative force to show that Cheryl Kressley was injured and that she and her next friend Rinehart sustained any damages. It is our view that the case in this respect was insufficiently developed for venue purposes and that the interests of justice will be better served by a remand for a proper and full development of the evidence with respect to this matter. See Nemec v. Degelia, Tex.Civ.App., 285 S.W. 2d 411, wherein it is stated in part as follows:

“Whatever may have been the reason for appellee’s failure to present evidence in support of his controverting affidavit, the case for venue purposes must be regarded as insufficiently developed. ‘ * * * where the ends of justice will be better served, a cause will be remanded for a new trial on the question of venue and not ordered transferred to the county of the defendant’s .residence. And if the judgment is reversed and it appears that on a retrial it can be shown that the venue was properly laid, a transfer will not be ordered but the cause will be remanded to the trial court for the curing of mere defects in pleading proof. * *

[4]We have concluded that the record as a whole presents error and that the ends of justice in this cause will be better served if the judgment is reversed and the cause remanded and the parties opgiven an opportunity to try the venue issues on their merits under a properly drawn' amended controverting plea and upon a full and proper development of the evidence in the cause. In this connection see the following authorities: Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688; Chapman v. First National Bank of Wellington, Tex.Civ.App., 221 S.W.2d 318; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458; Maitland v. Santor, Tex.Civ.App., 216 S.W.2d 298; Sparks v. West, Tex.Civ.App., 41 S.W.2d 301; Nemec v. Degelia, Tex.Civ.App., 285 S.W.2d 411.

The judgment of the trial court is reversed and the cause is remanded for a new trial.


author: BARROW, Justice.

text:
    G. W. GODLEY, Appellant, v. DUVAL COUNTY et al., Appellees.
    No. 14055.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1962.
    Rehearing Denied Nov. 14,1962.

      Perkins, Floyd, Davis &■ Oden, Alice, for appellant.
    Lloyd, Lloyd & Dean, Parker Ellzey, Alice, for appellees.
   BARROW, Justice.

Appellant, G. W. Godley, a taxpayer of Duval County, filed suit against appellees, Duval County, the County Judge, the County Commissioners, and Troy Carey, a county road supervisor, to enjoin the use of county labor, equipment and materials for private purposes. The trial court denied the temporary injunction and appellant appealed from that order.

The sole question presented is whether the trial court abused its discretion-in denying the temporary injunction. The purpose of the issuance of a temporary injunction is to preserve the status quo in regard to the matter in controversy or prevent irreparable injury or damage to applicant pending final determination of the case on its merits. Ordinarily, it is not a substitute for, nor does it serve the same purpose as, the hearing on the merits. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417; West Texas Gulf Pipe Line Co. v. Hardin County, 159. Tex. 374, 321 S.W.2d 576; Miller v. Texsteam Corp., Tex.Civ.App., 327 S.W.2d 465.

It is' well settled that the granting or refusing of a temporary injunction is subject to a very different character of. appellate review from that of a permanent injunction. The trial court is clothed with broad discretion in determining whether to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and this discretion should not be overturned unless the record discloses a clear abuse. Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460.

The County Commissioners are not authorized to permit the use of county labor, materials or equipment for other than public use. Ex parte Conger, Tex., 357 S.W.2d 740; Rowan v. Pickett, Tex.Civ.App., 237 S.W.2d 734. This same rule applies to county employees, regardless of the motives or whether a profit is made. Appellant's right as a taxpayer to enjoin such use is well recognized. City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367.

The trial court did not file findings of fact or conclusions of law. We therefore must examine all the evidence from the viewpoint that all disputed facts were found in a manner to support the order of the trial court. In addition to his duties as county road supervisor, Carey was a partner in a private construction company. He admitted that several pieces of county equipment had been used on two private jobs performed by his private company. He testified that this equipment was used after county hours and on week-ends. No charge was made for this use. Appellant contends that, in addition to these two jobs, county labor, equipment and materials were used by Carey on private driveways. This use was disputed and there was evidence that the only work performed by the county was on the right-of-way between the driveways and county roads. The County Commissioners denied that they authorized the use of county labor, materials or equipment for private purposes.

The evidence established that the two jobs on which county equipment was used were fully completed. Carey admitted that he probably would have continued the use of county equipment for private purposes, if the suit had not been brought, but there was no evidence of any jobs in progress or that any were contemplated. There-is no claim that the trial court can not afford appellant a prompt hearing on the merits; and there is no evidence of irreparable injury or damage to appellant pending a final determination of the case on its merits. Therefore, we cannot say that the trial court abused its discretion in refusing the temporary injunction. West Texas Gulf Pipe Line Co. v. Hardin County, supra; Texas Foundries v. International Moulders & Foundry Workers’ Union, supra; Gilson v. Central Power & Light Co., Tex.Civ.App., 231 S.W.2d 683.

The judgment is affirmed.


author: POPE, Justice.

text:
    Hilario SOLIS, Appellant, v. LA BRISA LAND AND CATTLE COMPANY, Appellee.
    No. 13992.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1962.
    Emilio F. Gutierrez, Rio Grande City, for appellant • ;
    F. R. Nye, Jr., Pone & Pope, Rio Grande City, for appellee.
   POPE, Justice.

Plaintiff, La Brisa Land and Cattle Company, sued Hilario Solis in trespass to try title for 213 acres of land in Starr County. When both parties closed, the court withdrew the case from the jury and rendered judgment for La Brisa. Defendant, Solis, urges that La Brisa failed to prove either record title, prior possession, or adverse possession. He also insists that he raised a fact issue about his own prior possession and adverse possession.

La Brisa, by undisputed evidence, established its prior possession. The earliest that Solis claims that he was in possession was 1947. La Brisa proved that M. M. Garcia was its predecessor in title, that he gave a surface lease to William Richmond which ran from December, 1943, to November 30, 1945, with an option for a three-year extension. At the time of the trial Richmond was dead, but his son produced the written lease and testified that he and his father farmed and ranched the property under the lease for more than four years. They built a fence which enclosed the property in suit. Richmond occupied the property personally and through a subtenant. This witness was not cross-examined nor was his evidence attacked or challenged as to occurrences prior to Solis’ entry in 1947. He was not an interested witness. His evidence is uncon-tradicted, clear and positive. It was corroborated by witness Chester Montgomery, who testified that he followed Richmond on the property, at which time there were cattle on the ranch belonging to Richmond’s sub-tenant. Solis testified that he began to run cattle on the property sometime in 1947, but he makes no effort to dispute what occurred prior to his use. If the testimony was not true, Solis failed to avail himself of any opportunity to disprove it. Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931.

Solis claims that, in any event, he proved enough to raise a fact question about his adverse possession of the property for a ten-year period between 1947 and the date the suit was filed. The record does not reflect the date the original petition was filed, but from other documents it appears to have been sometime in 1961. Solis proved that he occupied the property, but his own testimony defeated the exclusive and hostile nature of the possession. During the time that Solis claimed possession, La Brisa exercised certain undisputed acts of ownership over the property in which Solis acquiesced and made no protest. It granted Sun Pipe Line Company a right-of-way across the property in December, 1947. It granted Sun Oil Company another right-of-way in May, 1949. It granted Sun Oil Company still another right-of-way on June 20, 1960. These grants were recorded and La Brisa’s grantees entered, cleared the land, erected cattle guards through fences, installed pipe lines, maintained right-of-ways, and caused damages which Solis acknowledged. Solis made no protest to any of these acts of ownership. While it may be true that one can enter land upon which an easement already exists and assert adverse possession to all but the easement, Young v. City of Lubbock, Tex.Civ.App., 130 S.W.2d 418, it does not follow that one in adverse possession may stand by and permit the owner to grant new easements without protest ?nd continue his status as exclusive and hostile possessor. It is not enough to show that the claimant was in possession which was exclusive and hostile except for. those instances when the owner exercised acts of ownership. If such were the rule, an owner could enter to cut timber, and the claimant could reason that his possession was adverse except for such timber as was cut. When the owner enters, the claimant must resist or lose his claim. In Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, the claimant lost because he permitted the owner without protest to grant a pipe-line right-of-way.

The possible period of limitation between 1949 and 1960 was interrupted by the joint occupancy with Chester Montgomery, who held a lease from La Brisa. He lived on the property with his family from 1946 until about 1952. He was on the property daily until 1954. Solis excuses his failure ⅛ protest this occupancy because he understood that Montgomery was a pumper for some oil company and tended to oil wells located on the property. The .lease is not before us. Apart from this, however, the undisputed proof is that Montgomery was also on the property by force of a written surface lease from La Brisa, from October, 1950, to September, 1952, and for two years thereafter. The lease is in evidence, and the fact that Montgomery was present on the property under the surface lease is not disputed. Whether he had cattle on the land was disputed. Solis, at most, proved that he mistakenly believed that Montgomery was on the property only by reason of rights of a lessee in an oil lease, when the evidence without dispute shows that he was an occupant in his own right under a surface lease from the owners, and that Solis never protested. Solis failed to prove that his possession was exclusive and hostile. Instead, the evidence shows that the owners’ tenant was in possession at the same time the claimant was in possession. Such proof defeats adverse possession. Rick v. Grubbs, supra.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Grover METTS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 28, 1962.
    Rehearing Denied Nov. 80, 1962.
    Edward F. Prichard, Jr., Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., John "B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Upon an indictment charging him with -.the crime of willful murder, appellant was convicted of voluntary manslaughter and sentenced to prison for a term of 21 years.

It is contended that the court committed prejudicial error in permitting the jurors to separate in violation of Section 244 of our Criminal Code of Practice, which in pertinent part provides:, , ,

“On the trial of offenses which are or may be punished capitally or by life imprisonment the jurors after they are accepted, * * *, shall not be permitted to separate, but shall be kept together, in charge of the proper officers.

The Bill of Exceptions discloses that pri- or to the final acceptance and swearing of the jury, but after nine jurors had been accepted by both the Commonwealth and the appellant, the court permitted the jurors to separate without the consent of the appellant or his counsel. Counsel for appellant objected immediately thereafter and moved the court to discharge the jury. The mption was overruled and an exception to the ruling was preserved.

Under these circumstances théire 'Was a direct violation of Section 244' of'the Criminal Code of Practice.' The' failure bf'the court to comply with this provision of the Code requires a reversal of -the judgment. Fletcher v. Commonwealth, 239 Ky. 506, 39 S.W.2d 972.

It is- further urged that it. was reversible error for the trial court to sustain challenges for cause against prospective jurors who stated that they possessed conscientious scruples against the imposition of the death penalty. A similar contention was ■rejected in Tarrence v. Commonwealth, Ky., 265 S.W.2d 40, and also in Warner v. Commonwealth, 301 Ky. 343, 192 S.W.2d 96. We have not been persuaded that the holding made in these cases is no longer sound.

For the reason stated the judgment is reversed with directions to grant appellant a new trial.


author: STEWART, Chief Justice.

text:
    Hassie Cane MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    As Modified on Denial of Rehearing Sept. 28, 1962.
    Darrell B. Hancock, Fowler, Rouse, Measle & Bell, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Chief Justice.

Hassie Cane Martin, appellant herein, was jointly indicted with Willie Gaines Smith by the Fayette County grand jury for the wilful murder of Olin Alexander. They were tried separately. Both were convicted and received the death sentence. Reversal is urged on these grounds:

(1) Appellant, a negro, was denied equal protection of the laws because only three negroes were called as jurors at the term of court at which he was tried;

(2) The court erred in permitting C. Gibson Downing, an attorney of the Fay-ette bar, to assist the prosecution since he had previously represented the co-defendant Smith;

(3) The court erred in overruling his motion to exclude testimony relating to the theft of an automobile and the license plates from another car immediately prior to the commission of the offense of which he stands convicted;

(4) The court erred in overruling his motion for a directed verdict; and

(5) The court erred in overruling his objection to a question propounded by the Commonwealth’s attorney.

The foregoing contentions will be considered in the order stated. Also, so as to avoid repetition in this opinion, the relevant portions of the evidence will be recited when it becomes necessary to furnish a factual background for the points discussed.

The record discloses three negroes were called as jurors for the term of court at which appellant was tried. Two of these actually performed jury duty though none served on the jury that convicted appellant. To sustain the position that he was discriminated against because more members of his race were not made available, appellant relies solely on the case of Gilchrist v. Commonwealth, 311 Ky. 230, 223 S.W.2d 880, wherein conviction of a negro woman for manslaughter was reversed for the reason that the proof (consisting only of affidavits) showed negroes were, at that term of court and had been for many years, systematically excluded from the jury lists in Union County. However, appellee calls to our notice that, on the second appeal to this Court of the Gilchrist case (see 246 S.W.2d 435), the conviction on a second trial was upheld because the evidence showed the trial court had made a “good faith” effort to include negroes on the second jury panel.

Appellant has not disclosed the proportion of negroes to whites in Fayette County. Neither has he revealed the ratio of negro to white names on the last-returned tax commissioner’s book or last-returned voter’s registration book. See KRS 29.-045(3). In Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692, the Supreme Court of the United States held that the fact two negroes had served on the grand juries, in a county in which negroes constituted 15 per cent of the population, was sufficient to overcome the charge of planned rejection. At the second trial of the Gilchrist case one of the ninety-six persons whose name was drawn from the wheel filled by the jury commissioners was a negro, in a county where the ratio of whites to negroes was six to one, and it was held this was not such a disparity in regard to negroes as to show the jury commissioners were practicing evasion.

It is readily apparent the fact situation in the first Gilchrist case is completely different from that in the case at bar. Certainly the second Gilchrist case is not authority for appellant’s contention. It is our view no case has' been made out which in any wise supports appellant’s assertion that negroes are prohibited from performing jury duty in Fayette County, or that any discrimination in this respect has been resorted to in the past.

The next ground urged for reversal presents a novel problem for consideration. It raises the question of whether when two or more defendants are jointly indicted for the same offense and severance is obtained, counsel who has previously defended one is precluded from assisting in the prosecution of the other.

C. Gibson Downing, a practicing attorney of Lexington, was appointed to and did represent co-defendant Willie Gaines Smith at his trial. Thereafter, but prior to appellant’s trial, Downing became associated with the Commonwealth attorney’s office-as Commonwealth’s detective and signified an intention to sit at the table of the prosecution during the trial. Appellant objected to Downing’s participation in this case in this manner, but his objection was overruled after the trial court made a lengthy inquiry into the matter. This hearing reveals that Downing acquired no knowledge as a result of his participation in the trial of Smith that would disqualify him to represent the Commonwealth in the instant case. As a matter of fact the co-defendants had made and turned over to the Commonwealth written confessions, but each stated therein that the other had fired the fatal shot.

Appellant bases his contention on general rules of law concerning attorney-client relationships. He cites as pertinent this-, language from 5 Am.Jur., Attorneys at Law, sec. 66, p. 298:

“A former attorney for a defendant in criminal proceedings cannot, after withdrawing from the case, be per- ' mitted to associate himself with the - prosecuting attorney to assist in the ■ prosecution, if, by reason of his professional relations with the accused, he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith.”

Our research has failed to bring to light any Kentucky case directly related to this issue. Nevertheless, decisions from other forums have -been brought to our attention which are almost on all fours with the facts shown in the case at bar.

In Lewis v. State, 39 Okl.Cr. 119, 263 P. 473, 47S, several defendants were jointly indicted for rape. Separate trials were given to each, and Lewis (the appellant in that case) was tried last. One R. D. Mil-" ler represented the other defendants at their trial. Prior to Lewis’ trial, Miller was elected to and. assumed the position of county attorney and, thereafter, assisted in the prosecution of Lewis, in spite of the latter’s objection. In that case, as in the one before us, it was not claimed Miller ever conversed with, or obtained confidential information concerning, the defendant he assisted in prosecuting. Miller’s conduct as a prosecutor was upheld, the court saying: “We do not perceive why the mere fact of employment of an attorney by a defendant jointly charged operates as a disqualification against his appearing against a codefendant. * * * ” This holding was later reaffirmed in Thoreson v. State, Okl.Cr.App., 100 P.2d 896.

It clearly appears Downing never at any time had an attorney-client relationship with appellant. This being true, it would not have made any difference even if he had obtained confidential information from Smith, so long as he had not received such information from appellant himself; and it was shown appellant made no confidential communication to him-Therefore, we fail to perceive how appellant could have been prejudiced by Downing’s conduct as outlined.

It is next insisted the trial court erred in overruling appellant’s motion to exclude portions of appellant’s confession regarding the theft of an automobile and the license plate of another car, both of which were stolen earlier during the evening in question. This contention is without merit.

The evidence reveals that appellant and’ his co-defendant Smith were drinking together in various Lexington taverns on the evening of March 18, 1960, and they were running low on money. Appellant testified Smith stated he knew where they could get some money, if they had a car. Appellant and Smith then went to a used-car lot where appellant had previously been employed, and appellant stole a 1958 Mercury. Appellant had taken a set of keys to this car while still, working at the lot. This theft 'occurred about 9:30 p. m.

These two, with appellant driving, proceeded 'to another street where appellant stole a license plate off a parked car and placed it on the Mercury. Later that night they went in this car to a liquor store at Smith’s direction, where they .robbed and killed the owner, Olin Alexander. The shooting happened about 11:30 p. m.

Appellant maintains that he stood indicted separately for the offense of theft of the car and the license plate and that evidence concerning these alleged crimes served no useful purpose, but, aside from that, only incited and inflamed the jury. He further 'claims the admission of this evidence violated the rule that a defendant may not be questioned concerning the commission of an independent offense.

The theft of the Mercury automobile was a prelude that led up to and made possible the robbery of the liquor store, which illegal act in turn culminated in the fatal shooting of Alexander. The stolen car was admittedly taken in order .to perpetrate the felonious act of'robbery and the abstracted license platé was placed on it to conceal its identity so that the two men could effectuate their escape without discovery.

Thus, each of these unlawful acts became part of a “whole transaction”; or, stated otherwise, the separate infractions became a series of connected events, each having a direct bearing upon the other and all being so interrelated as to form a single pattern of crime. The Court, in O’Brien v. Commonwealth, 115 Ky. 608, 74 S.W. 666, 668, in commenting on such a situation, said: “ * * * the entire transaction wherein it is claimed the wrong in issue was done may be shown, though it includes, also, other crimes * * *.”

Roberson’s New Kentucky Criminal Law and Procedure (2d Ed.), sec. 1813, p. 1929, states on this point:

“ * * * that evidence of other independent crimes are admissible ‘when they are so interwoven with the one being tried that they can not well be separated from it in the introduction of relevant and competent testimony.’ ”

Appellant’s next contention, namely, that he was entitled to a directed verdict is without merit.

He claims the only competent testimony, that of a 17-year-old girl who observed him and co-defendant Smith in the store immediately prior to the killing, merely proved his presence at the scene of the crime. She saw no gun being wielded and no harm being committed by him. His confession reveals that he ran from the store before the shooting, which statement was not contradicted by the Commonwealth. Accordingly, he' contends the Commonwealth failed to prove any act of murder on his part, or any conspiracy with his co-defendant as far as murder was concerned.

Appellant was constructively present at the scene of the murder, as he was “in such contiguity as to enable him actually to render aid” in the perpetration of the crime. See Biggs v. Commonwealth, 196 Ky. 655, 245 S.W. 292. He and Smith both intended to commit robbery and both carried guns. Appellant knocked deceased to the floor during the robbery by a blow on the head with his gun. As stated in Baxter v. Commonwealth, 292 Ky. 204, 166 S.W.2d 24, 27: “He knew, or should have known, that in committing robbery with deadly weapons, death or injury of persons on the premises is likely to occur *

Appellant’s acts come within the purview of the rule stated in 40 C.J.S. Homicide § 9, p. 843-844. It reads: “All who join in a common design to commit an unlawful act, the natural and probable consequence of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of the common design, regardless of which one fired the fatal shot or delivered the fatal blow, * * *. Responsibility attaches although the taking of life was not specifically intended or contemplated by the parties or involved in the plan * * See also Simpson v. Commonwealth, 293 Ky. 831, 170 S.W.2d 869; Commonwealth v. Gabbard, 200 Ky. 642, 255 S.W. 73.

Appellant was leaving the scene of the robbery with the loot, having taken the money from the cash register, when, as he testified, Smith shot Alexander. It is arguable that, since their preconceived scheme, that is, the robbery, had been consummated, appellant was not accountable for Smith’s act of homicide which subsequently occurred. However, the evidence shows that the purpose they had in mind was not at the time completed, for appellant and Smith had planned to, and did, make their get-away in a car together. Furthermore, Smith’s reason for slaying Alexander was, as appellant quoted him saying, * *- because he knew me”, and this statement points up their common design to rob and then to escape without detection.' See 40 C.J.S. Homicide § 9, p. 850.

There is sufficient evidence in the record to take to the jury the issue of whether the shooting was incidental to the common plan and was one of its probable and natural consequences. Appellant .was not entitled to a directed verdict under the facts presented.

A final complaint centers around a question asked appellant by the Commonwealth’s attorney, which was: “Did you sleep with the gun?” This inquiry was objected to upon the ground that'it tended to incite or inflame the minds of the jury. We do not believe any harm resulted on this score. In reading the testimony, it is obvious that the Commonwealth’s attorney was only trying to establish the time of day when appellant placed the pistol in his pocket.

Wherefore, the judgment is affirmed.


author: HOUSER, Commissioner.

text:
    Marlon CORDER, Appellant, v. Helen V. PRUITT, Administratrix of the Estate of Robert C. Pruitt, and William G. Flora, Administrator of the Estate of Harold James Perry, Respondents.
    No. 49378.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.
    Ray D. Jones, Jr., Kansas City, for appellant.
    Harold J. Maddox, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, for respondents.
   HOUSER, Commissioner.

This is a wrongful death action for $25,000, brought by the widow of James Corder, deceased, against the representatives of the estates of Robert Pruitt and Harold Perry, deceased. Corder, Pruitt and Perry, all occupants of a Cadillac automobile, were killed when the Cadillac was demolished in a collision with a Ford automobile. A jury returned a verdict for both defendants. Plaintiff took an appeal in which she raises several points: that three of the instructions given at the request of defendants were erroneous, and that the court committed reversible error in improperly admitting two items of evidence. Defendants-respondents, not conceding error, contend that appellant’s claims of error are immaterial for the reason that plaintiff failed to make a submissible case for the jury. We examine this contention first.

The fatal collision occurred at 7:30 p. m.. on a dark night, in the country, in an area where there were no houses or lights to-illuminate the scene. The Cadillac was. traveling west. Another automobile, owned and operated by a Mr. Cox, was traveling-west on the same highway, in front of the-Cadillac. Mrs. Cox was a passenger in the right front seat, and their little son was. either on her lap or on the seat between his. parents. The Cox car was traveling 50-55 m. p. h. Five or six times over a period of' five to ten miles the driver of the Cadillac came up “real close” behind the Cox car,, then “hit its brakes” and dropped back,, without contact between the cars, but finally-the Cadillac struck the rear end of the Cox car, veered over to the left side of the road' and started to pass. Not having sufficient-clearance the Cadillac again struck the left rear and left side of the Cox car (inflicting-$185 damage) and threw the Cox car to-one side off the shoulder of the highway. The Cadillac then passed the Cox car and' proceeded west. Mr. Cox, who had reduced his speed to 45 or 50 m. p. h., was-, able to keep control of his car. He increased his speed to 70 or 75 m. p. h. in an effort to overtake the Cadillac to get its. license number, but abandoned the effort when the Cadillac increased its speed to 90 m. p. h. or more. Shortly thereafter the Cadillac, proceeding west at undiminished speed on the wrong side of the highway, collided head-on with the eastbound Ford, which was on its right side of the highway.

All parties concede that the driver of the Cadillac, whoever he may have been, was negligent. The principal issue tried below was that of the identity of the driver of the Cadillac. Plaintiff’s submitted theory was that Perry was driving the Cadillac and that Pruitt (owner of the Cadillac) and Corder were passengers. Both defendants contended that Corder was driving the Cadillac and that Pruitt and Perry were passengers. Obviously it was an essential element of plaintiff’s case to prove that Perry was driving the Cadillac. To make this proof plaintiff testified that she saw the three men at 10:30 a. m on the day of the tragedy, just prior to their leaving for the Lake of the Ozarks on a fishing trip. Plaintiff described the clothing each man was then wearing, as follows: Perry, a pair of tan work pants and a brown leather jacket; Corder, a pair of gray work pants, a red, white and black checkered shirt, and a blue overall jacket; Pruitt, a green uniform — green pants, shirt and jacket. Plaintiff produced the witness Mrs. Cox, who testified on direct examination as follows:

‘Q. And after the Cadillac got around 1 ' you did.you have occasion to see and observe — A. Yes.
“Q. And. what did you see and observe? Did you see and observe any people in .the Cadillac ? A. No, not people; a color.
“Q. A color. All right, describe what you could see and observe in the Cadillac as it passed by you. A. Well, just that color is the only thing that I can really remember.
“Q. Do you recall how many people or colors you saw in the Cadillac? A. Just the one color is all.
“Q. Let me ask you, do you know how ‘ many people were :in the front seat of the Cadillac? A. No.
“Q. What color did you see that was driving the Cadillac as it passed you? A, It was a light tan, brown, or whatever you would call that color.”

Mr. and Mrs. Cox examined the Cadillac and its contents after the collision. Corder and Pruitt were killed instantly. None of the three men had been removed from the Cadillac. . Corder was in the front seat. Pruitt and Perry were in the rear seat. Mrs. Cox saw the clothing of Corder and Perry. She testified the color of the clothing of the person she saw in the front seat after the collision (Corder) was not the same as that of the. person whose clothing she saw when the Cadillac passed^the Cox car.

” Plaintiff contends this is sufficient evidence to take to the jury the question whether Perry was the driver of the Cadillac. This is a challenging (Juestiofi upon which we express no opinion. Assuming this is sufficient evidence from which the jury could draw an inference that Perry was the driver, any such permissible inference'was nullified and destroyed by the admissions made by Mrs. Cox on - cross-examination : that at the time th.e. Cadillac passed she was preoccupied with the safety of herself and her child; that she was not watching and did not look to see who was in the Cadillac; that she could not see; that she could not see anyone, and that she could not distinguish color or clothing. She admitted that at the time the Cadillac passed she did not know whether the people in the Cadillac were men or women; whether they wore hats or not; whether the driver was a man or a woman, large or small. She acknowledged having made a statement six months after the event (11 months prior to the date of trial) that after the Cadillac hit the Cox car she “looked but I sute wasn’t watching who was in the car because-1 was holding the baby and trying to keep my balance as well as him not getting hurt, and the car swerving around like •that, you don’t look to see who is in it.” She .admitted that this question was asked and affirmed that this answer “probably was” given: “Q. Could you describe or give us some idea of the size of the man who was driving the Cadillac, were you able to tell anything about that? A. Well, you just couldn’t see.” She remembered saying “All you could see was the back of their heads. You couldn’t distinguish what color or anything they had on.” She would not swear to it then and would not swear to it at the trial where they were seated in the car when she looked, or whether there were three men in the front seat, or two men in the back and one in the front, or vice versa. She admitted that she was con- • cerned about the safety of herself and the ■protection of her child when the Cadillac “came up back and forth” behind her; that was “the greatest concern” she had “rather than paying any attention to who was in the other car”; only incidentally would she have paid attention to anybody in the Cadillac. “Q. And isn’t that really the reason, of course along with the darkness, why you really don’t know whether there were men or women driving the car or in the car, because your concern was for the child? A. Well, you can’t see anyway. My concern was for the child, but you can’t see. Q. And you couldn’t see anyone? A. No.”

Her testimony that she looked and saw a color and that the color of the clothing of the driver was light tan or brown is diametrically opposed to her testimony that she did not look and could not see or distinguish •color or clothing. It is so self-contradictory as to rob it of all evidentiary force and probative value. It relates to a vital question in the case. No jury could rely on this contradictory testimony as the basis for . a verdict, without explanation. These facts bring this case within the rule laid down in Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 1. c. 647, that “Where a party relies on the testimony of a single witness •.to prove a given issue, and the testimony of such witness is contradictory and conflicting, one version thereof tending to prove the issue, the other tending to disprove it, with no explanation of the contradiction, and no other fact or circumstance in the case tending to show which version of the evidence is true, no case is made, and the jury should not be permitted to speculate or guess which statement of the witness should be accepted. On the other hand, if, in such a case, the conflicting and contradictory statements of the witness are reasonably explained, or if there are other facts and circumstances in the case tending to show which story of the witness is true, and from a fair consideration of all the facts and circumstances in evidence a jury could reasonably determine which statement of the witness should be accepted as true, then the credibility of the witness and the weight to be given to his testimony are questions for the jury.”

There was not only a complete failure to explain these inconsistencies and contradictions but also a failure to prove any other facts and circumstances which might have tended to show which of the conflicting statements of Mrs. Cox was true, as a basis for the deliberation of the jury. Plaintiff’s witness Mr. Cox, the only other witness who possibly could have testified on the subject, did not know what any of the occupants of the Cadillac, either in the front or back seats, was wearing. He was busy watching the bridge abutment coming up and did not notice the passengers in the Cadillac. Other evidence introduced by plaintiff tends to contradict rather than support or explain Mrs. Cox’s testimony on direct examination. Plaintiff’s Exhibit 4, a photograph of the Cadillac taken at the scene before the bodies were removed from the car, shows Corder in the front seat of the Cadillac and Pruitt in the rear seat. Plaintiff introduced Robert Browning’s deposition that Corder was in the front seat with his legs over towards the driver’s side, and that Pruitt and Perry were in the back seat; that the man wearing the tan suede jacket (Perry) was in the back seat. Plaintiff admits that the bodies were thus placed when the Cadillac came to rest, and that the testimony of Mrs. Hilligas, operator of a highway cafe located 25 miles from the scene of the collision, established that she saw Corder enter the Cadillac and drive away. (Mrs. Hilligas’ testimony was un-contradicted that the three men left her cafe at 7 p. m., some 30 minutes before the collision; that Corder got in the front seat behind the steering wheel; that the other two men got in the back seat, and that Corder was still behind the wheel when they drove off.)

Plaintiff failed to make a submissible case. Defendants’ motions for directed verdicts at the close of all the evidence should have been sustained. We need not consider the points raised by appellant. The judgment for defendants is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Walter JOHNSON, Appellant.
    No. 49350.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.
    Lee Vertís Swinton, Kansas City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Julian L. O’Malley, Asst. Atty. Gen., Jefferson ■City, for respondent.
   BARRETT, Commissioner.

A jury found Walter Johnson guilty of attempted burglary and fixed his punishment at five years’ imprisonment.

The circumstances of the offense were these: The first or ground floor of 2640 Prospect Avenue in Kansas City was occupied by Oscar Gibson where he did business as Avenue Cleaners. In the basement of the building Arrington B. Klice operated a pool hall. The entrance to the pool hall from the rear of the building is a stairway of ten or twelve steps in an areaway. At the top of the stairs there was a metal accordion-type door and at the bottom of the stairway there was a fire door. These two doors were locked from the inside and, as the defendant knew, the only access to the building from the rear was by a key and through the front door. On April 24, 1961, about 1 a. m., Klice locked the rear doors and closed the pool hall. Queenesta Buckley, who worked for Avenue Cleaners, lived at 2512 East 27th Street, and about 3 o’clock in the morning was awakened by a noise, she “thought someone was breaking in the back of my house.” She looked through a window into the areaway at the rear of 2640 Prospect and saw a flashlight. Queenesta immediately called her employer, Gibson, and he called the police. The police arrived at 3:15 a. m., and found Johnson sitting on the last or next to the last step in the stairwell. The hasp and padlock had been pried or broken off the accordion door at the head of the stairs and “some hinge bolts .removed from the door leading into the pool hall.”

Johnson had been employed by Klice on a part-time basis, once or twice a week, to clean up the pool hall after it was closed and had a key to the front door. He told the police and Klice, however, that he was sitting there on the steps to get out of the rain. He saw that the folding gate had been pried loose, and he intended to burn a couple of barrels of trash about 5 o’clock and then call Klice and report the fact of the broken door but he was “awful tired” and fell asleep and was arrested before he had a chance to call. The police also found a flashlight, large pliers, a ball-peen hammer and a large screwdriver on the steps and in Johnson’s pocket small pliers. Except for the small pliers Johnson denied any connection with these tools and of course denied that he had opened the accordion door or removed the hinge bolts from the fire door. But one of the officers in describing the arrest and finding of the tools said, “They were laying on the steps, underneath where Mr. Johnson was sitting. His legs covered them, as he was sitting down. * * * They were laying on the steps.” And the officer said that the tools were lying beside the hinge bolts that had been removed from the door.

In these briefly narrated circumstances the state appropriately and in approved form charged Johnson with the offense of an attempt to commit burglary in the second degree. V.A.M.S. Secs. 560.070, 556.150; State v. Kiddoo, (Mo.) 354 S.W. 2d 883. Johnson denied possession or use of the tools, but they were implements that could have been employed in the uncompleted burglary (State v. Pigques, (Mo.) 310 S.W.2d 942) and in the circumstances described by the officer a jury could reasonably find that he was attempting to conceal them and circumstantially that he may have used them on the doors, therefore they were relevant and admissible in evidence. 12 C.J.S. Burglary § 51, p. 724. The latter evidence and the circumstances in general, as his presence at that particular time and place (12 C.J.S. Burglary § 11, p. 675), substantially support the jury’s finding of the appellant’s guilt. State v. Pigques, supra; State v. Whitaker, (Mo.) 275 S.W. 2d 322. There was allocution (Sup.Ct. Rule 27.09), the punishment authorized by law (V.A.M.S. Sec. 556.150; State v. Whitaker, supra), the defendant was represented by court-appointed counsel and was preser* throughout the proceedings (Sup.Ct. Rule 27.08) and there are no errors “upon the record” before the court. Sup.Ct. Rule 28.02. The third and remaining assignment of error in the motion for a new trial, that “the verdict is the result of the bias and prejudice of the jury,” is lacking in detailed particularity (Sup.Ct. Rule 27.20) and does not present a reviewable question. State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327. Upon this record there is no prejudicial error and the judgment is affirmed.

BOHLING and STOCKARD, CG, concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Marvin Paul MICHAEL, Appellant.
    No. 49192.
    Supreme Court of Missouri, Division No. 2.
    Oct. 8, 1962.
    Motion for Rehearing or to Transfer to Court en Bane Denied Nov. 14, 1962.

      Newmark & Baris, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for ■.respondent.
   STOCKARD, Commissioner.

Marvin Paul Michael has appealed from a judgment whereby he was sentenced to eight years in a correctional institution after a jury found him guilty of burglary in the second degree. He has filed no brief so we consider the assignments of error properly made in his motion for new trial, Supreme Court Rule 27.20, V.A.M.R., and we review those portions of the record required by Supreme Court Rule 28.02, V.A. M.R.

The sufficiency of the evidence is not challenged and our statement of the facts may be brief. On Sunday morning, May 14, 1961, while two police officers were investigating the cause of an explosion, they saw appellant and another person run from a side door of a Kroger Company store located in Maplewood, Missouri. Appellant was immediately apprehended. The lock on the door had been “pushed off and the hasp broken.” The other doors were locked, and the manager had locked the side door when he left the building the previous evening. In the store there was the odor of gunsmoke or powder, and an unsuccessful attempt to blow open the store safe had been made. Near the safe the police officers found a drill, saw, wrench, and “various tools, torches, hammers, chisels.” Appellant did not testify and he offered no evidence in his behalf.

Appellant contends that the trial court erred in failing to give the jury an instruction on circumstantial evidence. While it would be difficult to imagine a more convincing set of circumstances indicating the commission of second degree burglary on the part of appellant, there was no direct evidence that he broke and entered the building, and of course the intent on his part in doing so could only be inferred from the circumstances. Therefore, this was a circumstantial evidence case, and upon proper request appellant was entitled to have the court instruct the jury on the collateral issue as to the effect of or weight to be given by the jury to circumstantial evidence. In this case, however, there was no proper request for the instruction.

Appellant orally requested the court to give “an instruction on circumstantial evidence.” The trial court asked appellant’s counsel, “Do you have one?” and he replied, “Not prepared.” When the trial court asked: “What sort of an instruction are you talking about?,” the only reply was, “Requesting an instruction on circumstantial evidence.” Regardless of what duty the trial court may have to correct an offered improper instruction on a collateral issue, appellant was “required to call to the attention of the court any collateral question considered to be of importance to the defense by offering an instruction covering it.” State v. Chaney, 349 S.W.2d 238, 245. This the appellant did not do, and the trial court is not to he convicted of error for failing to draft in its entirety an instruction on a collateral issue pursuant to an oral request such as was made in this case.

Appellant next contends that the trial court erred in failing to instruct the jury that the offense of burglary in the second degree is a violation of the laws of the State of Missouri, and also that it did not define the term “burglary in the second degree.” The verdict directing instruction hypothesized facts which were supported by the evidence, and the jury was told that if it found beyond a reasonable doubt that those facts existed it should find appellant guilty of burglary in the second degree. It also correctly defined the terms “breaking and entering,” “feloniously” and “burglariously.” In this manner the offense charged was properly and adequately defined. There was no occasion to spell out in the instructions in specific language that the offense of burglary in the second degree is a violation of the laws of the State of Missouri. There is no merit to these two contentions.

Appellant next contends that error resulted by the admission into evidence of certain documents purporting to show a prior conviction of a felony in the State of California because they “were not authenticated to as provided by law” and because there was no proof that appellant was the person referred to in the documents. At the time the documents were offered no objection was made to their authenticity or to the manner in which they were authenticated. Any objection on that basis made for the first time in the motion for new trial is too late. The documents admitted into evidence showed a conviction of “Marvin P. Michael” for the offense of robbery in the first degree. Appellant was charged in this case under the name of “Marvin Paul Michael.” It has frequently been held that the middle name of an individual forms no part of the Christian name. State v. Hands, Mo., 260 S.W.2d 14. Therefore the Christian and surname of the appellant and the Christian and surname shown on the record of previous conviction were the same. This established a prima facie showing of identity sufficient to establish a prior conviction under the habitual criminal act. State v. Romprey, Mo., 339 S.W.2d 746. In addition, the records contained the age and a description of the person referred to, and most important, a photograph of him. It was unnecessary for the court to rely solely upon the rule that the identity of the names was prima facie sufficient evidence of the identity of the persons. No error resulted in the admission into evidence of the documents as proof of a prior conviction of a felony on the part of appellant.

The last assignment of error in the motion for new trial is that “the trial court erred in overruling defendant’s request for a mistrial based upon the prosecuting attorney’s statement to the jury, in his closing argument, to wit: ‘when the state had concluded its evidence in this case the defendant [defense] was free to offer any evidence it chose and none was forth coming.’ ” The word inserted in brackets is the one actually used by the prosecuting attorney according to the transcript.

Supreme Court Rule 26.08, V.A. M.R., provides that if the accused shall not avail himself of his right to testify such fact shall not be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place. See also Section 546.270, RSMo 1959, V.A.M.S. This means that if the prosecuting attorney referred, directly or indirectly, to appellant’s failure to testify he is entitled to a new trial. State v. Hayzlett, Mo., 265 S.W.2d 321, 323. However, it is permissible for the prosecuting attorney to point out to the jury in argument that certain facts are not disputed by any witness in the case. State v. Janes, 318 Mo. 525, 1 S.W.2d 137, 139. The prohibition is against comment that the accused did not testify; not that the defense did not offer any evidence. In State v. Hayzlett, supra, the prosecuting attorney commented in oral argument as follows: “When the State closed the evidence, what did the defense offer? They offered no evidence at all.” In that case a complete and careful .analysis was made of the prohibition that no comment may be made on the failure of the accused to testify, and it was held: “Any argument by a state’s attorney urging the cogency and compelling force of the •state’s evidence and a conviction, especially in a case in which there are no witnesses and no evidence on behalf of the accused, may cause the jury to exercise their function of reasoning upon the evidence and finally to observe the apparent fact that the accused not only has no witnesses and no evidence but that he did not testify. But the arguments of state’s attorneys under those circumstances do not constitute an infringement of the prohibition of the statute.” The language used in this case is comparable to that in the Hayzlett case. We conclude that it was a permissible comment on the part of the prosecuting attorney that the defense offered no evidence to refute that of the state, as distinguished from an improper comment on the failure of appellant to testify. For comparable cases, in addition to the Hayzlett case, see State v. Ruck, 194 Mo. 416, 92 S.W. 706; State v. De Priest, 288 Mo. 459, 232 S.W. 83; State v. McCleave, Mo., 256 S.W. 814; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Romprey, supra.

The amended information is in proper form and charges the appellant with the offense of burglary in the second degree. The record does not show that appellant was arraigned or that he entered a plea of not guilty, but he was tried as if he had been arraigned and entered a plea of not guilty. See Supreme Court Rule 25.04, V.A.M.R. Appellant and his counsel are shown by the record to have been present throughout all steps of the proceedings; the verdict is in proper form; the punishment was duly assessed by the trial court and is within the prescribed limits; and allocution was granted and the judgment is in due form.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    Franklin J. BAKER and Maysel Baker, Appellants, v. PRAVER AND SONS, INC., a Corporation, Respondent.
    No. 49341.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1962.

      William W. Cochrane, Perry M. Cortner, Kansas City, for appellants, Raymond, West & Cochrane, Kansas City, of counsel.
    Thomas J. Wheatley, J. R. Clagett, Kansas City, for respondent, Kemp, Koontz, Clagett & Norquist, Kansas City; of counsel.
   BARRETT, Commissioner.

Franklin and Maysel Baker instituted this action to recover $25,000 damages for the wrongful death of their son William on March 17, 1959. William was four and one-half years old when he was drowned in a pool of water on land being developed by the defendant, Praver and Sons, Incorporated. The trial court sustained the defendant’s motion for a directed verdict at the close of the plaintiffs’ evidence and the plaintiffs have appealed.

The defendant corporation or its predecessor family-owned partnership developed the subdivision in Jackson County known as Ruskin Heights and in March 1959 was in the process of developing an adjoining tract of land to be known as Ruskin Hills. The tract had been engineered and John West Construction .Company was bulldozing and grading the “raw farm land” for Praver and Sons. The plaintiffs, Franklin and Maysel Baker, lived at 11101 Sycamore Street in Ruskin Heights. In general, Sycamore faces west and is a crescent-shaped street and in this particular area consists of 14 or 15 lots, most of them not built upon. The Bakers’ home faced west on lot 157, almost in the center of a rather long block. To the southeast and back of the homes on Sycamore, particularly to the rear of the Bakers’ home, there were no streets or houses and to the dividing line between Ruskin Heights and Ruskin Hills and beyond the area had grown up in grass and weeds. Just to the rear of lot 160 there was a sewage disposal plant with a “chain link fence” around it.

The “raw land” in Ruskin Hills, later developed into Herrick Avenue and llltb. Street, was north and east of 11101 Sycamore Street. And prior to March 1959 a: small creek or branch intersected this tract: of land in an east-west direction, and southeast off of the “main creek” there was a: smaller tributary, probably fed in part by a1 storm sewer or perhaps by natural seepage-from a small spring. On the tributary, at least since 1957, there had been a small’pool of water, 6 inches to 2 feet deep, sometimes called a pond. Also after 1957 a: rather large dump consisting of the debris from the Ruskin Heights tornado wds-formed along the tributary stream and atleast one side of the pool of water. A dirt roadway to the pile of debris was formed' by trucks and intersecting the roadway and' the neighborhood there were paths. The plaintiffs’ evidence tended to show that inthose days and in those circumstances-neighborhood children used the dirt road,, sometimes as a short cut to and from school, and the paths for the purpose of playing-cops and robbers and cowboys and Indians, and that they played on the dumped debris and a pile of lumber nearby.

In March 1959 it was a part of the work' of the grading company to move the channel of the creek and its tributaries and im performing this task the small pool of water was pushed uphill and to the west approximately 25 feet. And temporarily there was-an additional damming of the tributary and' the pool of water to prevent seepage. The oval-shaped pool of muddy water thus formed was 5 feet wide, 12 feet long and 5 feet deep and the adjacent bank was 5 to 6 feet high. There were no fences or barricades around the pool, and floating in it were sticks and debris from the dump. It was 225 feet from the northeast corner of the plaintiffs’ lot to the pool. There was a “rise” in the ground and the pool of water could not be seen from the plaintiffs’ home. Mr. Baker had not seen it and Mrs. Baker did not know it was there. These changes in the creek bed and the moving of the pond were brought about within a five-day period prior to March 17. But some of the plaintiffs’ witnesses testficd that even in that period of time neighborhood children used the dirt roadway, the paths, and the vacant area to the rear of the Bakers as a “playground” — that is the way a 15-year-old boy described it. The day before Billy drowned this boy followed the road and paths to the pool of water and threw rocks in it and he had seen other children playing on the dump. It was forbidden to Billy however to play in this area, he was “supposed to remain in his own back yard” and on one occasion had been punished for “wandering.”

On March 17 two “heavy equipment” operators were continuing to work at grading and earth moving and about 11:30 o’clock “three little boys came up there ⅜ * * and they were standing there watching us work, and then they got their idea to follow me * * At that point the operator “got off the cat and told the boys to go home.” It was then lunch time and sometime after lunch the men crossed over a ditch to move a brush pile, they stopped for fuel and “here these three little boys was. So this boy, the smallest one was right with me and I was talking to him, and so we got the fire burning and * * * Herb said, ‘you boys had better get for home.’ And we stood there a few minutes and I said, ‘Now, sonny,’ I said, ‘you had better go home, because your mother will be looking for you.’ And I said, ‘You go right down there and you can cross the ditch right there.’ So he started paddling

off and I went on to work and Herb did too ‡ ⅝ ⅛ »

Billy was in the house when his father called home, as he usually did, during the lunch hour, and shortly after lunch his mother saw Billy and the Keith boys, ages 5 and 7, “directly behind our lot” watching the bulldozers. Later, while another neighbor was there for coffee, she saw Billy on the pile of debris. By the time the neighbor left Billy was out of sight and Mrs. Baker began looking for him but could not find him. Shortly the bulldozer operators found him drowned, floating face down in the pool. The next day the bulldozers obliterated the pool of water.

In these detailed circumstances the appellants contend that the defendant’s negligence and consequent liability was a question for the jury to resolve and that the court erred in directing a verdict at the close of their evidence. In general the summarized version of their argument is that Billy was a licensee rather than a trespasser and that “The evidence shows that defendant knew, or should have known, that many children of tender years habitually and continually used its land as a playground, and therefore defendant gave tacit consent to' such use. Under these circumstances, defendant owed these young children the duty of exercising ordinary care to see that the premises were reasonably safe for said children, and the question of whether or not the pond was a dangerous condition and whether or not defendant exercised proper care are jury questions.” With this broad general statement as a starting point, and since the court directed a verdict at the close of the plaintiffs’ evidence, the plaintiffs are in the favorable position of being able to urge upon the court any and all possible theories of liability in this type case. It is not necessary, however, to consider in detail cases from other jurisdictions, neither is it' necessary to consider any condition other than pools, ponds or other collections of water, the subject has become that specialized. In 8 A.L.R.2d 1254 there is an exhaustive annotation entitled "Liability of landowner for drowning of child.” In that very complete annotation all of the various theories of liability and of nonliability for children drowning in pools, ponds and other collections of water are set forth. The Missouri cases up to 1948 are there collected and other than for illustrative purposes it is not necessary to list those cases in this opinion. Furthermore, the subject of the duties of owners and occupiers of land to trespassers, licensees and invitees, and particularly to children, has been thoughtfully and critically examined by Harper, James, Prosser and others. 2 Harper & James, Torts, Ch. 27; Prosser, Torts, Sec. 76, p. 440. In the circumstances of this record some authorities and some jurisdictions, as in the annotated case, Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231, would say that Praver’s negligence was a jury question. The quotation from the appellants’ brief is a general summary of their theories and it is sufficient here to say that up to now this court has been unwilling to adopt their suggestions as to liability.

Most recently in Cox v. Gros, Mo., 360 S.W.2d 691, this division of the court has had occasion to consider the applicability of some of these theories to' a child, age S, and an injury on a piece of "cut, sharp, pointed and jagged marble, created and maintained by defendant.” In that opinion several anriotations with respect to injuries to children from sharp glass, inherently dangerous substances, ashes, cinders and many other objects and conditions are collected and it is not necessary to duplicate and distinguish them here. It was pointed out in Cox v. Gros, however, that on at least two occasions, this court has construed section 339, Restatement, Torts, as an expansion of the attractive nuisance doctrine and said that “this court has been unwilling to extend the doctrine as far as the rules adopted by the Restatement would extend it.” Patterson v. Gibson, Mo., 287 S.W.2d 853, 854-856; Hull v. Gillioz, 344 Mo. 1227, 1234-1235, 130 S.W. 2d 623, 627. While there may be some Inconsistency in the Missouri cases (compare in its basic theory Davoren v. Kansas City (banc 1925), 308 Mo. 513, 273 S.W. 401, 40 A.L.R. 473, and all other Missouri cases), this jurisdiction is committed to the view that the attractive nuisance doctrine is not applicable to “ordinary water hazards” including ponds, water-filled quarries and pools of water in creeks and natural water courses. 8 A.L.R.2d, 1. c. 1259, 1267; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564; Rallo v. Heman Construction Co., 291 Mo. 221, 236 S.W. 632; Kemp v. Doe Run Lead Co., Mo.App., 34 S,W.2d 1002; Williams v. Kansas City, Clay County & St. Jos. Ry. Co., 222 Mo.App. 865, 6 S.W. 2d 48. It should be noted in passing that there is at least one possible distinction in some of the Missouri cases, visitors, including children, to public parks are invitees and there has always been liability on the part of municipalities with respect to certain activities and conditions connected with their streets. See for example: Capp v. St. Louis, 251 Mo. 345, 158 S.W. 616, 46 L.R.A.,N.S., 731; Jensen v. Kansas City, 181 Mo.App. 359, 168 S.W. 827; Dutton v. City of Independence, 227 Mo.App. 275, 50 S.W.2d 161.

The so-called “playground rule” (8 A.L.R. 2d, 1. c. 1285), whatever its merits, has had very limited acceptance (65 C.J.S. Negligence § 40, p. 505), and as far as appears has not been previously advocated as a basis of liability in this jurisdiction. The “hard-by rule” has been recognized (Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W. 2d 761), but has been strictly limited to a dangerous artificial condition “abutting upon or close to” a public highway. It was recently held that the doctrine was inapplicable to a deep pool of water in an abandoned quarry when, as in this case, the pool was not in fact “hard-by” a public street or highway and it was necessary for a boy sixteen to travel over beaten paths from a road to ’ reach an old swimming hole. Winegardner v. City of St. Louis, Mo., 346 S.W.2d 219.

It is not necessary to further illustrate and it is not necessary to again set forth the reasons advanced against liability in this and similar cases, it is sufficient to say as indicated, in short, that the proved and admitted circumstances do not hypothesize or permit the inference of negligence and liability upon any theory now recognized in this jurisdiction and, therefore, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All of the Judges concur.