author: WILSON, Justice.

text:
    Peggy Viola KITCHENS et al., Appellants, v. Clay KITCHENS, as Independent Executor of the Estate of Inez Kitchens, Deceased, et al., Appellees.
    No. 4172.
    Court of Civil Appeals of Texas. Waco.
    Oct. 24, 1963.
    Rehearing Denied Nov. 14, 1963.

      Stovall & Gibbs, San Angelo, M. C. Blackburn, Junction, for appellants.
    O’Neal Dendy, San Angelo, R. E. Lee, Mason, for appellees.
   WILSON, Justice.

This ' cause involves three separate appeals, or segments, which will be considered separately. Peggy Viola Kitchens and Lynette Wallace sued Clay Kitchens, individually and as independent executor of the estate of his deceased mother, Inez Kitchens. Patricia Anne Bunyard was also sued. Peggy Viola Kitchens is the widow of Ray Kitchens, son of Inez. Clay Kitchens is the son of Inez, and Lynette Wallace is her daughter. Mrs. Bunyard is the daughter of plaintiff Peggy Viola Kitchens, and the granddaughter of Inez Kitchens. Plaintiffs sought partition of an 1126 acre ranch in Menard County, an accounting with settlement of interests in personalty alleged to have been derived from operation of a partnership, ard a declaration that provisions in the will of Inez Kitchens were ineffective. Peggy Viola Kitchens sought judgment against Mrs. Bunyard for an interest in bonds.

After a jury trial, the judgment (1) declared the provisions of the will to be void; (2) determined the land sought to be partitioned was the separate property of Inez Kitchens (rather than the community property of herself and her husband John P. Kitchens), thereby denying Peggy Viola Kitchens any participation in partition of the Menard County ranch properties; (3) found the land was owned by plaintiff Lynette Wallace and defendants Clay Kitchens and Patricia Anne Bunyard, and ordered it partitioned; (4) determined a partnership existed between Inez Kitchens and her three children, Clay, Ray and Lynette, which was dissolved by the death of Ray; and rendered a judgment for accounting based thereon; (5) rendered judgment in favor of Peggy Viola Kitchens against Mrs. Bunyard for an interest in certain bonds alleged to have resulted or to have been derived from the partnership, impressing a lien on Mrs. Bunyard’s interest in the land to enforce its payment.

Peggy Viola Kitchens appeals from the judgment denying her an interest in the land sought to be partitioned, resulting from the determination the property was the separate estate of Inez Kitchens. The executor and Mrs. Bunyard appeal from other portions of the judgment. Mrs. Bunyard appeals from the money judgment against her. The executor and Mrs. Bunyard appeal from the determination relating to invalidity of the provisions of the will. The executor appeals from decision as to certain personalty. Mrs. Wallace does not appeal.

We reverse the portions of the judgment summarized in (2) and (3) above, and affirm the remaining portions.

1. The Will

The first question to be determined is the construction and effect of the following provisions, clause III, of the will of Inez Kitchens:

“It is my will and desire that the 1126 acre ranch situated in Menard County, Texas, and my undivided one-half interest in 482 acres of land in Gaines ■County, Texas be held intact for a period of ten years from the date of my death, and after the payment of all expenses, indebtedness, including taxes, then said property shall be sold and the proceeds thereof divided equally between Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard. It is my will and desire that the above named heirs, or any one of them, shall have the right to purchase the above described ranch lands, provided that they pay as much or more than a disinterested individual would offer for same. It is stipulated, however, that should said Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard decide to sell said property before the expiration of ten years, that they shall have the right to do so, provided all three shall agree, in which event said property may be sold by the Executor hereinafter named, and the signature of the above three persons will be all that is necessary for such sale.”

The preceding clause II devised the fee simple estate in all the property of testatrix to Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard. Clauses V and VI appointed Clay Kitchens independent executor, naming an alternate, with power of making sale, as executor, of her ranch lands “at the expiration of the above mentioned ten year period without the joinder of any other person.”

We are mindful of the rule that a construction will • be given-which will render a testamentary provision,’open to more than one interpretation, valid rather than void. Mattern v. Herzog, Tex., 367 S.W.2d 312. Only one construction can be logically applied to clause III, however. It provides, in effect, that' the ranch sought to be partitioned shall be “held intact” for ten years except by unanimous agreement of the three named devisees to an earlier sale.

This restraint against alienation is repugnant to the grant of the fee simple estate, and is ineffectual, as a disabling restraint. Seay v. Cockrell, 102 Tex. 280, 115 S.W. 1160, 1163; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149, 151; Restatement, Property, Secs. 404, 405; and see Mattern v. Herzog, Tex., 367 S.W.2d 312, 319.

Defendants Patricia Anne Bunyard and the executor urge that the quoted language constitutes only a partial restraint limited to ten years, and is therefore valid. We have discovered only one decision in which it has been held that a ten-year restriction was a valid partial restraint on alienation: Peters v. Northwestern Mut. Life Ins. Co., 119 Neb. 161, 227 N.W. 917, 67 A.L.R. 1311. It was expressly overruled, Andrews v. Hall, 156 Neb. 817, 58 N.W.2d 201, 42 A.L.R.2d 1239. Texas cases which have expressed a view on the question have declined to adopt the exception concerning a fixed number of years. Pritchett v. Badgett, Tex.Civ.App., 257 S.W.2d 776, 777, writ ref.; O'Connor v. Thetford, Tex.Civ.App., (1915) 174 S.W. 680, 681, writ ref. The great majority of jurisdictions considering the validity of restraints for a fixed period of years have rejected defendants’ contention. 42 A.L.R.2d 1290; 41 Am.Jur. Sec. 76, p. 115; VI American Law of Property (1952) Sec. 26.16, p. 431; 5 Tiffany, Real Property (3rd ed.) Sec. 1346. Restraints requiring consent or joinder of other persons designated are, except in three jurisdictions, uniformly held void. 42 A.L.R.2d 1302.

Defendants also say that under Lozano v. Guerra, Tex.Civ.App., 140 S.W.2d 587, no writ, the ten-year restriction only fixes a limit on the administration period. In that casé the court did not pass on the present question. It held only that a provision the estate should be kept intact under the control of the independent executor for five years did not preclude sale of a vested interest under execution. It was said, “If the devisee had voluntarily sold all his interest in the estate, the executors could not complain, and they are not entitled to restrain an enforced alienation”.

The portion of the judgment declaring the provision in question to be an invalid restraint on alienation is affirmed.

2. The Partnership

Defendants Patricia Anne Bunyard and the executor present a series of points involving their challenge of existence of a partnership between Inez Kitchens and her three children. They say plaintiffs did not plead facts which would raise the issue; that the court erred in overruling their special exception on this ground; that there is no evidence of existence of a partnership or that any bonds or money affected by the judgment were purchased or derived from partnership funds. They state that the entire series of points “and every item involved can be fully and completely disposed of by this court’s decision of whether or not” plaintiffs plead and proved such a partnership.

In Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S.W. 122, 125 the Supreme Court announced the established rule in Texas which “is a recognized test” of existence of the relation: “an agreed join-der of their interests in a common enterprise, its prosecution for their joint account, and an ensuing right in each of them to share in its net returns as such.” In that case it was held there was a tacit agreement for “a community of interests, the common enterprise, its operation for the joint account, and a right in the owner of each interest to share as a principal in its profits as such”; and it was not necessary that the parties agree to become partners by name, “or that their agreement be an express- one.”

Plaintiffs alleged that commencing with the death of John P. Kitchens (husband of Inez, and father of the three children) in 1952, Inez and the three children by oral agreement "held together, operated and used all of the property” of the unpartitioned estates as a partnership business, “as though all the property, real and personal, belonging to said two estates was in fact the community property of John P. and Inez Kitchens, each of the children owning an undivided one-sixth share in said business, and their mother owning an undivided one-half share therein”; that Inez, with the help and co-operation of the three children, managed the properties; that by consent of the partners, “all receipts or income derived from the operation of the partnership business were allowed to remain in the partnership to be used and expended by Mrs. Inez Kitchens only to the extent that the operation and upkeep of all of said properties required, and to the extent of the needs of Inez Kitchens for her support and maintenance for the remainder of her life, and that the net receipts of any other assets derived from and through the operation of the partnership so remaining on hand at the death of Inez Kitchens, after the payment of all her debts, including expenses of last illness and burial, would belong one-half to the estate of Inez Kitchens and one-sixth to each of her three children”; and that the partnership was so operated.

Defendants’ exception that the pleading was a conclusion is untenable under Rule 45(b), Texas Rules of Civil Procedure. The allegations as a whole gave fair notice, and in our opinion met each element of the test above prescribed by the Supreme Court.

There was evidence of probative force supporting these allegations and the findings of the jury that a partnership did exist after the death of the father, John P. Kitchens, until it was dissolved by the death of Ray Kitchens, one of the children. The parties invoked Art. 3716, Vernon’s Ann.Tex.Stats. Partnership income tax returns were filed each year from '1952 through 1958, listing the interests of Inez and her three children as alleged,‘and re-fleeting profits and losses of the partnership which were accordingly reported on their individual income tax returns. Evidence not here complained of was admitted that an agreement was entered into after the death of John P. Kitchens to operate the ranch as a partnership; that although the income from the operation was not distributed to the children, “it was left with mother for her welfare”, to maintain her and to operate the ranch, being placed in a “community fund” or bank account on which all drew checks. Losses were paid from the common fund. The mother’s portion of the income tax was “divided three ways” and paid by the children. Although defendants point to contradictory evidence, it cannot be said there is no evidence establishing existence of the partnership until the death of Ray Kitchens in 1959. See Tanner v. Drake, 124 Tex. 395, 78 S.W.2d 162, 163; Blair v. Rindy, Tex.Civ.App., 358 S.W.2d 685, 688, writ ref. n. r. e.; Roberts v. Roberts, 113 Colo. 128, 155 P.2d 155; Barrett & Seago, Partnerships (1956) Sec. 2.2, p. 28; Lindley, Partnerships (1950) 11; 1 Rowley, Partnerships, (1960), Sec. 7.6. Point 5 relating to appointment of a commissioner, not being briefed, is waived. Other points of these appellants are overruled, and this portion of the judgment is affirmed.

3. Community or Separate Property Issue

Peggy Viola Kitchens (widow of Ray Kitchens, who was one of the three children of John P. and Inez Kitchens), appeals from that portion of the judgment determining the 1126 acre Menard County ranch sought to be partitioned was the separate property of Inez Kitchens, and denying appellant an interest therein. This appellant’s position results from the fact that John P. Kitchens died intestate in 1952, leaving his widow Inez and the three children: Ray, Clay and Lynette, surviving. Ray (Peggy Viola Kitchens’ husband), died in 1959, naming his widow sole beneficiary in his will. Inez Kitchens (Ray’s mother), died in 1960, devising her property to Clay, Lynette and her granddaughter, Patricia Anne Bunyard. The granddaughter, Patricia Anne, is the daughter of Ray and Peggy Viola Kitchens. Peggy Viola sought a decree partitioning the property, and setting aside to herself a one-sixth interest in the ranch, alleging it was community property of John P. and Inez Kitchens.

It was stipulated that in 1925 John P. Kitchens and Inez Kitchens “caused the title to the Menard County ranch to be placed in their son, Ray Kitchens, for their benefit, and for the purpose of placing such land beyond the reach of the creditors of John P. Kitchens,” at which time there was “outstanding against John P. Kitchens a judgment for $865”. The 1925 deed from third persons to Ray Kitchens conveying the Menard County ranch lands recited a cash consideration of $2499.25 paid by him, and the execution by him of 12 vendor’s lien notes, each for $975. There is no other direct evidence as to the source of the cash payment, or the payment of any of the notes. Prior to that time, it was stipulated, John P. Kitchens and his wife had acquired title to land in another county, including one tract of “200 acres deeded to himself” and another of 280 acres to his wife, Inez. It appears John P. Kitchens inherited these tracts.

In 1933 Ray Kitchens executed a deed conveying the 1126 acre Menard County ranch to his mother, Inez, reciting a consideration of $10 cash paid by her, and her assumption of the payment of the last nine of Ray’s vendor’s lien notes, and other notes not clearly identified. No reference was made in the deed to the separate property, funds or estate of Inez Kitchens. Thereafter, Inez and John P. Kitchens executed a deed of trust describing the 1126 acres securing payment of their jointly executed note to the Federal Land Bank for $5600 in renewal and extension of the final eight of Ray’s vendor’s lien notes. This deed of trust was released in 1944, there being no recital or direct evidence as to source of payment. The judgment against John P. Kitchens, referred to, was released in 1941.

The jury answered three issues, submitted over plaintiffs’ objections, to the effect that John P. Kitchens knew of and consented to the insertion of the name of his wife Inez as grantee in the 1933 deed, and that he caused her to be named as grantee to prevent collection of the judgment against himself. No other issues were submitted or requested relating to this phase of the case.

Having been acquired during the marriage of John P. and Inez Kitchens, “presumptively it was community property, even though” the deed to Inez “was drawn in her name, there being no language in the deed disclosing that the consideration was paid from her separate funds or that the property was conveyed to her as her separate estate.” Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, 884; Brick & Tile v. Parker, 143 Tex. 383, 186 S.W.2d 66, 67; Van v. Webb, 147 Tex. 299, 215 S.W.2d 151, 152; Art. 4619, Sec. 1, Vernon’s Ann. Tex.Stats.

Under Art. XVI, Section 15, Texas Constitution, Vernon’s Ann.St., there being no evidence the property in question was purchased by Inez Kitchens with her separate funds, it could become her separate property only by gift in view of the record presented. Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 567.

The record negatives a gift of the property to his mother by Ray Kitchens. The deed from him recites an onerous consideration: the assumption by her of the payment of the vendor’s lien notes. “The one fact of recited onerous consideration, of itself, negatives the idea of a gift (prima facie, at least),” it was said in Kearse v. Kearse, Tex.Com.App., 276 S.W. 690, 693, because “ ‘Gift’ and ‘onerous consideration’ are exact antitheses. The idea of their coexistence involves a paradox.” Thereafter both John P. and Inez executed notes and a deed of trust in renewal and extension of notes constituting this same consideration without reference to the separate funds of Inez, and there is no evidence as to the source from which they were ultimately paid. See Van v. Webb, 147 Tex. 299, 215 S.W.2d 151, 153; John Hancock Mut. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791, 796, 797; Hodge v. Ellis, 157 Tex. 341, 277 S.W.2d 900, 905; Goodloe v. Williams, Tex.Civ.App., 302 S.W.2d 235, 238, writ ref.; Carter v. Grabeel, Tex.Civ. App., 341 S.W.2d 458, 460; Dillard v. Dillard, Tex.Civ.App., 341 S.W.2d 668, 671, writ ref. n. r. e.; Brown, Kronzer, 21 Tex. L.Rev. 39.

There remains the question of the effect of the stipulation that husband and wife “caused the title to the Menard County land to be placed in their son,” Ray Kitchens, “for their benefit” and to place the land beyond the reach of creditors; and the effect of the jury findings that John P. Kitchens caused his wife to be named grantee in the deed to prevent collection of the judgment. The effect of the stipulation is that the son held the record title for the benefit of the community. The fact that he so held it to prevent its subjection to satisfaction of a judgment against his father, or that he conveyed it to his mother for the same purpose, did not affect its validity as between the spouses and those claiming under them. DeGarca v. Galvan, 55 Tex. 53, 56; Evans Co. v. Guipel, Tex. Civ.App., 35 S.W. 940, 941; 26 Tex.Jur.2d 349. The stipulation is not a basis for the judgment that the ranch was the separate property of Inez.

What, then, is the effect of the jury finding that John P. Kitchens “caused” his wife’s name to be shown as grantee in the deed from the son? “Where the title is not limited to the sole separate use of the wife, the fact that the deed is taken in her name at the instance of or with the knowledge and consent of the husband, tends to show that he intended the title should vest separately in her and is sufficient to raise an issue on that question”. Asberry v. Fields, Tex.Civ.App., 242 S.W. 2d 241, 242, writ refused. In the Fields, case the only issue submitted was whether the spouses were married at the time of conveyance to the wife. That issue, necessarily referable to the independent ground was held'not to constitute the basis for a Judgment that the land was the wife’s separate property. Although not cited by any of tlie parties, that case governs our disposition.

An 'ultimate issue of fact here is whether John P. Kitchens intended to make a gift to his wife Inez, so as to constitute the ranch lands her separate property in law. That fact issue has not been resolved. The pet effect of the jury findings, under the Fields decision, is that facts exist which “raise -an issue” as against the statutory presumption.

The burden of proof on the issue is upon the party claiming the property was the wife’s separate estate. John Hancock Mut. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791, 795; Wilson v. Wilson; 145 Tex. 607, 201 S.W.2d 226, 227; Presidio Min. Co. v. Bullis, 68 Tex. 581, 4 S.W. 860, 862 (partition) ; and cases cited, 30.Tex.Jur.2d, Sec. 181, p. 283, 284.

• W.e briefly distinguish the cases urged by appellee to the contrary:-. Janes v. Culf Production Co., Tex.Civ.App., 15 S.W.2d 1102, writ ref., involved a deed of gift from father to daughter. Emery v. Barfield, Tex. Civ.App., 156 S.W. 311 was reversed by the Supreme Court, 107 Tex. 306, 177 S.W. 952. Daggett v. W. B. Worsham & Co., Tex.Civ.App., 264 S.W. 180, 183, no writ, applied California law under which the presumption was that a deed to the wife vested title in her as her separate property. In Gillespie v. Gillespie, Tex.Civ.App., 110 S.W.2d 89, 91, writ dism., it was undisputed the property was acquired by the grantee before marriage, and the consideration was owned and held by him before marriage.

The jury findings are evidentiary and not ultimate. The issue has not been decided. It has not been waived, nor is it deemed found in support of the judgment under Rule 279. Neither the trial court nor. we may decide it from the record as a matter of law. It is not necessary to pass upon appellants’ other points.

This segment of the case is severed, the judgment as to this phase of the case is reversed and the cause remanded. This necessarily.requires reversal and remand of the partition decree. Appellants’ points 2, 3, 4 and 11 are overruled. . It is not necessary to consider, others not directly decided herein. Affirmed in part, and in part reversed and remanded.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Billy R. MOORE et al., Individually, etc., et al., Appellants, v. LONDON GAS COMPANY, a Corporation, Appellee.
    Court of Appeals of Kentucky.
    May 10, 1963.
    As Modified on Denial of Rehearing Nov. 8, 1963.
    Calvert C. Little, London, for appellants.
    Hamm, Taylor & Milby, Wm. A. Hamm, Luker & Luker, London, for appellee.
   WILLIAMS, Judge.

The appellants sued the appellee London Gas Company in the Laurel Circuit Court for damages arising out of the destruction by fire of a building. A jury trial resulted in a verdict for appellee. On appeal to this Court the case must be reversed because instructions given by the trial court were erroneous.

Briefly, the facts were developed as follows: A delivery man backed his truck up to the loading ramp at the rear of appellants’ furniture store and set some paper cartons on the ramp. Beneath the ramp were empty paper cartons which appellants had placed there to be removed as trash. The appellee’s gas meter was located about 46 inches from and below the ramp. The delivery man went into the store to collect his charges, remained five minutes, and when he returned observed a fire raging near the end of the ramp. The fire was in the vicinity of both the trash and the gas meter. Its origin is unknown. Five to ten minutes after it started a puff, or explosion, ■occurred. The building was destroyed.

Appellants testified they had notified the gas company on four occasions that they detected the odor of gas in the building. The gas company denied receiving any notice.

Instruction No. 1 as given by the court is as follows:

“The defendant, London Gas Company, at the time and place shown in the evidence had the following duties: (A) With respect to its own gas transmission line and meter at or in close proximity to the plaintiffs’ property, to use ordinary care to have and maintain said line and meter in such condition as to prevent the escape of gas therefrom into and about the plaintiffs’ premises and to use said degree of care in inspection of said gas line and meter to discover and remedy defective conditions, if any, therein, and further (B) with respect to the gas lines and appliances on and within the Main Street Furniture Store premises, to exercise' ordinary care to stop leaks or cut off the gas at the service connection supplying the pipes where the gas was leaking, if any, if the defendant Gas Company, its agents and servants or any of them whose duty it was acting in the scope of their employment to receive notice of or correct defects in the gas service furnished by the defendant company were notified that the gas was escaping on or adjacent to the premises referred to in the evidence. If you believe and find from the evidence that the defendant Gas Company failed to exercise such care and that by reason and as a direct and proximate result thereof natural gas was caused or permitted to escape therefrom and which exploded or caught fire on the occasion shown in the evidence and resulted directly and proximately in the damages and injuries shown in the evidence, then you will find for the plaintiffs, but unless you so believe, then you will find for the defendant.”

Instruction No. 6 was given by the court as follows :

“The jury' is further instructed that if you find and believe from the evidence that the fire mentioned in the evidence originated or was caused from the accumulation of papers or other debris, or began from any cause what ever other than gas or the escape of gas from the meter of this defendant, then the law is for the defendant and you should so find.”

The latter instruction if only the converse to Instruction No. 1 should not have been given. Stanley’s Instructions to Juries, vol. 1, section 14a; Lexington Glass Co. v. Zurich General Acc. & Liability Ins. Co., Ky., 271 S.W.2d 909. However, the real vice is that it requires the gas to be the igniting agent. The question should not be what ignited the fire, but whether the gas created a condition which was a substantial contributing factor to the fire. The gas company’s duties were properly submitted by Instruction No. Í, and if the failure to perform those duties resulted directly and próximately as the cause of the damage, then the law is for the appellants.

The appellee, of course, was entitled to have the jury instructed concerning appellants’ contributory negligence, if any. The trial court instructed on contributory negligence as follows (No. 9):

“You are further instructed that if you find that they were contributorily negligent in any respect by piling boxes or other debris in the rear of the building which might have caused or did cause said fire, then you should find for defendant on the ground of contributory negligence with reference to their claim for property/ damage, and also as to the claim made by Sun ■Insurance Company and Boston Insurance Company, which indemnified said Billy R. Moore aild Paris Moore, dba Main Street Furniture Company, under their separate insurance policies because 'these 'companies cannot recover, if you believe said defendants ’.‘('plaintiffs.) were guilty of contributory ■he'gligfince tinder this instruction.”

'By2'that-"instruction the jury was tdTd to find-that'appellants were contribu-torily negligent if they piled boxes or other débris in the fear of the building which might háv'e caused br 'did' cause the fire. The jury2 should have'been given the duty of finding the appellants contributorily negligent, if the piling of,,boxes or other debris ;x;r,eat,e4u.-fire.hazard or condition which was a .substantial contributing factor to the fire. As given by. the .court, the instruction was too indefinite, especially in identification of parties. Doubtless an instruction given on a new trial' will properly identify the parties.

Appellants complain of the trial court’s refusal to permit testimony concerning the accuracy of the gas company’s record book. The alleged inaccuracy was to be proven by one isolated instance where supposedly an entry was not made. Testimony of this fact would have had nebulous value, and the court properly excluded it.

On the other hand, the testimony of the bystander concerning what he heard Billy Moore, one of the appellants, say on the telephone should have been admitted. The witness testified that he overheard a conversation between Billy Moore and another party on a telephone. Billy Moore represented to him that he was calling the gas company to notify it of the odor of gas. The jury was erroneously admonished not to consider that testimony. Moore had previously testified that he notified the gas company of the odor of gas in the building. The rule is correctly stated in 20 Am.Jur., Evidence, section 369:

“A telephone' conversation between the parties to a proceeding, upon the subject matter of the litigation, which has been testified to by one of the parties, may also' be testified to by a bystander, so far as he heard the conversation, in corroboration of the testimony of the former witnesses regarding. the conversation.”

The judgment is reversed, with directions that " appellants be granted a new trial.'

BIRD, J., not sitting.


author: HOGAN, Judge.

text:
    Tauressa FLIPPIN, Respondent, v. FIRST NATIONAL BANK OF JOPLIN and Aetna Casualty & Surety Company, Appellants.
    No. 8223.
    Springfield Court of Appeals. Missouri.
    Oct. 31, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Nov. 26, 1963.
    Rex Titus, Richart, Titus & Martin, Joplin, for appellants.
    Herbert Van Fleet, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondent
   HOGAN, Judge.

Respondent Tauressa Flippin has made claim for the death benefits provided for under the Workmen’s Compensation Law as unremarried widow of Eugene Flip-pin, who suffered a fatal coronary heart attack while employed by the appellant bank as a janitor. The referee for the Division of Workmen’s Compensation has made an award of $15,515.00 to Mrs. Flippin, payable ' in' :;iñ¥talhhénts as' provided by Section 287.240, which has been affirmed, upon review, by the Industrial Commission, and upon appeal by the circuit court. The employer and insurer have appealed to this court as provided by Article V, Section 22, of the Constitution of 1945, V.A.M.S. and Section 287.490(2). Mrs. Flippin is the sole dependent and the accrued sums payable do not exceed the sum of $15,000.00. The liability for the installments not yet payable will terminate in the event of Mrs. Flippin’s death or remarriage, and since the award was made to commence on February 8, 1961, it cannot be said that the amount in dispute, independent of all contingencies, exceeds $15,000.00. This court is therefore vested with jurisdiction of the appeal. Snowbarger v. M. F. A. Central Co-operative, Mo., 317 S.W.2d 390, 394-395 [5].

Eugene Flippin, who was 42 years old at the time of his death on February 7, 1961, was employed as a custodian or janitor by the appellant bank. The record indicates that he was approximately six feet tall, weighed about. 190 pounds, and was in apparent good health. For some time prior to his death, he had been regularly employed as a janitor at the bank and elsewhere. He carried out trash, washed windows, and when the occasion demanded, shoveled snow. At the time of his death, he was employed as a custodian or janitor by both the bank' and the Joplin Stockyards; his work at the stockyards was similar to his work at the bank. He was described as an active man. During the last six or seven years of his employment at the bank, he was head custodian or janitor at the bank and spent part of his time supervising the activities of other maintenance employees. However, the record indicates that he always “helped with all” of the work.

During the night of February 6 or morning of February 7, 1961, there was a heavy snow at Joplin. It is stipulated, among other things, that approximately six inches of snow accumulated on the streets and sidewalks. When it snowed, it was the duty of the janitors, including Mr Flippin, to begin work earlier than usual in order to clear the sidewalks adjacent to the bank before the bank opened at 9:30. At the time in question, the bank employed five janitors, and customarily all participated in removing the accumulated snow from the sidewalks. Three snow shovels were provided, and ordinarily three of the janitors shoveled while two rested. There were two sidewalks adjacent to the bank, one on the east and one on the north. The sidewalk on the north side is 10 feet 8 inches in width (north and south) and, we gather, some 108 feet in length (east and west). The dimensions of the east sidewalk are not shown.

The evidence indicated that Mr. Flippin arrived upon the employer’s premises at 6:59; this was stipulated on the basis of what the time clock indicated, as no other employee was present at the time. The temperature at that time was 28°F. At 7:25, a second janitor, one Curtis Adams, arrived and found Mr. Flippin working on the north sidewalk. Mr. Flippin was perspiring and appeared to be fatigued. Approximately 108 feet of the sidewalk had been cleared, and Mr. Flippin was still working. Mr. Flippin stated that he had cleared the sidewalk alone, and, accepting Adams’ offer to relieve him, procured a bucket of salt and began spreading it over the cleared area.

At 7:37, a third employee, William Bradford, arrived. Bradford and Adams continued to shovel snow while Mr. Flippin spread the salt. Neither Adams nor Bradford heard any complaint of illness or pain from the deceased. A few minutes after Bradford’s arrival, however, Mr. Flippin collapsed on the sidewalk and was pronounced dead upon arrival at a local hospital.

On February 10, an autopsy was performed, and the report of this autopsy was received in evidence by stipulation. The autopsy, performed by a physician who did not testify at the hearing, consisted primarily of a detailed gross examination of the thoracic viscera; the heart was dissected and examined. The pathologist’s report, as we understand it, is to the effect that the orifices or openings of the coronary arteries were almost blocked by atherosclerotic plaques, or deposits of cholesterol; there was some thickening of the wall of the right coronary artery, and a complete occlusion of the left coronary artery. The pathologist concluded, on the basis of the autopsy, that the occlusion or blockage of the left coronary artery had been complete, quite rapid, and fatal. The nature of the occlusion is not precisely stated.

At the referee’s hearing on this claim, two physicians, both admittedly qualified, gave testimony relative to the cause of Mr. Flippin’s death. Neither physician, so far as the record shows, had ever examined Mr. Flippin while he was alive, and neither had participated in the autopsy. Both testified on the basis of their examination of the autopsy report, and in response to hypothetical questions predicated on the facts substantially as we have related them. One physician stated his opinion to be that Mr. Flippin’s exertion in clearing the north sidewalk was “the most probable precipitating cause of the attack” : the other was of the opinion that there was “no causal relationship between his work which he did on that morning and his death.” As we read the record, both physicians agreed that, within limits, a “heart attack” of this type may be precipitated by intense exertion, although the nature of the mechanism producing death is somewhat problematical; their difference of opinion arose because one physician assumed that “this total amount of work over this elapsed period of time [would be] quite heavy exertion,” while the other assumed that the work done by Mr. Flippin “did not subject him to unusual stress beyond what I would expect him to normally do, expect him to be able to do.”

The referee made the following findings, omitting the conclusion that Mrs. Flippin was the sole dependent and his conclusion as to the amount of the award:

“ * * * that the employee sustained an accident arising out of and in the course of his employment, and that said accident aggravated and combined with pre-existing atherosclerosis of the coronary arteries to accelerate and contribute to cause the employee’s death by coronary occlusion on February 7, 1961. Crow v. Missouri Implement Tractor Co. [Mo.], 307 S.W.2d 401; Williams v. Anderson Air Activities [Mo.App.], 319 S.W.2d 61.
“I find the employee suffered an abnormal strain as a result of activity beyond and different from his normal duties, and that such abnormal strain constituted an accidental event within the meaning of Section 287.020(2) R.S. Mo 1949, as interpreted by the Court in the Williams case, 319 S.W.2d loc. cit. 65.
“In the instant case an ‘abnormal strain’ may be found in the cumulative effects of overexertion, and was ‘unexpected’ in the sense that the strain-caused by such overexertion was more than the employee contemplated or anticipated.
“It is true that death or disability caused by the usual exertion necessary to the performance of an employee’s usual duties, however arduous, does not constitute an accident. De Lille v. Holton-Seelye Co. [334 Mo. 464], 66 S.W.2d 834; Meldrum v. Sourthard Feed and Mill Co. [229 Mo.App. 158], 74 S.W.2d 75; and other similar cases cited in Jones v. Remington Arms Co. [Mo.App.], 209 S.W.2d 156. However, overexertion resulting from activities beyond and different from the employee’s usual routine may constitute an accident. DeLille v. Holton-Seelye Co., 66 S.W.2d, loc. cit. 836.
“In the instant case, overexertion, that is to say, exertion beyond the usual routine, is found in the stipulated fact that in approximately twenty-five minutes the employee shoveled, unassisted, a large quantity of snow from a large area, and ordinarily would have been assisted by four men, all from a large area, and ordinarily would have been assisted by four men, all five alternately using three shovels in order that two men might periodically rest. * * * ”

This award was affirmed, on review, by the Industrial Commission, which added that it considered the recent case of Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108, as persuasive. The award was affirmed on appeal by the circuit court.

The appellants’ principal contention here is that the Industrial Commission erred in finding that the employee sustained an accident, within the meaning of Section 287.020(2), which defines the word accident as “ * * * an unexpected or unforeseen event happening suddenly and violently * * * producing at the time objective symptoms of an injury.” The appellants have stated their point in a number of different ways, but the substance of their contention seems to be that the Commission has erroneously extended the term “abnormal or unusual strain” to include job activity which the evidence shows was merely toilsome and fatiguing effort. They also contend that the Commission has erroneously confused the terms “accident” and “injury” in reaching its conclusions, and remind us that the fact of injury is no proof of an accident within the meaning of Section 287.020(2). Both the appellants and the respondent cite Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401, Williams v. Anderson Air Activities, Mo. App., 319 S.W.2d 61, and Brotherton v. International Shoe Co., supra, 360 S.W.2d 108. The respondent contends that these recent cases support the award; the appellants maintain they do not..

It is the award of the Commission which is subject to review here, Michler v. Krey Packing Co., 363 Mo. 707, 716, 253 S.W.2d 136, 140, and as we view the Commission’s findings, they are in substance that the employee’s activity on February 7, 1961, amounted to an “unusual or abnormal strain” which constituted an accident, because he exerted himself beyond his usual routine in clearing the snow from a rather extensive area of the employer’s sidewalk. What is disputed is the Commission’s conclusion that the employee’s job activity subjected him to such abnormal stress that he sustained an accident, and in our opinion, the decision clearly is a legal conclusion as distinguished from a purely factual determination. We conclude, therefore, that the award is subject to our review and correction, or reversal.

We set to one side appellants’ argument that the Commission has confused the terms “accident” and “injury.” It is our view that the merits of the appeal do not turn on that question. We agree with the appellants that the “accident” is not the “injury,” and that the two are not synonymous. In most concise terms, our Workmen’s Compensation Law contemplates the “accident” as a cause and the “injury”, as an effect or result. The employer’s liability for injuries is limited to “ * * * personal injury or death *• * * by accident * * ” by Section 287.120(1). The phrase “injury by accident” is commonly found in Workmen’s Compensation statutes, and in many jurisdictions the “by accident” requirement is satisfied if the result itself is accidental, though the cause be usual and intended. 1 Larson, Workmen’s Compensation, Sections 37.00, 37.20, and 38.10. In Missouri, however, though it was once considered by the courts of appeals to be “within the contemplation of the statute that the accidental event producing the objective symptoms may be the injury itself rather than the means producing the injury * * Juhl v. Hussman-Ligonier Co., Mo.App., 146 S.W.2d 106, 108-109, that construction was rejected by the Supreme Court in 1941 in State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 326, 153 S.W.2d 40, 42. There is, however, nothing in the -record to show that the Commission considered the “injury” to be proof of the "accident” in this case.

Rather, the narrow and difficult question here is whether the employee suffered any '"unusual or abnormal strain” during the course of his job activity, so that it may be said he sustained an “accident” as that term - is defined by Section 287.020(2). The plain 'language of the statute is that the word “accident” means “ * * * an unexpected or unforeseen event happening suddenly and violently * * * ” but the provisions ■ of Section 287.800, requiring a liberal construction of the Workmen’s Compensation Law, have been so enthusiastically implemented that we concede no definition of the word “accident” could be formulated which would be appropriate in all conceivable circumstances. In this case, what is more appropriate is to examine some of the reported cases to determine, if we can, the kind of exertion or job effort which has been considered as an “unusual or abnormal strain.”

Here, the employee was a young (42), vigorous man, who customarily worked as a janitor, both for the appellant bank and for the local stockyards. He had been employed at this work for most of the time since February, 1938. So far as the record shows, he felt well almost up to the time of his death; at least he made no complaint of any pain in his chest, or heart trouble. It is apparent from the testimony of the physicians and the autopsy report that Mr. Flippin was suffering from serious heart disease at the time of his death, and it may be inferred that this disease had developed over a considerable period of time. There is nothing in the evidence to show that his condition had been disabling or had hindered him in the normal performance of his duties.

As we have indicated, neither of the two physicians who testified had ever examined Mr. Flippin during his lifetime, nor had they participated in the autopsy. One physician was of the opinion that Mr. Flip-pin’s exertion in shoveling snow had precipitated his death; the other took a diametrically opposed view. It is interesting to note that both physicians made certain assumptions as to the relative effort necessary to shovel snow. The physician who testified affirmatively that Mr. Flippin’s death was induced by his work, stated that he would “call it heavy work, if [I] was doing it,” and said pointedly that he was “assuming that the rest of his work was lighter than shoveling snow over a specific period of time.” The other physician stated that one of his assumptions — in concluding that Mr. Flippin’s death was not induced by his work — was “that it did not subject him to unusual stress beyond what I would expect him to normally do, expect him to be able to do.”

As to the incident itself, the parties stipulated that between 7:00 a. m. and 7:25, the employee, working alone, cleared the snow from a sidewalk 8 feet 10 inches wide for a lateral distance of 1,08 feet; the snow was probably six inches deep. At the end of that time the employee was sweating and appeared to be tired; within 15 minutes, he collapsed and died. Ordinarily, he would have been assisted by other employees in this work. He made no complaint of any pain nor of feeling ill before he died.

In the case of DeLille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834, the deceased employee suffered a ruptured aneurysm while performing his usual work as a carpenter. The Commission refused an award of compensation on the ground that the employee had not been subjected to any unusual' strain. The supreme court affirmed the award, and, quoting from the case of Betts v. American Stores Co., 105 Pa.Super. 452, 161 A. 589, stated that “ * * * death, caused by overexertion in the course of employment, is an accident compensable under the workmen’s compensation statutes. * * * ” However, the quote continued:

“ * * * True, Dr. Frederick attributed the exhaustion or stroke to claimant’s exertion in the performance of his work, and expressed the opinion that, but for the work, it would not have happened at that time; in other words, that the disability was hastened by the work. * * * Disability, hastened by such exercise, cannot be treated as accidental * *

The court did not undertake to define “overexertion,” and we cannot read into this case any ruling that fatigue, or even exhaustion, resulting from heavy or toilsome labor is to be considered an “accident” within the meaning of our statute, or that such fatigue constitutes an “unusual or abnormal strain.”

In Meldrum v. Southard Feed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75, the employee was assisting another employee in loading a boxcar with meal sacks which weighed about 100 pounds each. In doing this work, the employee was required to handle five to six sacks per minute. It was necessary to carry the sacks about 16 feet from a conveyer belt to the point where they were deposited in the boxcar. After the employee had loaded 12 to 15 sacks, a period of about 20 to 30 minutes, he became ill, staggered to the loading dock, and collapsed.

The employee died two days later. The evidence showed he had been working in an unprotected boxcar in very cold weather-1— below zero. He had been in apparent good health; his physician testified in effect that his death had been caused “undoubtedly, from the exertion, principally, and from the exposure, which brought on pleurisy, and caused the breakdown of the heart.” The Industrial Commission found that the employee had sustained an accident by being unusually and unduly exposed to cold weather and through overexertion.

The court of appeals reversed the award, pointing out that our Workmen’s Compensation Law requires not only an injury but an accident, and stated, 229 Mo.App. at 165-166, 74 S.W.2d at 80:

“[6, 7] There was evidence in this case that deceased’s condition was due to overwork. But heavy work, alone, causing exhaustion, a stroke or ‘spell’ unaccompanied by any mishap, abnormal occurrence or event, such as extra exertion, a strain or a blow; is not sufficient to constitute an accident within the meaning of the Workmen’s Compensation Act.”

In the case of Juhl v. Hussman-Ligonier Co., supra, 146 S.W.2d 106, the claimant suffered a coronary occlusion after he filled a five-gallon paint bucket with water at the factory where he worked and carried it a distance of about 60 feet. It was indicated that he had been suffering from arteriosclerosis at the time he suffered his attack. He had been in apparent good health before the alleged accident, and it was his testimony that he had carried the bucket 60 to 80 feet and “all of a sudden I felt this piercing pain in my chest.”

The attending physician testified that in his opinion the lifting of the bucket of water and carrying it was a precipitating factor of the coronary occlusion.

The Commission found and ruled that the employee, at the time of the alleged accident, was not subjected to any unusuat strain or exertion, but was doing the usual and ordinary work incidental to his employment and that the disability was a result of natural causes.

The court of appeals reversed the finding of the Commission, but in so doing held it .to be within the contemplation of the statute that the actual event producing objective symptoms might be the injury itself rather than the means producing the injury.

As we have pointed out, the opinion of the court of appeals in the Juhl case was quashed on certiorari to the Supreme Court in State ex rel. Hussman-Ligonier v. Hughes, supra, 348 Mo. 319, 153 S.W.2d 40, as being in conflict with the ruling in DeLille v. Holton-Seelye, supra, 334 Mo. 464, 66 S.W.2d 834. The Supreme Court compared the Juhl case and the DeLille case, remarking that in neither case was there any unusual occurrence such as a slip or fall or abnormal strain. It was 'pointed out that the Compensation Act was not intended to make the employer an unlimited insurer, and the court reiterated that proof of an “accident” is necessary.

In Keller v. Bechtel, McCone, Parsons Corporation, Mo.App., 174 S.W.2d 925, the employee was engaged in digging a ditch. The ditch was about four feet deep and was knee-deep with mud. The employee was shoveling mud and dirt over the side of the ditch a distance of about five or six feet. He was required to throw the mud hard to get it off the shovel. Shortly before he stopped working for the day and immediately after throwing out a shovel of mud, he felt a pain and cramp in his right side. He thereafter developed a hernia. The Commission refused to award compensation.

In affirming the Commission’s action, the court of appeals held that it was incumbent upon the claimant not only to show that his injury came upon him as a result of or during the course of the work in which he was engaged, but to show that the injury was the result of an accident. Remarking that there was no evidence that the claimant exerted any more power or any greater strain than the normal performance of his work required, and that nothing unexpected or unusual occurred suddenly and violently, the court held that injury had not been sustained as the result of an “accident.”

In Higbee v. A. P. Green Fire Brick Company, Mo.App., 191 S.W.2d 257, the employee made claim for compensation for a hernia. In the course of the employee’s duties, it was necessary for him to obtain oil from drums which were heavy; each drum weighed about 452 pounds. Now and again it was necessary for the employee to set the drum upright in order to obtain the oil. While lifting one of the drums to an upright position, the employee felt a sharp pain in his lower groin and a sickening feeling. The Commission held that the employee did not sustain an accident' and the finding was affirmed by the circuit court.

Again, the court of appeals affirmed the award, remarking that there was no mishap, either in the act of lifting or in the environment, and that there was no proof that the employee used any more exertion or greater strain than was usual and ordinary in lifting a barrel of oil.

So, in each of these cases, the employee was exerting himself in that he was expending a large amount of energy in the performance of heavy, toilsome and perhaps exhausting labor, but in no case could any “accident” be found.

By contrast, in the case of State ex rel. United Transports v. Blair, 352 Mo. 1091, 180 S.W.2d 737, the employee applied unusual force to a wrench to loosen a frozen lug which held a tire on a wheel; in Crow v. Missouri Implement Tractor Co., supra, 307 S.W.2d 401, the weight of a heavy piece of machinery was suddenly shifted onto the upraised arms and shoulders of the employee, and the Supreme Court held that an abnormal strain could be classified as an accident although it was not preceded or accompanied by a slip or fall; in Williams v. Anderson Air Activities, supra, 319 S.W.2d 61, the employee was attempting to lift a heavy drainboard and, placing his hands on his knees, rose on his toes and gave "an extra surge of power” from underneath the drainboard in order to lift it with his back; in Brotherton v. International Shoe Company, supra, 360 S.W.2d 108, the employee was literally wrestling with a long pipe wrench to which a steel pipe extension had been attached. Working from beneath the wrench, the claimant pulled down and was bounced up by the recoil of the wrench, pulled down again, slipped on the floor, and was jerked upward. The common thread which runs through these last four cases is that in each case, either because of the employee’s precipitate outburst of voluntary effort or through the application of some external force, the employee was subjected to an abrupt and intense bodily stress which caused his disability. Thus, the finding that there was an “unusual or abnormal strain” could, in each case, be equated with the requirement that there be an “event happening suddenly and violently.”

It is precisely in this respect that we believe the Commission has fallen into error in the instant case. The award purports to find the “unusual or abnormal strain” in the “cumulative effects of overexertion.” We believe the Commission, in so finding, has extended or broadened the definition of the statutory word “accident” further than the authorities justify upon the facts of this case. We do not know, from this record, how hard Mr. Flippin worked on the morning of his death, but that is not controlling. The false step— if we may call it that — in the Commission's process of inference and conclusion lies in the deduction that hard work, producing fatigue or even exhaustion, in itself constitutes an “unusual or abnormal strain.” There is no evidence of any sort to show the manner in which Mr. Flippin did his work just before he died; his physical movements and the pace at which he worked are matters which were unobserved and unreported. There is no basis whatever for concluding that, in the course of his work, Mr. Flippin was subjected to any abrupt and intense physical stress, either through his own effort or some outside force, or, in short, to any “unusual or abnormal strain.” In our view, the Commission erred in finding that he had sustained an accident within the meaning of the statute.

The judgment of the circuit court affirming the order of the Industrial Commission is therefore reversed, and the circuit court is directed to set aside its judgment herein and enter a new judgment reversing the order of the Industrial Commission.

RUARK, P. J., and STONE, J., concur.

      . All references are to RSMo (1959) and V.A.M.S.

      . Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1007-1008, 82 S.W.2d 909, 913; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 603, 50 S.W.2d 130, 133; Williams v. Great Atlantic and Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298 [2]; Williams v. Anderson Air Activities, supra, 319 S.W.2d at 65-66 [3-5]; Carlton v. Henwood, 232 Mo.App. 165, 174, 115 S.W.2d 172, 178.

      . See also Staples v. A. P. Green Fire Brick Co., Mo., 307 S.W.2d 467, 462; McDaniel v. Kerr, 364 Mo. 1, 11, 258 S.W.2d 629. 635; Alexander v. Saunders Mills, Inc., Mo.App., 289 S.W.2d 483, 488-490; Kerby v. Missouri State Highway Commission, Mo.App., 238 S.W.2d 464, 469.


author: CALVERT, Chief Justice.

text:
    BAY PETROLEUM CORPORATION et al., Petitioners, v. O. B. CRUMPLER et ux., Respondents.
    No. A-9597.
    Supreme Court of Texas.
    Nov. 20, 1963.
    W. G. Woods, Jr., Liberty, Baker, Botts, Shepherd & Coates, Ralph S. Carrigan, Houston, for petitioners.
    Cain & Cain, Ned A. Whitt, Liberty, for respondents.
   CALVERT, Chief Justice.

Suit was by O. B. Crumpler and wife against Bay Petroleum Corporation and Tennessee Gas Transmission Corporation. Damages were sought for injuries alleged to have been caused by the defendants in permitting the escape of noxious and obnoxious gases, fumes, odors and stenches, all hereafter referred to as gases, during their operations in storing gas in a salt dome adjacent to the plaintiffs’ premises. The damages sought were for the depreciated value of the plaintiffs’ land and house, for discomfort and impairment of their health, and exemplary damages. The plaintiffs also sought a permanent injunction restraining the defendants from permitting the gases to escape and be carried to plaintiffs’ premises.

Trial was to a jury on special issues. The trial court rendered judgment, based on the jury’s answers to the issues, that the plaintiffs take nothing. The Court of Civil Appeals reversed the trial court’s judgment and remanded the cause for retrial, holding that the answers of the jury to certain of the special issues are in irreconcilable conflict. 366 S.W.2d 797. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Fourteen special issues were submitted to the jury. It is sufficient for opinion purposes to paraphrase most of the issues and to indicate the jury’s answers.

The jury answered, “No” to issue no. 1 which inquired whether gases escaping from the operations of the defendants had been carried by the wind in substantial quantities onto plaintiffs’ premises. Special issues nos. 2, 3, 4, and 5 were submitted conditionally, and were not answered. Issue no. 2 was to be answered only if issue no. 1 was answered, “Yes,” and inquired whether the gases had been carried onto plaintiffs’ property in such a manner and to such an extent that it was a nuisance. To aid the jury in answering the issue the term “nuisance” was defined, and neither party objected to the issue or the definition. Special issues nos. 3, 4, and 5 were to be answered only if issue no. 2 was answered, “Yes.” Issue no. 3 inquired when the condition of nuisance began. Issue no. 4 inquired whether the condition of nuisance was continuous, and issue no. 5 inquired whether the condition of nuisance was temporary or permanent.

The jury found in answer to issue no. 6 that the escape of gases had proximately caused a substantial depreciation in the value of the plaintiffs’ real property, and in answer to issue no. 7 found that the extent of the depreciated value was $5,500.00. Issue no. 8 has no significant bearing on the problem before us.

Plaintiffs’ claim for damages for personal discomfort and impairment of health, submitted in issues nos. 9 and 10, was eliminated by the jury’s refusal to find that the escaping gases had proximately caused the plaintiffs’ material discomfort and impairment of health.

The evidence reflected that the plaintiffs had moved their house to a new location. The jury answered, “Yes,” to issue no. 11 which inquired if they found “that a reasonable person of ordinary sensibilities, tastes and habits living in the locality in question would have moved his house from the locality in question solely because of the condition of nuisance, if any [they had] found.” Issue no. 12 reads: “Do you find from a preponderance of the evidence that the condition of nuisance, if any you have found, was the proximate cause of any damage to plaintiffs’ house in question?” The issue is answered, “No.” In spite of the negative answer to issue no. 12, the jury gave an answer of “$10,000.00” to issue no. 13 which reads: “What do you find from a preponderance of the evidence is the difference, if any, caused solely by the condition of nuisance, if any you have found, between the reasonable market value of plaintiffs’ house immediately before the condition of nuisance, if any, began and the reasonable market value of plaintiffs’ house at its present location, * * * ?” Issue no. 14 has no significant bearing on the prob-em before us.

It was the opinion of the Court of Civil Appeals that the answer to issue no. 1 was in irreconcilable conflict with the answers to issues nos. 6, 7, 11 and 13.

It must be admitted that the finding embodied in the answer to issue no. 1 seems totally inconsistent with the findings embodied in the answers to issues nos. 6,7, 11 and 13, and for purposes of this opinion we may assume that the findings are conflicting. But the ultimate question is not whether the findings are inconsistent or in conflict, or even in irreconcilable conflict; rather, the ultimate question is whether the conflict in the findings is fatal to the entry of judgment, and that question is to be answered under the rule laid down in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. Under that rule the assumed conflict in the findings in this case is fatal if, ignoring the answers to issues nos. 6, 7, 11 and 13, the answers to issue no. 1 and the other issues would support a judgment for defendants; and if, ignoring the answer to issue no. 1, the answers to is* sues nos. 6,7, 11 and 13 and the other issues would support a judgment for plaintiffs.

A decision as to whether the findings embodied in the answers to issues nos. 6, 7, 1-1 and 13 and issues other than no. 1 would support a judgment for the plaintiffs for the damages sought must rest in the law of nuisances; for, as said by this Court in Sherman Gas and Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119, 27 L.R.A., N.S., 237, and reiterated in the recent case of City of Abilene v. -Downs, Tex.Sup., 367 S.W.2d 153, “If there be no nuisance, there can be no recovery of damages for such annoyance as may exist, nor for diminution in the value of the property.”

If we ignore the jury’s answer to issue no. 1 there is yet no finding that the escaping gases constitute a nuisance as defined in the court’s charge. Nor are there findings of fact upon which to base a legal conclusion that the condition constitutes the type of nuisance authorizing a recovery of the diminished value of plaintiffs’ property. There is, for example, no finding that the condition complained of is permanent; and the condition of nuisance must be permanent to authorize a recovery of the sums found in answer to issues nos. 7 and 13. Baugh v. Texas & N. O. Ry. Co., 80 Tex. 56, 15 S.W. 587; Wichita County Water Improvement Dist. No. 1 v. McGrath, Tex. Civ.App., 31 S.W.2d 457, writ refused.

The only findings we have as a basis for a judgment for plaintiffs are that their land depreciated in value to the extent of $5,-500.00 as a proximate result of the escaping gases, and that there was $10,000.00 difference in the value of their house “immediately before the condition of nuisance, if any, began” and its value after it was moved to a new location, “caused solely by the condition of nuisance, if any ” the jury had found. These findings would not authorize a judgment for the plaintiffs. The opinion of the Commission of Appeals in Brewster v. City of Forney, Tex.Com.App., 223 S.W. 175, indicating that they would, was not approved by this Court. Our notation at the end of the opinion implies disapproval

On the other hand, it is quite clear that if the findings embodied in the answers to issues nos. 6, 7, 11 and 13 are ignored, the finding embodied in the answer to issue no. 1 and the remaining issues would authorize a judgment for the defendants. The negative answer of the jury to issue no. 1 completely destroys plaintiffs’ claim of nuisance. Moreover, by failing to object to the conditional submission of issues nos. 2 and 5 the plaintiffs waived their right to have them answered; and under the provisions of Rule 279, Texas Rules of Civil Procedure, there is a deemed finding in support of the court’s judgment that the condition complained of was not a nuisance and, if a nuisance, was not permanent. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

Thus, tested by the Little Rock rule, there is no fatal conflict between the jury’s answer to issue no. 1 and its answers to issues nos. 6, 7, 11 and 13, though the answers are assumed to be in irreconcilable conflict.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.


author: WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Jesse Earl PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 35547.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied Oct. 23, 1963.
    Second Rehearing Denied Dec. 4, 1963.

      Ross Hardin, Dallas, Sam W. Pettigrew, Grand Prairie, for appellant.
    Henry Wade, Dist. Atty., Jame K. Allen, William F. Alexander, Ben F. Ellis, Patrick McDowell and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is rape; the punishment, death.

After having supper at a nearby drive-in, Mary, the prosecutrix, and her husband Frank, with their 9 months old baby, went to the home of Frank’s brother Charlie, which was some 8 blocks from where the prosecutrix and Frank lived. There were other guests with whom the two brothers and their wives played cards. Some of those present were drinking during the evening.

At about 9 o’clock P.M. the prosecutrix drove to her home to get some diapers for her baby. As she pulled up to the curb on her return to Charlie’s house, some 15 minutes later, she saw a Negro man passing by.

Some 15 minutes after she rejoined her husband and others of the party at Charlie’s home the prosecutrix became ill and vomited. Her husband suggested that they return home but, upon the encouragement of others, it was decided that Frank should stay on for a while and his brother would take him home later.

The prosecutrix, having assured her husband that she was well enough to drive, left Charlie’s home about 10:30 P.M. taking the baby with her.

When she had driven about half a block a man who was in the back seat put his hand over her mouth and placed what felt like a gun to the back of her neck.

She drove and parked as the man directed. In backing the car, she turned and saw that the man was a Negro with a scarf over his mouth and nose and that he had a gun pointed at her.

After she had parked the car and cut off the lights and the motor, as she was directed to do, the prosecutrix was pulled into the back of the car and pushed down in the back seat. The baby on the front seat began to cry. The man threatened to kill the baby if she did not quiet him, and she gave the baby his bottle.

The prosecutrix was again jerked into the back seat and at this time she slapped the man, thereby causing the scarf to fall from his face, giving her a clear view of him. He threatened to kill her if she slapped him again, and with the gun in his hand proceeded to have sexual relations with her without her consent while she was in fear for her life and the life of her baby.

After committing the act the man ordered the prosecutrix to get in the front seat and start the car, which she did. He was still pointing the gun at her and said: “I ought to kill you.” She complied with his demand that she give him her name and telephone number and he said: “If you tell on me I will find where you live and I will kill you.”

A noise in a nearby bush attracted the man’s attention and when he turned around to look the prosecutrix quickly drove away and reported to her husband what had happened and where it had happened, and police were notified.

The prosecutrix identified the appellant in a police lineup some three hours later and was positive of her identification of him at the trial as the Negro man who had committed the rape.

Her testimony in this regard was corroborated by other evidence introduced by the state.

A billfold belonging to the appellant was found in the automobile the prosecutrix was driving. In it were his driver’s license; his social security number and other papers, including a receipt from a Dallas lawyer for a $15.00 payment on a $75.00 account or fee in a divorce case.

At some time after she and her husband arrived at Charlie’s home the light bulb or globe had been removed from the dome light in the automobile which the prosecu-trix was driving. The prosecutrix knew it was there at that time because she had dropped one of the baby’s diapers and was able to see and retrieve it by the dome light. A globe or bulb such as the one removed from the car was found in appellant’s coat pocket. It was inserted in the socket by an officer and found to fit.

The appellant was asleep in the kitchen of the apartment occupied by his brother and sister-in-law when he was arrested. He was in the nude. His coat and trousers which he put on were in the kitchen and a small pistol was on the table next to the bed.

The pistol, coat and trousers were introduced in evidence, as were the light globe or bulb and a scarf that were found in the pockets of the coat.

The prosecutrix testified that the pistol looked like the gun the appellant used, but that she did not see the handle, only the barrel; that the scarf looked like the scarf the appellant had tied over his face; that the coat looked like the coat the appellant was wearing at the time he had sexual intercourse with her, and the trousers looked like those the appellant had on at the time she saw him.

The state also offered evidence showing that the coat as well as the trousers had stains which, upon laboratory tests, proved to be from seminal fluid and intact spermatozoa.

The appellant testified and denied any connection with or knowledge of the rape. He testified and offered evidence to the effect that he had lost his billfold during the afternoon, after he put the lawyer’s receipt in it. He attempted to explain the presence of seminal stains and spermatozoa on his coat and pants and testified that on the week end before he took his girl friend to a motel in Henderson and, after having intercourse with her while both were in the nude, had another act of intercourse with her after he had dressed and while wearing his coat.

He denied having the light bulb or the scarf in his coat pocket.

The jury rejected the defense of alibi and accepted the testimony of the prosecutrix, and we. find the evidence sufficient to sustain the verdict.

Appellant’s court appointed counsel contends that the court erred in admitting in evidence the coat, trousers, pistol and light bulb.

This contention is predicated upon the claim that the arrest of appellant was unlawful, the officers not having had a warrant authorizing either an arrest or search.

The evidence shows that the officers, having been informed of the rape and having obtained the billfold found in the car, checked with the firm by which the appellant and his brother were employed and obtained the address of both. After going to the address of the appellant and failing to find him, the officers proceeded to his brother’s apartment where they entered after the brother opened the door and, according to the officers’ testimony, invited them in.

Officer Montgomery testified in the absence of the jury that he was handed the billfold at about 11:30 P.M.; that after he found the information in it giving an out of town address and had made an investigation at the company where other papers indicated the appellant was employed, and obtained the address of the appellant and the address of appellant’s brother, he proceeded as rapidly as he could to try to find the appellant before he could escape; that there were no courts open at that hour of the night in Dallas County and he did not have time to find a judge; that he arrived at the apartment where the appellant was arrested at 1:15 A.M.

We overrule the contention that the arrest was unlawful. See Romans v. State, 153 Tex.Cr.R. 474, 220 S.W.2d 891.

We find no error in the admission in evidence of the coat, pants, pistol, light bulb and scarf.

Complaint is also made that certain sex magazines were exhibited before the jury but were not introduced in evidence. We find in the statement of facts where, on cross-examination', the appellant was asked: “Q. Are these your books (indicating a group of books) ?”

In the amended motion for new trial sworn to by the appellant it was alleged that Assistant District Attorney Allen “exhibited a number of sex magazines in the presence of the jury * *

We fail to find any proof or certification that the books referred to in the question above quoted were “sex magazines” or that Mr. Allen exhibited sex magazines in the presence of the jury. We overrule the claim of error in this regard.

The amended motion for new trial alleged jury separation, and a motion for mistrial appears in the transcript, reasons alleged being that during the argument of State’s Attorney Alexander, one of the jurors became sick in the jury box and rose from the jury box with another juror and separated from the remainder of the jury, and as they entered the hallway they were joined by Mr. Alexander “ * * * and the door closed behind them before a bailiff was present, and the two jurors and the assistant district attorney were out of the courtroom, out of the presence of the remainder of the jury, out of sight and out of héaring distance to the defendant or either of his attorneys.”

There is no certification and no proof of the occurrence alleged having in fact occurred.

The amended motion for new trial also alleged that the juror Theresa Owens became ill during argument and while the jury was deliberating and was given some kind of medicine by other jurors which caused her “to become very sleepy, confused and dizzy to such an extent that she did not ever at any time cast any vote in connection with the punishment of this defendant.”

There were also other complaints of jury misconduct in the amended motion for new trial and the affidavit of the juror Theresa Owens was attached and made a part of said motion.

The state controverted the allegations of the amended motion for new trial and attached to their answer affidavits of jurors and others to support their denial of such allegations.

The trial court’s order recites that, having heard the amended motion for new trial, he was of the opinion that it should be refused. If there was any evidence introduced, whether by affidavit or testimony before the court, such is not shown in the record.

We do not deem it necessary to set out the issues raised by the amended motion for new trial and the controverting answer, including the affidavits attached thereto. Such affidavits do not appear to have been introduced as evidence and may not be considered as evidence. Shelton v. State, 155 Tex.Cr.R. 187, 233 S.W.2d 148; 41 Tex. Jur.2d 389, and cases cited.

The remaining ground for reversal relates to arguments of counsel for the state and objections thereto which are shown by a transcript of arguments approved by the trial judge and agreed to by counsel.

The record shows that Assistant District Attorney Allen argued that the jury were the ones to say whether the prosecutrix goes throughout the rest of her life feeling fear that the defendant will come back and find her and kill her, as he said he would, and argued: “ * * * The only way that can be prevented is for this jury to assess the supreme punishment, because he deserves it under the facts and I say any man, black or white, deserves it * *

Counsel for appellant interrupted the argument at this point and objected to the statement “the only way that it can be prevented is to assess the supreme penalty * * * ”, the ground being “it is only counsel’s unsworn statement.”

The court sustained the objection and, pursuant to appellant’s request, instructed the jury to disregard the remark.

We overrule the contention that the remarks of the assistant district attorney were so prejudicial as to require reversal, despite the court’s instruction to the jury to disregard them.

The evidence is sufficient to sustain the conviction and we find no error that would warrant a reversal. From the record it appears that the appellant received a fair trial.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that we were in error in concluding that no proof was made of the allegations in his amended motion for new trial of alleged jury separation and misconduct, and in his motion for rehearing — which is supported by the affidavit of his attorneys — states that at the time of the hearing of the motion for new trial it was agreed that the court would consider all of the affidavits filed in the cause as if they were evidence presented at the hearing.

We have, in view of the penalty assessed, examined all of the affidavits presented on the motion for new trial.

Such affidavits consist of the appellant’s affidavit, that of his two attorneys and the juror Theresa Owens, and fourteen counter affidavits filed by the state, including the affidavits of the other eleven jurors, two of the court bailiffs and Assistant District Attorney W. F. Alexander. It was the province of the court to resolve any issue presented with reference to the claim of jury separation and misconduct, and, in our opinion, the trial court did not err in refusing to grant a new trial.

Remaining convinced that the cause was properly disposed of in our opinion on original submission, the motion for rehearing is overruled.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Bobby Ralph LOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 36033.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Scott D. Moore, Glenn Hausenfluck, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery, with a prior conviction for an offense of like character alleged for enhancement; the punishment, life imprisonment.

This is a companion case to Lucas v. State, Tex.Cr.App., 368 S.W.2d 605, wherein a judgment of conviction of John Earnest Lucas for the robbery of which appellant stands convicted was affirmed by this court.

The evidence in the two cases shows the robbery of a Safeway store manager in the city of Fort Worth, by. three masked bandits, two of whom were armed with pistols.

In the robbery, which occurred around 8:20 o’clock, p. m., two ]ay-away tickets were taken, together, with $2,207 in money. Later in the night, officers went to an apartment at 740 Woodrow Street around nine o’clock, which apartment was located some mile and a half from the scene of the robbery.

While Officer Stewart and his partner were standing at the front door of the apartment, the appellant walked out and was immediately placed under arrest and searched. The sum of $380 in bills was found in his left front pants pocket.

Appellant timely objected to the testimony showing his arrest and search by the officers and to the admission in evidence of the fruits thereof on the ground that such was obtained as a result of an illegal arrest and search, which objection was by the court overruled.

Appellant’s arrest and search by the officers without a warrant was, under the facts presented, unauthorized and the testimony relative thereto and the money taken from his person should not have been admitted in evidence. Articles 212-215 and 727a, Vernon’s Ann.C.C.P.; Gill v. State, 134 Tex.Cr.R. 363, 115 S.W.2d 923; Gonzales v. State, 148 Tex.Cr.R. 401, 187 S.W. 2d 910; Timberlake v. State, 150 Tex.Cr.R. 375, 201 S.W.2d 647; Burton v. State, 152 Tex.Cr.R. 444, 215 S.W.2d 180; and Tarwater v. State, 160 Tex.Cr.R. 59, 267 S.W.2d 410.

We do not agree with the state’s contention that the money taken from appellant’s person had no incriminating character because it was not identified as part of the robbery proceeds. Nor do we agree with the further contention that no reversible error is presented because appellant’s guilt was established by other evidence and the jury was not called upon to assess the punishment.

The evidence showing that $380 in currency was taken from appellant’s person shortly after the robbery could have well been utilized by the jury in concluding that he was guilty of the offense charged.

For the error pointed out, the judgment is reversed and the cause is remanded.'

Opinion approved by the Court.


author: McDonald, judge.

text:
    Jack Welton WILLIAMS, Appellant (True name: D. D. Carpenter, Jr.), v. The STATE of Texas, Appellee.
    No. 36070.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.

      E. A. Cade, Dallas, for appellant.
    Henry Wade, Dist. Atty., Louis Francis, Don Wills and A. D. Jim Bowie, Asst. Dist., Attys., Dallas, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   McDonald, judge.

The offense is driving while intoxicated; the punishment, a $50.00 fine and confinement in jail for 90 days.

The evidence shows, through the testimony of William R. Lassiter, a police officer for the City of Dallas, that while he was performing duties directing traffic at the intersection of Ervay and Jackson Streets, he observed an automobile stopped and parked in a “no parking zone” and that traffic was “stacking up”. Officer Lassiter further testified that as he approached the automobile, he observed the appellant get out of the car from the left side and a female person who was sitting on the opposite side of the driver, slide under the wheel of the vehicle. After identifying the appellant as the person driving the automobile, the officer further testified that he observed appellant walk to a bar called “Tom’s Place”, in a swaying and staggering condition.

The officer went into the bar, asked the appellant to come out, which he did, and then requested appellant’s driver’s license. Appellant produced a driver’s license which bore the name Jack Welton Williams. Officer Lassiter further testified that this license was not the license of the appellant and that appellant’s true name was D. D. Carpenter. The witness further testified that in his opinion, based on prior observations of intoxicated persons, that appellant was intoxicated, that he had bloodshot eyes, and a strong odor of alcohol on his breath. The witness further related that appellant’s attitude was very belligerent, as shown by his fighting and using profane language, and that appellant pulled a knife when an attempt was made to search him; that he got the knife away from the appellant at which time the appellant began cursing and screaming until the officer put handcuffs on him.

Officer Paul Wilkins and Officer Henry L. Cox, testified that they came to the scene and observed the appellant and that appellant was, in their opinion intoxicated.

Officer Henry L. Cox further testified that appellant was taken to City Hall where an intoximeter test was administered. J. C. Day and Floyd Alexander identified the intoximeter test as being the same as delivered to Dr. Morton Mason for chemical analysis. Dr. Mason testified as an expert that he made a chemical analysis of the intoximeter test which result showed appellant to have .247% blood alcohol content. Dr. Mason further testified that a person having such blood alcohol content would have lost the normal use of his physical and mental facilities.

Appellant asserts that the verdict is contrary to law and evidence as it was not proved that he was driving the automobile at the time and on the occasion in question.

This contention is without merit. We find the evidence offered by the state to show appellant was the driver of the car to be sufficient. Officer Lassiter testified that he saw the car come to a stop at the curb, that he had approached to within twenty feet of the car when the appellant opened the car door and got out from the left hand or drivers side. See Davis v. State, 172 Tex.Cr.R. 603, 361 S.W.2d 709: “While it is true that the arresting officer was the only witness for the state, his testimony needed no corroboration.”

Appellant further contends that the verdict rendered by the jury in this case was motivated by bias, prejudice and passion and that the verdict is excessive and too severe under the evidence and further reflects that he did not receive a fair and impartial trial.

Art. 802 of Vernon’s Texas Penal Code provides, “ * * * and upon conviction shall be punished by confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars.” It is obvious that appellant received the minimum fine provided and a jail term much less than the maximum. Judge Belcher in Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606 stated: “It has been the consistent holding of this court that, if the punishment is within that prescribed by the statute, it is beyond the province of .this Court to pass on the question as to whether the evidence is sufficient to support a punishment greater than the minimum.” We have stated many times that this court will not substitute its judgment for that of the jurors unless the decision of the jurors is clearly wrong.

Further contentions of the appellant that the trial court erred in admitting evidence that appellant pulled a knife on Officer Lassiter and erred in admitting statements made by appellant while under arrest are without merit as this was not complained of nor objected to in the original trial of this cause and appellant on cross examination asked further questions concerning the testimony of which he now complains. Thus any error as to this testimony was waived.

We have carefully examined appellant’s remaining contentions and find no merit in any of them.

Finding no reversible error and the evidence sufficient to support the verdict, the judgment is affirmed.