author: BATEMAN, Justice.

text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, Ltd., Appellant, v. D. L. HAMES et ux., Appellees.
    No. 16917.
    Court of Civil Appeals of Texas. Dallas.
    May 19, 1967.
    Rehearing Denied June 16, 1967.

      Dudley Chambers, of Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    David M. Kendall, Jr., of Woodruff, Hill, Bader & Kendall, Dallas, for appellees.
   BATEMAN, Justice.

The appellees D. L. Hames and wife filed this suit under Section 5a of Article 8307 to enforce an award of the Industrial Accident Board of Texas ordering the appellant to pay accrued compensation benefits in the sum of $420 and “medical, hospital and doctor bills incurred as a result of the occupational disease sustained on or about 4-1-64, 4-20-64, and 5-2-64.” At the end of a nonjury trial judgment was rendered against appellant for $1,898.45, of which $420 was for the compensation benefits, $605.40 was for medical expenses, $123.05 was penalty and $750 was attorneys’ fees. Appellant concedes its liability for the $420 compensation benefits, but appeals from that part of the judgment awarding medical expenses, penalty and attorneys’ fees.

Appellant’s first twelve and seventeenth points of error on appeal challenge the validity of that part of the judgment.awarding $605.40 to appellees for hospital and doctor bills. Appellant argues that the award of the Board was too vague, general and indefinite as to such charges to be enforceable, that since itemized bills of hospital and doctor fees were not before the Board at the time of the award, and therefore could not have been considered by the Board in making the award, the Board was unauthorized to include such charges in its award and the trial court had no jurisdiction to make fact findings on the reasonableness and the necessity of those charges; also that the court erred in rendering judgment for medical expenses in the absence of a finding that they were incurred as a result of occupational disease. We find no merit in any of these points.

The award of the Industrial Accident Board was of weekly benefits of $35 each for twelve weeks, which were found to have matured in the sum of $420, followed by the sentence: “Named insurer is ordered to pay medical, hospital and doctor bills incurred as a result of the occupational disease sustained on or about 4-1-64, 4-20-64 & 5-2-64.” Both parties gave notice of intention to appeal from this award, but neither of them filed suit within the time provided by Sec. 5, Art. 8307, to perfect the appeal.

Sec. 5, of Art. 8307, gives to “[a]ny interested party who is not willing and does not consent to abide by the final ruling and decision” of the Board the right to appeal by giving notice within twenty days of his intention not to abide by said final ruling and decision, and by then bringing suit, within twenty days after giving such notice, to set aside the final ruling and decision.

This is followed by Section 5a, the first paragraph of which provides that if the insurer shall fail and refuse to obey or comply with “a final order, ruling or decision as provided in the preceding section,” the claimant shall have the right to bring suit “upon said order, ruling or decision. If he secures a judgment sustaining such order, ruling or decision in whole or in part, he shall also be entitled to recover the further sum of twelve per cent as damages upon the amount of compensation so recovered in said judgment, together with a reasonable attorney’s fee for the prosecution and collection of such claim.”

The second paragraph of Section 5a gives an injured employee or his beneficiaries the right to sue to mature an award of periodic payments upon failure of the insurer to pay them promptly as they mature.

Let us first consider the complaint that the award of the Board was too vague and indefinite to be enforceable. This court held, in Middlebrook v. Texas Indemnity Ins. Co., 112 S.W.2d 311 (Tex.Civ.App.1937, w'rit dism’d w. o. j., 131 Tex. 163, 114 S.W.2d 226), that the phrase “final order, ruling or decision” in Section 5a means the same as the phrase “final ruling and decision” as used in Section 5, and that an award which is final, so far as taking an appeal therefrom is concerned, is also sufficiently final to be the basis of a suit to mature the same. It has been repeatedly held that a contingent award, or one for an indefinite period of time, not to exceed a certain maximum, is not rendered unappealable for being too vague or indefinite. Southern Surety Co. v. Hendley, 226 S.W. 454 (Tex.Civ.App., Galveston 1920, writ ref’d); Traders & Gen. Ins. Co. v. Chancellor, 105 S.W.2d 720 (Tex.Civ.App., El Paso 1937, writ dism’d); Lumbermen’s Reciprocal Ass’n v. Warren, 272 S.W. 826 (Tex.Civ.App., Beaumont 1925, writ ref’d). In Middlebrook the award of the Board was for weekly benefits of $9 per week for an indefinite period, not exceeding 125 consecutive weeks “unless changed by subsequent award of the Board.” We held that this order was sufficiently final to support a judgment in the suit to mature the claim and recover the entire amount upon failure of the insurer to make the payments ordered. In that case we followed the opinion of the Commission of Appeals in Vestal v. Texas Employers’ Ins. Ass’n, 285 S.W. 1041 (Tex.Comm’n App. 1926, jdgmt adopted), in which a similar holding had been made. In dismissing the application for writ of error in Middle-brook, the Supreme Court specifically held that we were not in error in following Vestal in that respect. Texas Indemnity Ins. Co. v. Middlebrook, 131 Tex. 163, 114 S.W.2d 226; see also Travelers Ins. Co. v. Dickson, 160 F.2d 167 (5th Cir. 1947).

In our opinion, appellant’s points of error which complain of the lack and insufficiency of the evidence filed with the Industrial Accident Board, and of the failure or inability of the Board to give proper consideration to the evidence it had before it, and of the failure of the trial court to find as a fact that the medical expenses were incurred because of the occupational disease, all constitute collateral attacks upon the award of the Board, which is not permissible in a suit to enforce the award. In Keller v. Texas Employers’ Ins. Ass’n, 279 S.W. 1113 (Tex.Civ.App., Beaumont 1926, no writ), it was said:

“A proceeding to enforce a judgment (as is here attempted) is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such proceeding, though in such proceedings it may be shown that the judgment is absolutely void for want of jurisdiction.”

In the same year, Vestal v. Texas Employers’ Ins. Ass’n, supra, was decided, wherein it was held, inter alia, that in a suit to enforce the award of the Board the insurer did not have the right to re-open the case and try the issues anew, thus in effect obtaining the benefit of a review or trial de novo in the courts without complying with the statutes with respect to appeal; that the insurer cannot thus convert an action for enforcement into one for compensation ; that while the Board is not, strictly speaking, a court, nevertheless its functions are quasi-judicial, and its orders are given the force, after a time, of finality, “and they cannot be collaterally attacked.”

See also Security Union Casualty Co. v. Peer Oil Corp., 1 S.W.2d 1109 (Tex.Civ. App., Beaumont 1927, no writ); Texas Employers’ Ins. Ass’n v. Neal, 11 S.W.2d 847 (Tex.Civ.App., Eastland 1928, writ ref’d); Wilson v. Associated Indemnity Corp., 74 F.2d 896, 899 (C.C.A., 5th Cir. 1935), Cert. den. 296 U.S. 580, 56 S.Ct. 90, 80 L.Ed. 410.

For these reasons, appellant’s first twelve and seventeenth points of error are overruled.

By its points of error Nos. 13 through 16, appellant complains of that part of the judgment assessing $750 attorneys’ fees and $123.05 in penalties on the grounds that such amounts are excessive and unauthorized by the statute.

Appellant directs our attention to the fact that the last sentence of the first paragraph of Sec. 5a, Art. 8307, authorizes the recovery, in addition to the amount of the award, of “the further sum of twelve per cent as damages upon the amount of compensation so recovered in-said judgment, together with a reasonable attorney’s fee for the prosecution and collection of such claim,” and argues: (1) that this language restricts the twelve per cent penalty to the $420 compensation benefits, and that it was error to apply it also to the medical expenses; and (2) that the “reasonable attorney’s fee” should be determined with respect only to the $420 compensation benefits, exclusive of the medical expenses. We agree with the first argument, but not with the second. In our opinion, neither the Board nor the trial court had authority to allow the twelve per cent penalty on the medical expenses, and the judgment was therefore excessive by the amount of twelve per cent of $605.40, or $72.65. The statute, being penal in character, must be strictly construed and not extended by implication to include a situation not within its express terms. 45 Tex. Jur.2d, Penalties, § 5, p. 7; First Texas Prudential Ins. Co. v. Long, 46 S.W.2d 297 (Tex.Comm’n App.1932, jdgmt adopted).

However, we interpret the clause “for the prosecution and collection of such claim” to refer to the entire claim, including the medical expenses.

The trial court’s finding of $750 as a reasonable attorneys’ fee is supported by evidence and we see no reason to disturb it.

Appellant also argues that the claim for attorneys’ fee is limited to thirty per cent of the compensation benefits recovered, because of Art. 8306, Sec. 7d, the pertinent part of which is as follows:

“For representing the interest of any claimant in any manner carried from the Board into the courts, it shall be lawful for the attorney representing such interest to contract with any beneficiary under this law for an attorney’s fee for such representation, not to exceed thirty percent (30%) of the amount recovered, such fee for services so rendered to be fixed and allowed by the trial court in which such matter may be heard and determined.”

Appellant argues that the initial phrase, “For representing the interest of any claimant in any manner carried from the Board into the courts,” should be interpreted to cover this case because this case was “carried from the Board into the courts” by the filing of the suit to enforce the award. However, we think it is quite obvious that the statute was intended to protect beneficiaries from making improvident contracts with their own attorneys and that the statute has no other purpose. The claim for attorneys’ fees, to be charged against the insurer for the benefit of the injured claimant as a sort of penalty for failure of the insurer to pay awards of the Board promptly, has an altogether different purpose and is based on an entirely different statute, to-wit, Art. 8307, Sec. Sa, which contains no restriction on the amount of the fee except that it shall be “reasonable.” Therefore, appellant’s points of errors Nos. 13, 14 and 15 are overruled, and point of error No. 16, referring only to the twelve per cent penalty, is sustained to the extent of reducing the penalty from $123.05 to $50.40.

Appellees urge us to award them an additional attorneys’ fee for the services of their attorneys in this court on appeal. No authority has been cited to us, and we know of none, authorizing this court to decree such an additional fee in this type of case, and we decline to do so.

The judgment of the trial court is reformed by reducing the amount of statutory penalty from $123.05 to $50.40, and, as so reformed, the judgment is affirmed. As authorized by Rule 435, Vernon’s Texas Rules of Civil Procedure, we tax all costs against the appellant.

Judgment reformed and, as reformed, affirmed.

      All statutory references herein contained are to Vernon’s Annotated Texas Civil Statutes.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Emeric M. BAKER, Appellee.
    No. 291.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 31, 1967.

      Crawford Martin, Atty. Gen., Menton Murray, Asst. Atty. Gen., Austin, for appellant.
    Francis I. Gandy, Jr., of Butler, Schraub & Gandy, Corpus Christi, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment in a condemnation case wherein the State of Texas as condemnor acquired title to two lots and the improvements thereon in the City of Corpus Christi, Texas, for use in connection with Interstate Highway 37. The jury found that the reasonable market value of the property condemned was $48,000.00. The final judgment entered in the case nunc pro tunc recited that the commissioners had theretofore awarded the condemnee the amount of $49,848.00 (which had been deposited in the registry of the court and withdrawn by condemnee) and rendered judgment that appellant recover from ap-pellee $1848.00, with interest from the date of said deposit, said sum being the difference between the amount found by the jury and that awarded by the commissioners.

Appellant asserts eleven points of error. The first three points involve alleged errors which have been cured by entry of a nunc pro tunc judgment and will not be further considered. Points four, five and six assert in substance that the evidence is legally and factually insufficient to support the jury finding on the single special issue submitted concerning market value of the property condemned, and that the amount of $48,000.00 so found is excessive. Points seven and nine complain of arguments made by counsel for appellee. Point eight asserts that the admission into evidence of a photograph (Defts. Ex. 16) constituted prejudicial error causing an excessive verdict. Points ten and eleven are based upon alleged cumulative error causing an improper and excessive judgment.

We have concluded that none of appellant’s points present reversible error and that the judgment should be affirmed.

Appellant’s points four, five and six, asserting legal and factual insufficiency of the evidence to support the jury answer as to market value, will be considered under applicable rules stated in the case of Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). On the trial of the case three witnesses testified and numerous exhibits were admitted into evidence. Appellant’s evidence consisted of the testimony of one expert witness and its exhibits. Appellee’s evidence consisted of his own testimony, that of an expert witness and his exhibits. The date of taking was May 25, 1961. The property condemned consisted of two city lots and a building containing 3,686 square feet, used by appellee for a printing business.

Mr. Bob Crow, appellee’s expert witness testified that in his opinion the reasonable market value of the property condemned was $52,500.00. Appellee testified that the reasonable market value of the property was $58,000.00. Appellant’s expert witness, Mr. Gregory Moore, testified that the reasonabe market value of the property was $27,000.00. The two expert witnesses testified at length on direct and cross examination concerning the methods by which they arrived at their final evaluations, in-eluding replacement approach, income approach and comparable sales. Appellee testified concerning the purposes for which the property had been and could be used. Both expert witnesses were shown to be qualified as such, and their testimony reflected the usual differences of opinion concerning value and the various approaches used in arriving at the same. The jury award of $48,000.00 was $10,500.00 less than that testified to by appellee, $4,500.00 less than the value fixed by Mr. Bob Crow, and $21,000.00 more than that fixed by Mr. Gregory Moore. The credibility of the witnesses and the weight to be given their testimony was within the province of the jury as the fact finder. The evidence was legally and factually sufficient to support the award made, and it is not excessive. See: Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151, 156 (1950); Natural Gas Pipeline Company of America v. Towler, 396 S.W.2d 917 (Tex.Civ.App., Corpus Christi, 1965, n. w. h.); South Texas Electric Cooperative, Inc. v. Ermis, 396 S.W.2d 955 (Tex.Civ.App., Corpus Christi, 1965, n. w. h.). Appellant’s points four, five and six are overruled.

Appellants by their points seven and nine assert that reversible error was committed in arguments made by counsel for appellee. Appellant’s point seven is grouped for briefing with its points four, five and six. Aside from the re-statement of point seven, we find nothing relating to the alleged improper argument of appellee’s counsel in this section of appellant’s brief. Appellant’s point nine reads as follows:

“The trial court erred in overruling appellant’s amended motion for new trial because of the improper, prejudicial and harmful argument of appellee’s attorney.”

In the statement and argument under this point appellant discusses a number of arguments made by counsel for appellee. Some of the arguments complained of were proper; some were not objected to; and some were objected to and the objection sustained in some instances and overruled in others. Some of the arguments by counsel for appellee were invited by those made by counsel for appellant. None of the arguments made by counsel for appellee were so improper or prejudicial that the same could not have been cured by instruction of the court.

We have considered each of the arguments complained of. No useful purpose will be served in considering those to. which objection was not made or to which objection was sustained. We have been cited by appellant to only one argument by-counsel for appellee to which objection was made and overruled, and which is referred to by appellant as perhaps the most damaging and prejudicial argument. It was as. follows:

“ * * * I will say to you that this is one of the raunchiest situations, as some of the teenagers say, and some of my grandchildren, — and you talk about obsequiousness, they come down here and say, T represent Waggoner Carr.’ This is an experimental trip, I say to you, that is the honest truth, and I say to you, a verdict of $28,000.00 would be outrageous.
“MR. PATTERSON: Your Honor, we object to the remark about the experimental trip.
“MR. BUTLER: Well, that is my characterization of it.
“THE COURT: Overruled.”

The quoted argument was made by counsel for appellee as a part of the closing argument. Prior thereto, trial counsel for appellant had made the following argument:

“ * * * It is gratifying to somebody like me, from Austin, to get a fair trial away from home.”
“* * * i know it has been — probably been parts of it have been tiresome for you, and tedious, but that’s the only way, the best way that has ever been devised, that I know of, to settle these disputes, and of course that’s what we are here for.
“Now, being still a reasonably fairly young lawyer I don’t know people as well as some lawyers, so I am always concerned about things that I do that in any way effect the ideas of a juror. If I have done anything that in any way offended anybody, I certainly apologize for it and hope you won’t consider it in your verdict. I have done all I could, everything in my power, to bring to you all the facts concerning this case that I possibly could, and there is, just as an old phrase in the legal business, ‘If you don’t have good facts, try to confuse the Jury,’ and I think that’s what they have done the last few days down here.”
“ * * * Now, historically, they say the State is big and powerful, but the State is not down here in its power, they have only sent me, which may be unfortunate.
“I don’t want you to think that I am cold hearted, but they have got to try to get to the sympathy of you Ladies and Gentlemen in my opinion, to cloud the issues enough to get away from the true issue of market value.
“Now, I am sympathetic with Mr. Baker. I represent Mr. Baker though he refuses to accept my representation, he also wants Mr. Butler, but the State is bound under the Constitution and Law to pay adequate compensation, at market value; to that extent, I have got to try to give him that; but, by the same token, I want to try to see that he doesn’t get any more than fair market value.
“ * * * By that I want you to consider all the evidence, and be as sympathetic as you can, but, by the same token, be sympathetic to the people I represent, too, and be fair to them and to Mr. Baker, which I want you to do, is one thing I am here to do, is to be fair to him, but still, it all goes back to this single and one issue of market value, * *

Counsel for appellant opened up the subject of his trip from Austin to Corpus Christi to represent the condemnor in this case and made comments concerning it and his conduct of the trial. Counsel for appellee replied to such argument by using the term “experimental trip” and ultimately connected what he said to the argument of counsel for the state that the jury award should be about $28,000.00. Under these conditions we believe that the argument was not improper, and in any event hold that harmful error is not shown. Rule 434, Texas Rules of Civil Procedure; Southern Pacific Company v. Wilson, 398 S.W.2d 324, 327, 328 (Tex.Civ.App., Corpus Christi, 1966, wr. ref. n. r. e.).

Appellant’s point number eight reads as follows:

“The trial court erred in admitting into evidence over the objections of the appellant the exhibit of appellee which purported to depict the building into which appellee moved his printing business when he moved out of the property condemned and which further purported to be the building out of which appellee operated his printing business at the time of the trial which error caused an improper and excessive verdict.”

The photograph in question (Defts. Ex. 16) was identified by appellee as showing the building into which he moved his business after the taking of the property involved in this suit. The property shown in the photograph was one of those used as a rent comparable by appellee’s expert witness Mr. Bob Crow who testified prior to appellee and referred to the photograph. The exhibit was offered into evidence while appellee was testifying and the trial court at first refused to admit it over appellant’s objection. After further testimony on the matter outside the presence of the jury, counsel for appellee offered the photograph for the limited purpose of showing a rent comparable and the court ruled that it would be admitted for such limited purpose. After the jury returned to the box, appellant’s objection to the exhibit was overruled and it was admitted. Both counsel for appellant and the court stated that the exhibit was admitted for a limited purpose, without further explanation. Counsel for appellant, at that time, did not renew his request for a further instruction concerning the exhibit. In any event, appellant’s point eight complains of the admission of the exhibit into evidence, not that the trial court failed to' give proper instruction in connection therewith. We hold that the exhibit in question was properly admitted for the purpose for which it was ultimately offered and that error or harmful error is not shown. See State v. Hamman, 377 S. W.2d 727, 732 (Tex.Civ.App., Houston, 1964, n. w. h.). Appellant’s point eight is overruled.

Appellant’s points ten and eleven asserting cumulative error are largely premised upon its other points, heretofore discussed. Upon consideration of such points separately and together in the light of the whole record, we find that cumulative or reversible error is not shown.

The judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Willie BROWN, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Appellee.
    No. 267.
    Court of Civil Appeals of Texas. Tyler.
    June 15, 1967.

      Richard W. Fairchild, Vernis Fulmer, Nacogdoches, for appellant.
    Akin, Vial, Hamilton, Koch & Tubb, William N. Hamilton, Dallas, for appellee.
   MOORE, Justice.

This is a workmen’s compensation case. Appellant, Willie Brown, alleged that on February 1, 1965, he sustained an injury to his neck, right shoulder, right arm, and upper back in the course of his employment for R. T. Swilling & Son, which resulted in immediate and total and permanent incapacity for labor, and prayed for judgment for compensation benefits at $35.00 per week for 401 weeks from the date of such injury, in a lump sum. Appellee, Trans-america Insurance Company, answered and alleged that the injury was a specific injury to the appellant’s right shoulder, and that the injury and its effect, as well as any disability sustained, was limited to the right arm.

The cause was submitted to a jury. In response to the special issues, the jury found as follows: (1) that appellant suffered an accidental injury while in the course and scope of his employment with R. T. Swilling & Son which was the producing cause of his total incapacity which began on February 23, 1965 (Issues 1, 2, 3, 4 and 5) ; (2) that appellant’s “total incapacity” will continue “from now on” (Issue 6); and (3) that appellant did not sustain any partial incapacity as a result of his injury (Issue 7). Contrary to the court’s instructions, the jury answered Special Issues Nos. 8, 9 and 10 and found that partial incapacity began or will begin on February 23, 1965; that such partial incapacity will continue “indefinitely” and that the appellant’s average weekly wage earning capacity during such period of partial incapacity was $50.00 per week. The jury also found that an average weekly wage which would be fair and just to appellant and appellee was $50.00 a week (Issue 13) ; (4) that appellant’s disability was not caused solely by natural causes (Issue 16) ; and (5) that appellant’s disability is limited to the use of his right arm and that he suffered a 60% permanent partial loss of the use of the right arm (Issues 17, 18, 19, 20 and 21).

Appellant filed a motion for judgment notwithstanding the verdict in which he requested the trial court to disregard Special Issue No. 17, finding that appellant’s disability was limited to the use of the right arm on the ground that same was without support in the evidence and moved the court for judgment for the plaintiff for permanent total incapacity based on the answers of the jury to Special Issues Nos. 1 through 16. In the alternative, appellant moved for mistrial on the ground that the finding on Special Issue No. 17 was in material and irreconcilable conflict with the findings made to Issues 4, 5 and 6. The trial court overruled these motions and entered judgment on the verdict for appellant, limiting recovery to compensation for 60% permanent partial loss of the use of the right arm. Appellant presented a motion for new trial which was overruled, after which he perfected this appeal.

Appellant has attacked the judgment by four points of error. In the first and third points of error, he contends that there is no evidence of probative force to support the jury’s answer to Issue No. 17 finding that appellant’s disability is limited to the use of his right arm, and that the court should have disregarded the finding and rendered judgment for appellant for permanent total disability as found by the jury in Issues 1 through 16. By his second point, he contends that the trial court erred in refusing to grant appellant’s motion for new trial because the answer of the jury to Special Issue No. 17 that appellant’s disability is limited to the use of his right arm, is in material and irreconcilable conflict with the answers of the jury to Issues 1, 4, 5 and 6, that appellant sustained an injury resulting in permanent total incapacity. In his fourth point, he contends that the jury’s finding of the loss of use of the arm is contrary to the overwhelming weight and preponderance of the evidence.

Appellant testified that he was injured while helping to unload a truck loaded with pipe. He testified that while engaged in the work, a fellow employee on the truck slipped and turned loose of a piece of pipe and that as a result, he tried to catch it in order to keep it from striking the ground and breaking; that the pipe jerked him to the ground causing him to suffer pain in his neck and right shoulder.

Appellant offered medical testimony to the effect that he suffered a traumatic strain and irritation of the cervical spine at the level of C-5 and C-6 causing pain and muscle spasm in the neck and right shoulder as a result of which he was totally and permanently disabled to work. Appellee, on the other hand, offered medical testimony showing that the appellant suffered a pulled or strained muscle or tendon in the region of the right shoulder and a strained muscle over the shoulder joint. Dr. Milton Frei-berg, an orthopedic surgeon, a witness called by the appellee, testified that he had examined appellant and that although appellant complained of pain in his right shoulder, right arm, neck, back and right leg, he found no evidence that appellant had sustained any injury. He testified that x-ray pictures showed some degenerative arthritis in the neck and right shoulder; that there was a limitation of about fifteen degrees in the internal rotation in the right shoulder as compared to the left shoulder; that such could have been caused by the degenerative changes or could have been caused from an injury; that the limitation was such as to cause about a 10% loss of the function of the right arm. Dr. Freiberg testified that by reason of the restriction of the internal rotation on the right as compared to the left, he felt it was impossible that the alleged accidental injury might have stirred up some pre-existing mild degenerative osteoarthritis at the acromeo-clavicular joint, which is one of the joints controlling the function of the arm in the shoulder region so as to produce perhaps a 10% disability to the arm; that this disability to the arm was the only disability he could find. He testified repeatedly that in his opinion, appellant’s disability was limited to the use of his right arm.

Appellant argues under the first and third points that since there was no evidence of an injury directly to the arm itself, the finding by the jury that appellant’s disability was limited to the use of the right arm was a nullity. Consequently, he contends that the trial court should not have rendered judgment for loss of the use of the arm, but should have disregarded that finding and should have entered judgment for appellant upon the remaining issues for permanent total disability.

Under a recent ruling by the Supreme Court of this state, it was held that irrespective of whether the injury was to a specific member of the body as enumerated in Section 12, Art. 8306, Vernon’s Ann.Tex. Civ.St., or was to other parts of the body, if the disability resulting therefrom was limited and confined to the use of an enumerated specific member, recovery of compensation was limited to that provided for a specific injury. Aetna Casualty And Surety Company v. Moore, Tex., 361 S.W.2d 183.

Consequently, where the evidence creates an issue as to whether claimant’s disability is general or whether it is limited to the loss of use of a specific member, the question of whether claimant’s disability is confined to the use of a specific member becomes a controlling issue of fact to be determined by the court or jury. Aetna Casualty And Surety Company v. Moore, supra.

As we view the medical testimony in the record before us, there is ample evidence to the effect that appellant’s disability is limited and confined to a loss of use of the right arm. It thus became the jury’s province to weigh all of the evidence and determine whether appellant’s disability was limited to the loss of the use of the right arm. There being evidence of probative force that it was so confined, the appellant is bound by such finding. American Casualty & Life Insurance Co. v. Hastings (Tex.Civ.App.), 300 S.W.2d 754; Maryland Casualty Company v. Sullivan (Tex.Civ. App.), 326 S.W.2d 729. Appellant’s first and third points of error are overruled.

By his second point of error, appellant contends that the findings of the jury are in irreconcilable conflict and because of such conflict, the verdict cannot form a basis for judgment. In this connection, he takes the position that the answers to Issues Nos. 1, 4, 5 and 6, finding that appellant had sustained total incapacity which would continue “from now on” are in irreconcilable conflict with the jury’s answer to Issue No. 17 finding that appellant’s disability is limited to the use of the right arm. Appellant therefore asserts that because of such irreconcilable conflict in the verdict, the trial court erred in refusing to grant his motion for a new trial.

As we view the findings of the jury, no irreconcilable conflict exists, especially so in view of the fact that appellant neither alleged nor contended that the alleged injury to his right arm extended to and affected other parts of his body. Russell v. United Employers Casualty Co. (Tex.Civ. App.), 158 S.W.2d 575.

In a somewhat related situation, the court in Federal Underwriters Exchange v. Simpson (Tex.Civ.App.), 137 S.W.2d 132, said:

“The rule was laid down in Petroleum [Casualty] Co. v. Seale, Tex.Com.App., 13 S.W.2d 364, 365, approved by the Supreme Court, that where injury results to a particular member of the body, compensation for loss of which is specifically provided by the statute, liability of the insurer is limited to that amount, even though the loss of, or injury to, that particular member actually results in total permanent incapacity of the employee to labor. This holding has been frequently followed and applied. See Texas Employers Ins. Ass’n v. Galloway, Tex.Civ.App., 40 S.W.2d 973; Texas Employers Ins. Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Consolidated Underwriters v. Wilson, Tex.Civ.App., Ill S.W.2d 865; Traders & General Ins. Co. v. Marrable, Tex.Civ.App., 126 S.W.2d 746 ; 45 Tex.Jur., § 175, p. 607. This rule, however, does not preclude an employee from recovery under the more liberal provisions of the Workmen’s Compensation. Law, if he allege and prove that the injury to the particular member additionally extended to and affected other portions of his body, or impaired his general health to such an extent as to totally and permanently incapacitate him. See Seale and Neatherlin cases, supra, 45 Tex.Jur., § 178, p. 612; and numerous cases there cited.”

In Ferrell v. Texas Employers’ Ins. Ass’n (Tex.Civ.App.), 194 S.W.2d 585, it was likewise contended that the verdict of the jury was in irreconcilable conflict because the jury there found total disability for fifteen weeks and five days and also found that for the same period of time, plaintiff suffered 50% loss of the use of the right leg below the knee. In holding that there was no irreconcilable conflict, the court said:

“We do not think appellant’s points are well taken. In view of holdings in similar cases, it is obvious, we think, that the findings on issues in regard to appel- ' lant’s incapacity to labor, as the result of the injury, are immaterial and not in conflict with findings on issues in regard to the percentage of loss of the use of his right leg below the knee, as the jury also found that the injury did not extend to or affect appellant’s body in any other respect.
“In the case of Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W. 2d 463, 464, Judge Sharp, speaking for the Supreme Court, among other things used this language: ‘Where injury results to a particular member of the body, compensation for the loss of which is specifically provided by statute, the liability of the insurer is limited to that amount, even though the loss of or injury to that particular member actually results in total permanent incapacity of the employee to labor.’ Language equally pertinent is found in Texas Employers Ins. Ass’n v. Thrash, Tex.Civ.App., 136 S.W.2d 905, 907, where the court, among other things, said: ‘The findings as to partial permanent economic disability in no way conflict with the finding of specific injury. In other words, a specific injury may or may not result in economic incapacity. If the injury be specific the finding of economic incapacity is immaterial.’ To the same effect, see Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364; also Russell v. United Employers Casualty Co., Tex.Civ.App., 158 S.W.2d 575. * * * ” Also see Aetna Casualty And Surety Company v. Moore, supra.

Upon applying the foregoing principles, it becomes apparent that no material conflict exists in the jury’s verdict. We think the trial court correctly entered judgment upon the verdict. Appellant’s second point of error is therefore overruled.

We have carefully considered and weighed all of the evidence presented in the record before us and after having done so have reached the conclusion that the verdict and the judgment based thereon cannot be said to be against the overwhelming weight and preponderance of the evidence so as to be clearly wrong and unjust. Accordingly, appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    Lawrence ALLEN, Appellant, v. Mrs. Hattie BOLTON, Appellee.
    No. 294.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 8, 1967.
    Rehearing Denied June 29, 1967.

      Armond G. Schwartz, Hallettsville, for appellant.
    James E. Cross, Yoakum, for appellee.
   OPINION

GREEN, Chief Justice.

This is a suit by appellee Hattie Bolton to remove cloud from two pieces of real property in DeWitt County, Texas. Appel-lee plead that a general warranty deed by George A. Robinson dated September 21, 1960, purporting to convey said properties to appellant Lawrence Allen, which deed was on record in Vol. 148, page 460, Deed Records of DeWitt County, when the said George A. Robinson owned only a life estate in said lands, constituted a cloud upon her title to said properties. George A. Robinson died during the pendency of the case, and prior to the trial.

Appellant Lawrence Allen filed an answer seeking denial of the relief asked by appellee, and by cross-action prayed that title to the lands involved be quieted in him. The case was tried before the district judge without a jury, and judgment was entered for appellee. Appellant duly excepted and gave notice of appeal. No findings of fact or conclusions of law were filed.

In so far as the interests in the lands involved are concerned, the common source of title is Stephen Robinson, who died while a domiciled resident of DeWitt County on about September 15, 1953. The conflicting claims of the parties arise out of the probate in the county court of DeWitt County of two separate wills of Stephen Robinson, each of which in separate suits was admitted to probate as the last will and testament of the said testator.

Appellee’s claim of title is based upon a will of Stephen Robinson dated April 25, 1952, in which a life estate to all of his properties was given to his son Geo. A. Robinson, and upon the death of said son, such property to vest in his niece Hattie Bolton (appellee). Upon appellee’s application, due proof having been made as shown by the record, this instrument was admitted to probate as the last will and testament of Stephen Robinson in Cause No. 3841 in the county court of DeWitt County by judgment dated October 21, 1953.

Appellant’s claim of title is based on an alleged subsequent will of Stephen Robinson dated January 14, 1953, which provided that all prior wills made by him were revoked, and which left a life estate in all of his properties, real and personal, to his son George A. Robinson, and upon his death, all such properties were to vest in fee simple in testator’s cousin Lawrence Allen (appellant) of Temple, Bell County, Texas. Application for the probate of this will as a muniment of title was filed by appellant and George A. Robinson in the county court of DeWitt County, Texas on February 19, 1963, cause No. 4804 in that court. The record from the county clerk’s office of the proceedings in that cause were admitted in evidence including the application for probate, sheriff’s return on citation by posting notice, sworn testimony of subscribing witness, dated June 26, 1963, the will executed by Stephen Robinson dated January 14, 1953, and the judgment signed by George W. Trowell, County Judge, De-Witt County, Texas. This judgment places the date of the hearing as June 26, 1963, finds all essentials favorable to the validity of the will and the jurisdiction of the court, finds that good excuse for the delay in filing such will for probate exists and that applicant is not in default, and ordered and decreed that said will of January 14, 1953 be admitted to probate and record as the “Last Will and Testament of the said Stephen Robinson, deceased, also .known as Steven Robinson, deceased; that said Last Will and Testament be recorded in the Minutes of this court; that said Will be admitted to probate as a Muniment of Title.” By agreement and with consent of the trial court, certified copies were substituted for the originals for the record.

In rebuttal, appellee placed the county clerk and the county judge on the stand for the purpose of establishing by oral testimony that the judgment in the county court Cause No. 4804 was not signed by the county judge until March 16, 1966. Appellant’s objections that such evidence was inadmissible as constituting a collateral attack in a trial in the district court upon the judgment of a county court of competent jurisdiction, and that the judgment is the best evidence, and speaks for itself, were overruled, and over appellant’s objections and exceptions, the county judge was permitted to be questioned as to when the judgment was signed by him, and to testify that he had only recently, within the past week, signed the order, and that he had not previously signed it because he had to satisfy himself with reference to the will (second will). The county judge then testified that he was satisfied with the second will and that it should be probated, and that he did sign the judgment in cause No. 4804 as of the time of the original hearing.

Appellant bases his appeal on five points of error, as follows:

"POINTS OF ERROR
“First Point.
THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF AND CROSS-DEFENDANT TO GO BEHIND THE JUDGMENT AND COLLATERALLY ATTACK THE JUDGMENT IN PROBATE CAUSE NO. 4804, PROBATING THE WILL OF JANUARY 14, 1953, SUCH BEING THE JUDGMENT OF THE COUNTY COURT OF DE WITT COUNTY, TEXAS, SITTING IN MATTERS OF PROBATE.
“Second Point.
THE TRIAL COURT ERRED IN NOT HOLDING THE WILL OF APRIL 25, 1952 REVOKED BY THE WILL OF JANUARY 14, 1953.
“Third Point.
THE TRIAL COURT ERRED IN DISREGARDING THE FINAL JUDGMENT IN PROBATE CAUSE NO. 4804, ADMITTING TO PROBATE THE LAST WILL AND TESTAMENT OF JANUARY 14, 1953.
“Fourth Point.
THE TRIAL COURT ERRED IN QUIETING TITLE ON THE JUDGMENT OF THE PROBATE COURT IN NO. 3841, ADMITTING TO PROBATE THE WILL OF APRIL 25, 1952, WHICH WAS NOT THE LAST WILL OF TESTATOR.
“Fifth Point.
THE TRIAL COURT ERRED IN DISREGARDING THE DEED FROM GEORGE A. ROBINSON TO LAWRENCE ALLEN, AND IN FAILING TO RECOGNIZE AN INTEREST THEREBY CONVEYED.”

Appellee answers these by four counterpoints, as follows:

“FIRST COUNTER POINT
“THE TRIAL COURT CORRECTLY QUIETED TITLE IN APPELLEE, WHO WAS NOT ATTACKING A JUDGMENT; THE ATTACKER BEING APPELLANT WHO FILED A CROSS-ACTION ATTACKING A PROBATE JUDGMENT OF RECORD MORE THAN 13 YEARS PRIOR TO SUCH DATE.
(In reply to Appellant’s First, Second and Third Points)
"SECOND COUNTER POINT
“TRIAL COURT MAY DISREGARD COLLATERAL ATTACK BROUGHT MORE THAN NINE YEARS AFTER A FINAL JUDGMENT IN PROBATE COURT.
(In reply to Appellant’s First, Second and Third Points)
"THIRD COUNTER POINT
“A JUDGMENT NUNC PRO TUNC MAY NOT BE ENTERED AFTER THREE YEARS AND SEVERAL TERMS OF COURT HAVE PASSED WHEN COURT HAD NOT PREVIOUSLY REACHED A DECISION IN THE MATTER.
(In reply to Appellant’s Third Point)
"FOURTH COUNTER POINT
“TRIAL COURT CORRECTLY DISREGARDED COMMUNITY PROPERTY QUESTION AS NO PROOF OF EXISTING COMMUNITY ESTATE IN 1889.
(In reply to Appellant’s Fifth Point)”

We shall first consider appellant’s first four points of error, and appellee’s reply points thereto.

It is well established that a probate court has the power to admit to probate a subsequent will or codicil after having probated a former will by an earlier decree, the time for appealing from which has expired. Vance v. Upson, Tex.Sup.Ct., 64 Tex. 266; Bradford v. Bradford, Tex.Civ.App., 377 S.W.2d 747, writ ref. n. r. e. In Vance v. Upson, the Supreme Court, in upholding this jurisdiction, used the following language:

“The fact that the county court, by its decree, had formerly admitted to probate, as the will of the same testator, another paper executed prior to the time the one now offered was executed, interposes no obstacle whatever to the probate of any paper or papers which may be in fact and in law the last will of James Vance.
“The power of a probate court to admit to probate a subsequent will, after the probate of an earlier one, has been considered in many cases, and is too well established to admit of controversy.
“The proposition that the papers now claimed to be the last will cannot be probated so long as the probate of the earlier will is not revoked is unsound in principle and not sustained by authority.
“If the papers offered as the will of James Vance revoked all former wills, then it would seem that their probate as his last will would incidentally have the effect of revoking the former probate, and, if so, the court might so declare whether there was any pleading asking such relief or not. That such is the effect of probating a subsequent will, revoking all others, on the probate of an earlier will is necessarily true and well settled.”

The county court of DeWitt County thus had jurisdiction and power to hear and rule on the matters in issue in cause No. 4804.

Appellant’s application to probate the will of Stephen Robinson dated January 14, 1953, the second will, was not filed until February 19, 1963, some nine and a half years after testator’s death. In this connection, Sec. 73 of the Probate Code, formerly Art. 3326, Rev.Civ.Stats. of Texas, reads:

“No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.”

In the county court judgment in cause No. 4804, the judge expressly found that good excuse for the delay in filing such will for probate existed, and that the applicant was not in default. As will be hereafter discussed, such finding was not subject to collateral attack. Under such circumstances, it is the settled rule in Texas that an instrument shown to qualify may be ordered probated as a muniment of title although the application is filed more than four years after the death of the testator. Pena y Vidaurri’s Estate v. Bruni, Tex. Civ.App., 156 S.W. 315, wr. ref.; Eubanks v. Jackson, Tex.Civ.App., 280 S.W. 243, wr. ref.; Lutz v. Howard, Tex.Civ.App., 181 S. W.2d 869, n. w. h.; Owens v. Felty, Tex. Civ.App., 227 S.W.2d 379, wr. ref.; Winkler v. Craven, Tex.Civ.App., 250 S.W.2d 300, wr. ref.; Fortinberry v. Fortinberry, Tex.Civ.App., 326 S.W.2d 717, wr. ref. n. r. e.

The offer of oral testimony in the trial of a different suit in the district court to prove, contrary to the language of the decree itself, the actual date of the signing of the county court judgment in cause No. 4804 in that court constituted a collateral attack upon such judgment, and the appellant’s objections to such testimony should have been sustained. “It is quite clear that on collateral attack, the error complained of must be one which shows a lack of jurisdiction. No matter how erroneous the judgment may be in other respects, it is not void. Even when the complaint of error is aimed at jurisdiction, the error must be a grave one of substance and not formal. It must go to the power to render judgment, and not a mere matter of procedure, the existence of the power and not the manner of exercising it.” Prof. Gus M. Hodges, Univ. of Tex. Law School, 41 Texas Law Review 499, pp. 518, 519, Collateral Attacks on Judgments, and authorities cited.

In Lewright v. Manning, Tex.Civ.App., 392 S.W.2d 466, on p. 471, this court through Justice Nye had this to say:

“In order for a collateral attack on a pri- or judgment to be entertained in a subsequent suit, the lack of jurisdiction must affirmatively appear either on the face of the judgment or in the record. 34 Tex. Jur.2d § 267, § 268 and § 331 (and cases cited therein). A cardinal principle governing the disposition of collateral attacks on judgments is that extrinsic evidence to the record may not be considered and the recitations in the judgment control. Fitch v. Boyer, 51 Tex. 336; Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952); Lawler v. White, 27 Tex. 250 (1863); see also, Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; 34 Tex.Jur.2d § 332 (and cases cited therein).”

As Prof. Hodges makes clear in his article on Collateral Attacks on Judgments, supra, on pages 527 et seq., evidence extrinsic to the record may not be considered in a collateral attack upon a judgment, and recitations in the judgment control the rest of the record, and when the judgment is regular on its face, and does not affirmatively show lack of jurisdiction of the court to enter same, all presumptions favor the validity of the judgment, and extrinsic evidence is not admissible to show otherwise. See, also, Henn v. City of Amarillo, 157 Tex. 129, 301 S.W.2d 71; Moore v. Wooten, Tex.Com.App., 280 S.W. 742; Burton v. McGuire, Tex.Civ.App., 3 S.W.2d 576, affd. by Sup.Ct., Tex.Com.App., 41 S. W.2d 238; Hedley Independent School District v. Doneghy, Tex.Civ.App., 358 S.W. 2d 724; Cox v. Payne, Tex.Civ.App., 231 S.W.2d 957.

We have shown that the county court of DeWitt County had the power and jurisdiction to entertain the application to probate in cause No. 4804, and the power and jurisdiction to enter its judgment, which on its face established such jurisdiction. Parol evidence to attack the entry of such judgment according to its terms was not properly admitted.

In addition to the above, Rule 329a, Texas Rules of Civil Procedure, as amended in 1957 and 1961, provides:

“Rule 329a. County Court Cases
“If a case or other matter is on trial or in the process of hearing when the term of the county court expires, such trial, hearing or other matter may be proceeded with at the next or any subsequent term of court and no motion or plea shall be considered as waived or overruled, because not acted upon at the term of court at which it was filed, but may be acted upon at any time the judge may fix or at which it may have been postponed or continued by agreement of the parties with leave of the court. This subdivision is not applicable to original or amended motions for new trial which are governed by Rule 329b. Promulgated by order of July 20, 1954, effective Jan. 1, 1955; and as amended by order of March 19, 1957, effective Sept. 1, 1957, and by order of July 26, 1960, effective Jan. 1, 1961.”

See commentary on this rule and 329b, Vol. 3, Vernon’s Texas Rules Annotated, p. 634 et seq.

Article V, Sec. 29, of the Texas Constitution, Vernon’s Ann.St. provides that the probate court shall be open in term time and vacation for disposition of probate business.

If cause No. 4804 was still in the process of hearing because judgment had not been entered when the term of court expired, the county court could proceed with it, and enter judgment at the next or any subsequent term, or at any other time. Hence, it becomes immaterial whether the judge signed the judgment during the term of the hearing or at a later date.

The record shows that counsel for ap-pellee was fully acquainted with the facts concerning cause No. 4804 in March, 1966, prior to the time he contends the judgment was entered. He contends it was signed not over a week prior to the trial of the district court case. He thus was in a position to make a direct attack on the judgment by way of a motion to reform judgment to show date it was signed, and motion for new trial, or appeal.

Appellant’s points one, two, three and four are sustained. It is clear from the record that the district court in entering the judgment for appellee had to ignore the order of the county court in cause No. 4804 in that court. Under the record before us, such order effectively set aside the probate of the first will in county court cause No. 3841, and since no innocent purchasers without notice are involved, vested title to such properties, as between appellant and appellee, in appellant. We therefore feel required, under the undisputed facts, to reverse the judgment of the trial court, and render judgment for appellant quieting title to the lands involved in appellant.

We have considered appellant’s fifth point of error concerning title by virtue of the deed from George A. Robinson, and overrule same. The evidence does not show as a matter of law that the property was the community property of Stephen Robinson and his wife at the time of her death, or that she was living at the time he acquired same, and that George A. Robinson inherited an interest in the property from his mother.

Reversed and rendered.

       The trial of the present ease in district court was on April 4, 1966, and the decree was signed on September 22, 1966.


author: CHADICK, Chief Justice.

text:
    Edward HOPPE et ux., Appellants, v. Pauline L. SAUTER, a Feme Sole, et al., Appellees.
    No. .7805.
    Court of Civil Appeals of Texas. Texarkana.
    May 23, 1967.
    Rehearing Denied June 27, 1967.

      Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.
    Joel W. Cook, Schlanger, Cook & Cohn, Houston, for appellees.
   CHADICK, Chief Justice.

Fee Simple ownership of two tracts of land was at issue in this action. The judgment of the district court awarding title and possession of a .37 acre tract to appellants Edward Hoppe and wife, Martha Hoppe, is affirmed, but the portion of the judgment awarding title and possession of a 30.833 tract to appellees Pauline L. Sau-ter and Helen Kuss Sauter, is reversed and judgment rendered awarding title and possession of such tract to Edward and Martha Hoppe.

“ * * * [T]he plain language of the statute requiring a claim of right — a claim that the land was their own. This is the requirement in which appellants’ proof completely failed. * * * This brings the case before you precisely within the rules enunciated in Orsborn v. Deep Rock Oil Corporation, 153 Tex. 281, 267 S.W.2d 781 and West Production Company v. Kahanek, 132 Tex. 153, 121 S.W.2d 328.” These excerpts from appellees’ brief tersely delineate the area of disagreement between the opposing parties and isolates for consideration the issue that must be resolved in appraising the merit of appellants’ first point of error reading as follows, to-wit:

“The trial court erred in disregarding the verdict of the jury in response to Special Issue No. 7, and in rendering judgment, notwithstanding the verdict, that appellees recover title to and possession of the 30.833 acres tract in controversy, as the submission of such issue, and the verdict of the jury in response thereto is supported by the evidence.”

Special Issue No. 7 and the jury’s answer referred to in the point of error are as follows, to-wit:

“Do you find from a preponderance of the evidence that the Defendants, Edward Hoppe and Martha Hoppe, have had and held peaceable and adverse possession of the 30.833 acres tract shown on Plaintiffs’ Exhibit No. 51, using, cultivating or enjoying the same, for any period of 10 consecutive years before June 28, 1962?
“Answer ‘We do’ or ‘We do not.’
“ANSWER: ‘We do’.”

The appellants propose to vindicate the trial court’s action under the “casual fencing doctrine”. Casual fencing or a casual enclosure and its effect is explained in 2 Tex.Jur.2d Adverse Possession § 114 (1959), “as the making of an enclosure by-joining onto existing fences that were erected for purposes different from and wholly foreign to the purposes for which the enclosure resulting from the casual fencing is to be used. The limitation statutes do not contemplate that a claimant of adverse possession can derive aid, in establishing his claim, from an enclosure casually created by third persons in effecting a different purpose of their own, where such persons were strangers to both the claimant and the true owner of the enclosed land. In such a case, the enclosure, so far as the limitation statutes are concerned, has no more effect than if it had never come into existence.” There is evidence in the record, which, if it stood alone, might require a conclusion that enclosure of the 30.833 acre tract with the adjacent Hoppe 100 acre tract was the result of casual fencing, but there is other probative evidence tending to show that the Hoppes’ possession and use of the tract was an adverse and visible appropriation of the 30.833 acres of a character that supports the jury’s verdict.

The builder of the original fence and the purpose for erecting a fence along the ragged line constituting the east boundary of the 30.833 acre tract was not proven. There is testimony that the entire tract claimed by Mr. and Mrs. Hoppe, including the 30.833 strip with its irregular east boundary, was completely enclosed by a fence when the Hoppes purchased their one hundred acre tract in 1920, and that they repaired and kept up the fences continuously from 1920 to the time this suit was filed. The material in the 30.833 acre east boundary fence, it appears from pictures in evidence, was galvanized barbed wire attached to untreated sapling posts and growing trees. Maintenance of the east boundary fence consisted of replacing wires, posts, and making repairs as needed so that the fence would be capable of turning cattle of ordinary disposition. The east boundary fence of the 30.833 acre tract stood at trial time on the same irregular line it occupied before 1918, according to one witness. Another testified the Hoppes' did not complete the enclosure of both tracts until about 1926.

In addition to the fencing evidence, testimony was tendered that firewood for household use and fence posts were cut from wooded portions of the 30.833 acre tract, and that some of its timber was sold and removed therefrom by the Hoppes. Approximately three acres of a cultivated plot extend into the 30.833 acre tract and was cultivated each year from 1920 till 1961 by Mr. and Mrs. Hoppe and their family; it was planted each year to corn, potatoes, beans, peas, cotton, or a combination of these and other crops during the period. The Hoppes mowed certain cleared portions and continuously pastured cattle on the uncultivated area of the 30.833 acres throughout the forty years of their occupation. A son, Johnny Hoppe, testified that approximately twenty years prior to the present suit he heard his father on two separate occasions tell visitors that he had more land under fence than he had bought, but that he was claiming the excess by limitation. Claimants of title to the land were ejected from it in 1961 by the Hoppes, but no suit was brought to oust them at any time before the present one filed in 1962. Other evidence shows that Edward Hoppe had pointed out to him and knew the boundary of his one hundred acre tract at the time he purchased it, with the necessary result that he also knew the boundaries did not include the 30.833 acre tract.

Adverse possession as defined by Vernon’s Ann.Tex.Rev.Civ.Stat. art. 5515, (1958), “is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” In Word v. Drouthett, 44 Tex. 365 (Tex. 1875) it is said: “His entry upon the land must be with intent to claim it as his own or hold it for himself, or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor.” Houston Oil Company of Texas v. Jones, 109 Tex. 89, 198 S.W. 290 (Tex.1917), says: “The claim of right to which the statute refers simply means that the entry of the limitation claimant must be with the intent to claim the land as his own, to hold it for himself; and such must continue to be the nature of his possession.” In Orsborn, supra, Judge Smedley said: “Claim of right must be manifested by declaration or by open or visible act. If there be no verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed.” There is no proof in the record that the Hoppes verbally or in writing notified the record owners of the 30.833 acre tract that they, the Hoppes, were entering and claiming it as their own, but the law recognizes that action exposes intention as decidedly as words. Mr. and Mrs. Hoppes’ actions proclaimed their intention to claim the land as their own.

The distinction between the facts in this case and Orsborn and West Production, cited and relied on by the appellees, is primarily in proof of a visible appropriation of the land by the adverse claimant. In those cases the adverse use was subjecting the casually fenced land to negligible grazing by cattle having the run of the subject tract and adjacent but much larger tracts owned by the claimant. The Supreme Court in the two cited cases deemed the facts relied upon to show a visible appropriation under a claim of right to be of a character not calculated to alert the record owner to the claimant’s adverse use of the land. In the present case use and possession was open, visible to others, and of a positive character that would not permit an observer to be mistaken about the use of the land and its enclosure within a fence maintained by the Hoppes.

A distinction is also apparent in the nature of the fencing. In the cited cases it was shown that the claimant did not build the fense that resulted in enclosure of the land, but that others for their own purposes and convenience fenced other lands, inci-dently effecting an enclosure of the land in question; although the claimant did keep existing fences in repair. Here the builder of the fence is not known, nor his purpose revealed, but it is shown that the fence' on the tract’s east boundary was incorporated into the Hoppe’s perimeter fence, becoming a section of the fence enclosing the entire tract claimed by them. This segment of the perimeter fence was maintained and in effect, because of the short life of the material used, rebuilt several times over a period of forty years. The enclosure of land by incorporating this segment into the perimeter fence was discernible and purposeful, the existing fence was tied into by the Hoppes’ much as they might have tied into a natural barrier, such as a canyon wall or a river, and became a part of the fence on the outer limits of the land they were cultivating and using. The continued existence of the segment of fence after the Hoppes tied on was not shown to be incidental to any use or purpose except enclosure of the acreage cultivated and used by the Hoppes.

Incorporation of the fence on the east boundary of the 30.833 acre tract into the fence system on the perimeter of their purchased land and the long continued exercise and assertion of rights inherent in and associated with ownership of land, as shown by the evidence of possession and use outlined above, supports the jury’s verdict that Edward and Martha Hoppe had and held peaceable and adverse possession of the 30.833 acre tract under circumstances maturing title thereto in them. The jury verdict on the issue should not have been set aside, as it is supported by probative evidence. Appellants’ first point of error is sustained.

The appellees’ cross-points have been carefully considered and are overruled. The judgment of the trial court awarding the 30.833 acre tract to the appellees is reversed and judgment is rendered as stated in the opening paragraph.


text:
    Charles HOOPER, Appellant, v. Jack HOLT and wife, Annie Holt, Appellees.
    No. 7790.
    Court of Civil Appeals of Texas. Texarkana.
    June 13, 1967.
    Richard Granger, Ramey, Brelsford, Flock & Devereux, Tyler, for appellant.
    Bascom Perkins, Russell & Perkins, Mt. Pleasant, for. appellees.
   CHADICK, Chief Justice.

This is an action for personal injury and property damage occasioned by a negligent automobile collision. The judgment of the trial court awarding the plaintiff damages is reversed and the cause remanded.

Twelfth and Hubbard Streets in Mount Pleasant cross at right angles. Twelfth is 21 feet 3 inches wide, and Hubbard, north of the intersection, is IS feet wide, hut south its width increases to 23 feet. No signs or traffic control devices regulate vehicular movement at the crossing. A house blocks the northward view of Hubbard Street to a motorist on Twelfth approaching Hubbard from the west until the vehicle is within 75 feet of the intersection. The house also blocks the westward view of Twelfth Street from a driver approaching the intersection from the north on Hubbard until the vehicle is within a like distance of the crossing.

At about 9:00 o’clock p. m., October 4, 1964, Mrs. Annie Holt was driving her Valiant automobile eastward on Twelfth at 25 to 30 miles per hour as she entered this intersection. A Chrysler driven by Charles Hooper was moving southward on Hubbard Street toward the intersection at the same time and both, according to an unquestioned jury finding, entered at approximately the same time. Both cars had headlamps lighted. The Valiant struck the Chrysler at its right rear door. No skid-marks were found after the collision, but the point of impact was ascertained to be south and out of the intersection, on Hubbard Street, indicating the Chrysler moved forward and leftward and the Valiant sharply to the right immediately before or as contact occurred.

Mrs. Holt as plaintiff proceeded in the trial on the theory that she entered the intersection in her proper traffic lane at the same time or in advance of Hooper’s entry, but that Hooper negligently failed to yield the right of way and suddenly accelerated in an effort to cross the intersection in front of her. The trial judge granted Mrs. Holt’s motion to disregard the jury’s answers to a defensive “lookout” and a subsidiary “proximate cause” issue found against her. The consequence of these findings, if not set aside, would have been a judgment that her contributory negligence in failing to keep a lookout was a proximate cause of the collision and barred recovery. Judgment awarding her a recovery of damages was rendered, notwithstanding the verdict, in conformity with issues of primary negligence and proximate cause found against Hooper.

Disregard of the jury’s finding on the mentioned “lookout” and “proximate cause” issues precipitated this appeal. The trial judge is authorized by Texas Rules of Civil Procedure, rule 301 (1956) to disregard a special issue jury finding that has no support in the evidence. One question to be determined is whether or not there is in the record probative evidence supporting the jury’s verdict on the two issues when the proof is considered in its most favorable aspect.

Twelfth .Street intersects Washington Street a block or more east of the Twelfth and Hubbard Street intersection. As Mrs. Holt approached the Hubbard Street crossing, she testified she was “looking ahead, because I knew I had to stop at Washington there, and then turn left on Washington.” Further, referring to the Twelfth and Hubbard Street crossing, she said: “I got into the intersection and all of a sudden I saw the lights to the left * * * they appeared to be almost directly to my left, because I saw them all of a sudden. * * * I don’t remember the car in front of me at all. All I remember was the lights to my left.” Mrs. Holt’s testimony that she was looking ahead, that she did not see Hooper’s carlights until an instant before the collision, though it seems obvious that Hooper’s car and its headlights would have been visible to her from the time she was within seventy-five feet of the intersection, (the light beams and reflections and flashes from them probably would have been visible when she was much further away), tends to support the jury’s finding that she did not maintain the lookout required by ordinary care prior to and as she entered the intersection. The jury probably reasoned that she focused her interest on the Washington Street intersection and looked beyond and paid scant attention to the little used Hubbard Street crossing near at hand.

Initially this court was of the opinion that there were other factors to be considered that resolve the question in favor of the trial court’s judgment. The previous opinion said, “The Holt Valiant and Hooper Chrysler entered the intersection at approximately the same time, Hooper’s vehicle to the left of Mrs. Holt’s. Hooper was required by law, Vernon’s Ann.Tex.Rev.Civ. Stat. art. 6701b (I960), to yield the right of way to Mrs. Holt. At that juncture, entry of both vehicles as mentioned, Mrs. Holt was not required to anticipate that Hooper would negligently or unlawfully fail to yield her the right of way. Intges v. Dunn, 311 S.W.2d 877 (Tex.Civ.App. Houston 1958, writ ref’d n.r.e.); Texas & N.O.R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112 (Tex. Comm’n App. op. adopt. 1942; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063 (Tex.Comm’n App. op. adopt. 1939). Although Mrs. Holt had the right of way, yet ordinary care required her to keep a proper lookout as she proceeded through the intersection. De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (Tex. 1955). Having the right of way does not solve Mrs. Holt’s negligence problem, but it does limit the reach of her conduct. Her duty to maintain a proper lookout was the duty of a person with the right of way under no obligation to anticipate Hooper’s negligent or unlawful conduct; and her conduct, to be negligent, must have violated her duty.” The remainder of the opinion was devoted to a demonstration that there was no evidence of probative value to support the jury finding that Mrs. Holt failed to keep a proper lookout.

In reaching the conclusion originally expressed, consideration and effect was given to the jury’s finding that the Holt and Hooper vehicles entered the intersection at approximately the same tjme, the equivalent of a verdict that Mrs. Holt had the right of way through the intersection. However, appellant Hooper has steadfastly insisted that the jury’s answer to the right of way issue may not be considered in determining whether or not the evidence supports the lookout issue. Hooper supports his argument by citing C. & R. Transport, Inc., v. Campbell, 406 S.W.2d 191 (Texas 1966), where evidence to support a lookout issue was under consideration, and the statement therein, to-wit:

“ * * * Moreover, the court may not look to answers to other issues for the purpose of determining whether an answer to a particular issue has support in the evidence. T. & N.O.R. Co. v. Owens, Tex.Civ.App., 54 S.W.2d 848 (1932), writ refused; Davis v. Estes, Tex.Com.App., 44 S.W.2d 952 (1932); Jones v. Gibson, Tex.Civ.App., 18 S.W.2d 744 (1929), no writ history.”

The excerpt appears to be dictum, as the Supreme Court did not rely upon the rule pronounced in reaching its decision. This court originally concluded that the jury’s verdict on the right of way issue set the stage and gave dimensions to the correlative rights, duties and liabilities of the parties, and that the trial judge in framing his judgment might give effect to the right of way verdict and disregard the verdict on the lookout issue for reasons therein explained.

. On more mature consideration, however, the conclusion is reached that the Supreme Court majority expressed an opinion (the quotation above) on a question directly involved in the case before it and deliberately declared the law on the proposition presented to it. Although the pronouncement may not have been necessary to its decision, it does constitute judicial dictum. Such declaration by the Supreme Court, if not binding, is in any event entitled to great weight in this court ánd should not be disregarded unless there is extraordinary reason for doing so. Such an extraordinary reason is not perceptible. The lookout issue found against Mrs. Holt is not immaterial and affects the legal significance of the jury’s verdict on all the issues submitted; and when the proof is considered without regard to the right of way issue the conclusion is inescapable that some evidence supports the verdict. It can not be disregarded. C. & R. Transport, Inc., supra; Rule 301 Tex.R.Civ.P.; 4 McDonald Texas Civil Practice, § 17.30-32.

The appellee briefs a cross-point that the jury’s verdict on Mrs. Holt’s lookout is against the overwhelming weight and preponderance of the evidence. A consideration of the entire factual record forces this court to sustain the point. Further, the ends of justice will be served by a remand of the case for a new trial. On such eventuality, if the facts are developed in substantial harmony with the present record, by appropriate instructions the jury should be advised that if Mrs. Holt is found to have the right of way she is under no duty to anticipate that the Hooper vehicle will negligently or unlawfully fail to yield it to her. The prior opinion is withdrawn and this filed in lieu of it. The judgment of the trial court is reversed and the case remanded.


author: GRISSOM, Chief Justice.

text:
    Hal K. SIMMONS et al., Appellants, v. Mary C. JONES et al., Appellees.
    No. 4155.
    Court of Civil Appeals of Texas. Eastland.
    April 21, 1967.
    Buck & Buck, J. Frank Thompson, Ft. Worth, for appellants.
    Thomas J. Newton, Mineral Wells, for appellees.
   GRISSOM, Chief Justice.

Mary C. and Charles R. Jones, individually and as next friends of Karla M. and Mike Jones, sued Hal K. Simmons and his minor son, Chris Edward Simmons, for damages for personal injuries and property damages caused by an automobile collision. In a trial to the court, judgment was rendered for the plaintiffs against the defendants, jointly and severally, for $550.00. Hal K. Simmons and Chris Edward Simmons have appealed.

Appellants’ first point is that the court erred in rendering judgment against Hal K. Simmons because his negligence was not even alleged. Appellees concede that they are not entitled to judgment against Hal K. Simmons and the judgment as to him is reversed and judgment is rendered that said plaintiffs take nothing.

All other points of error are based upon appellants’ contention that the court erred in rendering judgment against Chris Edward Simmons because its finding that Mary C. Jones was not guilty of contributory negligence was against the great weight and preponderance of the evidence; that the court erred in awarding damages for injuries suffered by Mary C., Karla M. and Mike Jones because there was no evidence to support the findings that are the basis for the award and that there was no evidence to support the award of $50.00 damage to appellees’ automobile.

Appellants have not filed a Statement of Facts and we are unable to pass upon the questions of whether the findings thaat are the basis for said judgment have no evidence to support them or they are so against the great weight and preponderance of the evidence as to be manifestly unjust. The judgment against Chris Edward Simmons is affirmed. The judgment is reversed and rendered in part and in part affirmed.


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Calvin WISHOM, Appellant.
    No. 52277.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Brunson Hollingsworth, Special Asst. Atty. Gen., Hillsboro, for respondent.
    G. Carroll Stribling, St. Louis, for appellant.
   FINCH, Presiding Judge.

Defendant was charged with stealing a motor vehicle by deceit in violation of §§ 560.156 and 560.161 (all statutory references are to RSMo 1959, V.A.M.S.) and with three prior felony convictions. Following a jury verdict of guilty and the necessary findings of prior convictions by the trial judge, defendant was sentenced to imprisonment for eight years, and he appeals.

Defendant was represented in the trial court and on appeal by appointed counsel, who handled the case ably and diligently.

The State’s evidence would support the following statement of facts: On or about July 13, 1965, defendant had pending against him a charge of stealing an automobile and he had a conversation with James A. Bell, an attorney in St. Louis, about representing him in that case. Bell agreed to represent him for a fee of $500.00. Defendant had no money then, but Bell had a 1963 Oldsmobile two-door sedan which was in need of certain repairs. The left rear panel and door were damaged and there was a long scratch down the left side. Defendant looked over the car and agreed to repair it and then pay the difference be-.tW£S.£i the.cost of repair and the fee of $500.00. Defendant said he could take the car to Garner’s filling station where he could repair it, and he knew where he could get a new panel so that he could put the car in tip-top shape. Bell entered his appearance as attorney for defendant, and on August 6, 1965, the car actually was turned over to defendant. Bell was going to Chicago for a few days and defendant represented that the repairs would be made and the car returned to Bell on August 10, when he returned. Bell testified he believed that defendant intended to repair the car and return it to him by August 10.

Bell returned from Chicago, but defendant did not deliver his car. When Bell did not hear from defendant for three or four days, he went by Garner’s filling station but found that defendant did not work there. He finally located defendant, who then said that the car was in a shop at Hodiamont and Hamilton. He said he had not completed the repairs and needed a few more days. Bell went by Hodiamont and Hamilton but the car was not there. He then contacted defendant and took him by this location. The car was not there, and defendant told Bell that the man working on the car must have it out testing it. At that point, Bell observed that the license plate off of his Oldsmobile was on the defendant’s car. Defendant said he had been using Bell’s license plate, but Bell took it off defendant’s car and kept it.

Defendant stated that he would have the car back the next day, but he did not. About two days later he called and said that he had located the car, that it had been repaired but it would cost $43.00 for parts. He would return the car as soon as he obtained the parts. After that Bell heard nothing for a week. Defendant then called and told Bell to come out to a service station on Ashland Avenue and bring $43.00 for the parts. Bell went out but neither defendant nor the car was there. The next day defendant called and said that the car was at Wentzville. Bell wanted to go out there but defendant said that only he could get it. He said he would bring the car in, but he did not do so.

On September 26, after defendant had called and said he would deliver the car that morning but failed to do so, Bell withdrew as attorney for defendant in the case then pending. At that time defendant displayed to Bell the car keys and bills for alleged work on the Oldsmobile, but the bills were dated in May and antedated the date when the Oldsmobile had been turned over to the defendant.

In October, Bell filed a complaint against defendant for stealing his automobile. On the day defendant was arrested, Bell saw him at the jail. Defendant told Bell that he would have to give him $925.00 before he would produce the car. He said he had put work and labor in the car, but he refused to show the car to Bell. This was the first time defendant had told Bell that he owed him money on the automobile.

Three weeks before trial herein, defendant came by Bell’s home one night and said that if he would drive that night to some place near Kansas City, Bell’s car was there, but Bell declined to do so.

While defendant was in jail, he told the police officer that he and a deputy sheriff had put Bell’s car in a garage but he declined to say where it was, and he stated that he would die before he would give the car up.

The defendant took the stand and testified. We do not recite all of his testimony because, in testing the sufficiency of the evidence to determine whether defendant’s motion for a judgment of acquittal should have been sustained, we consider only the evidence favorable to the verdict. “ * * * all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.” State v. Taylor, Mo., 324 S.W.2d 643, 646, 76 A.L.R.2d 671.

A part of defendant’s testimony was that he first took Bell’s car to Garner’s and ordered certain parts, but he didn’t have the equipment to install them and hence he took the car to Mr. Jerry Ruffin at United Motor Exchange at 3321 North Union to do the work. He testified that Ruffin repaired the car but would not release it because not paid therefor. He also testified that he then drove the car to Red Bud, Missouri, where he said Ruffin had another shop, to keep Bell from coming to get the car without paying for the work. Jerry Ruffin, in rebuttal, testified that Bell’s Oldsmobile had never been in his place for repairs and that he had no shop at Red Bud, Missouri, or any other place outside the City of St. Louis.

Defendant also produced a work order (in the amount of $907.16) which he said he received from Jerry Ruffin for repair of Bell’s Oldsmobile. This was introduced as Defendant’s Exhibit B. In rebuttal, Jerry Ruffin testified that he had not made out and delivered to defendant the work order marked Defendant’s Exhibit B.

Defendant also identified but did not introduce another paper which was marked Defendant’s Exhibit A. Defendant testified that this was a bill from Bob Ruffin, a brother of Jerry, located at 4901 Natural Bridge, which was a bill for parts and labor on the Oldsmobile in the total sum of $979.80. In rebuttal, Bob Ruffin testified that he had not worked on the Bell Oldsmobile and that the bill defendant presented from his place of business as being for work on the Bell Oldsmobile actually was a bill he had given to defendant representing a sale to defendant of a 1959 Chevrolet for $120.00, and that the entries thereon relative to a 1963 Oldsmobile had been written by someone else. This paper was marked as State’s Exhibit 1 and introduced in evidence.

The original information was filed on October 30, 1965, and was superseded by an amended information filed on November 12, 1965. The case was tried on March 8 and 9, 1966. At the conclusion of all the evidence, the State, over objection of the defendant, was permitted to file a second amended information. The first portion of each information simply recited the prior convictions and need not be set out herein in connection with the contentions made by the defendant. The pertinent portions of the two informations are as follows:

Amended Information
* * * on August 6, 1965, at the City of St. Louis aforesaid, did unlawfully and feloniously steal, take and carry away by means of certain false pretenses and deceit, to-wit: By pretending to make automobile repairs, which pretenses were made to JAMES BELL, and were false and untrue and were known to be false and untrue by the said CALVIN WISHOM and JAMES BELL, relying on said false statements and pretenses and deceit being deceived thereby was induced to part and did part with goods, wares, chattels, and personal property of JAMES BELL, to-wit: a Motor Vehicle, an automobile Oldsmobile make, 1963 model, with the felonious intent then and there to steal and permanently deprive the owner of the use thereof and convert the same to his own use by means of deceit; * *
Second Amended Information
* * * on or about the 6th day of August, 1965, at the City of St. Louis, Missouri, defendant and one James A. Bell, Attorney at law, did enter into an agreement, the gist of which agreement was that Mr. Bell would represent defendant in a criminal charge, and that, in lieu of paying Mr. Bell a fee, defendant would repair the 1963 Oldsmobile 98 two door automobile mentioned in evidence and would return said automobile to James A. Bell on or before the 10th day of August, 1965, and that although demand was made by said James A. Bell for the return of said automobile on numerous occasions since the 10th day of August, 1965, defendant failed, neglected and refused, and continues to fail, neglect and refuse, to return said automobile to James A. Bell, and in so doing, defendant did conceal and retain possession of said automobile by exercising domain over the automobile in a manner inconsistent with the rights of James A. Bell, the owner thereof, with the felonious intent thus and thereby to steal and permanently deprive the owner of the use of said automobile by means of deceit; * *

The primary contention by defendant on appeal is that the trial court erred in permitting the State, at the conclusion of all the testimony, to file its second amended information “because the second amended information set forth a new and different offense from that charged in the amended information upon which the case was tried and substantial rights of defendant were thereby prejudiced in violation of Rule 24.02.” Accordingly, we first must determine whether a different offense was charged in the second amended information.

In 1955 the legislature repealed 59 sections of the statutes which dealt with offenses against property and enacted new sections which consolidated larceny, embezzlement, obtaining money or property by false pretenses, and other similar offenses “into one crime, denominated ‘stealing.’ ” State v. Zammar, Mo., 305 S.W.2d 441, 443. Sections 560.156 and 560.161 are the sections relating to this new single offense. This court observed that this and similar statutes in other states had been adopted to simplify prosecutions of persons for wrongful and criminal acquisition of property of others.

As noted in the Zammar case, a single offense of stealing is created by the statute. It can be committed ⅛ Various ways, but there is only a single offense. It covers stealing whether by taking property without one’s consent or by means of deceit. It includes, by definition in the statute, “to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.” § 560.-156, subsec. 1 (2). Both informations charged the same offense of stealing Bell’s automobile by deceit. The second amended information merely recited more details of the conduct involved in the deceit concerning pretended repairs to Bell’s automobile. It did not charge a different offense. .

Defendant cites and relies on State v. Kesterson, Mo., 403 S.W.2d 606, as authority for his contention that a different offense was charged in the second amended information. The Kesterson case holds that the language of the stealing statute alone in an information is insufficient and that the information must include enough in the way of additional allegations to notify defendant “as to the charge against which he must defend himself and likewise be sufficient to bar further prosecution for the same offense.” State v. Kesterson, supra, l.c. 611. It is not authority for the proposition that if the court permits amendment of the allegations of the details of how the particular stealing was accomplished, it states a different offense.

We hold that the second amended information did not state a new or different offense and rule that contention against defendant.

This leaves the question of whether, under Supreme Court Rule 24.02, substantial rights of the defendant were prejudiced by the amendment. Defendant asserts prejudice on the basis that under the first amended information he could not have been convicted unless the State proved that his representations that he would repair the car were completely false at the time he made them, whereas, under the second amended information, it was necessary only for the State to prove that defendant failed to perform his agreement to repair and return the car, and instead concealed the car and kept possession with intent to steal it. We do not so narrowly construe the language of the first amended information. It does not allege only that the defendant represented or pretended that he intended to make repairs, which pretenses were false when made. Instead, it alleges that defendant stole the automobile by pretending to make automobile repairs, and that James Bell relied on and was deceived by said false statements, pretenses and deceit. Those allegations, in our opinion, are broad enough to permit the proof which the State in fact offered and on which defendant was convicted. We also observe that defendant made no objection to any of the State’s evidence that it was not relevant to the offense charged, or that it went beyond the recitals of the information. There is nothing to indicate defendant was misled by the first amended information. It is true that the first amended information did not allege as much detail as the second amended information. The latter gives information which the State might have given if a motion for a bill of particulars had been filed and the trial court had sustained the motion, but we do not agree that the State, under the first amended information, had to stand or fall on proof that the defendant had no intention of making the repairs at the moment he obtained possession of the automobile. Both the first amended and second amended informations charged the defendant with stealing a particular 1963 Oldsmobile sedan from James A. Bell by deceit by pretending to make repairs thereon, with the intent to steal and permanently deprive Bell of the ownership of said automobile. Proof or demands for return of the car without success and of false representations by defendant as to repairs to the car and with reference to its whereabouts was proper under either information.

When the State sought to file the second amended information, the defendant did not claim surprise and did not ask for time or for a continuance. Rather, his objection was on the basis that this constituted a different charge, that it changed the proof which the State was required to make to establish the charge, and that it deprived the defendant of an opportunity to offer a converse instruction which told the jury that if they found that the defendant intended in good faith to make repairs or cause repairs to be made at the time the car was delivered, they should find him not guilty. Those were the only objections to the amendment.

In the case of State v. Tunnell, Mo., 296 S.W. 423, the defendant was prosecuted for shooting into the dwelling house of another. During the trial of the case, the court permitted the State to amend the information to substitute the words “revolver or pistol” for the word “rifle.” The defendant claimed that this amendment prejudiced his substantial rights. In overruling that contention, the court said, l.c. 425: “The statute in no wise limits the shooting into the dwelling house to a particular kind of firearm, but interdicts the shooting by means of any weapon or instrument that projects a missile capable of injury or damage. The act prohibited by the statute is the shooting into the dwelling house by means of a missile projected from some kind of weapon, not the shooting from a particular kind of weapon. It was then immaterial whether the dwelling house was shot into from a pistol or revolver, or from a rifle, so long as the shots came from one or the other. We rule that the substitution of the words was a matter of form and variance without prejudice to the substantial rights of defendant on the merits, and was amendable under section 3853, Revised Statutes 1919, on the trial at the discretion of the trial court. The record fails to show that defendant sought any delay, or offered or filed an affidavit for that purpose as the statute of jeofails requires. There is no showing that the amendments allowed constituted error. State v. Walton, 255 Mo. 232,"'164 S.W. 211.” That language and reasoning is appropriate here.

We hold that substantial rights of the defendant were not prejudiced by the amendment of the information.

Defendant next contends that the trial court erred in overruling the defendant’s motion for judgment of acquittal. We hold that the evidence was entirely sufficient to make a submissible case for the jury and to sustain a verdict of guilty. Taking the State’s evidence as true, it is clear that the defendant received the car on the basis of representations that he would repair the automobile and return it by August 10. The car was not returned then and, although Bell repeatedly contacted the defendant thereafter in an effort to get his car returned, and the defendant made numerous representations that the car was in various places and was being or had been repaired and would be returned, the car in fact never was returned to Bell and he never saw it after it was turned over to the defendant on August 6. Defendant took the license plate off of Bell’s car and put it on his own. The representation by defendant that the car had been repaired by Jerry Ruffin and was being held by him at Red Bud, Missouri, pending payment for the repairs, was false. Contrary to defendant’s testimony, the work order and statement for the work allegedly done on the car, presented by defendant to Bell, were not made out by either Jerry Ruffin or Bob Ruffin. The evidence was sufficient to sustain the verdict of stealing by deceit and the court did not err in failing to sustain defendant’s motion for judgment of acquittal.

Defendant complains of the giving of Instruction No. 1, the State’s verdict-directing instruction, and of the failure of the court to give his converse Instruction No. A. In both instances, however, the complaint is on the basis of alleged error in permitting the filing of the second amended information. For example, defendant’s brief asserts that “The trial court erred in giving to the jury Instruction No. 1, because it hypothesized facts necessary to establish the offense charged in the second amended information, which was improperly filed and did not require a finding of facts required to bring in a verdict of guilty under the amended information.” We have already disposed of the complaint regarding the filing of the second amended information and hence there is no merit to defendant’s complaint about the instructions. Furthermore, Instruction No. 1 fairly submitted to the jury the issue of defendant’s guilt of stealing Bell’s automobile by deceit. Instruction No. A would have told the jury that it must acquit defendant if they found that he intended in good faith to- make or cause the repairs to be made at the time the Oldsmobile was delivered to him by Bell. Defendant was not entitled to that instruction and its refusal was not error.

Finally, defendant complains that the sentence of eight years’ imprisonment is excessive and extreme and amounts to the infliction of cruel and unusual punishment in violation of § 21 of Article I of the Constitution of Missouri, 1945. The maximum penalty under § 560.161 for stealing is ten years. Defendant argues that since defendant in the case of State v. Williams, Mo., 343 S.W.2d 58, received only a sentence of five years for stealing when convicted under the Habitual Criminal Act, any sentence of more than five years is excessive and violative of the constitutional prohibition against cruel and unusual punishment. This assignment is overruled. The establishment of limits of punishment is a legislative function. State v. Edmonson, Mo., 309 S.W.2d 616 [11]. The sentence was within limits which may be imposed, even on a first offender. § 560.161. Defendant was found to have three prior felony convictions and was sentenced pursuant to the Habitual Criminal Act. § 556.280. The trial court could have imposed a maximum of ten years’ imprisonment. The sentence was not excessive. State v. Brewer, Mo., 338 S.W.2d 863 [12]; State v. Stumph, Mo., 349 S.W.2d 954 [4]. The fact that the trial court in State v. Williams, under the facts in that case, decided to impose a sentence of five years’ imprisonment does not mean that all other trial judges in stealing cases, when imposing sentence under the Habitual Criminal Act, are limited to that length of sentence.

An examination of the record as required by S.Ct. Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All of the Judges concur.

      I. Supreme Court Rule 24.02, V.A.M.R., is as follows: “The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”