author: EAGER, Chief Justice.

text:
    Gerald K. FIELDS, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. 50800.
    Supreme Court of Missouri, In Banc.
    Nov. 9, 1964.
    Robert L. Robertson, Kansas City, Marvin Pollard, Ludlow, Walter A. Raymond, and Raymond, West & Cochrane, Kansas City, for respondent.
    Herbert C. Hoffman, City Counselor, Robert A. Meyers, Associate City Counselor, Timothy D. O’Leary, Assistant City Counselor, for appellant.
   EAGER, Chief Justice.

This is a suit for personal injuries which, after a rather extended career, has been transferred here from the Kansas City Court of Appeals by our order. The opinion of the Court of Appeals appears at 377 S.W.2d 528. A prior opinion appears at 358 S.W.2d 96. In the last opinion a plaintiff’s verdict for $14,000 was affirmed. One of the questions considered was the correctness of a ruling refusing an instruction offered by defendant on contributory negligence. The present opinion will deal principally with that question.

We shall only need to state the facts very briefly. They appear rather fully in the last opinion of the Court of Appeals and also in the prior opinion. The casualty-occurred on September 5, 1956, in Kansas City. Plaintiff fell into an open sewer manhole in an alley at night. He was a construction worker and, after finishing his work for the day, he called a friend or relative at Ludlow, Missouri, agreeing to meet him later that night and bring him to Kansas City. First, however, he proceeded to the “111 Club” on the south side of East 13th Street, adjoining the alley between Walnut and Grand. He drove down the alley and parked near the west end of a parking lot on the east side of the alley, about midway of the block. He then walked back north through the alley to 13th Street, about 8:15, when it was still somewhat light. In doing so, he met the operator of the tavern and another man on the sidewalk, and one of them said that some “gas” had been escaping and an investigation was being made. He saw nothing unusual in the alley, but when he first saw these men they were standing somewhere near the sewer manhole and one of them had some kind of an “instrument.” Plaintiff went on into the tavern and, according to his testimony, ate two sandwiches and had two drinks, leaving at some time after 10:00 o’clock.

There is much controversy concerning the extent of light in the alley at the time plaintiff left the tavern. There were regular street lights on 13th Street, east and west of the alley; these shone into the mouth of the alley for perhaps 10-12 feet. The sewer manhole was approximately 24 feet south of the sidewalk. In the region around the sewer manhole there were shadows caused by the buildings fronting on 13th Street. A little further south the alley was relatively light because of open parking lots on each side. As to the light at the point now in question, there was, as stated, considerable controversy. Plaintiff testified: that you “couldnt see no distance ahead of you”; that the dark manhole cover and the surface of the alley more or less blended; that he could not see the open hole before he fell into it, but that you could see the surface of the alley; also, that he saw no liquid on the surface of the alley, (although a photograph shows that some water had been spilled) and that he saw no object there, The defendant’s evidence (which we consider on the propriety of instructions) indicated that light from the street shone on a building and reflected down into the alley and that, while there were shadows, one could easily see the manhole from a distance of 8 or 9 feet; two witnesses testified that you could see the manhole from the sidewalk at night; one testified that in walking through the alley you could see small objects on the ground. There was also some evidence that pedestrians rather frequently used the alley as a shortcut during both day and night,

There had been complaints about gasoline escaping into the sewer in this neighborhood. An investigation had been made by the City while plaintiff was in the tavern, and a flusher truck had been ordered to flush the sewer at this particular manhole. The manhole cover had been removed and one truckload of water had been run into the sewer. The driver then left for another load of water, leaving the manhole open with no light, barricade or other warning. During that interval plaintiff emerged from the tavern, took the route down the alley to his car and stepped into the manhole. It will not be necessary for us to relate either the events immediately following, his injuries, or the medical testimony.

Plaintiff’s case was submitted upon the alleged negligence of the City in leaving the manhole in a public alley open, unguarded and unprotected. The Court gave one instruction for defendant on contributory negligence. This, essentially, told the jury that if plaintiff saw or could have seen the open manhole in time to have avoided it in the exercise of ordinary care and failed to do so, and was thereby negligent, etc., he could not recover. This instruction was supported by defendant’s evidence as to the extent of light, if not by plaintiff’s. The Court refused the defendant’s Instruction No. 12, also on the theory of contributory negligence, which is as follows:

“The Court instructs the jury that if you find and believe from the evidence that on September S, 1956, between 10 P.M. and 11 P.M. the plaintiff left the 111 Club and walked down the alley in question, and if you further find that at said time there were no street lights or other artificial sources of light which illuminated said alley at the location of the manhole in question, if you so find, and that said alley at said location was so dark that plaintiff could not distinguish the surface of the alley, if you so find, and plaintiff fell into an open manhole therein, and if you further find that a reasonably safe and lighted sidewalk was available on 13th Street and on Grand Avenue for plaintiff’s use but he chose to walk down the alley, and if you further find that plaintiff in choosing to walk in the alley under the conditions submitted above was negligent, and if you find such negligence directly caused or contributed to cause plaintiff’s injuries, then your verdict must be for the defendant.”

The theory of defendant was and is that it was entitled to such an instruction as an alternative submission, based upon plaintiff’s own testimony of the prevailing darkness. No point is made by plaintiff controverting the right to an alternative theory, as such, but plaintiff insists that this instruction would have created a duplication of instructions on contributory negligence, that the evidence did not support the instruction, and that it was inherently erroneous. There was no duplication; the two instructions were on wholly different theories, submitted in the alternative. See by way of analogy Siegel v. Peters, Mo., 347 S.W.2d 881. We ordered the case transferred because of the reasons given and the language used by the Court of Appeals in upholding the refusal of the instruction. The Court said that in submitting the alternative issue, the instruction “ * * * should have required a finding to the effect that the way along the dark alley was so glaringly dangerous that an ordinarily careful person in the exercise of ordinary care would not have attempted to enter it.” As indicated later, such a holding is substantially equivalent to one finding that the plaintiff was negligent as a matter of law.

In most of the cited cases there was some impediment to travel or some defect which was known, or which should have been known, to plaintiff; in some, these were aggravated by darkness. Typical of the cited cases are those involving defective sidewalks, or extensive accumulations of ice upon sidewalks. The peculiarity of the present case is that the submission attempted in Instruction 12 was based solely on darkness. Certainly, if such a submission is to be made, it must be upon the theory that the darkness, under all existing facts and circumstances, was such an indication of danger that an ordinarily careful and prudent person would not have entered the alley with another accessible route available.

We have had some question about the submissibility of the issue of “darkness” here. The evidence varied widely on the extent of the darkness and upon the visibility. Even plaintiff’s testimony did not show conclusively that the alley was wholly dark at that point. However, we have concluded that plaintiff’s testimony fairly indicated that one could not see the surface effectively, and that such a submission was permissible. Defendant relies largely upon the case of Sanders v. Carl Berry Oil Company, Mo., 359 S.W.2d 769, as supporting its instruction. There a cab driver, walking through a dark alley as a shortcut, slipped on fuel oil (complicated also by the presence of ice and slush) which had been spilled in the alley shortly before. There are various differences between that case and ours. The principal instruction considered there hypothesized in the conjunctive that plaintiff saw or should have seen the oil and ice, and that there was no light in the alley and that plaintiff was negligent in entering it without a flashlight or other artificial source of light. The submission was held to be contradictory in and of itself, and properly so. The proffered submission here was in the disjunctive, and indeed in a separate instruction permitting alternative findings. While the Court in Berry held that there was a submissible issue of contributory negligence upon the theory that plaintiff entered the alley in total darkness, it did not hold him to be negligent for that reason as a matter of law. In other words, the Court held that the jury could find that one entering a totally dark alley at 3:00 o’clock in the morning, when a safe and lighted sidewalk was available, was negligent. We affirm that ruling now and, while the evidence of darkness here is not too convincing, we would have permitted the submission under a proper instruction. Two elements which have caused us some doubt concerning the submissibility are: the fact that plaintiff had walked through this alley about two hours earlier while it was light and had seen no indication of danger; and secondly, the common-sense conclusion that one might ordinarily expect an open hole in a public street or alley to be lighted or barricaded during darkness. At best, this was a rather thin case for the submission of a “darkness only” theory.

We have already indicated that the requirement stated for the creation of a jury issue, to-wit: that the alley be so “glaringly dangerous that an ordinarily careful and prudent person * * * ” would not have entered it, is too restrictive. In the cases of Seniff v. City of Hannibal, Mo.App., 245 S.W. 197, Fischer v. City of St. Louis, 189 Mo. 567, 88 S.W. 82, 107 Am.St.Rep. 380, Jones v. Kansas City, Mo., 243 S.W.2d 318, State ex rel. City of Cameron v. Trimble, 321 Mo. 221, 9 S.W.2d 876 (with numerous cases there cited), and Clark v. Missouri Natural Gas Co., Mo., 251 S.W.2d 27, it is indicated that the standard by which a plaintiff is to be held guilty of contributory negligence as a matter of law in cases of this type is that the evidence shows, with no reasonable inference to the contrary, that he traveled over a way which was so obviously or imminently dangerous that “no person of ordinary care and prudence would use it,” (Seniff, supra) or attempt to use it. This is essentially the test laid down by the Court of Appeals here for the submission of the issue to the jury. The word “glaringly,” if appropriate at all to a description of darkness, adds an extremely strict requirement. It has been used in certain other cases; it may be appropriate to a holding defining negligence as a matter of law (as indeed it would seem to have been used in Morgan v. Kirksville, Mo.App., 179 S.W. 755, relied on by the Court of Appeals), but it is not appropriate in an instruction merely submitting a fact issue of alleged negligence in electing to use a street, sidewalk or alley under circumstances such as ours.

The cases principally relied on by the Court of Appeals were Stephens v. City of Eldorado Springs, Mo.App., 190 S.W. 1004, and Morgan v. Kirksville, Mo.App., 179 S.W. 755. In Stephens, the refused instruction is not set out; it would seem from the Court’s description that it was in effect one declaring contributory negligence as a matter of law; it was also held that the instruction was not justified by the evidence. Nevertheless, the rule stated in the opinion in discussing the instruction was substantially one defining negligence as a matter of law, and to that extent it should not be followed. In Morgan, supra, the instruction in question was erroneous because it ignored the manner in which plaintiff had actually traveled over the defective place; that, of course, would be an independent ground of negligence, and the discussion was largely on that point. The approval by the Court of the phrase “glaringly dangerous” seems to have been confined to those situations where one should be held negligent as a matter of law in using the sidewalk at all.

If defendant wished here to submit the fact issue of contributory negligence in choosing to go through the alley in preference to the lighted sidewalks, it was only necessary to hypothesize that if the alley (at that location) was so dark that, under all the existing facts and circumstances which the evidence showed were known or should have been known to plaintiff, it appeared so dangerous that a person of ordinary care and prudence would not have attempted to use the alley when a safe and lighted way was available, and that plaintiff was negligent in so using it, then (with the other requisites of such an instruction) he could not recover. We must remember here that the only possible danger which plaintiff could see, or of which he supposedly knew, was the darkness.

We conclude, however, that the instruction as offered was specifically defective and that it was properly refused. It does not hypothesize that a person of ordinary care and prudence would not have used the alley under the circumstances. This is an essential of such an instruction. Capriglione v. Southwestern Bell Telephone Co., Mo., 376 S.W.2d 205; Johnson v. Presley, Mo., 320 S.W.2d S18. The mere requirement of a finding that he was “negligent” does not sufficiently meet this requirement here. While we do not hold that this instruction assumes plaintiff’s knowledge of the open manhole (as counsel argue), we do feel that it depreciates his lack of knowledge, in that it makes no reference whatever to the matter; and this is especially significant because he had walked through the alley and practically over the manhole about two hours previously. By reason of its omissions, the instruction would have constituted a misdirection and it was properly, refused.

The other contentions made in the Court of Appeals were not briefed or argued here. However, since we take the case anew, we rule them. On the claim of alleged ex-cessiveness of the verdict, we concur in the ruling of the Court of Appeals, which denied the contention after a full review of the evidence.

The remaining point is that Instruction No. 4 on damages was erroneous. The Court of Appeals held that the point had not been preserved in the motion for new trial and that it found no “plain error.” We find that defendant rather specifically alleged error in an instruction described as “No. 5,” which allegations, fairly considered, could only have been meant to apply to Instruction No. 4. There were other specifications directed to Instruction No. 5, which clearly applied to it. We are unwilling to rule the point on this pure inadvertence. However, we have considered the arguments and contentions raised as to Instruction No. 4 and we find no prejudicial error in it; nor do we believe the jury was misled. There was some evidence to support the various elements submitted, and the evaluation of each part of that evidence was for the jury; one of these elements was the extent and duration of the aggravation of plaintiff’s back condition. Since defendant has not renewed its contentions on these two points in its supplemental brief filed here, we feel that no extended discussion is necessary.

The judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Walter Madison QUALLS, Appellant.
    No. 50536.
    Supreme Court of Missouri, Division No. 2.
    Nov. 9, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, for respondent.
    Ben J. Weinberger, St. Louis, for appellant.
   STOCKARD, Commissioner.

Walter Madison Qualls was found guilty by a jury of the felonies of burglary in the second degree and stealing, and his punishment was assessed by the jury at confinement in the penitentiary for a term of three years for burglary and for a term of two years for stealing. He has appealed from the judgment entered pursuant to the verdict. Appellant was represented at trial by able counsel who by letter notified this court that the case would not be briefed, but that he would “stand on the motion for new trial.”

Appellant asserts in his motion for new trial that the trial court erred in refusing to sustain his motion for judgment of acquittal at the close of the entire case. A jury reasonably could find from the evidence that between 5:00 and 5:15 o’clock in the morning of June 29, 1963, appellant pried open a window of a building located at 1260 Hodiamont, St. Louis, Missouri, occupied by Parts Fabricators, Inc., and that Allen Dorsey, who was with appellant, then entered the building through the opened window, and handed to appellant, who had remained on the outside of the building, an electric adding machine which was the property of James J. Burke and Company. Appellant and Dorsey left with the adding machine, which was not subsequently recovered and which had a value of $170. The motion for a judgment of acquittal was properly refused.

Appellant also asserts in his motion for new trial that the trial court “erred in failing to instruct the jury on all the law applicable to the case particularly on the question of defendant’s guilt of burglary alone or stealing alone or both burglary and stealing whether requested or not.” Instruction No. 1, the verdict-directing instruction, told the jury that if they found, beyond a reasonable doubt, that the defendant “did feloniously, forcibly and burglari-ously break and enter into a certain office or building * * * with the felonious intent then and there to steal therein, and if you further find that in said office or building goods, wares, merchandise and personal property of any kind and of some value, however small, were at the time * * * kept and deposited, and if you further find that defendant, * * * took and carried away therefrom an Underwood make adding machine, and if you further find that he did so with the felonious intent at the time to fraudulently convert the same to his own use and to permanently deprive the owner thereof without its consent, and if you further find that said property was owned by * * * and was of any value whatever, you will find the defendant guilty of Burglary, Second Degree, and Stealing, and unless you so find the facts to be, you will acquit the defendant of Burglary in the Second Degree and Stealing.” There then followed a cautionary provision concerning the amount of force necessary to constitute a breaking, and the definition of the terms “feloniously” and “burglariously.” The instruction concluded with the provision that if the jury found the defendant “guilty of the offenses of Burglary, Second Degree, and Stealing as set out above, then you will assess his punishment at imprisonment in the State Penitentiary for not less than two nor more than ten years for the offense of Burglary, Second Degree, and for not less than two years nor more than five years on the offense of Stealing.” There was no form of verdict provided the jury whereby appellant could have been found guilty of one offense and not guilty of the other.

The offense of burglary in the second degree and the offense of stealing committed in connection with the burglary are separate offenses, but they may be charged in one information. Supreme Court Rule 24.04, V.A.M.R.; Section 560.-110 RSMo 1959, V.A.M.S.; State v. Willis, Mo., 328 S.W.2d 593, certiorari denied 362 U.S. 984, 80 S.Ct. 1073, 4 L.Ed.2d 1018. Supreme Court Rule 26.02, V.A.M.R., in paragraph 6 provides: “In all criminal cases the court, whether or not it shall have been requested so to do by either party, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict which shall include whenever necessary the subjects of good character and reasonable doubt. In all felony cases failure so to instruct shall be good cause for setting aside a verdict of guilty by the jury and granting a new trial.” See also Section 546.070 RSMo 1959, V.A.M.S. The determinative question is this: when appellant was charged with two offenses in the same information, was the trial court required, without a request, to instruct the jury that appellant could be found guilty of one offense and acquitted of the other?

In State v. Hutchinson, 111 Mo. 257, 20 S.W. 34, the defendant was charged in one indictment with burglary and grand larceny, and it was there held: “While the statute allows a joinder of the charges of burglary and larceny in the same count in the indictment, when committed together, they are still separate and distinct offenses, and the jury may find the accused guilty of either or both. * * * It is made the duty of the court to instruct the jury on all questions of law arising in the case, whether asked or not. * * * It was clearly the duty of the court to instruct the jury upon the law of both larceny and burglary. The court did instruct the jury as to what their verdict should be in case they found defendant guilty of burglary alone, and what it should be should they find him guilty of both burglary and larceny, but wholly omitted to inform them that they might acquit of burglary and convict of larceny, and what their verdict should be in case he should be found guilty of larceny alone. In this omission, the court committed reversible error.” In State v. Lackey, 230 Mo. 707, 132 S.W. 602, the defendant was charged in one information with' burglary and larceny. It was there said: “The jury was instructed by the court, in instruction No. 1, that 'under the evidence in this case you may find the defendant guilty of both offenses, or you may acquit him of both offenses, according as you may find the facts to be from the evidence.’ No instruction was given authorizing the jury to convict of one offense and acquit of the other, and the jury was thus left no alternative but to convict the defendant of both offenses charged, or to acquit him of both. The defendant was clearly entitled under the law to instructions upon each of the two offenses charged as fully as though he had been tried separately for each felony. He had the right to have the jury pass upon his guilt or innocence of each offense and to acquit him of either, unless he was found guilty beyond a reasonable doubt. This was not only his undoubted right, but it was the prerogative of the jury, regardless of whether the evidence in support of one charge was equally strong in support of the other, and regardless of how unreasonable and illogical it might appear to convict of one and acquit of the other.” See also State v. Brinkley, 146 Mo. 37, 47 S.W. 793; State v. Green, Mo., 228 S.W. 740.

We conclude that in this case appellant was entitled to have the jury instructed that they could find him guilty of one offense and acquit him of the other, and that failure to do so was prejudicial error. The statement in State v. Brim, Mo., 339 S.W.2d 775, at p. 780, to the effect that such error was “favorable to defendant” about which he cannot complain was dictum to the ruling in that case and with which we do not agree. However, “The right to have all the law declared in the instructions may be waived like any other right,” 23A C.J.S. Criminal Law § 1341, p. 929, and in view of the record we must determine whether there was a waiver in this case.

The transcript reveals that after the close of all the evidence the following occurred out of the hearing of the jury.

“THE COURT: The Court understands that defendant is not requesting a separate instruction that the jury be given an opportunity to find the defendant not guilt of stealing and guilty of burglary, or guilty of stealing and not guilty of burglary, and, therefore, the Court has not prepared verdict forms of that sort, and its instruction requires a finding that — of all of the elements of burglary and stealing, and it’s combined in one instruction. The Court understands that the defendant, is not requesting that they be separated. The Court also understands that the defendant objects to the giving of Instruction No. 1, No. 3, No. 4 and No. 6.” (Italics supplied.)

As previously noted, the trial judge was required without request to instruct the jury in writing upon all questions of law necessary for their guidance, which included the instruction that they could find appellant guilty of one offense and acquit him of the other. There is nothing in the record to show or from which it may be inferred that appellant waived this right. At most, he made no request that the trial court do that which it was required to do without a request. That does not constitute a waiver. The record also affirmatively shows that appellant objected to the instruction as given, and in the motion for new trial the specific objection was set forth with particularity as required by Supreme Court Rule 27.20, V.A.M.R. Other matters presented in the motion for new trial need not be ruled on this appeal.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. M. Dean HODGES, Appellant.
    No. 50516.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Motion for Rehearing or to Transfer to Court En Bane Denied Nov. 9, 1964.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, Missouri, for respondent.
    Kelso Journey, Clinton, for appellant.
   PRITCHARD, Commissioner.

Defendant by his appeal seeks to be relieved of a judgment of conviction of the crime of forgery (§ 561.011, RSMo 1959, V.A.M.S.) of an insured’s name to an insurance company proof of collision loss upon the ground that he was not permitted to withdraw hi_ plea of guilty and enter a plea of not guilty to the charge contained in the information under Supreme Court Rule 27.25, V.A.M.R

The facts are these: On November 4,. 1963, defendant appeared in person and with his then counsel, Mr. Scott R. Traylor, in open court. The trial court thereupon advised defendant of the charge contained in the information. The court inquired of defendant if he had talked over the matter with his counsel; if his counsel had explained the criminal charge to him — the possible punishments that could be inflicted if defendant were convicted of the charge; and of defendant’s constitutional right to stand trial by a jury if he chose, to all of which defendant answered in the affirmative. Defendant was then asked by the court if he was ready to answer the charge just explained to him, to which defendant also answered in the affirmative. Defendant then personally entered his plea of guilty. The court inquired as to defendant’s past criminal record and the prosecuting attorney stated that he had none. Mr. Traylor then requested that a presentence investigation be made which was granted by the court, and the sentence was ordered deferred until November 25, 1963, at 9:00 a. m.

On November 26,1963, defendant filed his motion to withdraw his plea of guilty and for leave to enter a plea of not guilty, at this time being represented by Mr. Kelso Journey, upon the grounds that his guilty plea was entered under a misapprehension of the facts and a mistaken belief of the law applicable to the accusation set forth in the information; that at the time of entering his guilty plea defendant was under the apprehension that he was guilty as charged because one Howard Davison (the insured under an automobile collision policy) had not personally granted him authority to sign his name to a proof of loss resulting from a collision of his automobile being operated by his son, Michael Davison, with another. It was further alleged in the motion as follows: That defendant operated a claim adjusting service fo~ several insurance companies and was employed by Davison’s insurer to adjust and pay the claim for collision loss on the latter’s automobile. The named insured, Howard Davison, was not available and defendant relied upon his son, Michael, who had possession of the automobile and represented himself to be and acted as the agent of his father to negotiate settlement of the claim. Defendant did investigate the claim, and Michael secured estimates of the repair to the automobile, of which the Terrill-Phelps Chevrolet Company of Springfield, Missouri, was lowest— $575.80. That Michael, as agent for his father, made a tentative settlement of the collision loss, $525.80 (the Terrill-Phelps estimate less the $50 deductible provision of the policy), and Michael authorized defendant to sign the name of Howard Davison to whatever papers were necessary to effectuate the settlement. That defendant did prepare a proof of loss as aforesaid under the authority of Michael, with no intent to defraud. Further allegations were made in the motion that defendant had no previous criminal record of convictions; that at the time of entering his guilty plea he was under the stress of worry and embarrassment for himself and his family because of being charged with the crime, and was not in possession of all his faculties and reasoning ability; that the plea of guilty was entered because of a combination of his mistaken belief of the law applicable to the facts and without a full understanding of its serious consequences, and because further he acted in part upon what he considered advice of friends and former fraternity brothers in the prosecuting attorney’s office that such procedure was the best way to dispose of the matter, was less expensive and burdensome to both himself and his parents, and was the most expedient course to take while laboring under the misapprehension aforesaid.

Defendant’s said motion was heard and overruled by the trial court on the same day it was filed, and the following evidence was received in support thereof: Defendant testified that prior to June 14, 1963, he owned and operated an insurance claims adjusting company at 1152 South Glenstone, Springfield, Missouri. He represented some 42 different companies as an independent adjuster. The Jack Hamlin Insurance Agency of Springfield called him with respect to adjusting a loss of an insured, Howard Davi-son, of Elkland, Missouri, of the St. Lawrence Insurance Company. He was unable to make any personal contact with Mr. Davison, but did contact his son, Michael, who was the operator of the car involved in the collision. Defendant took a statement from Michael, ordered a State Patrol report and talked with the attorney who represented the other parties and with insurance people. He made verification of the policy coverage, took two repair estimates from Michael, and checked out the low estimate for accuracy, defendant himself being a qualified physical damage appraiser. Defendant told Michael at the time that he would have to check out the estimates as to overlap and flat rate. Michael then told defendant, “Well, whatever papers you need, get ’em, I didn’t think about this,” and he said, “just so we get our money; you know we got took by Guaranty and we don’t want to get stuck again.”

Defendant prepared the proof of loss and signed thereon the name of Howard Davi-son. His position at the hearing on the motion was that he had no intent to defraud and that this was done pursuant to the authority given to him by the son of Howard Davison. Defendant also prepared a draft upon the insurance company payable to Howard Davison, and upon the lower right-hand face thereof defendant signed the name of his employee, one W. L. Huffhines. Huffhines’ name was also written by defendant as a witness to the name of Howard Davison on the reverse side of the proof of loss. Defendant endorsed the name of Howard Davison on the reverse of the draft and gave it to another person as payment on a debt of defendant. He testified that he got the money for the Davisons, but did not give it to them — that he didn’t ha/e time to get it to Mr. Davison. Defendant was arrested on July 3, and the draft was dated June 14. He went to Elkland about June 16 to deliver the money to the Davi-sons, but they were not at home.

Defendant’s sole point which he briefs to this court is that the trial court abused its discretion in overruling his motion to withdraw plea of guilty and for leave to enter plea of not guilty. He first argues that he had a misconception of the law applicable and the nature of the charge — that only the insured, Howard Davison, could give authority to sign his name personally and directly and not by agent (his son Michael Davison).

As stated, defendant was accorded a full hearing on his motion, as was proper. State v. Skaggs, Mo., 248 S.W.2d 635, 637 [7]; State v. Williams, Mo., 361 S.W.2d 772, 774 [2]. Only the defendant testified in support of his motion, and he was cross-examined with respect thereto. It was for the trial court to believe or not believe his testimony with respect to any misapprehension of the law (that authority given by an agent to sign the proof of loss might be a defense to the charge). Evidently, the trial court having the defendant before him did not believe his testimony bearing upon this matter, nor that of the defendant with respect to alleged misrepresentations made to him by the assistant prosecuting attorney at the time of his arrest. The entire record of this hearing justifies a conclusion that defendant could have been under no mistake or misapprehension as to the charge or defenses thereto. He admitted that he signed other persons’ names to the proof of loss, and to the draft issued by him for the amount of the claim. He negotiated the draft in payment of his own personal debt, and never did deliver any money to the insured. These acts tend to rebut his belated contention that he had no intent to defraud.

The record does not support defendant’s contention that Mr. Yocom, the assistant prosecuting attorney, lulled defendant into a state of complacency. Defendant’s own testimony does not reveal that he was misled, induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or holding out hopes which prove to be false or ill-founded, which facts, if they existed, would be the basis for granting permission to withdraw a plea of guilty under State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2 [5-8], No inference may be legitimately drawn that Mr. Yocom induced or held out hopes to defendant to plead guilty by his statement to defendant that he wanted to help him and wanted to work the thing out at the time of defendant’s arrest, July 3, 1963 (at which time defendant employed Mr. Traylor as his counsel), or that defendant was guilty and that was the only way they “would go on it.”

The persuasive facts of this case are that defendant was never overreached at any time so that he was caused improvidently to enter his plea of guilty to the charge. He was represented prior to the plea by counsel of his own choice with whom he consulted with respect to the seriousness of the charge and possible punishments. The court, with great caution in explaining defendant’s constitutional rights of trial by jury, received his plea of guilty. Upon this record we are convinced that defendant voluntarily and understandingly entered such plea. Therefore, there was no abuse of discretion by the trial court in denying defendant’s motion.

In cur examination of the matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R., we find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Wardell HARRELL, Appellant.
    No. 50519.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Rehearing Denied Nov. 9, 1964.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Ronald R. McKenzie, Special Asst. Atty. Gen., Hannibal, for respondent.
    Morris M. Hatchett, St. Louis, for appellant.
   BARRETT, Commissioner.

A jury found the appellant Wardell Harrell guilty of murder in the second degree and fixed his punishment at thirty years’ imprisonment. In his motion for a new trial there are four assignments of error, one of these, “that the verdict was against the law and the evidence,” is lacking in detailed particularity (Sup.Ct.Rule 27.20(a)) and therefore does not present a reviewable question. State v. Ronimous, Mo., 319 S.W.2d S6S, 567. However, this and the other three obj ections are related to or concerned with the objection that “the state failed to make a prima facie case of murder in the second degree.”

One objection is directed to the testimony relating to Harrell’s “admissions” or “confessions,” that the court erred in admitting into evidence “the out of court statement of the accused, without determination as to its voluntary nature.” The difficulty with this claim, assuming its validity as an assignment of error, is that there is no foundation for it in this record. When a police sergeant first testified to the defendant’s “admissions” the only objection was to the statement “(h)e, at that particular time, gave us quite a few conflicting statements.” The court sustained an objection to the use of the words “conflicting statements” and thereafter the sergeant and other police officers testified to what the appellant said and there were no objections. While there were some conflicts in the “confessions” and the “admissions” they were not entirely irreconcilable and as a matter of fact not too different from the defendant’s own testimony. Of course, if voluntary, the defendant’s incriminating statements or confessions were admissible in evidence against him. 22A C.J.S. Criminal Law §§ 730, 732, pp. 1024, 1046; State v. Todd, 342 Mo. 601, 116 S.W.2d 113. But in this case the usual and orderly procedure was not followed to challenge the voluntary character of any admissions or confessions. There was no request that the court, as a preliminary matter, consider whether the admissions or confessions were voluntary (State v. Di Stefano, Mo., 152 S.W.2d 20), in fact, there were no objections and no offers of proof and all the circumstances surrounding the making of the incriminating statements were shown and there is not a single circumstance from which it is a permissible inference that they were not all voluntary. State v. Roland, 336 Mo. 563, 79 S.W.2d 1050, 102 A.L.R. 601; State v. Holliday, 353 Mo. 397, 182 S.W.2d 553; State v. Hinojosa, Mo., 242 S.W.2d 1.

Briefly the circumstances as the appellant related them to the police and as the jury could find them were these: Harrell, having heard that the police were looking for him in connection with Lloyd Young’s death from three gunshot wounds, appeared at the police station and gave this report of the killing. He claimed that Young owed him $100, “$40 of personal money and $60 for taking Lloyd’s girl friend on a trip” and on Friday, April 5, 1963, he obtained a gun from his friend Crump and announced his intention of going to Young’s place of residence to collect the $100. On Sunday evening, April 7, Harrell, with the pistol stuck in the front of his pants beneath his pulled out shirt, proceeded with Crump and another friend to Young’s apartment “to collect his money.” Young’s girl friend admitted the three of them and after watching television with other guests in the living room for some time the girl said, “Lloyd will see you now,” and Harrell walked into the bedroom. Lloyd was lying across the bed and Harrell said, “Why don’t you pay me? * * * You pay everybody else. I need my money.” Lloyd said, “I will pay you sometime this week. * * * I told you, man, I will pay you this week.” Harrell replied, “I need my money” and “pulled the gun.” He said that Young “raised up across the bed and lunged at him and he fired. After firing the first shot, Young managed to get his hands on him and they were struggling for the gun. He fired again.” But before firing the second shot Harrell had said “Give me my money or give me your ring” and Young held out his hand and Harrell took the ring from his finger and in the scuffle fired the second and third shots. An autopsy revealed three gunshot wounds, one “of the back in the anterior scapular line five inches from midline and seven inches above the posterior superior iliac spine,” another on the left side of the chest between the seventh and eighth ribs, and the one from which Young bled to death, a bullet through the abdomen. It is not necessary to further detail the evidence and indicate the permissible inferences, it is sufficient to say that these circumstances as the jury could and did find them support the charge and finding of murder in the second degree. State v. Davis, Mo., 365 S. W.2d 577.

There was no objection when the gun found on the floor beside Young’s bed, a .38 caliber automatic, and its three expended cartridges were offered in evidence, and aside from its inadequacy there is in fact no basis for the assignment that the court erred “in admitting into evidence state’s exhibit (4) the supposed weapon without expert testimony.” State v. Cox, Mo., 352 S.W.2d 665, 673; State v. Small, Mo., 344 S.W.2d 49; Annotation “Expert evidence to identify gun from which bullet or cartridge was fired” 26 A.L.R.2d 892.

The information appropriately charged the offense of murder in the second degree (State v. Brookshire, Mo., 368 S.W.2d 373, 379-380), the verdict is responsive and the punishment within the limits fixed by the statute. V.A.M.S. § 559.030. The defendant and his counsel were present throughout the proceedings (Sup.Ct. Rule 27.08), there was allocution (Sup.Ct. Rule 27.09) and there is no error “upon the record before” the court (Sup.Ct.Rule 28.02) and the judgment is affirmed.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: SMITH, Justice.

text:
    Doris KETTLER et al., Petitioners, v. Thelma Marie ATKINSON et al., Respondents.
    No. A-9884.
    Supreme Court of Texas.
    Oct. 21, 1964.
    William Andress, Jr., Dallas, Scholer & Stanley, Beverly Hills, Cal., for Doris Kettler et al.
    Biggers, Baker, Lloyd & Carver and Arch Beasley, Dallas, Waggoner Carr, Atty. Gen., Austin, J. S. Bracewell and J. Milton Richardson, Asst. Attys. Gen., for Salvation Army et al.
    Locke, Purnell, Boren, Laney & Neely and Charles R. Johnson, Dallas, for Thelma Marie Atkinson et al.
    Robert E. White, Dallas, guardian ad litem and attorney for minor appellees, Katherine Jeane Kettler et al.
   SMITH, Justice.

Mercantile National Bank at Dallas, named as Executor and Trustee in the holographic will of Bernice E. Atkinson, now deceased, dated May 9, 1959, filed this action for declaratory relief and construction of the will and the trust or trusts created by the will, pursuant to Article 2524-1, Sec. 2 of Vernon’s Annotated Civil Statutes and Article 7425b-24, Vernon’s Annotated Civil Statutes, known as the Texas Trust Act. The petition named as defendants Doris Marie Kettler, Jeane Bernice Shaw and husband, Charles Shaw; Katherine Jeane Kettler, Lynn Elsa Fisher, and Jeane Lynne Shaw, Thelma Marie Atkinson, Walter Wells Atkinson, Lynn Shirk Atkinson, April Atkinson, Judy Atkinson and Heidi Atkinson, all residents of the State of California; the Salvation Army, a charitable organization with State headquarters in Dallas, Dallas County, Texas, and the State of Texas.

Mrs. Atkinson was a resident of the State of California at the time of her death on December 24, 1959, and her holographic will was admitted to probate in the Superior Court of the State of California in and for the County of Los Angeles, on February 17, 1960. Doris Marie Kettler and Jeane Bernice Shaw were appointed administra-trices with will annexed.

The will contains two trust provisions. The trust upon Texas Real Estate, hereinafter referred to as the Ranch-Trust, is the one with which this court is primarily concerned. The entire will appears in the opinion of the Court of Civil Appeals, 372 S.W.2d 704, and will not be recopied here, but certain provisions thereof will be discussed in disposing of the law questions presently involved.

The trial court, without the aid of a jury, held that the Ranch-Trust provisions of the will were void; that no residuary trust was established by the will, and that title to the ranch passed by intestate succession to the defendants, Doris Marie Kettler and Jeane Bernice Shaw, the only children of Bernice E. Atkinson, deceased. All others were denied interest in the ranch.

The Salvation Army, The State of Texas, and the defendant, Thelma Marie Atkinson, perfected an appeal to the Court of Civil Appeals. That court agreed with the trial court’s holding that the Ranch-Trust violated the rule against perpetuities and was void, and affirmed the judgment of the trial court on that phase of the case. The Salvation Army and the State of Texas have assigned such action as error to this court in their application for writ of error. Thelma Marie Atkinson has filed a conditional application.

Although the Court of Civil Appeals held the Ranch-Trust was void, nevertheless, the Court in considering the provisions of the other trust set up in the will, wherein the Testatrix provided that she wanted all the income from her estate divided equally between her two daughters, Doris Marie Ket-tler and Jeane Bernice Shaw and her former husband, Lynn S. Atkinson held that (1) Mrs. Kettler should recover a life estate in Yz of the ranch with remainder to her children; (2) Mrs. Shaw, a life estate in Yi of the ranch with remainder to her children; and (3) Thelma Atkinson, sister of Lynn S. Atkinson, deceased, should recover a life estate in 1/3 of the ranch with remainder in fee to the children of Mrs. Kettler and Mrs. Shaw. The Salvation Army and the State of Texas were denied a recovery of an interest in the ranch property.

Mrs. Kettler and Mrs. Shaw, in their motion for rehearing in the Court of Civil Appeals, and in their application for writ of error, assert that the Texas courts do not have jurisdiction to construe the provisions of a California will relating to the income from the ranch property; that the trust, under which the Court of Civil Appeals held that Thelma Marie Atkinson was entitled to a life estate, was void because such trust contained no provision for its termination, and that it did not provide for the distribution or final vesting of the corpus; and, that the “gift of income for life from a trust estate consisting of both real estate and dividend paying stocks” did not create a vested legal life estate on realty in the income donee.

The Kettler-Shaw application was granted. The other applications were granted because of the action of this court in granting the Kettler-Shaw writ. Since the granting of the writ, all parties, with the exception of the Salvation Army and the State of Texas, have filed in the Superior Court of the State of California, where the matter of the Estate of Bernice E. Atkinson, deceased, is pending, an agreement, effective March 10, 1964, to settle, adjust and compromise, as between themselves, “their respective rights, claims, demands or interest arising out of any relationship whatsoever with or any will of the said Bernice E. Atkinson, deceased,” subject to the approval of the Superior Court.

On April 27, 1964, the Superior Court formally issued its order approving the agreement, and an authenticated copy of such order has been filed with the Clerk of this court.

In view of the settlement agreement and the approval of the Superior Court of California, it is unnecessary for this court to decide the law questions presented in the Kettler-Shaw application for writ of error which affect the rights of the petitioner-respondent, Thelma Marie Atkinson.

We come now to a consideration of the issues presented as between the Petitioners, Kettler and Shaw, and the Petitioners-Respondents, the Salvation Army and the State of Texas. We have concluded to affirm the trial court on these issues. At this point, we perhaps should note that the Attorney General of Texas is acting both as attorney for the State of Texas, a contingent remainderman, and on behalf of the interests of the general public in the trust for the benefit of the Salvation Army.

It is apparent from the pleadings filed by the Mercantile National Bank of Dallas, hereinafter referred to as the Bank, that this declaratory judgment suit was deemed necessary because a controversy had arisen as to the proper construction of the holographic will of Mrs. Bernice E. Atkinson, deceased, and because of the necessity to determine the rights of the parties, and the title to the Ranch property situated in Kinney County, Texas. The pleadings state that the bank had been advised by its counsel that “such will is in all probability void as being in violation of the rule against perpetuities stated in Article I, Section 26 of the Constitution of the State of Texas [Vernon’s Ann.St.].” The Bank further alleged that “[b]ecause of the uncertainty as to the validity and meaning of such will, Plaintiff is not in a position to determine whether or not it desires to act and until uncertainties are resolved, Plaintiff does not have a basis upon which to make its determination.”

The Bank called upon the trial court to adjudicate and determine three questions:

“(a) Are the provisions creating the trust and naming Plaintiff as Trustee with respect to the real property located in Kinney County, Texas, more fully described above, valid or is such trust void as contrary to the rule against per-petuities?
“(b) If such trust is void as being in violation of the rule against perpetuities who are the proper heirs of Bernice E. Atkinson with respect to the real property located in Kinney County, Texas?
“(c) If the trust created by the will of Bernice E. Atkinson, deceased, is valid in connection with the real property located in Kinney County, Texas, who are the beneficiaries of such trust and what are the rights and duties of Plaintiff as Trustee under such trust?”

In view of our holding on question (a) and the settlement agreement, it is unnecessary for this court to pass upon questions (b) and (c).

The Salvation Army and the State of Texas have taken the position throughout that the proper construction to be placed on that portion of the holographic will relating to the Kinney County Ranch is that Mrs. Atkinson intended that there be a series of life estates to be followed by a charitable trust, and that a charitable perpetual trust in favor of the Salvation Army vested in it at the time of the death of Mrs. Atkinson, the contention being that it is well settled that a perpetual trust may legally be created for charitable purposes. The Salvation Army and the State further contend that the Ranch-Trust created a charitable trust, and, that such trust is immune from the rule against perpetuities. In making such contention, however, they apparently recognize the rule that a gift to charity which is preceded by a gift given in trust for non-charitable purposes will be upheld if, and' only if, the gift to charity must vest, if at all, within the period of the rule against perpetuities. The gift over is valid if it is from the outset a vested gift. 4 Scott on Trusts (2nd ed.) 2879, Sec. 401.7.

The scope of the rule against perpetuities-is not the question. All parties recognize it to be well settled that the “rule against perpetuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation.” Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800 (1945), and cited cases.

The purpose of the rule is to prevent the taking of the subject matter of the perpetuity out of commerce or trade for the prohibited period. As this court said inu Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600 (1951):

“ ‘A perpetuity has been defined as a limitation which takes the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation.’ ”

We cannot agree with the Salvation Army and the State of Texas that the will of the Testatrix, Bernice E. Atkinson, does not violate the rule against perpetuities. The will is unambiguous; it created and established two separate trusts, a general trust and a separate trust for the ranch. The Texas Ranch does not go into the general trust, even though it is listed as a part of her “financial assets.” The will clearly (1) makes a disposition of the income from her estate, and (2) makes separate provision for the ranch. The Ranch-Trust is a trust separate and distinct from the general trust. Therefore the terms and provisions of the general trust which make disposition of the income from the entire estate are not to be considered as affecting the ranch property. It is clear that under the provisions of the Ranch-Trust quoted above, the land was never to be sold, the income was to go to her direct blood issue or blood relatives. Clearly, the trust is a perpetual non-char itable trust, and only when blood issue or blood relatives run out would the income go to the Salvation Army, and later to the State.

The Salvation Army and the State, in their briefs and in oral argument, in effect, concede that their burden is to secure a holding by this court that the will is ambiguous. It is argued that the terms used in the will, such as, “direct blood heirs,” “blood heir,” “blood heirs,” "issue,” “blood issue” and “direct blood issue,” be construed to mean “children.” By construing the terms used in the will to mean “children,” it is argued that the Ranch-Trust is a valid, charitable trust, preceded only by a series of successive vested life estates. Thus, the Salvation Army contends that it has discharged its burden and has brought its case within the rule announced in Scott on Trusts, Section 401.7, supra.

The Salvation Army and the State of Texas contend that because Mrs. Atkinson, in other parts of the will, used the term “blood issue,” etc., as meaning “children,” it can be inferred that she intended the term to mean “children” in the paragraph of the will creating the Ranch-Trust

This court is not disposed to rewrite the will of the testatrix, Mrs. Atkinson, and thereby create ambiguities. We decline to resort to the substitution of words for the words of the testatrix to accomplish such purpose. In ascertaining the intention of the testatrix, we must give effect to the words selected by her. Salvation Army of Texas v. Ford et al., Tex.Civ.App., 256 S. W.2d 953 (1953) no writ history. The intention of the testatrix so far as the ranch property is concerned is clearly expressed, therefore, we do not get to the rule which authorized the Court to adopt a construction of a will which will avert intestacy.

Under the terms of the will which reads:

“[W]hen the time comes that there is no direct blood issue living of my two daughters Doris M. Kettler and Jeanne Bernice Shaw and no remaining direct blood issue from Walter Wells Atkinson and Lynn Shirk Atkinson, *

the testatrix clearly meant that the income from the ranch property was not to go to the Salvation Army until the happening of a named event which possibly would not occur within a life or lives in being at the time of the testator’s death and twenty-one years thereafter. Obviously, the Ranch-Trust provided for in the will violates Section 26, Article 1 of the Texas Constitution.

The judgments of the trial court and the Court of Civil Appeals holding that the Ranch-Trust provisions of the will are void are affirmed. However, in view of the set•tlement agreement entered into between all •parties, except the Salvation Army and the State of Texas, the cause is remanded to the •trial court with instructions to enter judgment in accordance with the settlement .agreement and this opinion.

All costs are adjudged against Kettler-:Shaw.

      . “Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ■ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

      . “I want my ranch (3300 acres) in Kinney County to be set up in a perpetual trust. I specify that it must never be sold. The income to be divided equally between my direct blood heirs as long as there is a blood heir of mine living — ■ and Mr. Lynn S. Atkinson and Ms sister Mrs, Thelma Marie Atkinson as long as they live — When the time comes that there are no blood heirs of mine from the issue of my own children — their children — I want the income from the ranch to be divided equally between any blood issue of 1. Walter Wells Atkinson, 1522 North Orland, San Gabriel, California and 2. Lynn Shirk Atkinson, 1522 North Orland, San Gabriel, California. The income is to be continued and divided between all direct blood issue of Lynn Shirk Atkinson and Walter Wells Atkinson until their direct blood issue has run out completely. When the time comes that there is no direct blood issue living of my two daughters Doris M. Kettler and Jeane Bernice Shaw and no remaining direct blood issue from Walter Wells Atkinson and Lynn Shirk Atkinson —I want the income from the ranch to go to The Salvation Army. If the Salvation Army should be dissolved or disbanded — I want the ranch to be given to the State of Texas.”

      . “I want all of my financial assets placed in — Trust with the Mercantile National Bank at Dallas. I name the Mercantile National Bank at Dallas, as my sole executor.

      “My financial assets consist of 3566 shares of Mercantile National Bank at Dallas. 60 Shares of First National Bank in Dallas. ■ 110 Shares Merchants Discount Co., Winnsboro, Texas, 400 Shares of Bevlon Inc. 200 Shares Texas Gulf . Sulphur, 3500 in cash in Security First National Bank of Los Angeles, Larchmont Blvd., Branch. §10,891 in cash in my brokerage account — with E. E. Hutton and Company — Wilshire Branch Salesman Mr. Tod Barrington, 4155 Wilshire Blvd., Los Angeles 5. 7 Shares National Securities — a 3300 acre ranch 18 miles South of Del Rio, Texas — the ranch is in Kinney County, Texas.”

      . “Sec. 26. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entail-ments ever be in force in this State.”

      . “Where property is given in trust for non-charitable purposes with a gift over for charitable purposes, the gift over is valid if it is from the outset a vested gift. Thus where a testator left his estate in trust tó pay the income to Ms daughter for life and to her children for their lives and on their death to a charitable corporation, the gift to the corporation is valid, since it is a vested and not a contingent gift, although the enjoyment by the charitable corporation is postponed until the death of the children of the testator’s daughter who might not-be born at the time of his death.”


author: GREENHILL, Justice.

text:
    Robert Lee BAILEY, Petitioner, v. The TRAVELERS INSURANCE CO., Respondent.
    No. A-10058.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 11, 1964.

      Fulmer, Fairchild & Badders, Nacog-doches, for petitioner.
    Thompson, Knight, Wright & Simmons, George C. Chapman, with above firm, Dallas, for respondent.
   GREENHILL, Justice.

This is a workmen’s compensation case. The relevant facts are these: on May 3, 1963, the Court of Civil Appeals at East-land affirmed a lump-sum judgment awarding Bailey total and permanent disability benefits under the Workmen’s Compensation Act. 368 S.W.2d 60. On May 24, motion for rehearing was overruled. The insurer’s application for writ of error was refused, no reversible error, by this Court on July 31, 1963; and the mandate was issued from the Court of Civil Appeals on August 27.

Thereafter, but within the term-time of the Court of Civil Appeals, the insurer discovered that Bailey had died on May 7, 1963, four days after the judgment in that court. It is assumed here that the cause of his death was not related to his compen-sable injury. The insurer filed a motion in the Court of Civil Appeals to modify and correct the judgment. It contended that Bailey was entitled to compensation for his general injury only so long as he lived. The Court of Civil Appeals found that Bailey’s judgment was not final at the time of his death and modified the judgment so as to award his heirs and representatives weekly compensation from the date of the injury to the date of his death. 375 S.W. 2d 540.

The action taken by the Court of Civil Appeals was based on the rule that liability for unaccrued compensation terminates with the death of the injured employee where the injury is general and death is from a cause other than the injury, Texas Employers Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (1937), at least where the claim has not been reduced to final judgment, Estate of Burris v. Associated Employers Ins. Co., 374 S.W.2d 223 (Tex.1963).

Phillips and Burris are two opinions by this Court which must be considered. Both cases involved general injuries and the subsequent death of the employee from unrelated causes. In Phillips, the employee recovered a judgment in the trial court. Pending the appeal he was killed in an automobile accident. The judgment of the trial court was reversed, and the cause was remanded by the Court of Civil Appeals because of improper argument to the jury. On remand, the workman’s heirs were substituted as plaintiffs and were awarded a lump-sum judgment. It was held that the claim for compensation and any cause of action therefor survived only up to the date of his death. The compensation was considered payment in lieu of wages; and since wages would cease at death, the compensation in lieu of wages would also cease.

In Burris, the Court of Civil Appeals affirmed the trial court’s judgment in favor of the employee for 401 weekly payments. Application for writ of error was refused, no reversible error. The insurer paid the weekly installments as they accrued until Burris died. The insurer refused to make any further payments and the estate of Burris sued to mature the judgment.

Burris’s cause of action had been fully litigated through the appellate courts, and no court had the power to recall the mandate when he died. It was held that the claim of Burris had become fully and finally adjudicated and that his heirs were entitled to the full amount of his compensation notwithstanding the death of the employee. Phillips is distinguishable on the grounds that after the death of the employee, the appellate- court had ordered 'a new - trial; ancl it had not been finally •established that'the'insurer was-liable. In Burris, the employee had a final judgment and not a mere claim which might be altered or denied.

The question here is whether this case falls within the Phillips rule or the Burris rule. It is our opinion that it comes within the reasoning of Burris.

In the case now before this Court, the claim of the employee Bailey had been fully adjudicated. The Court of Civil Appeals had fully reviewed the conduct of the trial court and had found that no reversible error had been committed. This Court agreed by its denial of the application for writ of error. It had thus been determined that there was no basis for reversal of the judgment.

In Burris, this Court set out the reason for the difference in the rights of survivors where the injury was (a) specific or (b) general. It reasoned that when the injury was specific, the amount to be paid was definite and fixed by statute. The amount being certain, there was no reason for the claim or cause of action not to survive. On the other hand, if the injury were general, the award of the Board would be subject to review by the Board upon a showing of change in condition, mistake or fraud. It may modify, increase, or terminate compensation payments. Where, however, the claim has been reduced to a lump-sum judgment which is in all things affirmed on appeal through this Court, and no further appellate steps have been taken or requested, the amount of the award has become fixed and is no longer subject to review. The judgment therefore is like the claim or cause of action for a specific injury in that it is fixed and definite; and under the reasoning of the Burris case, the insurance company should not escape liability because of the fortuitous death of the employee.

It is not necessary to discuss the power of the Court of Civil Appeals to modify and correct its judgments. It is sufficient to say that here the first judgment of that court was correct as it stood. Under Rule 369-a, a cause does not abate because of the death of a party after rendition of judgment in the trial court and before such cause has been finally disposed of on appeal. The Rule directs that the court “shall proceed to adjudicate such cause and render judgment therein as if all the parties thereto were living, and such judgment shall have the same force and effect as if rendered in the lifetime of all the parties thereto.”

Rule 369-a has as its source Articles 1760 and 1850, Texas Revised Civil Statutes. Article 1760 once contained a proviso that “this act shall not apply to any suit or action in which the cause of action does not survive in favor or against the legal representatives of a deceased person.” Texas Laws 1871, ch. 63, § 1, p. 51. Notwithstanding the proviso, this Court has held that where, as here, the deceased has a judgment in the trial court, even though the cause of action is one that does not survive, the original cause of action merges in the judgment of the trial court, and such judgment is not vacated or opened by writ of error or appeal. Ellis v. Brooks, 101 Tex. 591, 102 S.W. 94; 1907); Galveston City Ry. v. Nolan, 53 Tex. 139 (1880); Gibbs v. Belcher, 30 Tex. 79 (1867). The effect of these decisions is to give the estate a cause of action that survives as long as the judgment remains unreversed.

Here Bailey was awarded a judgment but payment was withheld pending appeal. It would be a harsh result if Bailey’s heirs were to lose what he would have otherwise been entitled to simply because he died pending an appeal which was ultimately determined not to have been well founded.

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


author: CALVERT, Chief Justice.

text:
    Rupert L. CANNON et ux., Petitioners, v. Dr. Harris F. PEARSON et al., Respondents.
    No. A-10019.
    Supreme Court of Texas.
    Oct. 7, 1964.
    Rehearing Denied Nov. 11, 1964.
    Harris & Ball, Fred W. Davis, Arlington, for petitioners.

      Hill & Paddock, Fort Worth, for respondents.
   CALVERT, Chief Justice.

We granted writ of error in this case because from study of the opinion of the Court of Civil Appeals and the briefs of the parties we understood that the question for review was this: Under what circumstances, if any, may an injured person maintain a suit for damages against a doctor for malpractice after having released from liability the tort-feasor whose conduct made services of the doctor necessary? Our study of the record in the trial court now discloses that the question thus stated is not in the case.

Suit is by Rupert L. Cannon and wife, Pauline Cannon, plaintiffs, against Dr. Harris F. Pearson and Mid-Cities Memorial Hospital Corporation, defendants, for damages alleged to have been proximately caused by negligent acts and omissions in diagnosis and treatment of injuries to plaintiffs’ deceased minor daughter, Mary Lee Cannon.

On motion of the defendants, the trial court rendered a summary judgment that the plaintiffs take nothing. The Court of Civil Appeals affirmed. 374 S.W.2d 453. We affirm.

Mary Lee Cannon was injured on August 3, 1962, when she was struck by a taxicab owned by A. M. Donnelly, doing business as Bell Cab Co., and operated at the time of the accident by O. W. Feemster. Immediately following the accident, Mary Lee was carried by ambulance to Mid-Cities Memorial Hospital where she was placed under the care of Dr. Pearson. On Sunday, August 5, after the child became unconscious, the parents had her moved to Arlington Memorial Hospital where she was examined by Dr. Kenneth Adams. Dr. Adams had her transferred on the same day to St. Joseph’s Hospital in Fort Worth. She underwent surgery immediately upon arrival at.St. Joseph’s. She never regained consciousness and died on' August 7. -. .

The summary take-nothing judgment rendered by the trial court, and the Court of Civil Appeals’ judgment of affirmance are based on a release executed by the plaintiffs by and under the terms of which, in consideration of the payment of the sum of $3,500.00, Donnelly and Feemster are released from all liability for damages growing out of the injuries to the plaintiffs’ daughter. The release was pleaded as a bar to plaintiffs’ suit.

Defendants asserted in their motion for summary judgment that the release of Don-nelly and Feemster operated in law to release them; and that there were, therefore, no genuine issues of fact on the question of liability. A copy of the release was attached to the motion. The release was-executed on August 10, 1962. By its terms,. Donnelly and Feemster, their “heirs, administrators, executors, successors and assigns” are released and discharged “from-any and all actions, causes of action, claims- and demands of whatsoever kind or nature-on account of any and all known and unknown injuries, losses and damages” growing- out of the accident wherein their daughter was injured. The release further recites that acceptance of the sum of $3,500.00' is “in full accord and satisfaction of a disputed claim,” and that the release is intended to cover and does cover “not only all now known injuries, losses and damages-but any future injuries, losses and damages-not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof.” Finally, the instrument recites that the-sum of money is voluntarily accepted “for the purpose of making a full and final compromise, adjustment and settlement of all’ claims for injuries, Josses and damages resulting or to result from said accident.”' Also attached to the motion for summary-judgment was an affidavit executed by Mr- and Mrs. Cannon, dated August 10, 1962,. in which they itemized medical, hospital,ambulance and funeral bills which they either, had paid or for which they were liable..

It has long been an accepted and established rule in this State that one who wrongfully injures another is liable in damages for the consequences of negligent treatment by a doctor or surgeon selected by the injured person in good faith and with ordinary care. Houston & T. C. Ry. Co. v. Hollis, 2 Willson’s Civil Cases Ct. App. § 218, p. 169; City of Dallas v. Meyers, Tex.Civ.App., 55 S.W. 742, no writ history; Galveston, H. & S. A. Ry. Co. v. Miller, Tex.Civ.App., 191 S.W. 374, writ tefused; Hicks Rubber Co. v. Harper, Tex. Civ.App., 131 S.W.2d 749, writ dismissed, 134 Tex. 89, 132 S.W.2d 579. The rule is also generally recognized and accepted in other state jurisdictions. 15 Am.Jur. 494—497, Damages, §§ 84, 85 and 86; 8 A.L.R. 506; 39 A.L.R. 1268; 126 A.L.R. 912. Most state jurisdictions originally approved .a concomitant rule that a release of the original tort-feasor operated in law to release the negligent doctor. See cases annotated in 40 A.L.R.2d 1075. This rule has been accepted as sound and applied in three cases in this State. Phillips v. Wright, Tex. Civ.App., 81 S.W.2d 129, writ dismissed; Borden v. Sneed, Tex.Civ.App., 291 S.W.2d 485, writ refused, no reversible error; Sims v. Auringer, Tex.Civ.App., 301 S.W. 2d 286, writ refused, no reversible error. For an excellent review of Texas decisions relating to release of joint tort-feasors, in which the Phillips, Borden and Sims cases are noted, see 36 T.L.R. 55.

In recent years the highest courts of a number of the states have disavowed the latter rule and now hold that a release of the original tort-feasor will not operate to release the negligent doctor if the injured party did not intend that it do so; and they hold further that parol evidence is admissible to show intent. See Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876; Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556; Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861; Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96; Hansen v. Collett, Nev., 380 P.2d 301; Daily v. Somberg, 28 N.J. 372, 146 A.2d 676, 69 A.L.R.2d 1024. The modern tendency, as illustrated in the cited cases, is to treat the older rule as an illegitimate off-spring of the rule that release of one joint tort-feasor releases all, which rule is itself condemned by some of our ablest scholars on the theory that the courts have confused release of a party with satisfaction of a cause of action. See Prosser, 25 Cal.L.R. 413, 422; Prosser, Law of Torts, 3rd Ed., pp. 268-273, § 46; Harper and James, The Law of Torts, Vol. 1, pp. 709-714, § 10.1; Wigmore, 17 Ill.L.R. 563.

The courts adopting the “modern rule” differ as to the proper placing of the burden of going forward with evidence of intent. Some hold that a settlement of all claims against the tort-feasor raises a presumption of satisfaction of a claim for malpractice, and place the burden on the plaintiff to go forward with evidence that it was not so intended. See Derby v. Prewitt, 12 N.Y. 2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, 560; Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96, 103; Selby v. Kuhns, 345 Mass. 600, 188 N. E.2d 861, 866. Others holds that the burden is on the doctor to go forward with evidence that the parties to the release intended the settlement to satisfy the plaintiff’s claim for malpractice. See Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876, 879; Daily v. Somberg, 28 N.J. 372, 146 A.2d 676, 684, 69 A.L.R.2d 1024, 1033. We regard the holding in the cases first cited as the more logical. Since the cause of action against a tort-feasor includes the right to full satisfaction of damages proximately caused by a doctor’s negligence, settlement with the tort-feasor should, at least presumptively, include satisfaction of the claim for damages for malpractice.

We return to the record in this case and accept the postulate that even if we should be disposed to disavow the rule applied in Phillips v. Wright; Borden v. Sneed and Sims v. Auringer, all supra, and to adopt the “modern rule,” the release of Donnelly and Feemster raised a presumption of satisfaction of the plaintiffs’ claim for damages for malpractice and thus of intention to release Pearson and Hospital as well as the original tort-feasors. Under that approach to the problem, summary-judgment in favor of the defendants was required unless the plaintiffs offered proof that the claim had not been satisfied by the settlement and that they did not intend to release the defendants.

The only summary judgment proof offered by the plaintiffs to avoid the effect of the release was an affidavit of Rupert L. Cannon. The affidavit states that on August 4, an insurance adjuster called on the affiant “and made offers of settlement of any claim I might have against Bell Cab Co. and O. W. Feemster,” and that negotiations for settlement “of any claim against Bell Cab Co. and the driver, O. W. Feemster” were concluded on August 6 with acceptance of an offer of $3,500.00. The affidavit continues:

“However, the settlement was made and agreed upon before the death of my daughter and before I had any knowledge of any malpractice on the part of either defendant and before most of the various acts of malpractice occurred. For that reason the settlement made was a partial settlement only for the injuries received by Mary Lee Cannon and the settlement did not include damages for any wrongful death, because Mary Lee Cannon had not died at the time the settlement was concluded. This was intended by both of us as a partial release only for injuries. There was no discussion between myself and the adjuster about payment for wrongful death of Mary Lee Cannon. The same was not put in the release and same had not arisen at the time the actual settlement was concluded orally by agreement between myself and the representative of the Cab Co. Our final written agreement encompassed only our oral agreement made before the death of Mary Lee Cannon that the injuries portion of the claim was being settled by the agreement."

In the presentation of their appeal in the Court of Civil Appeals and in this Court,, plaintiffs treat their proof as raising a fact issue as to whether they intended their settlement to satisfy their claim against the defendants, and intended the release of Donnelly and Feemster to release Pearson- and Hospital also. Can it fairly be said, that a reasonable interpretation of Rupert. L. Cannon’s affidavit raises that issue? We think not.

The affidavit does state that the settlement with Donnelly and Feemster “was a. partial settlement only,” and that the release was intended “as a partial release-only”; but the affiant makes the meaning-of his use of those phrases quite clear. Restates that the settlement was “a partial settlement only for the injuries received" and ‘‘did not include damages for any wrongful death" ; that the release was intended “as a partial release only for injuries" because death had not occurred when-the settlement negotiations were concluded,, and there was no discussion “about payment for wrongful death”; that the final' written agreement encompassed only the oral agreement “that the injuries portion of the claim was being settled by the agreement.” These statements, even if admissible, cannot fairly or reasonably be interpreted as proof that the release was intended to release only Donnelly and Feemster, but not Pearson and Hospital. To the contrary, they are proof, if admissible, that the affiant intended to settle the claim for damages arising out of the minor daughter’s injuries, but not the-claim for damages under the wrongful death statute; and that the release was-intended as a release from any claim for damages arising out of the injuries, but not as a release of any claim for damages under the wrongful death statute.

The pleadings of the plaintiffs confirm our interpretation of the affidavit. In their supplemental petition they alleged that the insurance adjuster obtained the release by representing to them that they were “entering into only partial release and with the understanding that only partial release was being entered into and that said release was limited only to injuries and did not include a wrongful death claim.” Paragraph III of plaintiffs’ reply to the motion for summary judgment reads:

“Plaintiff says that the settlement entered into between Plaintiff and Bell Cab Co. and O. W. Feemster was a partial settlement only and is specifically confined only to injuries and is not a settlement for any wrongful death action, and that same was intended as a partial settlement only. Further, that said settlement was made ■orally and actually agreed to prior to the time the cause of wrongful death arose, i. e., prior to the time of the death of the child in question.”

The foregoing analysis of plaintiffs’ pleadings and summary judgment proof compels the conclusion that the question stated at the beginning of this opinion is not in the case.

The question which is in the case on the record before us is this: May parties who have executed a release by the terms of which they have released their cause of action for wrongful death and their cause or causes of action for injuries causing the death, show by parol evidence that their cause of action for wrongful death was not satisfied by the settlement and that they did not intend to release that claim? We hold that they may not.

This case is unlike Landers v. B. F. Goodrich Co., Tex.Sup.,' 369 S.W.2d 33, in which we recognized that a cause of action for injuries asserted under the survival statute, Art. 5525, and a cause of action for wrongful death growing out of the injuries, asserted under the wrongful death statute, Art. 4671, are separate causes of action and may be enforced in separate suits. In that case the causes of action were owned by different persons, and we were concerned with a question of res judicata; here, both causes of action were united in the same persons, and we are concerned with the legal effect of the terms of a release.

One aspect of the instant suit should be emphasized. The plaintiffs do not allege or claim that the negligence of Dr. Pearson and Hospital was the sole proximate cause of their daughter’s death; therefore, the question posed here must be answered just as though Donnelly and Feemster, the released tort-feasors, were defendants in the suit, and a right of recovery of damages for wrongful death were being asserted against them. Once the problem is thus brought into proper focus, a negative answer to the question is required by ordinary rules of contract law.

When the plaintiffs executed the release on August 10, all of their causes of action were accrued. They then had a cause of action for recovery of items of expense paid or incurred for treatment of their daughter’s injuries. Gulf, C. & S. F. R. Co. v. Farmer, 102 Tex. 235, 115 S.W. 260, 261-262; City of Galveston v. Barbour, 62 Tex. 172, 174-175. As the child’s only heirs under our laws of descent and distribution, they had a cause of action for damages for her conscious pain and suffering and for her funeral expenses. Gulf, C. & S. F. Ry. Co. v. Moore, 28 Tex.Civ. App. 603, 68 S.W. 559, 561, writ refused; Texas Co. v. Brown, Tex.Civ.App., 82 S.W.2d 1101, 1107, writ dismissed; Landers v. B. F. Goodrich Co., Tex.Sup., 369 S.W.2d 33, 35. As the only surviving beneficiaries under the wrongful death statute, they had a cause of action for damages for loss of the child’s services during her minority and loss of contributions to their support reasonably to be expected from her thereafter. Cantu v. Southern Pac. Ry. Co., Tex.Civ.App., 166 S.W.2d 963, 964, writ refused; Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S.W. 667, 669-670; St. Louis Southwestern Ry. Co. of Texas v. Shiflet, 98 Tex. 102, 81 5.W. 524; Gulf, C. & S. F. Ry. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659, 662.

Owning these accrued causes of action at the time, plaintiffs declared in their release that they understood the terms of the settlement, and that they voluntarily accepted the sum of $3,500.00 “for the purpose of making a full and final compromise, adjustment and settlement of all claims for injuries, losses and damages resulting or to result from said accident.” By expressed provision they released Don-nelly and Feemster “from any and all actions, causes of action, claims and demands of whatsoever kind or nature on account of any and all known and unknown injuries, losses and damages” growing out of the accident. Unless there is some legal basis for avoiding it, in whole or in part, the provision is just as effective to release the cause of action for wrongful death as it is to release the cause of action for injuries. Cf. Quebe v. Gulf, C. & S. F. Ry. Co., 98 Tex. 6, 81 S.W. 20, 66 L.R.A. 734.

No summary judgment proof was tendered by the plaintiffs which would authorize avoidance of the release for fraud, illegality or like reason. No effort is made to reform it because of mutual mistake and thus to preserve the cause of action for wrongful death. The plaintiffs seek to avoid its legal effect of releasing their cause of action for wrongful death by the tender of extrinsic evidence that it was not intended by the parties that it have that effect. The parol evidence rule bars the effort; and it matters not that the defendants who invoke the rule are not parties to the instrument. Davis v. George, 104 Tex. 106, 134 S.W. 326; Texas Law of Evidence, McCormick and Ray, vol. 2, p. 474, § 1621; Williston on Contracts, 3rd Ed., vol. 4, p. 1154, § 647; Corbin on Contracts, vol. 3, p. 572, § 596. There are Texas cases holding that the rule will be relaxed to permit proof that a release of' one joint tort-feasor was not intended to-release another. See Eckel v. First Nat. Bank of Fort Worth, Tex.Civ.App., 165-S.W.2d 776, 779, writ refused, and Pearce v. Hallum, Tex.Civ.App., 30 S.W.2d 399;, 402, writ refused. Accord: Corbin, supra; 22 Ill.L.R. 274. That is not the question-before us.

The judgment of the Court of Civil Appeals is affirmed.

      . Emphasis ours unless otherwise indicated.

      . All references to statutes are to Vernon's Annotated Texas Statutes. 383 S.W.2d — 361/2


author: PER CURIAM.

text:
    Dan L. BAKER, Petitioner, v. Vernon George SMITH et al., Respondents.
    No. A-10331.
    Supreme Court of Texas.
    Oct. 21, 1964.
    Rehearing Denied Nov. 11, 1964.
    Rodgers & Stephens, Graham, for petitioner.
    James M. Spiller, Jacksboro, Sewell & Forbis, Decatur, for respondents.
   PER CURIAM.

The Applications for Writ of Error are Refused, No Reversible Error. Rule 483,, Texas Rules of Civil Procedure.

Our action on these applications does not mean we approve the holding by the Court or Civil Appeals (380 S.W.2d 725) if it did so hold, that a summary judgment may not be rendered in any trespass to try title case,, where the defendant has filed a plea of “Not Guilty.”


text:
    James M. CASIDA et al., Petitioners, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, and Local 351, International Union of Operating Engineers, AFL-CIO, Respondents.
    No. A-10153.
    Supreme Court of Texas.
    July 29, 1964.
    Rehearing Denied Nov. 11, 1964.
    Black & Stayton, Austin, Albert Smith, Lubbock, H. M. Hood, Borger, W. L. McConnell, Amarillo, Jack Hood, Borger, Robert Howard, Lubbock, for petitioners.
    Mullinax, Wells, Morris & Mauzy, Dallas, Woll, Mayer & St. Antonine, Washington, D. G, for International Union of Operating Engineers.
    Arthur Mitchell, Sam Houston Clinton, Jr., Austin, for Local No. 351, International Union of Operating Engineers.
   PER CURIAM.

This is a suit by twenty-eight former members of a labor union against their union. The trial court gave judgment on a jury verdict in favor of the plaintiffs. The Court of Civil Appeals reversed such judgment, holding that the area of conduct in question was pre-empted from state law by federal legislation. 376 S.W.2d 814.

We refuse to grant this application for writ of error solely on the ground that the conduct in question is arguably subject to the jurisdiction of the National Labor Relations Board. See Local 100, United Association of Journeymen v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963); San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; Local No. 207, Intern. Ass’n, etc., Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. Compare International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018. Hence, the application for writ of error is refused, no reversible error.