author: HOGAN, Judge.

text:
    Woodrow BROWNING, Rollie Browning, James Browning, Junior Ernest Browning, Clifford Browning, William A. Browning and Gilbert Browning, Plaintiffs-Appellants, v. The CITY OF POPLAR BLUFF, a municipal corporation, John West, Mayor of the City of Poplar Bluff, Mrs. A. A. Fonda, City Clerk, and Eldon Whitworth, Chief of Police, Defendants-Respondents.
    No. 8189.
    Springfield Court of Appeals. Missouri.
    Aug. 20, 1963.

      Byron Kearby, Poplar Bluff, for plaintiffs-appellants.
    Ted M. Henson, Jr., Poplar Bluff, for defendants-respondents.
   HOGAN, Judge.

In this case, the plaintiffs, who are the owners and operators of a junk yard and automobile salvage business, sought to enjoin the enforcement of a penal ordinance enacted by the defendant City. The trial court granted a temporary injunction. The City then filed an Answer, and the cause was submitted on stipulated facts. The trial court then dissolved the temporary injunction and refused a permanent one. The plaintiffs have appealed.

The ordinance in question prohibits the establishment, maintenance or operation of any auto wrecking yard or junk yard within the defendant City, unless “such auto wrecking yard or junk yard is screened from the view of the public by a tight board or other screen fence not less than eight feet high.” Violation is punishable upon conviction by a fine ranging from $25.00 to $50.00.

The plaintiffs pleaded that they operated a.junk yard and automobile parts business; that they bought and sold wrecked and used automobiles, and that they had, for more than a year, maintained their business within the city limits. Plaintiffs also pleaded the existence of the defendant City as a third-class city and set forth the ordinance. The plaintiffs then alleged, in very general terms, that the ordinance was invalid because it was void, unconstitutional and discriminatory, and pleaded that if it was enforced their expense in complying with the ordinance would be prohibitive. Plaintiffs also set forth that they had been arrested and that the officers of the defendant City were threatening multiple prosecutions against them, and pleaded that unless an injunction were issued they would suffer irreparable damage. As we have indicated, the temporary injunction issued.

The defendant City then filed an Answer, in substance admitting the capacity of the defendants as city officers, the existence of the ordinance, the corporate status of the City, and operation of the plaintiffs’ business as alleged. The City denied the invalidity of the ordinance and denied its intention to institute multiple prosecutions.

The parties chose to waive the presentation of evidence and filed a stipulation of facts. The facts stipulated were: 1) That the City of Poplar Bluff is a third-class city; 2) the defendants are the Mayor, City Clerk and Chief of Police; 3) the ordinance in question was regularly enacted on February 3, 1958; 4) the plaintiffs, since the enactment of the ordinance, have operated their business without constructing the required screen fence; and 5) the plaintiffs have been arrested and the defendant officers intend to enforce the ordinance in the future. This brief stipulation contains all of the factual matter set forth in the record bearing on the merits of the case.

Upon this stipulation, the trial court found that the ordinance in question was valid, without any reference to any constitutional question, dissolved the temporary injunction, and refused a permanent injunction. After filing an unavailing Motion for New Trial, the plaintiffs appealed.

At the outset, we are confronted with a Motion to Dismiss the Appeal made by the respondent upon the ground that the appellants’ “Points Relied On” do not comply with the requirements of Rule 83.05(e), V. A.M.R. There is considerable merit in the motion. Apparently, it was the plaintiffs’ intention to seek a construction of the ordinance, both in the trial court and here, and they suggest in their brief that we consider a number of involved and complex principles of law — including a number of constitutional questions which we have no jurisdiction to decide — as they apply to the ordinance in question. The difficulty is that the appellants have not presented their contentions precisely enough for us to know with any certainty what their position is. While the general propositions of law which they state in their “Points Relied On” are true as general statements, plaintiffs do not tell us in what way the trial court incorrectly applied the law to the facts in denying the permanent injunction. The plaintiffs’ “Points Relied On” are, as the defendant maintains, mere abstract statements.

The “Points Relied On,” properly set forth, constitute a short and concise outline of that part of the brief called “an Argument,” Ambrose v. M. F. A. Co-operative Ass’n, Mo., 266 S.W.2d 647, 650-651; Conser v. Atchison, T. & S. F. Ry. Co., Mo., 266 S.W.2d 587, 589, and actually all that is required or contemplated by Rule 83.05(e) is that the appellant state concisely what the trial court did that is claimed to be wrong and why it is contended the court was wrong. Ambrose v. M. F. A. Co-operative Ass’n, supra, 266 S.W.2d at 651. See Stone, Effective Appellate Briefs, 15 Journal Mo. Bar. 80, 85-86. In a case of this kind, where the facts have been stipulated, and the sole question in this court is one of law, Jewel Tea Co. v. City of Carthage, 257 Mo. 383, 388, 165 S.W. 743, 744, the appellants could have complied, as we conceive it, by making a reasonable effort to show, in their “Points Relied On,” the respects in which the questioned ordinance violated the general principles of law which they have set forth; but the mere assertion of various abstract principles of law, without showing how they are related to the trial court’s action, and without specifying wherein the ordinance violates those principles, is not a compliance with the rule. Magenheim v. Board of Education, Mo., 340 S.W.2d 619, 621; Jacobs v. Stone, Mo., 299 S.W.2d 438, 440; Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109, 111; Ambrose v. M. F. A. Co-operative Ass’n, supra, 266 S.W.2d at 649; Beeler v. Board of Adjustment of Joplin, Mo.App., 298 S.W.2d 481, 483 [2]. We would again point out that the requirement of Rule 83.05(e) is not a mere technicality, nor a rigid prescription of some particular style or form of statement for the convenience of the court; it is essentially a rule intended to require reasonable fairness and candor in appellate practice. Where, as in this case, the “Points Relied On” state only the most general conclusions, without specifying any particular errors — are fired broadside, so* to speak — not only is the respondent deprived of a fair opportunity to answer the appellant’s contentions, but if we attempt to' search the record and decide the case on its merits without being presented with any specific question, we are thus forced to- a certain extent to become advocates for one party or another, which is in itself unfair. Morris v. Willis, Mo., 338 S.W.2d 777, 780; Ambrose v. M. F. A. Co-operative Ass’n, supra, 266 S.W.2d at 650; Stanton v. Phillips, Mo.App., 318 S.W.2d 516, 518 [2]. However, with some misgiving, we have decided to deny the Motion to Dismiss in-this particular instance. The case was tried upon an agreed statement of fact and therefore the sole question here is whether the judgment is the proper legal conclusion upon the facts stipulated. Jewel Tea Co. v. City of Carthage, supra, 257 Mo. at 388, 165 S.W. at 744; Bartlett v. National Finance Corporation, 228 Mo.App. 789, 799, 73 S.W.2d 451, 457; Morrison v. De Donato, 76 Mo.App. 643, 649. Cf. City of Stanberry v. Jordan, 145 Mo. 371, 382, 46 S.W. 1093, 1096 [5]. More precisely, the only question before us is whether, on the facts presented, the trial court erred in refusing a permanent injunction. Since this is an equitable action which we must try anew upon the record, and it is apparent that there is but a single question for our determination upon the merits, we will consider that question even though appellants’ brief is seriously deficient. Carr v. Lincoln, Mo., 293 S.W.2d 396, 398; Milanko v. Austin, 362 Mo. 357, 362, 241 S.W.2d 881, 882, cert. den. 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678.

Injunction is an apt remedy to restrain the enforcement of a penal ordinance which is invalid or violative of some constitutional provision if, in addition, the petitioner can show some recognized ground for equitable intervention. Moots v. City of Trenton, 358 Mo. 273, 214 S.W.2d 31, 32; Jewel Tea Co. v. City of Carthage, supra, 257 Mo. at 391, 165 S.W. at 745-46; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 328-330, 32 S.W. 649, 650-651; Brotherhood of Stationary Engineers v. City of St. Louis, Mo.App. 212 S.W.2d 454, 458 [1]; 28 Am.Jur., Injunctions, Section 190, pp. 694-696. Ordinarily it is said that equity will enjoin the enforcement of an invalid ordinance to protect the individual citizen from multiple prosecutions, or to prevent irreparable injury to his property rights where he has no adequate remedy at law. Sylvester Coal Co. v. City of St. Louis, supra, 130 Mo. at 329, 32 S.W. at 650-651; Brotherhood of Stationary Engineers v. City of St. Louis, supra, 212 S.W. 2d at 458; Anno., L.R.A.1916C, 263, 267-271. Our courts have also indicated, in this connection, that the enforcement of an invalid ordinance may be enjoined where the effect of enforcement would be to destroy the petitioner’s property rights in the conduct of a lawful business. Wellston Kennel Club v. Castlen, 331 Mo. 798, 804-805, 55 S.W.2d 288, 290; State ex rel. Chase v. Hall, 297 Mo. 594, 604-606, 250 S.W. 64, 67 [6, 7]; Merchants’ Exchange of St. Louis v. Knott, 212 Mo. 616, 646-647, 111 S.W. 565, 573.

These general principles are subject to a number of qualifications, however. Even assuming that the ordinance is invalid —which we do not decide — the courts of this State 11&⅜⅞ taken the attitude that the expense incident to arrest and prosecution under an invalid ordinance is not a property right subject to being protected by injunction, Hann v. Fitzgerald, 342 Mo. 1166, 1169, 119 S.W.2d 808, 809; Dickinson Operating Co. v. City of Kansas City, Mo.App., 317 S.W.2d 638, 639-640, unless it is shown that attempted enforcement of the invalid ordinance will result in so many prosecutions that the petitioner’s remedy at law is inadequate. Moots v. City of Trenton, supra, 214 S.W.2d at 32-33 [2], What is more, where the injunction is sought to protect property rights against the enforcement of a void or invalid ordinance, the complainant must show that the acts or damage against which he seeks protection are not only threatened but will in all probability be committed. Lester Real Estate Co. v. City of St. Louis, 169 Mo. 227, 235, 69 S.W. 300, 302-303; Ewing v. Kansas City, Mo.App., 238 Mo.App. 266, 180 S.W.2d 234, 239-240; Commission Row Club v. Lambert, Mo.App., 161 S.W.2d 732, 736. In our view, these authorities, and a good many well-reasoned cases from other jurisdictions, show that where an injunction is sought to restrain the enforcement of a void penal ordinance upon the ground that multiple prosecutions are threatened, or upon the ground that an irreparable injury will be done to the individual’s property rights in the conduct of a lawful business if enforcement is permitted, the complainant must not only plead, but make proof, that multiple prosecutions are in fact contemplated, or that attempted enforcement would result in virtual destruction of his business. See Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 50-51, 61 S.Ct. 418, 85 L.Ed. 577, 580; City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39, 42-43; Ferguson Coal Co. v. Thompson, 343 Ill. 20, 174 N.E. 896, 900 [10-12]; Spur Distributing Co. v. Mayor and Council of Americus, 190 Ga. 842, 11 S.E.2d 30, 31-33, 167 A.L.R. 911.

In the case at hand, the plaintiffs alleged that multiple prosecutions were threatened and that their business would be “utterly and completely destroyed” and “irreparable injury will be done.” However, the stipulation of facts filed, which we accept as being true, merely states that the plaintiffs have failed to construct the required fence and have been arrested, and that it is the intention of Ifte defendant City officials to enforce the ordinance in the future. It does not appear that the plaintiffs have been arrested more than once, nor does the City concede that it will prosecute the plaintiffs more than once. We are not advised what measure of expense would be involved in constructing a “screen” fence, either of wood or an authorized substitute material, nor does it appear that the defendant officers’ attempted enforcement of the ordinance would result in any direct invasion of plaintiffs’ property rights. These matters are simply left to speculation by the proof, or substitute for proof. There is no factual showing either that multiple prosecutions will be undertaken or that compliance with the ordinance would be ruinous to the plaintiffs; and in the circumstances of this case, we believe a permanent injunction was properly denied. The judgment is therefore affirmed.

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


source: Caselaw Access Project

author: BIRD, Judge.

license: Public Domain

text:
    Robert H. BICKEL, Appellant, v. FORD MOTOR COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 28, 1963.
    Rehearing Denied Sept. 20, 1963.
    Chester L. Rigsby, Louisville, for appellant.
    James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   BIRD, Judge.

The Ford Motor Company maintains a parking lot adjacent to its operational premises for the use and benefit of its employees. Bickel, a Ford employee arriving for work, parked on the lot. He started on foot to the plant. While still on the parking lot he fell on ice and was injured.

He filed his claim for Workmen’s Compensation under KRS, Chapter 342. The case was heard by the Workmen’s Compensation Board and the claim was denied. The Board held that the injury did not arise out of Bickel’s employment as provided in KRS 342.005. Bickel sought a review in the circuit court. The Board’s action was there affirmed and Bickel appeals to this Court.

On appeal there is only one question. Did the injury arise out of Bickel’s employment as required by KRS 342.005 ? Bickel’s employment was within the plant.

Authorities of equal dignity have been cited tending to support the positions of the employer and employee. After consideration of the facts we have concluded to follow the principle enunciated in United States Steel Co. v. Isbell, Ky., 275 S.W.2d 917. This Court is taking the position that Bickel’s injury did not arise out of his employment within the meaning of KRS 342.-005. The accident and resulting injury were not incident to the hazards of Bickel’s employment.

We find no error and the judgment is affirmed.

MILLIKEN, J., dissenting.


author: STANLEY, Commissioner.

text:
    Robert BYERS, Appellant, v. Reka C. BYERS, Appellee.
    Court of Appeals of Kentucky.
    June 28, 1963.
    Rehearing Denied Sept. 20, 1963.

      James M. Todd, Lasserre Bradley, Lexington, for appellant.
    Scott Collins, Prestonsburg, for appellee.
   STANLEY, Commissioner.

This is an unusual child custody, case. The action was instituted by the father of two girls, eight and eleven years old, to enjoin their mother from taking them to Johannesburg, South Africa. The injunction was denied, as were two alternative pleas. The father appeals.

The parents, Robert Byers and Reka C. Byers, were divorced by a Florida court in March, 1957. The mother was awarded custody of the infant children, and she brought them to Lexington, Kentucky, where they have since resided. Mrs. Byers has been teaching school in Franklin and Fayette Counties. While the divorce decree is silent as to the right of visitation, the father has frequently visited the children. He has not remarried. He is a traveling man with an extensive territory and is presently living in an apartment in Atlanta. Both parties are highly respectable, and the character and moral suitability of neither is questioned. However, Mrs. Byers admitted that she does not attend church and is not giving her children any religious training because “I don’t consider it necessary.” The appellant’s parents also live in Lexington, the father being a professor at the University of Kentucky. The children would have been placed with them had the father succeeded in this action.

The mother of these children plans to go to South Africa and marry Jacob Elzinus Boekkooi, a native of Holland, presently employed as a newspaper man in Johannesburg. In the summer of 1948 he was an “exchange student” in Lexington under the auspices of the United States State Department. Mrs. Byers met him in Johannesburg in the summer of 1962 when she was there as a tourist, and they became engaged to marry. His affidavit, received as evidence, is that he is financially able to maintain a wife and Mrs. Byers’ children. But there is absent any commitment to support the children. Some evidence was introduced to show that the environment and living conditions in the foreign city are equal to those in Lexington, Kentucky.

The question of custody of children of parents about to be or who have been divorced ordinarily arises as an important incident to the divorce proceeding ; but, independent of the divorce action, it is a common subject of equity jurisprudence in the jurisdiction where the child is domiciled or situated. 39 Am.Jur., Parent and Child, § 18. Compare Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565; Roberts v. Roberts, 300 Ky. 454, 189 S.W.2d 691. And it may be observed that non-residence is generally regarded as a factor of minor importance (39 Am.Jur., Parent and Child, § 22, p. 612) and that a court having jurisdiction has the power to permit a parent who contemplates an immediate removal from the state to take the child or to confirm the act where the child has already been removed. In some of our cases it was found to be to the best interests of the child to permit or confirm his or her removal from the state. Workman v. Workman, 191 Ky. 124, 229 S.W. 379; Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549; Lambeth v. Lambeth, 305 Ky. 189, 202 S.W.2d 436; Bowman v. Bowman, 313 Ky. 806, 233 S.W.2d 1020; Spencer v. Spencer, Ky., 312 S.W.2d 360.

We have considered the several cases from other jurisdictions cited by the parties in which the removal of the children was to foreign countries. The courts seem to have given some weight to the difference, but decided the cases upon the same principles generally recognized where the removal would be or had been to another state.

No question of jurisdiction or power has been raised here. The case has been regarded the same as if it was an incident to the divorce action. Therefore, the principles usually and generally recognized in such actions have been and should be applied.

It is a fundamental rule thar, other considerations being equal, custody of a child of tender years, or if a girl of even more mature years, should be awarded to the mother. This is in recognition of the truism that maternal affection is more active and better adapted to the care of the child and best calculated to secure his or her happiness and well-being. She is the natural custodian of her young children. There is no substitute. There are scores of authorities for the statement. However, it cannot be said by any means that the love and devotion of a father is to be ignored or given less consideration. Always the claims of the divorced parents— both of them — are subordinate to the g-ood of the child as the courts in their judicial wisdom and discretion may determine.

The contemplated removal of the children to a far-off country gives strong support to the father’s claim. It is a cogent and appealing factor. But over against it is the principle, so often enunciated, as to the better fitness of a mother. One of these two little girls will soon be blossoming into adolescense, at which stage in life she will specially need the care and comfort of her mother. There is also the fact that the father is not situated so he can personally take care of the children. From the conflicting considerations the trial court determined that the custody of the children should remain with the mother, and we cannot say that such determination was an abuse of discretion.

The two alternative pleas of the father are (1) that the court should have required the mother to execute bond or other surety conditioned upon her returning the children to the jurisdiction of the court; (2) that while they remain in South Africa he should be relieved of the payment of $20.00 a week for the support of the children.

With respect to the first contention. The court did not believe it necessary to require bond, apparently relying upon the substantial promise that the children’s father could bring them back to the States during school vacations if he would pay one-half the transportation costs, and the mother’s expressed intention of returning to Kentucky in about two years for a vacation and bringing the children with her.

In respect to the second contention. The amount the father has been paying for the support of the children was that decreed by the Florida court in the divorce action when the children were two and five years old and his financial ability was limited. The mother sought greater allowance in this action, but she has not perfected a cross-appeal. Obviously, the sum being paid is inadequate today; but as the children will be taken away and he will be deprived as a realistic matter of visiting them periodically, we agree with the trial court that the father should continue the same payments (directed to be paid to the Domestic Relations Officer of the Fay-ette Circuit Court), for a father is responsible for the support of his children.

The judgment is affirmed.

STEWART, C. J. and MONTGOMERY, J., dissenting.


author: WERLEIN, Justice.

text:
    James I. SHANKEN, Appellant, v. LEE WOLFMAN, INC., et al., Appellees.
    No. 14174.
    Court of Civil Appeals of Texas. Houston.
    July 11, 1963.
    Rehearing Denied Sept. 12, 1963.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellant.
    L. Keith Simmer, Alton F. Curry, Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appel-lees.
   WERLEIN, Justice.

Appellant, James I. Shanken, individually and as a representative and registered shareholder of Lee Wolfman, Inc., which merchandizes ladies’ ready-to-wear from its store on Kirby Drive in Houston under the name of “Wolfman’s,” brought this suit against Lee Wolfman and wife, Margaret Wolfman, Charles Ford and wife, Irene Ford, sometimes referred to collectively as individual appellees, Wolfman’s Inc.— Spring Branch, sometimes referred to as the “Spring Branch store,” and Wolfman’s Inc. This appeal is from a summary judgment granted appellees.

Appellant alleged that he filed his petition as a representative and shareholder of Lee Wolfman, Inc., as a shareholder’s derivative action in favor of Lee Wolfman, Inc. and its stockholders in a same and similar position as appellant; that Lee Wolf-man, Inc. had failed and refused to institute suit in behalf of itself to protect its corporate property and save same from damage or loss; that Lee Wolfman is the president, chairman of the Board of Directors, and the owner of all of Class A common stock in Lee Wolfman, Inc., and that Margaret Wolfman and Irene Ford are both officers and directors and shareholders of Lee Wolfman, Inc. and that said parties are also officers, directors and incorporators of Wolfman’s, Inc. — Spring Branch; that appellant, who owns all of Class C common stock in Lee Wolfman, Inc., has been since on or about April 2, 1958 vice president and a director of said corporation, but he has no connection with Wolfman’s, Inc.— Spring Branch, and had no knowledge of the organization or existence of such company until after its incorporation.

The judgment of the court, granting the summary judgment, recites among other things: “ * * * and the Court having considered the pleadings, the depositions on file, and the affidavit attached to the amended motion for summary judgment, and there being no controverting affidavits filed on behalf of Plaintiff * * * ” Although the court considered the depositions on file as well as the pleadings and the affidavit attached to the amended motion for summary judgment, appellant has failed to file in this Court a statement of facts. Therefore, we must presume in support of the judgment that the evidence was such as to show the trial court that there was no genuine dispute as to any material fact issues. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961); Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015, writ dism.; Root v. Hester, Tex.Civ.App., 309 S.W.2d 480, error ref. This appeal, therefore, is limited to a consideration of appellant’s first Point asserting that the trial court erred in granting appellees’ motion for summary judgment because the purported charter amendment, stock increase and purchase of the Spring Branch store stock by Lee Wolf-man, Inc. is invalid under the Texas Business Corporation Act and under the articles of incorporation of Lee Wolfman, Inc. In order to pass upon appellant’s contention, it is necessary to relate briefly the undisputed facts upon which his claim is based.

Lee Wolfman, Inc. was incorporated under the laws of the State of Texas on March 10, 1958. At the organization meeting of the Board of Directors of the company on March 14, 1958 Lee Wolfman was elected president, appellant was elected vice president, Irene Ford was elected secretary, and Charles Ford treasurer, and three of the incorporators and appellant were elected directors. The corporate stock was authorized and issued as follows:

Class Authorized Issued Par Owner
A common 100 $100.00 Lee Wolfman o
B common 100 100.00 Irene Ford o
C common 100 100.00 Tames Shanken o
Cumulative preferred 550 -0- 100.00

Appellant alleged that in December, 1961 the individual appellees without his knowledge opened a store in the Spring Branch area of Houston under a separate corporation named “Wolfman’s, Inc. — Spring Branch” and that neither appellant individually nor Lee Wolfman, Inc. had any stock in raid branch store which the individual appellees operated under the name “Wolf-man’s” without the prior consent or approval of appellant or Lee Wolfman, Inc.; that such action was a gross breach of their fiduciary duty to Lee Wolfman, Inc. and its stockholders; that on May 10, 1962 appellant demanded at a meeting of the Board of Directors of Lee Wolfman, Inc. that an investigation be made of Wolfman’s Inc.— Spring Branch for the purpose of determining whether action should be taken on behalf of the shareholders of Lee Wolfman, Inc. to protect such shareholders against unfair competition or use of the name and good will of Lee Wolfman, Inc. in the operation of Wolfman’s, Inc. — Spring Branch.

Thereafter on May 24, 1962 action was taken by the directors of Lee Wolfman, Inc. to acquire all of the stock of the Spring Branch store. The stated purpose of such stock acquisition was to make the Spring Branch store a wholly owned subsidiary of Lee Wolfman, Inc. A pro rata increase of each class of the corporation’s common stock was proposed, and a resolution adopted, later to be submitted to the shareholders, by a vote of three directors to one director, appellant opposing, to amend the charter of Lee Wolfman, Inc. so as to increase the aggregate number of shares authorized to be issued to 250 shares in each class of common stock, and to issue such stock pro rata; or, in the alternative, if that resolution should not pass, to increase the aggregate number of shares of the corporation from 1,000 shares to 1350 shares by increasing to 325 shares both Class A and Class B stock. These resolutions to amend the company’s charter were submitted to a vote of the shareholders at a special meeting on June 4, 1962. Appellant voted his Class C stock against the pro rata amendment, thus making it impossible for the remaining stockholders to increase his class of stock against his will. Thereafter the amendment was adopted to authorize and issue an increase in Class A and Class B stock by 175 shares each. Appellant voted against the adoption of such resolution, which carried, however, by a two-thirds vote including the affirmative vote of all of Class A and Class B stock.

On or about June 21, 1962 the charter of Lee Wolfman, Inc. was accordingly amended increasing the number of authorized shares of both Class A and Class B stock to 325 shares and leaving appellant’s Class C stock at 150 shares. Appellant brought this suit on June 26, 1962, praying for damages, an injunction, declaratory judgment, attorney’s fees, and that the action of the shareholders at said special meeting of June 4, 1962 be declared void and of no force or effect.

Appellant contends that under the Texas Business Corporation Act, and particularly the provisions concerning amendments of the articles of incorporation, the charter amendment attempted by appellees required the affirmative vote of two-thirds of all the issued stock of Lee Wolfman, Inc. and in addition thereto the affirmative vote of two-thirds of each class of stock, voting separately as a class. Two-thirds of the total shares voted in favor of the charter amendment but two-thirds of each class did not approve the amendment since appellant voted his Class C stock against the amendment.

Article 4.02, Texas Business Corporation Act, V.A.T.S., provides as follows:

“A. The articles of incorporation may be amended in the following manner:
* sjs * ⅜ ⅜ ‡
“(3) At such meeting a vote of the shareholders entitled to vote thereon shall be taken on the proposed amendment. The proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote thereon, unless any class of shares is entitled to vote thereon as a class, in which event the proposed amendment shall be adopted upon receiving the affirmative vote of the holders of at least two-thirds of the shares within each class of outstanding shares entitled to vote thereon as a class and of at least two-thirds of the total outstanding shares entitled to vote thereon.”

Article 4.03 of the Act defines class voting on amendments as follows:

“A. The holders of the outstanding shares of any class entitled to vote upon a proposed amendment by the provisions of the articles of incorporation shall be entitled to vote as a class thereon if the amendment would change the shares of any class having a par value into the same or a different number of shares without par value, or would • change the shares of any class without par value into the same or a different number of shares having a par value, or would change the shares of any class, whether with or without par value, into a different number of shares of the same class.
“B. The holders of the outstanding shares of a class shall be entitled to vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the provisions of the articles of incorporation, if the amendment would:
“(1) Increase or decrease the aggregate number of authorized shares of such class.
‡ ⅝ * ‡ ♦ ⅜
“(5) Change the designations, preferences, limitations, or relative rights of the shares of such class.”

Appellant contends that under the foregoing articles, if any class of stock is entitled to vote upon a proposed charter amendment as a class, then the proposed amendment must receive the affirmative vote of the holders of at least two-thirds of the shares within each class; that the holders of outstanding shares of any class of stock are entitled to vote as a class if the amendment “would change the shares of any class, whether with or without par value, into a different number of shares of the same class”; that the amendment approved by the Class A and Class B shareholders was for the specific purpose of changing the shares of A and B class stock into a different number of shares of the same class, and hence he was entitled to vote his Class C stock as a class. He further contends that he was entitled to vote his stock as a class under the provisions of Article 4.03, subd. B (5) which provides class voting privileges in the event an amendment would “Change the designations, preferences, limitations, or relative rights of the shares of such class.” He asserts that the effect of the purported charter amendment is to “change the relative rights” of the Class C shares in the corporation.

The law is well settled that both the charter of a corporation and the Business Corporation Act become a part of the contract between the shareholders. St. Regis Candies v. Hovas, 1928, 117 Tex. 313, 3 S.W.2d 429; Ainsworth v. Southwestern Drug Corporation, 5th Cir., 95 F.2d 172; General Life Ins. Co. v. Com’r of Internal Revenue, 5th Cir., 137 F.2d 185. One of the cardinal rules of statutory construction is to ascertain the legislative intent and to give effect to every express declaration thereof. Magnolia Petroleum Co. v. Walker, 1935, 125 Tex. 430, 83 S.W.2d 929; Cousins v. Sovereign Camp, W. O. W., 1931, 120 Tex. 107, 35 S.W.2d 696; Citizens’ National Bank of Hillsboro v. Graham, 117 Tex. 357, 4 S.W.2d 541. In the case of conflict between a general and a special provision of a statute, the special provision prevails. Nelson v. Texas Employment Commission, Tex.Civ.App., 290 S.W.2d 708, error ref.

The charter of Lee Wolf man, Inc. confers upon the corporation all powers necessary or convenient to further any or all of the purposes for which the corporation is organized. Under the heading “Description of Classes: The preferences, qualifications, limitations, restrictions and the special or relative rights in respect of the shares of each class” it provides in substance that Class A common stock, Class B common stock, and Class C common stock shall be identical in all respects except that the holders of Class A common stock shall have the exclusive right by a vote of the holders of a majority of said Class A common stock to elect three-fifths of the total number of directors of the corporation, and the holders of Class B common stock shall have the right to vote as a class for not more than one-fifth of thé total number of directors, and holders of Class C common stock shall have the right to vote as a class to elect not more than one-fifth of the total number of directors.

Article 4.02, subd. A(3), T.B.C.A., here-inabove set out, is a general provision covering charter amendments. Article 4.03, subd. A of the Act provides that the holders of the outstanding shares of any class entitled to vote upon a proposed amendment by the provisions of the articles of incorporation shall be entitled to vote as a class thereon if the amendment would change the shares of any class, whether with or without par value, into a different number of shares of the same class. It is our view that the charter amendment in question did not change the shares of Class A and Class B stock into a different number of shares of the same class but merely increased the aggregate number of authorized shares of such classes as provided in Article 4.03, subd. B(l) of the Act.

It seems clear that Article 4.03, subd. B (1) of the Texas Business Corporation Act entitles a specific class to vote as a class, if there is to be an increase or decrease in the aggregate number of authorized shares of such class. It seems equally clear that under Article 4.03, subd. B(5) of the Act the holders of the outstanding shares of a specific class shall be entitled to vote as a class if the effect of the amendment is to change the designations, preferences, limitations, or relative rights of the shares of “such” class. Under such provisions Class A and Class B shareholders had the right and were required to vote as a class, but Class C shareholders had no such right because the amendment did not increase the aggregate number of authorized shares of Class C or change the designations, preferences, limitations, or relative rights of the shares of Class C. Each share of paid up stock of Class C is still entitled to .the same dividend and has the same voting power and weight as each paid up share of Class A and Qass B stock, although the holders of stock in Classes A and B may control a larger corporate vote. The holders of Class C common stock still enjoy the peculiar and special right provided in the charter to elect one-fifth of the directors of the corporation, and the holders of Class A and Class B stock will still have the right to elect the number of directors as provided in the original articles of incorporation. The quality and retentive rights of the shares in each class, as-distinguished from the relative position of the classes in the capital structure, have remained identical.

We have not found nor been cited to any Texas case similar to the instant case which is apparently one of novel impression in this State, The case of Hartford Accident & Indemnity Co. v. W. S. Dickey C. Mfg. Co., 1942, 26 Del.Ch. 411, 24 A.2d 315, is, however, somewhat in point and persuasive. In that case 'Class A stock was increased from 500,000 shares to 1,000,000 shares. There, as here, the other classes were allowed to vote and a two-thirds vote overall was obtained. If the common stock had been voted as a class, the amendment would have failed. The common stockholder sought to enjoin the increase on the ground that, under the class voting provisions of the Delaware statute, the “relative rights” of the common stockholders were adversely affected with respect to their relative position in the capital structure, their right to dividends and their share of the corporate assets upon dissolution. Accordingly, the plaintiff contended that a class vote of two-thirds of the common stock was required by law. The court held :

“If the Legislature had intended to afford protection against the effects of an amendment generally by requiring a class vote of shares in all cases where, by the amendment, the relative position of shares would be disturbed, as by an increase of subordination, apt language easily could have been found. But it is entirely clear that the statute in its mention of relative rights of shares did not refer to the position of shares in the plan of capitalization, but to the quality possessed by the shares; and it is only by a refinement of interpretation that it can besaid that, a'relative position is a relative right.
* * * * * *
“It is, of course, arguable that protection should be given against an increase of burden by requiring an affirmative class vote of a majority of the shares called upon to bear the load; but this is a field of public policy and economy upon which the courts, under the appearance of construction, ought not to trespass.”

Article 4.03, subd. B(l) speaks of an increase in the aggregate number of authorized shares of a class, and refers specifically to the class that is entitled to vote as a class as “such” class; whereas Article 4.03, subd. B(6) does not refer to an increase in the number of authorized shares but to a change of the shares of a class into a different number of shares, as does also Arti- • ele 4.03, subd. A, Texas Business Corporation Act. In the instant case the original shares in Classes A and B were not changed into a greater number of shares. There was merely added an additional number of 175 shares to each such class, thereby increasing the aggregate number of author-. ized shares of each, such class. The increase in the authorized number of the shares of Classes A and B gave the holders thereof a preemptive right upon payment thereof to have such shares issued to them. The charter expressly provides that the acceptance of common capital stock of a particular class shall be considered a waiver of any preemptive or preferential rights as to shares of any other or different class of common capital stock.

It is our view that Article 4.03, subd. B (6) merely provides that there cannot be any change in the number of shares of any class, whether by stock split or division or other method without each class voting as a class. This distinction between increasing the aggregate number of shares of a class and changing the shares of a class into a different number of shares of the same cláss is also recognized in Article 4.01, Sec. B', T.B.C.A. It provides that a corporation may amend its articles of incorporation so as :

“(4) To increase or decrease the aggregate number of shares of any class ■ which the corporation has authority to ■ issue.
* * * * * *
“(9) To change the shares of any class, whether issued or unissued, and whether with or without par value, into a different number of shares of the same class or into the same or a different number of shares, either with or without par value, of other dass.es.”

In considering all of the foregoing provisions of the Texas Business Corporation Act, we are unable to say that the Trial Court erred in granting the summary judgment.

Affirmed.


author: MURRAY, Chief Justice.

text:
    Mrs. Adelheit RUBIOLO and J. L. Lytle, Jr., et al., Appellants, v. J. L. LYTLE, Jr., et al., and Mrs. Adelheit Rubiolo, Appellees.
    No. 14077.
    Court of Civil Appeals of Texas. San Antonio.
    July 10, 1963.
    Rehearing Denied Sept. 4, 1963.

      Moursund, Ball & Bergstrom, Travis M. Moursund, Andrew Dilworth, James A. McKay, Jr., San Antonio, for appellants.
    Moursund, Ball & Bergstrom, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Mrs. Adel-heit Rubiolo, a widow, individually and as executrix of the estate of Joe J. Rubiolo, deceased, in the form of trespass to try title, against J. L. Lytle as owner of one lot, and the owners of fifteen other lots, seeking to establish a boundary line between her property and the sixteen lots here involved. The jury found in favor of Mrs. Rubiolo as to her contention as to the southern boundary line of her property, but found in favor of the owners of the sixteen lots as to their contention of limitation, and thereby fixed their various boundary lines as contended by them. This had the effect of giving to the owners of the sixteen lots the disputed strip between their property and that of Mrs. Ru-biolo. On motion for judgment non ob-stante veredicto by Mrs. Rubiolo, the trial court set aside the findings of the jury as to some of the lot owners and permitted the verdict to stand as to the owners of the remaining lots. The trial court rendered! judgment in Mrs. Rubiolo’s favor as to the owners of Lots 3, 10, 14 and 16, Duran Subdivision, and against her as to the owners of all the other lots. Mrs. Rubiolo has appealed as to all of the defendants below, and the owners who did not recover have also appealed. Thus we have two sets of appellants.

It is apparent that before Mrs. Rubiolo could recover she would have to show a record title in her as to the land claimed by her, from the common source alleged to be Pedro Flores. In an attempt to show a record chain of title in herself, Mrs. Rubiolo introduced a deed from Pedro. Flores to John Layer and a deed from Pedro Flores to Joseph Ulrich. The description of the land attempted to be conveyed in each of these two deeds is fatally defective.

The description found in the deed from Pedro Flores to John Layer, dated January 29, 1858, reads as follows:

“All that certain tract or parcel of land lying and being in the County of Bexar and State of Texas, situated near the head of the San Antonio River, on the right bank of the Upper Labor Ditch, in District No. 3 of the land formerly belonging to the City of San Antonio and sold by her. Said lot has a front of 25 varas on the street in the west and runs back to the ditch in the east with 280 varas, together with all and singular the rights, etc.”

The description found in the deed from Pedro Flores to Joseph Ulrich dated September 30, 1859, reads as follows:

“A strip of land with twenty (20) varas front of the ditch of the Upper Labor and same width throughout and running along south side of the tract sold by me to John Layer of same length as his tract and bounded on the north by stone wall of said Layer.”

It is apparent that before the parcel of land conveyed to Joseph Ulrich could be located on the ground, the parcel of land conveyed to John Layer would have to be definitely located. This cannot be done by the description found in the deed to John Layer. The rock wall referred to in the Ulrich deed cannot be located, no one seems to know where this rock wall was located. The land attempted to be described in the Layer deed might be any parcel of land owned at the time by Pedro Flores, lying between the street in the west and the ditch in the east. There is no definite point given anywhere in the description. It is not even described as lying between parallel lines. The lot has a front of 25 varas on the street. We do not know whether it forms a right angle with the street or some other kind of angle. We are not told its shape, whether it is in a triangular or rectangular shape, or is in some irregular shape. If we are unable to locate the Layer land, then certainly we cannot locate the Ulrich parcel of land, and until the Ulrich land is definitely located the boundary line between Mrs. Rubiolo’s land and the sixteen lots cannot be located as claimed by Mrs. Ru-biolo. There is no evidence to support the jury’s finding as to the southern boundary line of the Rubiolo land, and the court erred in rendering judgment against some of the lot owners. Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308.

Appellant’s witness W. F. Pickard, an expert surveyor, testified on cross-examination as follows:

“Q I am handing you Defendants’ Exhibit C, Mr. Pickard, and I am handing you Defendants’ Exhibit D, which purports to be a copy of a deed from Pedro Flores to John Layer. Now, the pertinent part of the field notes there, ‘all that tract or parcel of land lying and being in the County of Bexar, and State of Texas, situated near the head of the San Antonio River on the right bank of the Upper Labor Ditch, in District No. 3, of the land formerly belonging to the City of San Antonio and sold by her. Said lot has a front of 25 varas on the street in the west and runs back to the ditch in the east with 280 varas.’ Now, if you went to survey out the tract described in Defendants’ Exhibit D all you would know about it would be that it was in District 3 on the right bank of the Upper Labor Ditch and had a front of 25 varas on the street in the west and runs back to the ditch in the east with 280 varas; isn’t that correct?
“A That’s right.
“Q You wouldn’t know where the north line of it was at all?
“A No, sir.
“Q And you wouldn’t know where the south line of it was, could you?
“A No, sir.
“Q And it only locates the land as in District No. 3, and being sold to the grantor by the City of San Antonio; is that correct?
“A That’s right.
“Q And you couldn’t actually locate this without — you couldn’t actually pin it down to any land in District 3, could you ?
“A Not without measuring it.
“Q You would, to get anywhere at all, you would have to go and find if this was the only tract that Pedro Flores acquired from the city in the whole of District 3, wouldn’t you?
“A Well, we would have to dig into the records and see whether we couldn’t determine from different records, different information, that the city may have, or anyone else may have, in order to determine where this piece of land would be.
“Q You couldn’t do it from the deed; you would have to go to various collateral sources?
“A We couldn’t do it from the deed and be sure.”

The evidence failing to establish the southern boundary line of the Rubiolo land, the trial court should have given an instructed verdict for the owners of the sixteen lots.

The sufficiency of the description of land contained in a deed is discussed in 19 Tex. Jur.2d, § 123, p. 422: “A deed is void as a conveyance if it fails to furnish the means of determining with reasonable certainty the land intended to be covered by it.” And in § 125, p. 427, we find the following statement:

“It is not necessary that the deed contain such a complete description that the land can be identified without extrinsic testimony. Under the maxim that that is certain which is capable of being made certain, a description that does not fully define the land, but when aided by extrinsic testimony enables the land referred to be ascertained with certainty, is sufficient.”

What was said by Justice Smith, speaking for the Supreme Court in Jones v. Mid-State Homes, Inc., Tex., 356 S.W.2d 923, 924, at page 924, is in point here:

“The Surveyor’s field notes are the basis for the plaintiff’s contention that the description contained in the tendered instruments sufficiently identified the land. We are not called upon to decide whether or not the Surveyor’s field notes constitute a valid description of the land. It is sufficient to say that the description contained in the excluded instruments was so defective that it failed to furnish a nucleus of description sufficient to identify any particular property.”

We have almost the exact situation in the case at bar. A mere reading of the description contained in the Layer and Ulrich deeds will convince anyone that these deeds do not furnish a nuclear description sufficient to identify any particular property. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705, is another case squarely in point. Mrs. Rubiolo must recover, if at all, on the strength of her own title and cannot rely upon the weakness of her adversary’s title. 41-A Tex.Jur. p. 665, § 138.

The trial court fixed the plaintiff’s southern boundary in keeping with the verdict of the jury, except as to lots 3, 10, 14 and 16. In this the court erred, the judgment should have included and not excluded these lots and their respective owners. The judgment will be reformed so as to provide that Adelheit Rubiolo take nothing by her said suit as to all of the defendants, and that the boundary line between her property and the property of the owners of all sixteen lots be fixed as the North line of the Duran Subdivision, according to map or plat of said subdivision recorded at Vol. 2222, page 353, Deed and Plat Records of Bexar County, Texas. A more complete description of this boundary line is found in the judgment of the trial court, but we strike therefrom the following: “excepting however from this description the North boundary lines of Lots 3, 10, 14 & 16 of said Duran Subdivision.”

The judgment of the trial court as thus reformed is in all things affirmed.

The costs of this Court and the court below are taxed against Adelheit Rubiolo.

Reformed and affirmed.

BARROW, J., not participating.


author: POPE, Justice.

text:
    Paul COX, Appellant, v. QUEEN INSURANCE COMPANY OF AMERICA, Appellee.
    No. 14134.
    Court of Civil Appeals of Texas. San Antonio.
    July 10, 1963.
    Rehearing Denied Sept. 4, 1963.
    Alsup & Alsup, Corpus Christi, for appellant.
    Johnson, Guthrie & Stanfield, Dallas, for appellee.
   POPE, Justice.

Plaintiff, Paul Cox, sued to recover damages to his pier and bath house under the terms of his insurance policy with Queen Insurance Company of America. The trial court granted judgment for the defendant upon jury findings, the force of which brought the damages within the express exclusionary provisions of the contract. We affirm the judgment.

Plaintiff owned a pier and bath house at Fulton Beach in Aransas County, which were damaged on September 11, 1961. His policy provided that he was insured against direct loss resulting from windstorm, hurricane, or hail. The insurance contract contained this exclusionary clause:

“Unless specifically named hereon, this Company shall not be liable for loss * * * caused * * * (b) by snow storm, tidal wave, high water, or overflow, whether driven by wind or not; * *

The jury found, supported by the evidence, that the damages were caused by the combined action of wind and water, and not solely by the wind. The charge was submitted without objection. Under these findings, the judgment was the correct one. It is settled Texas law, under this exclusionary clause, that when there are two concurrent causes of damages, one of which is excluded by the contract, there is no coverage. Palatine Ins. Co. v. Coyle, Tex.Civ.App., 196 S.W. 560, affirmed Tex.Com.App., 222 S.W. 973; Franklin Fire Insurance Co. of Philadelphia v. Smith, Tex.Civ.App., 103 S.W.2d 470; Palatine Ins. Co. v. Petrovich, Tex.Civ.App., 235 S.W. 929. This is also the rule in most other jurisdictions. Hartford Fire Insurance Co. v. Nelson, 64 Kan. 115, 67 P. 440; National Fire Insurance Co. v. Crutchfield, 160 Ky. 802, 170 S.W. 187, L.R.A.1915B, 1094; Gelber v. Paramount Fire Ins. Co. (Mo.App.), 219 S.W.2d 871; Brindley v. Firemen’s Ins. Co., 35 N.J. Super. 1, 113 A.2d 53; Newark Trust Co. v. Agricultural Ins. Co., 3 Cir., 237 F. 788, 791.

The judgment is affirmed.


author: FANNING, Justice.

text:
    Marguerite G. DeLAUGHTER, Appellant, v. Kenneth G. DeLAUGHTER, Appellee.
    No. 7505.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 6, 1963.
    Rehearing Denied Aug. 27, 1963.
    Harry Friedman: Harkness & Friedman, Texarkana, for appellant.
    Bun L. Hutchinson: Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.
   FANNING, Justice.

Marguerite G. DeLaughter brought suit in a District Court of Bowie County, Texas, for a change of custody of two minor children. Kenneth D. DeLaughter, the defendant, filed a motion to dismiss for want of jurisdiction, which motion was granted and plaintiff’s suit was dismissed. The trial court made findings of fact and conclusions of law and refused to make additional findings requested by appellant to which appellant excepted. Appellant has appealed.

Appellant presents one point on appeal wherein she contends that the trial court erred in dismissing the cause on defendant’s plea to the jurisdiction.

Defendant’s plea to the jurisdiction was in essence to the effect that both he and his minor children were residents of and domiciled in the State of New Hampshire and were without the jurisdiction of the trial court and that the trial court had no jurisdiction over the persons or subject matter of the suit.

The trial court heard evidence on the plea to the jurisdiction and made the following findings of fact and conclusions of law:

“FINDINGS OF FACT
“1. By an order of the 72nd Judicial District Court of Lubbock County, Texas entered on the 12th day of September, 1961 in Cause No. 35,626 styled Marguerite G. DeLaughter vs. Kenneth G. DeLaughter, the exclusive care, custody and control of the minor children involved herein, to-wit, Sandra DeLaughter and Tammera Ann DeLaughter, was granted to the Defendant, Kenneth G. DeLaughter.
“2. At the time of the institution of this proceeding and at the time of service of process herein upon the defendant and at the time of the hearing hereon the defendant, Kenneth G. De-Laughter, was a resident of and was domiciled in the State of New Hampshire.
“3. At the time of the hearing hereon the said minor children were actually and physically present, residing and domiciled in the State of New Hampshire.
“CONCLUSIONS OF LAW
“This Court was without jurisdiction to determine the question of the change of custody of said minors.”

We have carefully reviewed the statement of facts and hold that the evidence was sufficient to support the fact findings made by the trial court. We also hold that under this record the trial court was authorized to refuse to make the additional fact findings requested by defendant.

Although the minor children were physically present in Bowie County, Texas, at the home of their paternal grandmother at the time the suit was filed, they were in the State of New Hampshire with their father prior to and at the time of the hearing in the trial court. At the time of the institution of the suit the father, Kenneth G. DeLaughter, was an actual resident of and domiciled in New Hampshire, was also physically present in New Hampshire and was served with a non-resident notice in New Hampshire.

The minor children were never brought before the trial court by any process for the hearing before the court and as found by the trial court at the time of the hearing the minor children were actually and physically present, residing and domiciled in the State of New Hampshire. It thus appears very clearly that the minor children were r.ot physically present before the trial court or physically present in the State of Texas at the time of the hearing nor were they domiciled in the State of Texas at the time of the suit or at the time of the hearing but were at all times material hereto domiciled in the State of New Hampshire.

There are two basic alternative prerequisites for custody jurisdiction: (a) domicile of the child in the State and (b) its presence in the State. See Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977, wherein it is stated in part as follows:

“In Lanning v. Gregory, 100 Tex. 310, 99 S.W. 542, 10 L.R.A.,N.S., 690, we held a Texas court to be without jurisdiction to adjudicate the custody of a child domiciled in Louisiana but present in the state on a visit. Both the disputing father and mother were before the court, but were domiciled respectively in Louisiana and Kentucky, having been divorced at an earlier date by a decree which contained no custody provision. The decision is indeed not authority for the proposition that a Texas domicile on the part of the child is essential to our custody jurisdiction. See Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, A.L.R.2d 1. See also Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187. However, it still stands as authority for at least this much: that the power of the court over the persons of the contending parties is not of itself sufficient to confer custody jurisdiction. If such power were enough, clearly we would have sustained jurisdiction and not rejected it. From the two recent decisions last above cited and those to which the recent decisions last above cited and those to which the opinions therein refer, it is shown that the two basic alternative prerequisites for custody jurisdiction are (a) domicile of the child in the state and (b) its presence in the state. Thus we have held in Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, that custody of a Texas child may be adjudicated here even though the child be then residing beyond the state, and on the other hand, as in Worden v. Worden, supra; Wicks v. Cox, supra; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293, and Campbell v. Storer, 101 Tex. 82, 104 S.W. 1047, that, under particular sets of facts, each of which included the presence, though not the domicile, of the child within the state, our courts may determine custody. Except where the child is domiciled or physically present within the state, we have yet to hold our courts to be vested with custody jurisdiction, while considerable authority from other sources has expressly rejected jurisdiction where both of these prerequisites are lacking, and this although the contending parents may both be before the court. * * * ” (Emphasis added).

It is our further view that where the only basis for jurisdiction is the fact of the physical presence of the child in this state, that such physical presence relates not merely alone to the time when the custody suit was filed but also in particular relates to the time of the hearing by the court. In this connection see Black v. Adams, Tex.Civ.App., 214 S.W.2d 703, wherein it is stated in part as follows:

“ * * * We think the question here raised was decided against the contentions of relator by the Supreme Court in a similar case styled and reported Wicks v. Cox [146 Tex. 489], 208 S.W.2d 876. In that case the court held that technical legal domicile of a child in the State is not essential to give a court of this State jurisdiction of a child custody case where the child and all parties concerned are before the court for the hearing. The court further held in that case that the principles underlying jurisdiction of the subject matter in such cases is the welfare of society, primarily as evidenced by the welfare of the child, and such also involves the right and duty of a state to look after the welfare of minor children within its borders. We cite this case and other authorities therein cited in support of our position here taken.” (Emphasis added).

Since the children in question were legally domiciled in the State of New Hampshire at all times material hereto and also were not physically present in Texas at the time of the hearing before the trial court we hold that the trial court correctly sustained the plea to the jurisdiction under the record in this cause. See the following authorities: Campbell v. Storer, 101 Tex. 82, 104 S.W. 1047; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551; Wicks et al. v. Cox et al., 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1; Black et al. v. Adams et al., Tex.Civ.App., 214 S.W.2d 703; Avenier v. Avenier, Tex.Civ.App., 216 S.W.2d 638, wr. ref., n. r. e.; Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187; Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977.

The judgment of the trial court is affirmed.


text:
    The CITY OF HOUSTON, Appellant, v. R. D. READY et al., Appellees.
    No. 14103.
    Court of Civil Appeals of Texas. Houston.
    June 20, 1963.
    On Remittitur July 11, 1963.
    Rehearing Denied Sept. 12, 1963.
    R. H. Burks, City Atty., Clifton E. Speir, Senior Asst. City Atty., Joseph G. Rollins, Senior Asst. City Atty., Houston, for appellant.
    Al L. Crystal, Sewall Myer, Houston, for appellees.
   WERLEIN, Justice.

This suit was brought by appellant against appellees, R. D. Ready et al., to condemn an easement over a strip of land ten feet in width and approximately 101 feet in length, with improvements thereon, for the purpose of widening Griggs Road in the City of Houston. Judgment was entered in the total amount of $12,112.50 based on the jury verdict finding $112.50 rental for occupancy for a period of six months of the land upon which the converted garage apartment remained after being condemned by the City, $10,000.00 for the land and improvements taken, and $2,000.00 for the amount represented by the difference in the value of the balance of the property before and after the taking.

In appellant’s first four Points it complains of improper argument of appel-lees’ counsel. Appellant excepted to the following argument:

“Is that the fairness?
“Is that how fair the City of Houston wants to be ?
“If that’s the way, — and if that’s what they call fair, I hope they never take any property belonging to me,— and I hope they never take any property belonging to you.”

To appellant’s objection, the court stated: “Leave it to the jury to pass on the weight of the testimony and whether the analogy and deductions be reasonable or ridiculous.”

The latter part of said argument was improper and the court should have instructed the jury to disregard it. We cannot say, however, that the trial court abused its discretion in not doing so. Associated Employers Insurance Co. v. Burris, Tex.Civ.App., 1959, 321 S.W.2d 112, writ ref., n. r. e., and authorities cited. The preceding paragraphs of the argument, which were not excepted to, upon which the argument with respect to fairness was based, read as follows:

“And I tell you folks it is a shame and a disgrace for the City of Houston to put a witness on this stand and get him to testify without ever having appraised the property in question, without ever having seen the property, without ever having been inside the property, and come before a jury of intelligent people and insult your intelligence.
“For a man to get on the witness stand and say, ‘That property is worth so-and-so, and I have never been inside of it. I don’t know whether it has got one room, or two rooms. I don’t know what the floors are made out of, I don’t know what the ceilings are made out of’, — there could have been diamonds in there.
“Is that the fairness ?”

The evidence shows that appellant’s witness, Charles Osenbaugh, on direct examination testified that he had appraised all of the subject property, and had placed a value of $6,075.00 on the strip of land and the building taken which rested partly on such strip and partly on the remaining property. On cross-examination it was brought out by counsel for appellees that the building had been removed prior to the time Osenbaugh’s appraisal was made, and that he had never been in the building at any time and never had examined it closely, but had merely observed the building on a few occasions before it had been removed, when he was driving in his car on the street upon which the building faced, and that in making his appraisal he relied upon data furnished him by appellant. It was this fact disclosed on cross-examination that prompted counsel’s argument with respect to unfairness. There was no appeal to the jury to place themselves in appellees’ position. There is considerable latitude allowed in argument, and any reasonable inference can be drawn. We cannot say that such argument was calculated to cause and probably did cause the rendition of an improper verdict and judgment. Rule 434, Texas Rules of Civil Procedure; Aultman v. Dallas Railway & Terminal Co., 1953, 152 Tex. 509, 260 S.W.2d 596; Texas Employers’ Insurance Ass’n v. Collins, Tex.Civ.App., 1959, 321 S.W.2d 119, writ ref., n. r. e.

Counsel for appellees in his argument suggested how he would arrive at the difference in value of the remaining tract of land before and after the taking. His argument was merely illustrative of his contention as to what the jury could consider. The jury were properly instructed by the court as to what could be considered by them in determining the value of the property before and after. Furthermore, there was no objection made or exception taken to such argument, and the same was not of the incurable type. Younger Brothers, Inc. v. Myers, 1959, 159 Tex. 585, 324 S.W.2d 546.

There is no merit in appellant’s contention that the court erred in admonishing co-counsel for appellant to the effect that he could not participate in the trial. The court did no such thing. In the absence of the jury and after a lengthy discussion between leading counsel on both sides and the court with respect to appellant’s motion for a mistrial, and immediately before the court overruled such motion, appellant’s co-counsel, Mr. Rollins, started to make a statement or add something to what appellant’s leading counsel had argued, whereupon the court said: “Wait just a minute. If you have anything to say, move through leading counsel. I don’t want to hear anything—I will overrule the Motion for Mistrial.”

It is evident that the court had heard all the argument that it considered necessary in order to overrule appellant’s motion for a mistrial. There was nothing said by the court with respect to co-counsel participating or not participating in the case. No objection or exception was taken by appellant to the court’s statement.

Appellant next complains that there is no evidence and also insufficient evidence to support the jury’s answer to Special Issue No. 3 that the market value of the remainder of appellees’ property was decreased as a result of the taking of the strip of land and garage apartment building, and the answers to Special Issues Nos. 4 and 5 conditioned thereon. The statement of ap-pellees’ counsel to the effect that appellees were not claiming any damages to any land fronting on Griggs Road other than the ten feet actually taken in the condemnation proceeding, has no relevancy with respect to whether such taking decreased the value of the remainder of the land, as clearly appears from the context of the matters discussed on the motion for a mistrial. Appellant contends, however, that no witnesses except appellant’s witnesses, Messrs. Westerhaus and Osenbaugh, testified as to the market value of the property remaining both before and after the taking, and that the jury’s findings are contrary to such testimony and without any evidence or sufficient evidence to support them.

Appellant’s witness, Mr. Westerhaus, testified that the market value of appellees’ remaining tract of land, exclusive of the strip together with all improvements thereon taken, was $44,354.00 immediately before the taking, and was the same amount immediately after the taking. Appellant’s witness, Mr. Osenbaugh, testified that the market value of appellees’ remaining tract of land, exclusive of the strip and improvements taken, was, immediately before the taking, $44,925.00, and immediately after the taking was $48,000.00, an increase of $3,-075.00. None of appellees’ witnesses testified as to the market value of the tract of land remaining either before or after the taking. The jury found the market value to be $34,500.00 immediately before the taking and $32,500.00 immediately after the taking.

It has been held that a jury may ignore opinion evidence and draw its own conclusion from other evidence as to the ultimate issue of market value. Harris County Flood Control District v. Hill, Tex.Civ.App., 1961, 348 S.W.2d 806, writ ref., n. r. e.; Lee v. Briscoe Irrigation Company, Tex.Civ.App., 350 S.W.2d 894, writ ref., n. r. e.; Simmonds v. St. Louis, B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332.

The question before us is whether there is other evidence sufficient to support the jury’s findings as to the market value of the tract remaining both before and after the taking. The remaining tract, according to a sketch in evidence, is an odd-shaped tract at the corner of Griggs Road and Redwood, with a one-story stucco building at the corner and a two-story frame residence facing on Redwood, in the rear of which is a one-story frame garage and a two-story frame garage apartment building, to the south of which is another one-story frame garage and a one-story asbestos siding building. The dimensions of these buildings and of the tract of land, with the exception of the one-story stucco building at the corner, are not shown. The only witnesses who testified with respect to values were appellee R. D. Ready, Clement R. Yeager, R. M. Blair, and Messrs. Westerhaus and Osenbaugh. Appellee Ready testified that the building at the corner would have to be moved back in order to park in front thereof without parking on a public street. He identified some photographs of the property and of buildings on Griggs Road, but he gave no testimony as to the extent and nature of the property remaining after the taking, nor the value thereof, either before or after the taking. His opinions were confined to the rental value issue and the strip of land and building taken.

Appellees’ valuation expert, Mr. Yeager, testified as to the value of the part taken but expressed no opinion whatever as to the value of the property remaining either before or after the taking. He did not even know the shape or size of the remaining property or what improvements were on it. Appellees’ witness, Mr. Blair, testified to a hypothetical question as to the cost of removing the concrete building at the corner, and the cost of rebuilding the same, but his testimony was confined to such building and he never testified as to the market value of the remaining tract of land, together with its improvements, either before or after the taking.

The only evidence with respect to the value of the property remaining before and after the taking was given by witnesses Westerhaus and Osenbaugh. Their testimony showed that the value of the property remaining after the taking was equal to or greater than the value of such property before the taking. The jury’s findings to the effect that the remaining property had a market value of $2,000.00 less after the taking than it had before, are directly contrary to the testimony of the only witnesses who testified as to value of the remaining tract either before or after. We have carefully considered all of the evidence and have concluded that it is insufficient to support the jury’s findings with respect to the value of the tract of land remaining before and after the taking. Said findings are so against the great weight and preponderance of the evidence as to be manifestly wrong. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

We overrule appellant’s contention that the cumulative effect of the errors committed by the trial court in all probability resulted in appellant not receiving a fair and impartial trial.

We have concluded that the insufficiently supported findings of the jury with respect to the value of the remaining tract before and after the taking have resulted in a judgment which is excessive in the sum of $2,000.00.

If appellees will file in this Court a re-mittitur of $2,000.00 on or before July 8, 1963, the judgment of the trial court will be reformed accordingly, and, as reformed will be affirmed; otherwise, the judgment of the trial court will be reversed and the entire cause will be remanded for a new trial.

On Filing of Remittitur

On June 20, 1963 we indicated by an opinion in writing that if appellees would file a remittitur of $2,000.00 on or before July 8, 1963, the judgment of the trial court would be reformed and, as reformed, would be affirmed; and that otherwise the judgment of the trial court would be reversed and the cause remanded for a new trial. Appellees have filed the suggested remittitur of $2,-000.00.

Accordingly, as of this date, the judgment of the trial court is reformed by deducting the amount of $2,000.00 from the judgment recovered by appellees, and as reformed, is affirmed.

One-fifth of the costs of the present appeal will be taxed against appellees, R. D. Ready et al., and four-fifths against appellant, The City of Houston.

Motion for rehearing may be filed by either party within 15 days after this date.