author: POPE, Justice. MURRAY, Chief Justice

text:
    Roy C. RASH and Ross C. Watkins, Inc., Appellants, v. Jose F. ROSS, Guardian, Ronald C. Guyer and Henry Gorman Ritchie, Jr., et al., Appellees.
    No. 14069.
    Court of Civil Appeals of Texas. San Antonio.
    June 5, 1963.
    Rehearing Denied Sept. 4, 1963.

      Moursund, Ball & Bergstrom, San Antonio, for appellants.
    Oliver & Oliver, San Antonio, L. B. Cooper, Cotulla, John G. Murray, Pearsall, Reid & Taylor, House, Mercer, House & Brock, San Antonio, Sorrell, Stone & Waller, Corpus Christi, Clemens, Knight, Weiss & Spencer, F. Nolan Welmaker, San Antonio, for appellees.
   POPE, Justice.

Three groups of plaintiffs have sued for and recovered judgments against Roy C. Rash, d/b/a Border Construction Company, and Ross C. Watkins, Inc., hereafter called defendants. Henry Gorman Ritchie, Sr., was driving south on Highway 81, between Cotulla and Dilley and had a head-on collision with a vehicle driven by Ronald C. Guyer who was going north. Jean Raymond Ludeke was Guyer’s passenger guest. Ritchie and Ludeke were killed in the accident. Guyer, Ritchie’s widow and children, and Ludeke’s executor and the guardian of his children, all sued the defendants. The plaintiffs will be referred to as the Ritchies, Guyer and Ludekes.

Defendants were contractors for the construction of eight miles of Highway 81 in which area the accident occurred. The jury found that defendants were negligent in failing to have warning signs for persons using the highway, in failing to have lighted flares designating the proper path for vehicular traffic use, in failing to have warning flags designating the proper path for vehicular traffic use, and in failing to have a marking down the center of the road in question to designate the proper path for vehicular traffic use. Each of these failures was a proximate cause of the collision. The form of these issues is attacked because each question limited the inquiry to the “time and place in question.” We overrule the point. Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190; Lake Shore & M. S. Ry. Co. v. Johnsen, 135 Ill. 641, 26 N.E. 510, 512.

RITCHIE JUDGMENT

Defendants pleaded that Ritchie was contributorily negligent as a matter of law, in that he violated the statutory standards of §§ 52 and 53, Art. 6701d, Vernon’s Ann.Civ.Stats., which required Ritchie to drive on his right side of the road. Lewis v. Reichel, Tex.Civ.App., 256 S.W.2d 216. Ordinarily, negligence per se is submitted in two issues, one that inquires about the conduct claimed to be violative of the statute, and the other about proximate cause. When it is claimed, as Ritchies do, that the statutory violation was excused and excuse is properly raised, statutory negligence is dissolved, and the common law negligence issue is submitted. The court submitted the issues about Ritchie’s contributory negligence in that manner. The jury found, supported by the evidence, that Ritchie drove his vehicle to the left of the center of the traveled portion of the highway immediately before the collision, but that this was not negligence. Although the proximate cause issue was conditionally submitted, the jury answered the issue and found that the act was a proximate cause of the collision.

Defendants contend that the answer which convicted Ritchie of violating the statutory standard, together with the proximate cause answer, established negligence per se. This argument disregards the fact that Ritchies established their excuse for being on the wrong side of the road. Violations of the traffic law, such as driving on the left side of the road in violation of a statute may, in particular circumstances, he excused. Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Killen v. Stanford, Tex.Civ.App., 170 S.W.2d 792; Dixie Motor Coach Corp. v. Swanson, Tex.Civ.App., 41 S.W.2d 436, 438; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722, 725; Hicks v. Morgan, Tex.Civ.App., 259 S.W. 263; Hodges, Special Issue Submission in Texas, 67.

The evidence in support of excuse justified the submission of the common law negligence issue instead of submitting the case as one of statutory negligence. Ritch-ie was across the center line, but he was following the road on which the pavement had been scraped away. As he proceeded south, he came upon an unlighted area at a point where there was new pavement. The new pavement angled across the old pavement toward the northwest. The confusing result at night was that at the junction of the scraped road with the new pavement, one could hardly tell where one’s side of the road was. A highway patrolman described a shallow ditch which had been built across the road. As one crossed it, he said that the ditch would pitch a vehicle to the left. There was no center stripe. The evidence supports the submission and finding of Ritchie’s justification in being across the center line. The jury in answering, unnecessarily, the proximate cause issue in the affirmative, did nothing more than find that Ritchie’s faultless act in driving across the center line caused the accident. The trial court properly gave judgment on the verdict for the Ritchies.

GUYER JUDGMENT

Plaintiff Guyer, who was northbound when he ran into Ritchie's southbound car, recovered a judgment notwithstanding the jury verdict. The jury found that Guyer was contributorily negligent in that (1) he drove his vehicle to the left of the center of the traveled portion of the highway, and (2) this was a proximate cause of the collision. These findings defeat Guyer’s right to recover, and the court should not have disregarded them. Not until Guyer filed his motion for judgment notwithstanding the verdict, did he ever rely upon excuse as a justification for his violation of the statutory standard of care.

Plaintiff Guyer did not plead excuse. Guyer asserted defendants’ negligence. Defendants answered by a plea that Guyer was contributorily negligent as a matter of law. Defendants specifically pleaded that Guyer failed to drive on the right side of the road in violation of Section 52, Article 6701d, and that he also failed to give at least one-half of the main traveled road to the approaching vehicle in violation of Section 53 of the same statute. This was a clear pleading of statutory contributory negligence to which no exceptions were leveled. Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Lane v. State, 165 Tex.Cr.R. 222, 305 S.W.2d 595; Lewis v. Reichel, Tex.Civ.App., 256 S.W.2d 216. Guyer’s pleadings gave no notice that he was relying upon excuse as a justification for the claimed violation. A failure to plead an inferential rebuttal defense permits proof, but does not entitle one to an issue on such a defense. Rule 279, Texas Rules of Civil Procedure; Kiel v. Mahan, Tex.Civ.App., 214 S.W.2d 865, 867; Great Atlantic & Pacific Tea Co. v. Garner, Tex.Civ.App., 170 S.W.2d 502; City of Coleman v. Smith, Tex.Civ.App., 168 S.W.2d 936.

Guyer did not prove excuse. His theory of facing the charge that he was contribu-torily negligent was by way of a strict denial. In the course of the trial he did not seek to excuse his being on the wrong side of the road; he steadfastly denied that he was anywhere except on the right side. He denied the violation, and stood upon his denial.

Guyer did not request an issue which would have presented the excuse issue to the jury. This was in keeping with his pleadings, proof and theory of the case. The trial court accordingly submitted the two issues which inquired about the pleaded statutory violation and proximate cause. To this stage, defendants affirmed Guyer’s violation, and he denied it. This was in keeping with the pleadings of statutory contributory negligence by defendants and the theory of overcoming it by plaintiff Guyer. If Guyer desired a different charge, one which would inquire about excuse, what was he required to do? In our opinion, it was his duty to request the issue. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, has some helpful suggestions. It states that the one who seeks to avail himself of excuse for violation of a penal statute, should go forward with the evidence and raise an issue. Phoenix says that the trial court should then make a preliminary determination whether excuse has been raised, and if so, it should submit an excuse issue. In our opinion, somebody had the duty of requesting the issue, which is something more than merely inviting the court to make a preliminary decision. Guy-er had that duty.

Excusable or justifiable violation of a penal statute is an inferential rebuttal issue. Sec. 25, Hodges on Special Issue Submission in Texas. Guyer owned the excuse issue, because he was the one who would benefit from it. Logically, he would be the one who should request it, for he is the one who wanted it. Excuse could help him because it would overcome findings of statutory contributory negligence. It was a rebuttal to the claim that Guyer was contributorily negligent. If Guyer excusably violated the statute, the excuse would serve as an inferential fatal inconsistency with the idea that Guyer was con-tributorily negligent. This is so for the same reason that one is not negligent if there is an unavoidable accident, and because A is not a cause of an accident, if B is the sole proximate cause of an accident.

The burden of persuading the jury that Guyer was contributorily negligent remained at all times on the defendants. But the burden to request an issue about Guyer’s excusable violation of the statute was not on the defendants. They contended that there was a statutory violation. Guyer could have claimed, but did not claim an excusable statutory violation, but if he did, it was his issue and he should have requested it. He should have requested it for the same reason that one who relies upon unavoidable accident or sole proximate cause must request it. These issues too, must be disproved by the party who does not request them, because they are inferential rebuttal issues. Sec. 71, Hodges on Special Issue Submission in Texas.

If Guyer had pleaded, proved, and requested an excuse issue, the court should then have submitted Guyer’s excuse theory. It could have done this, as it did in the case of Ritchie, supra, by asking three issues: (1) whether there was a statutory violation, (2) whether it was negligence, using the common law standard, and (3) whether it was a proximate cause. See Ratliff, Negligence per se in Texas, 41 Tex.L.Rev. 104, 117, for other suggestions about the special issue form. If the case had been submitted in that manner, defendants would have kept the burden of persuasion on all three issues. By arguing the second of the above issues defendants would need to negative Guyer’s claim of excuse in order to obtain a finding that Guyer was negligent. This is a true inferential rebuttal issue.

Guyer passed the pleading, evidence, charge and verdict stage before he ever injected excuse into the case as his theory to overcome his own contributory negligence. Under these circumstances, the court correctly submitted issues which presented defendants’ theory of statutory negligence. The jury found that Guyer was contributorily negligent as a matter of law, and judgment should have been rendered upon that verdict. That part of the judgment should be reversed and rendered that Guyer take nothing.

LUDEKE JUDGMENT

Ludeke was killed while riding as a passenger with Guyer. He is not chargeable with the negligence of Guyer, and defendants make no contention that he is. They urge that the trial court erred in refusing to submit issues that he was contributorily negligent in failing to keep a look out. Only in exceptional circumstances, such as would cause the passenger to know or believe that he can not trust the vigilance of the driver, is there a duty on the passenger to keep a look out. Edmiston v. Tex. & N. O. R. Co., 135 Tex. 67, 138 S.W.2d 526; Schumacher Co. v. Shooter, 132 Tex. 560, 124 S.W.2d 857. These circumstances are not present in this case. Larson v. Missouri-Kansas-Texas R. Co. of Texas, Tex.Civ.App., 254 S.W.2d 215; Davis v. Shafer, Tex.Civ.App., 222 S.W.2d 145; Harrison v. Southwest Coaches, Tex.Civ.App., 207 S.W.2d 159; Safeway Stores, Inc. of Texas v. Webb, Tex.Civ.App., 164 S.W.2d 868; Harper v. Texas & P. R. Co., Tex.Civ.App., 146 S.W.2d 426; International-Great Northern R. Co. v. Lucas, Tex.Civ.App., 123 S.W.2d 760; City of Uvalde v. Stovall, Tex.Civ.App., 279 S.W. 889. The Ludeke judgment will stand.

Defendants have other points which must be discussed. Plaintiffs offered certain pictures in evidence which portrayed the scene of the accident the day after the fatal collision. These showed that a white stripe was then painted to identify the center of the road, and particularly as the black colored new pavement ran into the dull colored old pavement. While post-accident safety precautions may not be proved, this rule does not forbid proof of conditions of a thing or place at the time of an injury, even though to prove it one must also show the changes. The trial court admitted the pictures and instructed the jury to regard the scene as it was at the time of the accident, and to disregard any alterations. The pictures were properly admitted. City of Beaumont v. Dougherty, Tex.Civ.App., 298 S.W. 631; Winnsboro Cotton Oil Co. v. Carson, Tex.Civ.App., 185 S.W. 1002; Missouri K. & T. R. Co. v. Rose, 19 Tex.Civ.App. 470, 49 S.W. 133; 2 McCormick and Ray, Texas Law of Evidence, § 1171; 62 A.L.R.2d 1296, 1309.

Jury misconduct is another point. Only one form is urged, and it is that the jurors discussed the pictures which portrayed post-accident safety precautions. Three jurors testified, and only two mentioned any discussion about painting the center stripe on the road after the accident, or other safety precautions. Juror Akraman recalled mention of the center stripe, but its mention by the jury, according to her, was in this fashion: “it was brought up and every time we looked at the pictures someone would say * * * they mentioned the center stripe, they’d say that it wasn’t in evidence, that we weren’t supposed to take that into consideration, but there was talk.” She denied that there was any discussion of warning signs, metal flags or flares that were set out after the accident. The trial court overruled the motion for new trial without findings. This could mean, by the implied finding on the basis of this evidence, that there was no misconduct at all. Kimble v. Younger Bros.-J. M. English Truck Lines, Tex.Civ.App., 283 S.W.2d 254, 257. In any event, the misconduct was rebuked every time it was brought up and was harmless. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558.

The judgment of the trial court is accordingly affirmed insofar as it rendered judgment for those who claim through and under Henry Gorman Ritchie, Sr., and Jean Raymond Ludeke. The judgment is reversed and rendered that Ronald C. Guy-er take nothing. Since appellants prosecuted this appeal with success as to Guyer, but not as to the other two groups of defendants, one-third of the costs are adjudged against Guyer, and the other costs are adjudged against appellants.

On Motion for Rehearing.

The point in the motion for rehearing about defendants’ right to contribution from Guyer was not preserved.

The motions for rehearing by Guyer and the defendants are overruled.

MURRAY, Chief Justice

(dissenting in part).

I concur in the disposition made of this cause insofar as it affirms the judgment in favor of those who claim through and under Henry Gorman Ritchie, Sr., and Jean Raymond Ludeke, but I do not concur in that part of the judgment which reverses and renders the judgment as to Ronald C. Guyer, and orders that he take nothing.

The jury found the defendants below, Roy C. Rash and Ross C. Watkins, Inc., who are the appellants here, guilty of numerous acts of negligence, of which each was a proximate cause of the collision here involved. Rash and Watkins were the contractors who were rebuilding Highway 81 at the point where the collision occurred. The jury found that appellants failed to have warning signs for persons using Highway 81 at the time and place in question; that they failed to have lighted flares designating the proper path for vehicular traffic use; that they failed to have warning flags designating the proper paths for vehicular traffic use at the time and place in question; that they failed to have a marking down the center of the road in question to designate the proper path for vehicular traffic use at the time and place in question; that each and every one of these acts of negligence was a proximate cause of the collision in which Guyer was injured. All of these jury findings were supported by sufficient evidence and have been upheld by the majority. The jury also found that Guyer did not fail to keep a proper lookout immediately prior to the collision; that he did not fail to keep proper control of his vehicle; that he did not drive his vehicle at a greater rate of speed that a person of ordinary prudence would have driven it under the same or similar circumstances; that Guyer did not drive his vehicle in excess of the posted speed limit of forty-five miles per hour. The only two issues answered by the jury against Guyer were Issues Nos. 30 and 31.

“SPECIAL ISSUE NO. 30.
“Do you find from a preponderance of the evidence that Ronald C. Guyer drove his vehicle to the left of the center of the traveled portion of the highway immediately prior to the collision in question?”
The jury answered “Yes.”
“SPECIAL ISSUE NO. 31.
“Do you find from a preponderance of the evidence that the act of Ronald C. Guyer in driving his vehicle to the left of the center of the traveled portion of the highway, if any, was a proximate cause of the collision in question?”
The jury answered “Yes.”

It is quite clear that the question as to whether or not Guyer was negligent in driving his vehicle to the left of the center of the traveled portion of the highway immediately prior to the collision was not submitted to the jury, and unless under all the evidence and circumstances in this case the jury has found that Guyer violated the law in driving on the wrong side of the traveled portion of the highway, without excuse or justification, then the judgment of the trial court in this case should he affirmed. The majority say that Guyer did not expressly plead excuse or justification and did not request an issue on these matters, that such issue was thereby waived, and that he is not now in a position to contend that he was excused and justified for traveling on the wrong side of the highway. With this contention I do not agree. Guy-er is not complaining because special issues on “excuse” and “justification” were not submitted and answered by the jury. He is only contending that appellants waived their right to have the jury pass upon Guyer’s negligence and are hound by the implied finding of the trial court to the effect that Guyer was not negligent.

Rash and Watkins, appellants herein, specifically plead Guyer’s contributory negligence as they were required to do by Rule 94, T.R.C.P., and the burden was upon them to offer evidence and secure findings which would prevent Guyer’s recovery in this case on account of his own contributory negligence. So this presents the question of whether or not under all the facts and circumstances Guyer was guilty of negligence per se or whether or not he was at most guilty of common law negligence, which would be a fact issue to be decided by the jury in the first instance, and if not submitted to them, a matter to be determined by the trial court when he rendered his judgment.

The evidence in this case shows that Rash and Watkins had torn up the road at the point where the collision occurred and had not sufficiently marked that portion of the road which was to be traveled by the public; a duty placed upon them by the provisions of their construction contract. The evidence shows that they had constructed a new Highway No. 81, which was to the west of old Highway 81, and parallel to it, but it was not yet open for travel. Appellants had scraped the top off old Highway 81, and had covered it with loose gravel. They had constructed a paved road with a dark top, which came up to the point near where the collision occurred, and then curved to the left, across to the new highway. Guyer was traveling on this dark top road near the right-hand edge of the pavement when he arrived at the point where the old Highway 81 had been torn up and loose gravel placed over it, and there was nothing to indicate that he should not travel on the loose gravel. There was a sign on new Highway 81, but it was placed at such a position that it could not be seen by Guyer, while he was traveling on the dark-topped pavement. When Guyer arrived at a point near where the collision occurred he suddenly saw a car with bright lights bearing down upon him. The lights were so bright that he could not look at them, and as a result of this sudden emergency the head-on collision occurred.

In determining whether Guyer is guilty of negligence per se as a matter of law, or whether at most he is only guilty of common law negligence, we must view the evidence in the light most favorable to him. When this is done it would seem that to permit appellants to escape liability in this case because Guyer was unable to determine where the center of the traveled portion of the highway was located, due to the negligence of appellants, would be to permit appellants to profit by their own negligence.

Furthermore, before one could be convicted of violating a criminal law there must he an intention, expressed or implied, to violate the law. It was never intended that •under the circumstances shown in this case a person was to be convicted of failing to ■drive on the right-hand side of the road when, under the confused conditions that •existed on the night of the collision, he was unable to determine where the traveled portion of the highway was, much less where the center line would be. The jury only found that Guyer drove to the left of the •center of the traveled portion of the highway. Guyer would not be permitted to contend that he was ignorant of the law which required him to drive on the right-hand side of the traveled portion of the highway, but he would be permitted to contend that, under all the facts and circumstances as shown in this case, he did not know where the traveled portion of the highway was located, much less the right or left side thereof. Art. 41, Vernon’s Ann.Texas Penal Code reads as follows:

“If a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal he is guilty of no offense, but the mistake of fact which will excuse must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct, and it must also be such mistake as does not arise from a want of proper care on the part of the person so acting.”

Guyer was entitled to offer evidence and argue to the jury that he was not guilty of negligence per se, for all of these reasons and circumstances, and, furthermore, that he was not even guilty of common law negligence. Rule 279, T.R.C.P.; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W.2d 401; Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369; Permian Mud Service, Inc. v. Sipes, Tex.Civ.App., 339 S.W.2d 81; Davis v. Massey, Tex.Civ.App., 324 S.W.2d 242; Phoenix Ref. Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Bailey v. Walker, Tex.Civ.App., 163 S.W.2d 864; Taber v. Smith, Tex.Civ.App., 26 S.W.2d 722.

There can be no doubt in this case that at least the evidence was sufficient to raise an issue as to excuse and justification for Guyer’s wrong-side driving, and that therefore he was not guilty of negligence per se. The issue of common law negligence was not requested or submitted to the jury, and under all the facts and circumstances in this case it was the duty of appellants to secure a finding of the jury that Guyer was guilty of common law negligence in driving on the wrong side of the traveled portion of the highway, if they were to defeat their liability on their defense of contributory negligence. Appellants failed to do this, and thus they waived a jury finding on Guyer’s negligence and in effect agreed that the issue might be decided by the trial court when he rendered his judgment. Rule 279, T.R. C.P.

When the trial court rendered judgment in favor of Guyer, it in effect determined that he was not guilty of negligence per se, and found as a fact that he was not guilty of common law negligence, and therefore was entitled to recover his damages.

The majority contend that Guyer should have requested a special issue on justification and excuse. It is plain that he would not have been entitled to such an issue under his general denial, and I agree with the majority that the court did not err in failing to submit such an issue. Rule 279, T.R.C.P. But this does not excuse the appellants for their failure to secure the submission of an issue, together with a jury finding thereon, which was vital to their defense as to whether or not Guyer was guilty of negligence for wrong-side driving at the time and place of the collision. This matter is made very-plain by Professor Hodges in his book on Special Issue Submission in Texas. Section 17, page 46, reads as follows:

“Under a general denial, however, a party may introduce evidence of inferentially rebutting facts and argue such facts to the jury as presenting evidence demanding a negative answer to his opponent’s issues submitting the elements of his cause of action or defense. For example, the defendant can offer evidence that a third person’s conduct was the sole proximate cause of plaintiff’s injuries, and in his argument to the jury may argue that the issue inquiring if defendant’s negligence was a proximate cause of plaintiff’s injuries should be answered 'no’ because the evidence shows that the third person’s conduct was the only cause and therefore that defendant’s conduct could not be a proximate cause at all. It is quite clear, however, that special pleading is necessary to the submission of an affirmative issue, and that a general denial will not allow the submission of an inferential-rebuttal issue.”

The law concerning the situation which we find here is well expressed in Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, wherein Judge Norvell, speaking for this Court, said:

“As above indicated, the question of applying the provisions of a penal statute as a standard for determining civil liability is one for the decision of the civil court. Likewise, the matter of recognizing an excuse for violation of a penal article, once it has been adopted as a standard, presents a preliminary matter for the court. When a violation of a criminal statute (suitable for determining civil liability) is shown and nothing more, it is wholly unnecessary to submit the reasonably-prudent-man standard of negligence. The violator of the statute is guilty of negligence as a matter of law. (Citing authorities.)
“It would logically follow that whenever evidence is submitted tending to show that the violation of the statute was excusable or justifiable or constituted at most a mere technical violation for which civil liability should not be imposed the trial court should submit the reasonably prudent man test in some form. In other words, if the evidence fairly raises the issue of excuse, then, in addition to the question of the commission of a criminal act an issue embodying the reasonably prudent mant standard of negligence should be submitted. (Citing authorities.)
“From a reading of the cases cited, the following rules may be deduced:
“1. A violation of a penal statute which contains an appropriate standard for determining civil liability, constitutes negligence as a matter of law.
“2. This rule is not inexorable-The party violating the statute may assume the burden of going forward with the evidence and raise an issue as. to an excusable violation.
“3. If said party bring forward sufficient evidence to raise the issue (and this is a preliminary matter for decision of the trial court), then the issue of negligence determined by the reasonably prudent man standard should be submitted.
“4. The burden of proof upon this-issue rests with the party asserting-negligence, for upon him rests the burden of proof as distinguished from the burden of going forward with the evidence.”

It is plain that when the record contains; evidence which raises an issue that a plaintiff is to be excused or justified in wrong-side driving, negligence per se passes out of the case, and at most you have remaining a question of common law negligence.

I would affirm the entire judgment of the.trial court.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Pedro VASQUEZ, Appellee.
    No. 7272.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1963.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Byrd, Davis & Eisenberg, Austin, for ap-pellee.
   CHAPMAN, Justice.

This is an appeal by Texas Employers’ Insurance Association from a judgment for Pedro Vasquez based upon a jury verdict awarding workman’s compensation benefits for injuries sustained while working in the course of employment for E. M. Bailey Contractor, Ltd.

Dr. Dennison, an orthopedic surgeon had started treating appellee on February 25, 1961, for an injury to his right shoulder received in the course of his employment. Response to physical therapy having not been satisfactory, the Doctor by surgical procedure on May 9, 1961, discovered "an avulsive tear from the lateral insertion of the shoulder capsule into the humerus.” The upper portion of the deltoid muscle was cut loose from the bone to which it was attached. Part of the bone was then removed and the muscle sewed back to the remaining portion of the bone. Following this surgical procedure infection occurred which caused the deltoid muscle to detach itself from the bone. The infection continued to drain and on October 2, 1961, a second operation was performed. The last drainage occurred on January 20, 1962.

Appellee’s claim for compensation was set before the Board for hearing on March 6, 1962. The Board’s final award was handed down on March 19, 1962.

Also on March 19, 1962, Dr. Dennison told appellee he needed another operation, the first time he had been told that the muscle could be re-attached or that he needed another operation. Appellee refused the third operation “because I don’t understand too much about it” and because “I asked him if I was going to be better and he told me I might be worse.”

Though appellant agreed to pay for the third operation, while appellee’s claim was pending before the Industrial Accident Board it did not admit liability, tender surgery, make any demand therefor, or request the Board to take any action toward surgery.

Before the selection of the jury appellee by a Motion In Limine requested the court to deny any effort on appellant’s part to the use of pleadings, testimony, remarks, questions or arguments which would indicate appellee had refused to submit to an operation or that an operation might benefit or cure him, since appellant had not complied with Section 12e of Article 8306, Vernon’s Ann.Tex.Civ.St. The trial court granted the motion, and the various points of error urged go generally to such action and ruling, the insurer contending the reattachment of the deltoid muscle was only a continuation of interrupted surgery.

In a malpractice case the Seventh Circuit has held that an operation “ * * * begins when the opening is made into the body and ends when this opening has been closed * * Harris v. Fall, 7 Cir., 177 F. 79, 27 L.R.A.,N.S., 1174. The first surgical procedure followed would certainly have constituted a surgical operation under such holding. Additionally, throughout the record, by testimony of Dr. Denni-son, questions by counsel and in appellant’s Bill of Exception, the re-attachment of the deltoid muscle was repeatedly referred to' as “an operation” or “surgery.”

It was stipulated into the record that the insurer never admitted liability in the case.

In one of the most recent pronouncements, of our Supreme Court on the steps that must be complied with in order for the insurer to offer testimony such as we are here considering, that court said:

“It will be helpful, in considering the facts set out below, to keep in mind the steps set out in Quinn to enable the insurer to get in this testimony:
1. The insurer must admit liability;
2. It must tender an operation while the claim is pending before the Board;
3. If the employee refuses the operation, the insurer must make a demand to the Board to require the examination; and
4. The insurer must show the examination was had and the action of the Board thereon.”

Justice Greenhill in speaking for the court in Courtney also held:

“ * * * ^he jnsurer would have to admit unequivocally the substance of the following: a compensable injury to. the employee in the scope of employment ; liability for the injury for which a surgical operation would or should prove beneficial to the employee; liability for the cost of the operation, including doctors, hospital, medical, and convalescent care as prescribed by the statute and the Board; and liability for the consequences of the operation, within the provisions of the workmen’s compensation act. * * * ”

The insurer did not comply with these steps in the instant case.

The workmen’s compensation act is in derogation of the common law so the rights and obligations of the parties in a suit brought thereunder are entirely controlled by the statute except in respect to those matters of form and procedure that are not described. Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521. The procedure for demanding that a surgical •operation be had upon the employee is provided for in Section 12e of Article 8306, Vernon’s Ann.Tex.Civ.St. In interpreting the statute just cited numerous cases by our Supreme Court have held that where such demand and admission of liability is not ■made before the final award of the Board, then medical evidence of beneficial effects is not admissible. Hardware Mutual Casualty Co. v. Courtney, supra; Truck Insurance Exchange v. Seelbach, supra; Texas Employers’ Insurance Ass’n v. Shelton, 161 Tex. 259, 339 S.W.2d 519.

It is patent from what we have said that we do not believe such requirements were complied with in the instant case. Accordingly, all points are overruled and the judgment of the trial court is affirmed.

      . Hardware Mutual Casualty Co. v. Courtney, Tex., 363 S.W.2d 427.


text:
    Franklin HOLLESTELLE and Jean Hollestelle, Appellants, v. Shirley HOLLESTELLE, Appellee.
    No. 7258.
    Court of Civil Appeals of Texas. Amarillo.
    April 15, 1963.
    Rebearing Denied June 10, 1963.
    Clayton, Martin & Harris, Amarillo, for appellants.
    Kolander, Moser & Templeton, Amarillo, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment based upon a jury verdict in a case involving a change of child custody. There is no statement of facts in the case, the transcript being thé only record before us from the lower court.

The appeal is based upon three points, the first of which is that the jury’s answers to Special Issues I and II are in irreconcilable conflict and will not support the judgment of the court. Special Issue No. I is as follows:

“Do you find, from a preponderance of the evidence that there has been a material change of conditions since the entry of the divorce decree of May 1, 1961?”

The court gave the following instructions in connection with Special Issue No. I:

“In connection with the foregoing Special Issue, you are instructed that by the term “material change of conditions”, means any change in circumstances or conditions as affecting said children or either their father or mother, which, looking to the best interests of said children, would make it advisable to alter or change the May 1, 1961 decree with reference to the custody of said children. You are charged that the change is to he a positive improvement for the children.
“You are instructed that the burden of proof is on the Plaintiff, Franklin Hol-lestelle, to prove that since the judgment of divorce May 1, 1961 conditions have so changed as to render the mother an improper custodian, and that the welfare of the children demands a change.
“If you have answered the foregoing Special Issue No. I “Yes”, then you will answer the following Special Issue No. II.”

Special Issue No. II is as follows:

“Considering only the best interest of said children, which of the parties, to-wit: Franklin Hollestelle, or Shirley Hollestelle, from the preponderance of the evidence, should be given the custody of the children involved in this cause.”

To Special Issue No. I the jury answered “Yes”, thus finding there had been a material change of conditions since the entry of the divorce decree between the parties, in which decree the pleadings show appellee had been awarded custody of their three minor children then in existence.

In response to Special Issue No. II the jury answered it was to the best interests of the children that Shirley Hollestelle be given the custody of the children despite the fact that in the preceding issue they had found there had been a material change of conditions since the entry of the divorce decree.

From the record before us the contention on change of custody was solely between Franklin Hollestelle and his wife at the time, Jean Hollestelle, as against Shirley Hollestelle, the children’s mother. None of the grandparents nor anyone else is involved in the controversy.

As may be seen from the answers to the above quoted issues and the instructions in connection with Special Issue No. I, the jury found Shirley Hollestelle was an improper custodian and that the best interests of the children demanded a change in custody. (Emphasis added).

Then Special Issue No. II found it was to the best interests of the children that Shirley Hollestelle should be given the custody. The only change in custody possible from the record would have been to their father.

“It is essential that the party seeking to set aside a verdict on the ground of conflict must be able to point out that one of the conflicting answers of the jury, in connection with the rest of the verdict except the issue with which it conflicts, necessarily requires the entry of a judgment different from that which the court has entered.” Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991. This fact was pointed out by appellants in their motion for new trial. See also Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; and Barnes Bros. v. International & G. N. R. Co., Tex.Com.App., 1 S.W.2d 273.

We cannot say there is no conflict in the two issues unless we ignore the instructions in connection with Special Issue No. I, which we have no right to do. Little Rock Furniture Mfg. Co. v. Dunn, supra.

Article 4639a, Vernon’s Annotated Texas Civil Statutes, as amended, Acts 1961, 57th Legislature, eliminated the rule which provided the jury answers in child custody ■cases were merely advisory. Therefore, the trial court had no authority to disregard the jury answers and there is just no escape from the fact that the first two issues are in irreconcilable conflict.

Accordingly, the judgment of the trial court is reversed and remanded for another trial, except as to Linda Jeanette Hol-lestelle. Appellant having denied fatherhood of that child and tendered custody to its mother, that part of the judgment is affirmed.

      . Another child was born to appellee five months after the divorce was granted.


author: NORTHCUTT, Justice.

text:
    Betty Fern MEEKS, Appellant, v. Donald Dean MEEKS, Appellee.
    No. 7271.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1963.
    C. D. Bourne, Jr., Dumas, for appellant.
    Frank D. McCown, Dumas, for appellee.
   NORTHCUTT, Justice.

This is an appeal from an order sustaining a Plea in Abatement. Donald Dean Meeks filed suit in Moore County District Court for a divorce against Betty Fern Meeks alleging certain acts of cruel treatment and asked for custody of their two minor children. Mrs. Meeks was served with a citation in Moore County in said cause and a copy of the divorce petition was attached to the citation. Mrs. Meeks did not file any answer to said petition but wholly made default. In the original petition filed it did not state the ages of the minor children but before judgment of divorce was granted on November 15, 1961, the petition was amended giving the ages and sex of said children. In the divorce judgment in favor of Mr. Meeks he was granted custody of the children with the right of visitation given to Mrs. Meeks. The right of visitation given Mrs. Meeks was that she was to visit the children in her mother’s home. The divorce decree also provided that the children were not to be removed from the State of Texas by Mrs. Meeks. In violation of said order Mrs. Meeks by certain acts wrongfully took said children to the State of Oklahoma and refused to return to Texas with the children.

On May 28, 1962, Mrs. Meeks filed a Bill of Review in the District Court of Moore County seeking to have the judgment that was rendered in favor of Mr. Meeks declared null and void and of no force and effect and that such judgment he set aside and that the cause proceed to trial on its merits. Mr. Meeks answered said Bill of Review and filed a Plea in Abatement thereto. On September 17, 1962, the attorneys for both parties appeared before the court and at that time the court ordered Mrs. Meeks to bring the two children into the jurisdiction of the court pending the final outcome of her Bill of Review. She was given until midnight of September 27, 1962, to comply with such order or her Bill of Review would be dismissed. On October 1, 1962, the attorneys for Mrs. Meeks informed the court that Mrs. Meeks refused to comply with the court’s order and that she refused to bring said children into the jurisdiction of the court to be left until her Bill of Review was decided. The Plea in Abatement was sustained and an order entered dismissing the Bill of Review. It is from this order dismissing the Bill of Review that Mrs. Meeks presents this appeal. Hereafter Mrs. Meeks will be referred to as appellant and Mr. Meeks as appellee.

Appellant presents this appeal upon six points of error contending the court erred in dismissing the Bill of Review because the original petition did not allege the age and sex of the children; because the amended motion contained new allegations for grounds of divorce; because the amended motion was filed on the day of the trial and the leave of the court was not obtained; appellant had no notice of the filing of the amended petition; because the court heard and granted the divorce before the expiration of sixty days after the same was filed and appellant was not required to answer the defective petition. Under this record we do not believe the matters objected to by each of the points of error are correct. The divorce was not granted before sixty days after the filing of the petition for divorce. The petition was corrected to give the ages and sex before the-divorce was granted. The substance as to-the grounds for divorce was the same in the-amended petition as alleged in the original-petition. We do not believe the points of error present any reversible error but should we be wrong in such holding, we do-not think the court erred in dismissing the Bill of Review since appellant refused to-return the children as directed by the trial court and for the further reason by deceit and without authority and in violation of the court’s order not to remove the children from the State did remove them and refused to return them to the State as directed. Suhren v. Suhren, Tex.Civ.App., 289 S.W.2d 663; Hays v. Brandon, Tex.Civ.App., 245 S.W.2d 381; Burckhalter v. Conyer, 7 S.W.2d 73 (Tex.Com.App.). The appellant is in no position in this case to complain of the action of the trial court in dismissing the Bill of Review. Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    MUNICIPAL INVESTMENT CORPORATION, Appellant, v. Smiley TRIPLETT et al., Appellees.
    No. 7277.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1963.
    Rehearing Denied Sept. 3, 1963.

      Bass & Hobbs, Lubbock, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellees.
   DENTON, Chief Justice.

This suit was brought by Municipal Investment Corporation against Smiley Trip-lett and Jay Triplett d/b/a Triplett Cattle Company, a partnership. The suit is for the amount of principal, interest and attorney’s fees alleged to be due upon a certain paving certificate issued by the City of Bovina, and for the foreclosure of an alleged statutory lien against certain described property belonging to the Tripletts. Trial was to the court without a jury, and the court entered judgment denying the relief sought by the plaintiff below.

The sole question to be determined is whether or not the Triplett property is abutting property with respect to the paving improvements under the terms of Article 1105b, Section 6, Vernon’s Ann.Tex.St. This statute gives cities authority to assess certain paving costs only against abutting property and the owners of such property. No question has been raised relative to the validity of the proceeding under which the City of Bovina issued the paving assessment certificate involved here, nor is it disputed the Tripletts owned the land in question.

The Triplett land abuts East Street along the property’s west boundary line and abuts “Old State Highway 33” on the property’s north boundary line. In other words, the south line of the old highway constitutes the north property line of the Triplett property. The old highway was completed in 1924 and was maintained by the State until 1939 after which it was maintained by Parmer County until “North Street” was completed in 1958. “North Street” is the paving improvement for which the assessment is being sought in this case and is a part of the U. S. Highway 60 Loop running through the City of Bovina. This new highway right-of-way extends over into the north edge of the right-of-way of the old highway by a few feet. A strip of land which varies in width from approximately 30 feet to 80 feet and 420 feet long separates-the Triplett property from the new highway which is designated in this area as “North Street”. This strip of land is a portion of the original right-of-way of “Old State Highway 33”. The new highway, in effect, was rerouted so that it now lies north of the former highway, and the strip of land above described lies between the new highway and the Triplett property. Concrete curb and gutter have been laid along the south line of the new highway except for a “lay-down curb” in two places which was described as a “break in the curb” in the vicinity of the Triplett property. These “lay-down curbs” can be used to drive vehicles over to proceed to the Triplett property from the new highway. Except for the above-described concrete curb and gutter there are no other barriers dividing the Triplett property and the paving improvements.

The term “abutting property” is generally held to mean property between which and the improvement for which the assessment is made there is no intervening land, and hence if a parcel of land is separated from-the improved street by other land, it is not abutting property. West Texas Construction Co. v. Mundy, (Tex.Civ.App.), 75 S.W.2d 121. In a case similar to the case at bar, the Court of Appeal of Louisiana in City of Shreveport v. Selber, 21 So.2d 738, held the word “abut” within the act authorizing municipalities to assess paving costs on property abutting streets means that there intervenes no other land that may be put to private use. See also 63 C.J.S. Municipal Corporations § 1439, page 1088.

As we understand it, appellant’s contention is that the Triplett property is abutting property in that it is separated from the paving improvement only by a public way. We have been cited no authority in support •of this contention. The ownership of the strip of land involved here was not established. The Tripletts do not own it and make no claim to it. Since it was used ■as a road way from 1924 until 1958, there is an inference it is public land. However, the evidence is uncontradicted that it has not been maintained since 1958. The evidence is also uncontradicted that this strip ■of land has not been used as a road way ■since that time. It is vacant land used for ingress and egress to the Triplett property. If it is used for any other purposes, this •record does not reveal it. An officer of the .appellant corporation did testify that a truck and trailor were partially parked on this strip on the day of the trial, but this testimony was disputed; and even if true, it would not be material in light of the •other evidence in the case. The evidence is clear the strip of land is not being used .as a public way even though it is apparently ■owned by either the state, Parmer County •or the City of Bovina. No contention is made the strip is owned by the Tripletts •or any other private individual or corporation. The Triplett land abuts the vacant ■strip and the vacant strip abuts the paving improvement. This leads to the inevitable ■conclusion the Triplett land does not abut the paving improvement. We are therefore •of the opinion the Triplett property does not constitute abutting property within the meaning of Article 1105b, Section 6, V.A.T.S. The paving assessment against the Triplett property was unauthorized and is therefore void. Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234; City of Winston Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328; Jacob v. Mayor and Board of Trustees of City of New Iberia, 163 La. 416, 112 So. 30.

After reviewing this entire record we are of the opinion it reflects no reversible error. The judgment of the trial court is affirmed.

Affirmed.


text:
    Bobby Joe PEARSON, Appellant, v. Gary Don NEWTON et ux., Appellees.
    No. 7260.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1963.

      Jerome W. Kirby, Littlefield, for appellant.
    J. R. (Billy) Hall, Littlefield, for appel-lees.
   NORTHCUTT, Justice.

This is an adoption case. Bobby Joe Pearson and Mary Lou Newton are the natural parents of Robby Joe Pearson, the child sought to be adopted. The parents of said child were divorced in September 1957 and in the divorce proceedings the mother was granted the custody of said child with visiting privileges granted to the father and the father was ordered to pay into the court $50 per month for the support of said child. On April 22, 1959, the mother of said child was married to Gary Don Newton. On June 26, 1962, Gary Don Newton joined by his wife, Mary Lou Newton, brought this action for adoption of Robby Joe Pearson and seeking to have the child’s name changed to Robby Joe Newton. The father of said child was made a party to the adoption proceedings and the father answered and contested said adoption proceedings. The court, after hearing the pleadings and the evidence, granted the adoption and changed the name of said child as requested. It is from that judgment the father perfected this appeal.

For convenience Bobby Joe Pearson will hereafter be referred to as appellant and Gary Don Newton and Mary Lou Newton will be referred to as appellees. The adoption was sought upon the theory that appellant had not contributed substantially to the support of such child during a period of two years prior to the filing of the adoption proceedings. Appellant answered contending that there was no voluntary abandonment or desertion of the child by appellant and the sole reason for appellant’s failure to make the payments as provided for in the divorce decree was because of the failure of Mary Lou Newton to abide by said divorce decree in her open and obvious refusal to permit reasonable visitations for appellant. The divorce decree ordered appellant to pay into the register of the court $50 for the support of said child beginning on the 1st day of October 1957 and continuing until said child attained the age of 18 years. The undisputed evidence shows appellant failed to make such payments for a period of over two years prior to the filing of the adoption proceedings, and appellant acknowledged he had not made any of such payments for over two years; but seeks to excuse himself because of trouble caused by his wife in not letting him visit with the child.

Appellant presents this appeal upon four points of error contending the court erred in proceeding in this cause when there was-no jurisdiction for adoption without the written consent of appellant; that the court erred in granting adoption without the written consent of appellant in the absence of pleading and proof that appellant abandoned the child and/or that he had not contributed substantially to the support of such child for a period of two years commensurate with his financial ability; that the court erred in granting the adoption on the ground appellant had failed to' support the child because the evidence affirmatively showed that such failure was brought about by the antagonism of the-mother, and that the actions of the mother were made for the sole purpose of obtaining grounds for adoption and because the evidence did not bring forth any compelling reason for breaking the natural relationship existing between the father and son and did not establish any reason why it would be to the best interests of the child to break the natural relationship existing between the father and son.

This is another one of those cases in which the father and mother fail to look to the happiness and best interests of their child but let their selfish feelings control their actions to the detriment of their child that has to accept its future as determined by the courts. The appellant secured the divorce from the mother of the child here sought to be adopted and the mother was given custody of the child with the right of appellant to visit the child in the mother’s home and also to have the right to have the child visit in his home. Appellant was ordered to pay $50 per month for the support of said child. There is evidence the mother refused to permit the visitations of the father, but she denied this. It is admitted the father failed for more than two years to make the support payments as ordered .and there is evidence he was able to make such payments.

The fact the father began to make the $50 payments after the filing of the adoption proceedings was not sufficient, as a matter of law, to wipe out the accrued right of the stepfather to adopt the child without the consent of the natural father. Jones v. Bailey, Tex.Civ.App., 284 S.W.2d 787 (NRE); 1 Tex.Jur., Section 24, Page 706.

In order to justify adoption of the child without the consent of the father, it was sufficient to show that he had failed to contribute to the support of the child for two years as he was ordered by the court to do when the evidence clearly shows that he was able to make such payments. Patella v. Jones, Tex.Civ.App., 303 S.W.2d 490 (writ dismissed).

After careful consideration of the whole record, we believe that the evidence is sufficient to meet the statutory requirements which must be met before a child may be adopted without the written consent of a parent. The trial court having granted the adoption, upon sufficient evidence, as required under the adoption statute, we think, it is binding upon this court.

Judgment of the trial court is affirmed.


author: HOLMAN, Judge.

text:
    Charles Lee WALTERS, and Nancy Jane Walters Stevens, a Minor, by Eloise Walters, Her Guardian, Plaintiffs-Respondents, v. Elenore C. SISLER, Evlyn A. Anderson, George R. Sisler, and James A. Sisler, Defendants-Appellants, Walter Richard Wilcox et al., Defendants-Respondents.
    No. 49796.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 14,1963.
    Thomas F. McDonald, Henry C. Bryan, Jr., McDonald, Barnard, Wright & Timm, St. Louis, Claude Arnold, Dexter, for appellants.
    C. A. Powell, Powell, Jones & Ringer, Dexter, for respondents.
   HOLMAN, Judge.

This suit involves certain commercial property located in Dexter, Missouri. In the first count of their petition plaintiffs sought a decree adjudging that each is the owner of an undivided one-tenth interest in the real estate involved. In the second count they sought partition and a judgment for their portion of the rents and profits collected by certain defendants since March 16, 1959, the date of the death of Minnie B. Walters who was the grandmother of plaintiffs.

A trial resulted in a judgment to the effect that plaintiffs each own an undivided one-tenth interest in the property; that defendants-appellants own an undivided three-fifths interest and have an additional one-fifth interest during the life of Annie Wilcox, and will own the remainder interest therein in the event Annie Wilcox shall predecease all of her children; that each of the plaintiffs should have a judgment for $1,520.50 representing their portion of the rentals, less a credit for certain taxes and insurance paid by appellants. The judgment also directed that the property be sold at partition sale. Defendants Elenore C. Sisler, Evlyn A. Anderson, George R. Sis-ler, and James A. Sisler have appealed from said judgment. We have jurisdiction because the case obviously involves title to real estate.

The property involved in this case was owned by John N. Miller who died testate on October 27, 1913. He was survived by his wife, Mary A. Miller, a son, Charles A. Miller, and four daughters, Dora Ulen, Annie Wilcox, Minnie Walters, and Myrtle Jones. Shortly after his death, testator’s will was admitted to probate. The portion of the will primarily involved herein is the first sentence of the third article, which reads as follows: “I give, bequeath and devise to my beloved wife, Mary A. Miller the one sixth part of all the property or estate of every kind, real, personal and mixed, wherever situate of which I may die seized or possessed for and during her life with remainder to my children and heirs hereinafter named.”

In the fourth article testator devised one sixth of all his property to his son, Charles A. Miller, “and to his heirs and assigns forever.”

In the fifth, sixth, seventh, and eighth articles of his will, testator devised one sixth of all of his property to each of his daughters to be held in the manner therein provided. These articles are substantially the same and we quote the seventh article as illustrative of the manner in which the property was devised therein: “Seventh, I give, bequeath and devise the one sixth of all the property or estate of every kind, real, personal or mixed, wherever situate of which I may die seized or possessed to my daughter, Minnie, now the wife of Charles E. Walters, of Dexter, Missouri, as follows: the personalty absolutely and the realty to her for and during her life, with remainder to the heirs of her body.”

A portion of the ninth article of the will provides as follows: “All the rest, remainder and residue of my estate if anything remains undisposed of by this will, I give, bequeath and devise to my said' wife and children, in equal parts, share and share alike, upon the terms and in estate as here-inbefore mentioned and limited; provided, that whereas, I have heretofore given to my son and to each of my daughters a tract of land, and inasmuch as said tracts are not of equal value and being desirous that each of the beneficiaries of this will shall share equally in my estate, I will and direct that all the estate of which I may die seized' or possessed shall be inventoried and valued by my executors, and in addition thereto, the several tracts of land heretofore given to my said children, which shall be regarded as advancements, and shall be brought into account by way of hotchpot, and the whole estate so divided that the share of each of my legatees herein shall be equal in value ***."

The tenth article reads as follows: “It is my will that the provisions herein made for my wife and daughters shall be so construed as to vest in them and each of them, the estate and estates devised to them as a separate estate in each of them free from the control of the husbands of my said daughters or any future husband that they, or either of them might have, or of the husband of my wife should she remarry after my death.”

In February 1914, the executors filed a petition in the circuit court to obtain a construction of said will. In their petition they alleged that they had made a just and equitable division of all of the real estate owned by testator (except the undivided interests), taking 'also into account lands conveyed before testator’s death to his children as advancements; that it was impossible to divide said real estate so that some of the portions would not be of greater value than others, and for that reason certain cash payments were to be made to Annie Wilcox and Mary A. Miller; and that the division they proposed was satisfactory to all adult defendants. Plaintiffs sought approval of the division and instructions as to the manner in which said lands should be conveyed to each devisee, and as to other matters not here material. A guardian ad litem was appointed for all minor defendants and unborn remaindermen and an answer was duly filed by him.

The court entered its decree construing the will to mean that, after division of the estate was made, the executors and adult devisees should join in making a conveyance to each of said devisees, or groups of dev-isees, of the part of said real estate allotted to them; and the court approved the division of the real estate as proposed by the executors in their petition. No one in this action questions the validity of the actual partitioning of testator’s lands in the manner described herein.

Certain recitals in the decree tend to indicate an adjudication that the children received a vested remainder in the one-sixth interest allotted to the widow. The decree is pleaded as res adjudicata by the defendants, but we will not set out the facts in detail concerning that plea as our decision herein makes it unnecessary to deal with that point. We note, however, that the deed to that portion of the property (which includes the property here involved) describes the interest of the grantees in the following language: “Mary A. Miller for and during her life with the remainder to the undersigned Charles A. Miller, Dora Ulen, Annie Wilcox, Minnie Walters and Myrtle Jones forever.”

Evidence was also admitted to the effect that in conveyances made by testator and his wife to his daughters prior to his death, the land, in each instance, was conveyed to the daughter for life, with remainder to the heirs of her body.

Dora Ulen died in 1925 and Mary A. Miller died in 1934. On June 12, 1936, Dora Ulen’s husband, and all of her children and their spouses, joined with Charles A. Miller and his wife, Minnie Walters, and Myrtle Jones, in conveying the real estate involved in this action to Russell and Elenore Sisler, husband and wife, by special warranty deed. At about the same time, the Sislers obtained deeds which conveyed to them the interest of Lee E. Walters (father of plaintiffs) as the “only heir of the body of Minnie B. Walters”, Ned M. Jones as the “only heir of the body of Myrtle Jones”, and of Annie L. Wilcox.

In 1938, Albert H. Carter and wife obtained quitclaim deeds conveying to them the interests of Harry, Mary and Lynn Wilcox, children of Annie Wilcox, and the Carters, in turn, conveyed these interests to the Sislers on November 14, 1938. In 1954, the Sislers conveyed the property here involved, as tenants by the entirety, to themselves as tenants in common

Lee Walters, son of Minnie Walters, died December 20, 1952, leaving as his heirs his two children who- are the plaintiffs in this action. Minnie Walters thereafter died on March 16, 1959. Since Lee Walters was Minnie’s only child, it follows that Minnie’s heirs were Lee’s children, Charles Lee Walters and Nancy Jane Walters Stevens, plaintiffs herein. At the time this case was tried Annie Wilcox was the only child of testator who was still alive and she had three children living at that time, to wit, Harry,, Lynn, and Mary Wilcox.

Russell Sisler died testate on November 15, 1959, and by his will, all of his property was left to his wife, Elenore, and his children, George and James Sisler and Evlyn Anderson. The Sislers have been in possession of the real estate involved in this action since 1936. Considerable evidence was offered concerning the value of the property and the reasonable rental value thereof, together with expenditures made thereon by the Sislers, but we will not detail that evidence as the conclusion we have reached does not require a consideration thereof.

Evidence was also admitted to the effect that Russell and Elenore Sisler, as plaintiffs, filed a partition suit on May 12, 1959, naming as defendants “Harry M. Wilcox and Maxine Wilcox, his wife; Mary F. Wilcox, single; Lynn A. Wilcox and Charlotta G. Wilcox, Thomas Lynn Wilcox, Frances Ann Wilcox, Dale Robert Wilcox, Robert Arthur Wilcox, minors; Richard Wilcox, a minor; Harry Wilcox, Jr. and Rebecca Wilcox, minors; Charles Lee Walters and Eloise Walters, Guardian of Nancy Jane Stevens, a minor, and Nancy Jane Stevens, a minor, and the unknown heirs, whether in esse or unborn of the body of Annie Wilcox, and all other unknown owners of” the land here involved. That petition, which was dismissed without prejudice on August 3, 1959, alleged facts concerning the various conveyances said plaintiffs had obtained to said land, and further stated that the defendants “owned or may own, or may claim some right, title, interest or estate in, to or upon said lands.”

It is apparent from the foregoing that a determination of the primary issue in this case depends upon a construction of that part of the third clause of testator’s will wherein he devised to his wife Mary, one sixth of his estate “for and during her life with remainder to my children and heirs hereinafter named.” Did this provision create a vested remainder in testator’s children as contended by appellants, or did it indicate an intention that the interest of testator’s son should vest in fee but that the interests of his daughters should be a life estate with remainder to the heirs of their bodies, as contended by plaintiffs? If the interest of Minnie Walters was only that of a life tenant, that is all that was conveyed to the Sislers by her deed of June 12, 1936, and upon her death the remainder would vest in plaintiffs as her bodily heirs.

In the construction of wills our chief object is to determine “the true intent and meaning of the testator.” Section 474.430, RSMo 1959, V.A.M.S. It is our duty to give effect to the intention of the testator as gathered from an examination of the will as a whole. If, from an examination of the will, the intent is ascertainable, auxiliary rules are not to be resorted to. However, if “the language is ambiguous and the intent not clear from a consideration of the instrument as a whole and in the light of the situation and circumstances under which it was written, then recourse to such rules is permissible.” Hereford v. Unknown Heirs, Etc., 365 Mo. 1048, 292 S.W.2d 289, 293.

At the time testator prepared his will his heirs were his five children. The provision we must construe specifies that the property is devised to Mary A. Miller “for and during her life with remainder to my children and heirs hereinafter named.” All of the five children were thereafter named in the will and no other purported “heirs” are named therein. If the testator had omitted the words “and heirs” from the disputed provision, then unquestionably a vested remainder would have been created in his five children. Harlow v. Benning, 357 Mo. 266, 207 S.W.2d 471. It is our view that the use of the word “heirs” in said clause added nothing thereto. Under the instant circumstances the words “children” and “heirs” are synonymous. To like effect, see Heady v. Hollman, 251 Mo.Sup. 632, 158 S.W. 19. Therefore, if we were to consider only the sentence we are called upon to construe, we would readily conclude that the children were devised a vested remainder in said one-sixth interest.

Plaintiffs contend, however, that a consideration of the entire will shows that testator did not intend to give any of his real estate to his daughters in fee, but, on the contrary, intended that it be devised to them and their bodily heirs. They point to the fifth, sixth, seventh, and eighth articles in which he devised one sixth of his real estate to each of his daughters for life with remainder to her bodily heirs. Also, they refer to the ninth article in which the residuary is devised to the wife and children “in estate as hereinbefore mentioned and limited.” And further, they say that if there is any ambiguity, we should consider that conveyances made to the daughters by testator prior to his death were for life with remainder to their bodily heirs.

The provisions and conveyances plaintiffs point to certainly are convincing evidence that, as a general proposition, testator believed in the concept of giving real estate to his daughters for life with remainder to their bodily heirs. However, the fact that he followed that method in some instances does not necessarily mean that he would make it an invariable rule never to convey or devise real estate to his daughters in fee. In construing this will we must take the langauge as we find it, and we cannot base our decision upon conjecture. While, as stated in the case of Shriners Hospitals For Crippled Children v. Emrie, Mo.Sup., 347 S.W.2d 198, we must ascertain the intent of the testator from the will as a whole and not merely from the provision creating the particular gift, we nevertheless have the view that the wording of the specific provision in dispute is ordinarily of much more significance than the other provisions of the will which are usually applicable in an incidental manner only.

In this case the will was apparently prepared by a skilled attorney or scrivener. In the other articles to which plaintiffs refer, he used words which unquestionably created a life estate in the daughters with remainder in their bodily heirs. If testator intended, in the third article, that the devise of real estate to his daughters should be limited to a successive life estate, why didn’t the scrivener so state in plain language, as he did in the other articles of the will. He certainly knew how to write such a provision and yet, as previously indicated, we find nothing in the disputed article to indicate any intent other than to create a vested remainder in the children. To sustain plaintiffs’ contention we must take the same words and arrive at the conclusion that the testator intended, by the use thereof, to create a vested remainder in the interest going to his son, but, as to the daughters, we must say that he intended to create only a life estate with remainder in their bodily heirs. The only basis for arriving at that conclusion is the fact that in other portions of the will testator devised other property to his children in that manner. We think any such conclusion is entirely unreasonable.

There are many reasons why testator could have desired to leave the property devised in the third article to his daughters in fee rather than limited to a life estate. For example, he may have considered that the real estate devised to each daughter thereunder would be only one thirtieth of his total lands and he may have deemed it wise to provide some real estate which could be readily sold in case of necessity. Also, testator may have considered the fact that any interest devised to the daughters in that article would be preceded by a life estate in his wife, and, since the period the children would have possession was thereby shortened, it may have been considered undesirable to limit the estate devised to the daughters. We do not, of course, know what was in testator’s mind. The matters mentioned in this paragraph are suggested for the sole purpose of demonstrating that testator could have had a reasonable basis for intending to treat the property devised to his daughters, under article three, in a manner different from that devised to them under other articles.

Plaintiffs have cited the case of Chiles v. Bartleson, 21 Mo. 344, which in some respects is very similar to the case at bar. There the will created a life estate in testator’s wife and provided that, upon her death, the property should be equally divided “between my four children.” Later in the will is the provision, “Be it known to all that the bequests made to my two daughters in my above and foregoing will are made to them and the heirs of their bodies.” The court properly held that testator’s intent was manifest to the effect that the land should go to his sons in fee simple and that his daughters should receive a life estate with remainder to their bodily heirs. This case does not help the plaintiffs because, in the will before us, there is no provision clearly stating that all the lands devised to the daughters therein should be for life with remainder in their bodily heirs.

As we have indicated, we are of the opinion that the sentence in dispute clearly provides that all of the children had a vested remainder in the real estate devised thereb}'. However, if we assume that, when considered in connection with the remainder of the will, it is ambiguous, then our conclusion is further supported by a well-established auxiliary rule of construction. That rule is that “the law favors vested estates, so that, unless the testator has by very clear words manifested his intention to the contrary, the persons who take under his will, as the members of a designated class, must be determined at the death of the testator and the estates given them vested then. * * * One good reason for [this] rule is that testators usually have in mind the actual enjoyment rather than the technical ownership of their property. McArthur v. Scott, 113 U.S. 340, 5 S.Ct. 652, 28 L.Ed. 1015. As a result of these rules,, it is generally held that, in the absence of a clear contrary indication, those who compose a class described in a will as the testator’s heirs, to whom a remainder or executory interest is given, are to be ascertained at the death of the testator * * *; and that a remainder given to them thereby is vested in them at that time * * Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950. See also the case of Uphaus v. Uphaus, Mo.Sup., 315 S.W.2d 801, and cases cited therein.

We accordingly rule that the provision in question created a vested remainder in Minnie Walters as to a one-fifth undivided interest in the property here involved and that said interest was conveyed to the Sis-lers by her deed of June 12, 1936. It follows that plaintiffs have no interest in the property.

In view of the foregoing conclusion it is unnecessary that we consider other points briefed.

The judgment is reversed and cause remanded with directions to the trial court to enter a new judgment in accordance with the views herein expressed.

All concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Everett H. TARTENAAR, Appellant.
    No. 49998.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.

      Dale Beal, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Timothy G. Noble, Sp. Asst. Atty. Gen., Saint Louis, for respondent.
   STOCKARD, Commissioner.

Everett Harry Tartenaar was found guilty by a jury of incest and punishment was fixed at imprisonment for a term of seven years. After overruling a motion for new trial the trial court, on its own motion, reduced the punishment to imprisonment for a term of five years, and entered judgment accordingly. Defendant has appealed. At trial he was represented by counsel who has filed a brief in this court in his behalf.

A jury would be entitled to find from the evidence that about 11:00 o’clock of the evening of July 17, 1961, police officer Kenneth Karnes observed appellant and his sixteen-year-old daughter in an act of sexual intercourse near the shelterhouse in Blue Valley Park, Kansas City, Missouri. Appellant testified at the trial and denied the act, but following her arrest the daughter stated to the police that the act of sexual intercourse did occur, and she so testified at the trial in clear and unequivocal language.

Appellant sets forth nineteen assignments of error in his motion for new trial, but only two of these assignments are presented in his brief to this court. “If the appellant files a brief in the appellate court [which he has done in this case], assignments of error in the motion for a new trial not presented thereby shall be deemed waived or abandoned.” Supreme Court Rule 28.02, V.A.M.R., State v. Boyd, Mo., 256 S.W.2d 765.

The first point in appellant’s brief is that “The information is fatally defective and should have been quashed.” Considered as a point in a brief, this is totally inadequate to present anything for appellate review, but pursuant to Supreme Court Rule 28.02, V.A.M.R., we consider the sufficiency of the information even though as to it no assignment of error is made. Appellant’s brief contains no argument pertaining to this point, and we do not know the basis for his challenge. He cites under the point State v. Varsalona, Mo., 309 S.W.2d 636, and “State v. Smith, 317 S.W.2d —.” The first case pertains to the sufficiency of an information in an arson case, and the issues there pertaining to the sufficiency of that information in no way could apply to the sufficiency of an information purporting to charge the crime of incest. There is no case entitled “State v. Smith” reported in Volume 317 of the Southwest Reporter, Second Series, and we cannot locate the case to which reference is attempted to be made.

The elements of the crime of incest, as defined by statute and material to the factual situation of this case, are as follows: “Persons within the following degrees of consanguinity, to wit: Parents and children, * * * who shall commit, adultery or fornication with each other, * * * shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary not exceeding seven years.” Section 563.220. (All statutory references are to RSMo 1959, V.A.M.S.). The information in its material parts charged that “Everett Harry Tartenaar * * * on the 17th day of July, 1961, at the County of Jackson, State of Missouri, being the father of one Lee Ann Tartenaar, and the said Everett Harry Tartenaar being then and there persons within the degrees of consanguinity with which marriages by law to be declared incest[w]ous and void, to wit: being then and there father and daughter of the whole bottd, did then and there unlawfully, incest [«Jously, knowingly, feloni-ously and wilfully commit fornication with each other by then and there having sexual intercourse together; * *

We have no statutory definition of the act of fornication. Therefore, when used the term is to be given its meaning under the common law, Section 1.010, which is the “illicit sexual intercourse between a man, whether married or single, and an unmarried woman.” 37 C.J.S. Fornication § 1. The allegations in the information that defendant did commit an act of fornication with his daughter set forth the elements of the offense of incest as defined by the statute. It was not necessary to allege specifically in the information that the daughter was unmarried as that is necessarily implied in the allegation that the incest was accomplished by an act of fornication. The allegation that “the said Everett Harry Tartenaar being then and there persons within the degrees of consanguinity with which marriages by law could be declared incest[«]ous and void” is surplusage, and for that reason it is immaterial that that allegation apparently is incomplete and certainly most inartfully drawn. The language of the information, without considering the surplusage, follows the language of the statute, and in doing so charges the offense of incest by an act of fornication between defendant and his daughter. The information is sufficient.

The remaining assignment is that “The trial court capriciously and arbitrarily abused its discretion by proceeding into trial of the merits of the criminal charge against defendant when there was pending before it a petition of prosecuting attorney alleging that this defendant was a criminal sexual psychopath.” The record shows that the information was filed on August 2, 1961, and signed by an assistant prosecuting attorney of Jackson County. On November 15, 1961, a different assistant prosecuting attorney filed a petition in the same court alleging that the defendant was a criminal sexual psychopath as defined in Section 202.700, and praying that a hearing be held to determine that issue according to the provisions of Sections 202.700-202.-770. While this petition is set forth in the transcript, there is nothing to indicate that any action whatever was taken concerning it. No service of the petition was had on the defendant, there was no hearing thereon, and no order of dismissal was made. There also is no showing that defendant objected to the petition or to the proposed procedure thereunder, or that he objected to proceeding to trial on the charge of incest in lieu of the procedure under the petition. For aught that appears from the transcript the petition was filed in the case with “the clerk of the court” as required by Section 202.710 and permitted to remain in the file for eleven months without being called to the attention of the trial judge by anyone. The first mention of the petition is in the motion for new trial where defendant made the contention he now presents on this appeal.

Even though the prosecuting attorney has reason to believe that a person charged with a crime is a criminal sexual psychopath, as that term is defined in Section 202.700, it is discretionary with him whether or not to file the petition authorized by Section 202.710, and invoke the authorized proceedings thereunder. State ex rel. Kirks v. Allen, Mo.App., 255 S.W.2d 144. Therefore, after having filed the petition the prosecuting attorney may withdraw or abandon it. In addition, when such petition is filed and a hearing held thereunder, and the defendant is found by the court, or by a jury when one is employed for that purpose, to be a criminal sexual psychopath, the trial court is specifically authorized to make either of two orders: (1) it “may commit” the defendant to State Hospital No. 1 for treatments, or (2) it “may order” the defendant to be tried upon the criminal charge. Section 202.730. See also State v. McDaniels, Mo.App., 307 S.W.2d 42, 45. By reason of the filing of the petition, or the fact that it was pending and undisposed of, the trial court did not lose jurisdiction to proceed to trial on the criminal charge. Therefore, when the trial court did proceed to trial without any objection whatever on the part of the defendant, it was too late for him to object for the first time in his motion for new trial that a hearing should have been held on the petition. In matters of this kind the defendant is not entitled to speculate on the result of a jury trial, and if the result is not to his expectation, then for the first time complain that the state did not invoke an alternate and discretionary proceeding. This contention of appellant is without merit.

In his brief appellant states that “The following is complained of but not argued.” He then sets out five general statements in the form of assignments of error, but all except one are so general that they would present nothing for appellate review in any event. The one exception purports to challenge the sufficiency of the evidence, but our previously made brief statement of the facts discloses that it has no merit. See State v. Gray, Mo., 355 S.W.2d 10; and State v. West, Mo., 356 S.W.2d 880. In State v. Johnson, Mo., 245 S.W.2d 43, this court expressly held that assignments of error in a motion for new trial cannot be retained in a case “merely by declaring he [appellant] has 'chosen to argue’ only part of the assignments in the motion but that he ‘urges each and every other ground contained’ therein.” In this case the purported assignments are not briefed and for that reason they stand abandoned on appeal. However, if it be contended that they should not be considered to have been abandoned, they are all insufficient, except the one previously mentioned which is without any merit, to preserve any issue for appellate review.

Pursuant to our discretionary authority to determine whether there occurred plain error affecting substantial rights, Supreme Court Rule 27.20(c), V.A.M.R., we have carefully read and examined the entire transcript, and our examination discloses no such error. We have also examined those matters in the record for which no assignment of error is required. Supreme Court Rule 28.02, V.A.M.R. We have previously held the information to be sufficient. The verdict of the jury is in proper form and is responsive to the issues, and the punishment as reduced by the trial court is within the limits as prescribed by law. The record shows that appellant was arraigned and pleaded not guilty, and that he and his counsel were present throughout the trial. Appellant was granted allocution, and the judgment is responsive to the issues and the verdict.

The judgment is affirmed.

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.