author: BROADDUS, Judge.

text:
    C. A. WHITE, Appellant, v. CITIZENS INSURANCE COMPANY OF NEW JERSEY, a Corporation, Respondent.
    No. 23426.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Robert F. Middleton, Nevada, for appellant.
    Lynn M. Ewing, Jr., Ewing, Ewing, Ewing, Carter & Wight, Nevada, for respondent.
   BROADDUS, Judge.

This is an action upon a policy of marine insurance. Plaintiff recovered a verdict against the defendant insurance company in the amount of $2,050 and judgment was entered thereon. Defendant filed its motion for new trial which was sustained by the trial court “for error committed in giving Instruction One.” Plaintiff appealed.

Plaintiff resides in Nevada, Missouri. In the spring of 1957 plaintiff purchased a 17 foot Chris Craft Sportsman boat, took it to the Lake of the Ozarks where he used it during the summer. At the end of that year plaintiff decided to transport the boat back and forth to save the storage fee, which he thought was too high. Plaintiff who owned a Ford Agency and garage, decided also that the boat should be refinished, and he made a trip to Kansas City to see the dealer from whom he had bought the boat. The dealer suggested fiberglassing the hull, sold the fiberglass to plaintiff and instructed him in the procedure to be used in applying it. Plaintiff with the help of Mr. Gilbert McDowell coated the hull of the boat with commercial fiberglass. Mr. McDowell had had eleven years experience with the use of fiberglass, having worked fcr the Boeing Airplane Factory, the Ford Motor Company and the K & L Boat Factory. He testified that the fiberglass was properly applied and was of sufficient strength. Plaintiff testified that when the work was completed in June, 19S8, the boat was in perfect condition.

Plaintiff had used the boat a few times and it then occurred to him that he should have it insured. He called defendant’s agent in Nevada, Mr. Arthur, who came to plaintiff’s place of business bringing an application. Mr.-Arthur made out the application, collected the premium, countersigned and delivered the policy. The policy was dated July 2, 1958.

On July 6, 1958, plaintiff took the boat to the Lake of the Ozarks. At the Lake at that time were some friends of plaintiff, Mr. and Mrs. Andy Byram and their three young daughters. Mr. Byram is Vice-President of the Farm & Home Savings and Loan Association of Nevada. He had spent four and one-half years in the Navy and was familiar with small boats of various types.

Plaintiff took the boat for a trial run up the Lake and then came back to the dock and asked the Byrams if they wanted to take a ride. Mr. and Mrs. Byram and two of their daughters got into the boat with plaintiff. They rode around for 15 or 20 minutes and then headed into a cove, turned around, and started back and suddenly the boat struck something and “raised the boat right up out of the water.” Soon thereafter the boat began taking water and plaintiff headed it for the nearest dock. The boat was tied up and soon began to pull the dock down. So the boat was cut loose and sank into about 60 feet of water. We will recite other portions of the evidence as we discuss the contentions advanced by the parties.

The sole issue here is whether Instruction One given on behalf of plaintiff was so prejudicially erroneous, as a matter of law, as to demand the granting of a new trial as to the defendant insurance company. Brooks v. St. Louis Pub. Serv. Co., 275 S.W.2d 252, 254 (Mo.Sup.).

Plaintiff’s first contention is that the trial court erred in sustaining defendant’s motion for new trial since it was not error, as contended by the motion, for the instruction to fail to negative the defenses of negligent operation of the boat and unseaworthiness.

Defendant is in no position to complain of the failure of the instruction to negative negligent operation of the boat by the master (plaintiff), since that theory of defense was never pleaded by defendant-It was an affirmative defense which must have been pleaded, unless it was shown by plaintiff in making out his case. Plaintiff’s, evidence shows that he was guilty of n& negligence whatever. He testified that we were “cruising at about two-thirds speed” when the boat struck the concealed object, which he thought was possibly “a steel fishing trot line.” Mr. Byram testified that “we were going, I would say at a: normal rate of speed. We weren’t going excessively fast; we weren’t going real slow.” There was no evidence that vigilant lookout would have disclosed the existence of an object or that slackening of speed would have affected the outcome. Therefore, with the giving of defendant’s Instruction 8, which submitted the issue, defendant received more than it was entitled to.

The basis for defendant’s claim that .the boat was not seaworthy is based upon the testimony of its witness Brinckmann, who raised the boat after it had been submerged in the water for nine days and where it had become filled with slime. He testified that there were definite signs that the cracks between the planks hadn’t been calked ; that a boat should always be calked before it is fiberglassed; that the purpose of calking “is to seal the cracks between the planks so that moisture from inside the boat can’t get down between the planks to the underside.” In expressing his opinion as to what caused the boat to sink, he stated: “From all appearances, it would seem that the wood had swollen from the moisture, split the fiberglass, and the operation of the boat — the friction of the water finally got a section of the fiberglass loose and then ripped it off.”

We are of the opinion that under the evidence defendant is estopped to assert that the boat was not seaworthy. Mr. Arthur was defendant’s general agent. He made out the application “from his own knowledge of the boat.” He collected the premium, countersigned and delivered the policy. His knowledge was the defendant’s knowledge. As our cases say “for the purposes of this case he was the company.” Browning v. Springfield Fire & Marine Ins. Co., 8 S.W.2d 941, 943 (Mo.App.). The testimony shows that Mr. Arthur had seen the boat two or three times while it was being fiberglassed. On the day he prepared the application he “examined” the boat. And based upon that examination, and not upon anything plaintiff said to him, he issued the policy. Assuming the boat had not been calked in order “to seal the cracks between the planks so that moisture from inside the boat couldn’t get down between the planks to the underside” Mr. Arthur was bound to have known it. Even a casual observation would have disclosed it. Our holding that, under these circumstances, defendant is estopped to assert this defense is supported by the following authorities : Rickey v. German Guarantee Town Mut. Fire Ins. Co., 79 Mo.App. 485, syl. 1; Chamberlain v. British-American Assurance Co., 80 Mo.App. 589, 591, and Scarritt Estate Co. v. Casualty Co., 166 Mo.App. 567, 571, 572, 149 S.W. 1049.

Another objection lodged by defendant in its motion for new trial against the Instruction is that it failed to require a finding that plaintiff abandoned the boat and that the cost of repair and recovery exceeded the agreed valuation of $1500. As to abandonment, the matter was not in dispute. Defendant’s answer alleged “that plaintiff abandoned said boat after it sank” and all of the evidence showed that fact. And the right to abandon, or conversely, acceptance by insurer of an abandonment, goes not to the issue of liability for a loss, but to the extent of the loss. That is, a total loss of agreed value or only a partial loss. Thus it would never have a place in the verdict directing instruction. It should appear in the instruction on the measure of damages, if at all.

Under a marine insurance policy there are basically two types of loss for which the insurer is liable for the full value of the policy: In the case of an “actual” total loss, and in the case of a “constructive” total loss. 29A Am.Jur. Ins. secs. 1570 and 1571, p. 666. The contract here involved provided that no recovery for a constructive total loss shall be had unless the expense of recovery and repair exceeds the agreed valuation. The agreed valuation was $1500.

Plaintiff’s evidence disclosed in no uncertain terms that the cost of repairs and recovery exceeded the $1500 valuation. And defendant’s evidence was to the same effect. Defendant’s agent, Sauve, testified that the boat was “not economically repairable. By economically repairable, I was of the opinion at that time that the boat value in itself would not justify the cost of repairing it.” And defendant’s other witness (Brinckmann) testified as follows: “Q. Is it your opinion that this boat was economically speaking, a total loss at the time you found it? A. Well, the cost of putting it back in shape was such that in my opinion you could never get your money back out of it. Q. So it wouldn’t have been practical to repair it? That’s right.”

It is not reversible error for a court to assume the existence of an undisputed or uncontradicted fact and omit it from an instruction. Cases cited in West’s Mo. Digest, Vol. 27, Trial, <®=5192. We are of the opinion that the error, if any, did not materially affect the merits of the case.

The Instruction required a finding that “plaintiff duly made a demand upon defendant insurance company to fulfill its part of the contract of insurance, if so, and that defendant insurance company has refused said demand, if so, * * Defendant alleged in its motion for new trial that the Instruction failed to hypothesize facts showing the manner in which plaintiff made demand upon defendant.

The evidence discloses that immediately upon his return to Nevada from the Lake, plaintiff notified Mr. Arthur, defendant’s agent of the loss; that Mr. Arthur in turn notified Mr. Robert Langford, who was branch manager for the Western Adjustment Company. Mr. Langford testified that he conferred with plaintiff a number of times about the loss; that he sent his adjuster Mr. Sauve, to investigate the loss and make a report. Sauve made a report to Langford. The latter sent it, together with a statement he had obtained from plaintiff, to defendant. Langford testified that he “never heard from the company.” Both Langford and Sauve were admittedly agents of defendant. Plaintiff testified that he executed the necessary papers presented to him by Mr. Arthur and Mr. Langford for the notice and proof of loss; that he made frequent inquiries of them relative to payment of the loss; that he “contacted Mr. Arthur and Mr. Langford over at the Western Adjustment no less than, I’d say, twenty-five, thirty times. Both told me they had written several letters and were pretty much in the dark as to why they hadn’t heard anything from the insurance company direct.” Plaintiff also had his then attorney, Honorable Jack P. Pritchard, now Judge of the 28th Judicial Circuit, write to defendant and “we never got any response to that letter.”

From the above it is clear that there was “no denial of the essential facts” showing that plaintiff made a demand for payment. Under these circumstances it was not necessary for the instruction to specifically hypothesize the facts relating thereto. The case of Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500, 501, cited by defendant, so holds. It also holds that if defendant felt that the instruction did not sufficiently hypothesize the facts it should have offered a “clarifying or amplifying instruction.”

In our opinion, the instruction was not prejudicially erroneous, and, accordingly, the order granting a new trial is reversed and the cause remanded with directions to reinstate the verdict and enter judgment thereon for the plaintiff.

All concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Rose Brenner FILGER and Ferd Filger, Appellants, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. 23481.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Williams, Norton & Pollard, North Kansas City, John Yeaman, Platte City, for appellants.
    Robert L. Hyder, Melvin Englehart, Jefferson City, for respondent.
   MAUGHMER, Commissioner.

This is a suit for damages by the owners of a tract of land used for business purposes and abutting a part of the northwest quadrant at the intersection of Highways 71 and 69, in Riverside, Platte County, Missouri. The petition alleges that the defendant State Highway Commission of Missouri in 1958, changed the existing construction of this intersection so as to “practically completely block” access and almost completely curtail ingress and egress to this business property, thereby damaging the value of plaintiffs’ tract. There was a jury verdict in favor of plaintiffs for $7,-000. The trial court set aside this verdict, sustained defendant’s after trial motion for directed verdict or in the alternative for a new trial, and entered judgment for defendant. Plaintiffs have appealed.

Plaintiffs have owned the real estate involved continuously since 1916. In 1934, defendant acquired the right-of-way and shortly thereafter constructed Highway 71, which generally runs north and south along the east side of plaintiffs’ property. A short time later defendant acquired the right-of-way for and constructed Highway 69, which runs east and west, south of but not abutting plaintiffs’ property. Originally these roads were gravel, then black top, and finally became concrete highways. The right-of-way as secured in 1934, and touching plaintiffs’ tract on the east was wider on the south side as it neared the highway junction than it was on the north part. The result was that plaintiffs’ jointure with the right-of-way ran from their northeast cornér almost .due south' for a distance of 47.45 feet and then in a southwesterly direction a distance of 116.20 feet to plaintiffs’ southeast corner. In September, 1954, plaintiffs erected a building on their tract in which ever since a restaurant or roadside eating establishment has been operated under the trade name “Rocket Drive-Inn”. Plaintiffs never did personally operate this business but rather in September, 1954, leased it for 10 years at a rental of $350 per month. This lease contained a proviso that if the highway was changed, altered or closed so as to materially reduce the flow of traffic, lessees could cancel. Lessees have not canceled, but rather have paid the rent continuously since 1954.

It is plaintiffs’ contention that “about September 1, 1958, * * * defendants came upon their right-of-way and proceeded to construct concrete barriers and islands on the right-of-way in such manner as to practically completely block plaintiffs and their invitees from access to plaintiffs’ property; ingress and egress to and from plaintiffs’ property was almost completely curtailed, it being physically impossible for a motor vehicle to go directly to and from plaintiffs’ property and the intersection or highway and thus plaintiffs have been denied their easement of access”, all to plaintiffs’ damage in diminution of both the rental and sale value of their property.

The evidence shows and it is certain the amount of traffic over this intersection has increased tremendously since the right-of-way was acquired and the highways were first built about 1934. This increase in vehicular traffic has been continuous and has corresponded to a large extent with the population growth and with the industrial and residential expansion in the area. From time to time during the last 27 years the highway department has altered, enlarged and improved the highways at this intersection in order to more efficiently carry this additional and ever increasing traffic.

As previously pointed out the original construction was gravel, then black top. and finally concrete. At first the intersection was merely a simple crossing of two highways and then blinker lights were installed. Later each of the four concrete roadways which entered the intersection were widened back from the crossing a distance of some 400 feet so as to accommodate four lane traffic. The vehicles going straight ahead or to the right kept in the right lane and were thus not delayed by the left-turning vehicles which were to occupy the inner right lane and in most instances were required to wait for an opportunity to turn left.

Apparently the traffic crossing this intersection continued to increase and the accident rate mounted. In any event, the Highway Commission in September, 1958, determined to and did make a further change at or near this intersection which was designed to channel off some of the traffic that would otherwise cross the intersection proper. The traffic control island, which gives rise to plaintiffs’ complaint, was constructed on defendant’s right-of-way in the northwest quadrant of the intersection of Highways 71 and 69; and in addition, a driveway 30 feet in width was constructed running from the west boundary of Highway 71 in a southwesterly direction along the west side'of the island to ’the north boundary line of Highway 69. Similar islands and driveways were built on each of the other quadrants, thereby enabling vehicles approaching the intersection from north, south, east or west to turn right without entering the intersection itself. The northwest island is 225 feet long on its west side with its north end approximately 115 feet north of plaintiffs’ south property line. Prior to this construction it was possible to drive a motor vehicle generally east from any part of plaintiffs’ entire 163 foot frontage onto the right-of-way and directly across it to Highway 71. After this construction it was possible to drive a car east and directly onto Highway 71 from only the north 47.55 feet of plaintiffs’ frontage. Going east from the south 115 feet of plaintiffs’ frontage would put the vehicle on the 30 foot “short-cut” roadway leading to Highway 69.

It appears from the evidence and physical facts that while before 1958, plaintiffs had 163 feet of direct access to Highway 71, they now have 48 feet of direct access, and 125 feet of access to the short-cut. Ingress and egress to Highway 71 has not been eliminated, and has not even been lessened in so far as the highway system itself is concerned. Northbound traffic on Highway 71 has less distance in which to turn left to plaintiffs’ property than it had before. There was substantial credible evidence offered tending to show that these 1958 changes caused the plaintiffs’ property to have less value for both sale and rental immediately after than immediately before such changes. However, the allegations of the petition that access was “practically completely blocked” and ingress and egress was “almost completely curtailed” were not proved. nor are they apparent from the physical facts.

Simply stated, the question before us and which was before the trial court on motion to dismiss is this: Have plaintiffs made a prima facie case entitling them to go to the jury on a showing that (1) the Highway Commission modified the intersection construction, utilizing only previously acquired right-of-way by building a traffic island; (2) such modification, although decreasing the amount of plaintiffs’ direct access to the main highway did not decrease the amount of plaintiffs’ direct access to the highway system; (3) such modification made it more difficult and inconvenient for northbound traffic to turn left onto plaintiffs’ business property and likewise to exit therefrom, and (4) such modification resulted in plaintiffs’ business property becoming less valuable immediately thereafter than it was immediately before?

In 1934, the Highway Commission obtained this right-of-way to be used for sert, retained their right of access but the highway purposes. Plaintiffs, as they as-Commission did not agree or contract to maintain forever a highway as originally constructed. In fact changes were made every few years. The surface was improved and finally made of concrete. It became a segment of a highway system which attracted motor vehicle traffic for hundreds of miles and became a busy thoroughfare. One result was to make thé adjacent lots or tracts of land valuable for business purposes. This was a resultant benefit common to all abutting landowners. Traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or benefits. It was 20 years after the original construction before plaintiffs first utilized their tract for business purposes by constructing a building thereon.

Nichols, Eminent Domain, 3rd Ed., Sec. 6‘.445, pp. 409-411, makes these comments:

“An individual proprietor has no right to insist that the entire volume of traffic that would naturally flow over a highway of which he owns the fee pass undiverted and unobstructed.
In fact, while under some circumstances and conditions he has a right of access to and from his own premises, he has no constitutional right to have anyone pass by his premises at all.
⅜ sjs ⅜ ⅜ ⅜ *
“It appears to be held that the erection of a permanent structure in a public highway of such a character as to rank as a proper highway use, even if it diminishes the value of abutting property, is not in and of itself a damage in the constitutional sense. In other words, the abutting owner has no private right that the street shall not be used for legitimate street purposes, however obnoxious to him they may be, and the use of the street for ■such purposes violates no private rights and is consequently not a special .and peculiar damage. The injury which the owner suffers from the presence of an obnoxious structure in the .street is the same in kind as that suffered by the public generally, though greater in degree”.

The trial court in its memorandum opinion referred to Henry Gauss & Sons Mfg. Co. v. St. Louis K. & N. W. Ry. Co., 113 Mo. 308, 20 S.W. 658, 659, 18 L.R.A. 339, where the statement of Judge Norton in Julia Bldg. Ass’n v. Bell Tel. Co., 88 Mo. 258, 273 was restated and approved. Judge Norton there said:

“I think it may be safely affirmed that all the authorities to which we have been cited by counsel on both sides of this case agree that when the public acquires a street, either by condemnation, grant, or dedication, it may be applied to all uses consistent with, and not subversive of, the proper uses of a street, and not inconsistent with the uses contemplated in the dedication, grant, or condemnation; and that it is only when the street is subjected to a new servitude, inconsistent with and subversive of its use as a street, that the abutting owner can complain”.

The Supreme Court of Indiana (State of Indiana v. Ensley et al., 240 Ind. 472, 164 N.E.2d 342) held that where the effect of a divider strip in a new highway was to prevent northbound traffic from turning directly into owners’ property, and such traffic was now compelled to continue to the intersection of the highway and street where it was required to make a left turn and travel approximately one-half block to the entrance of the owners’ property, such did not constitute a compensable taking of private property entitling the owners to compensation.

In Wilson et ux. v. Iowa State Highway Commission, 249 Iowa 994, 90 N.W.2d 161, 168, the Supreme Court of Iowa stated that a property owner is not entitled to unlimited access to abutting property at all points along the highway.

In Cities Service Oil Co. et al. v. City of New York et al., 5 N.Y.2d 110, 180 N.Y.S.2d 769, 154 N.E.2d 814, 817, the ■city established bus stops in front of plaintiff’s gasoline station. The court said: "Traffic .regulations, promulgated as they are to promote the safety and welfare ■of the traveling public, may not infrequently entail hardships and difficulties for some individual property owners. But that will furnish no ground for invalidating the regulation, for we deem it fundamental that, in this area of governmental action, what is best for the body politic in the long run must prevail over the interests of particular parties”.

The Court of Appeals of New York in Jones Beach Boulevard Estate, Inc. v. Moses et al., 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487, ruled that an ordinance prohibiting left turns in front of plaintiff’s premises was neither invalid nor an infringement of rights of the abutting ■owner.

In Iowa State Highway Commission v. Smith et al., 248 Iowa 869, 82 N.W.2d 755, 73 A.L.R.2d 680, the Supreme Court ■of Iowa held that while realty consists not alone of the tangible thing, but also ■of rights such as right to access, nevertheless, two 34 foot wide driveways connecting filling station with the highway were ■all that were necessary and that prohibition •of left turns and U turns except at designated points did not constitute a taking of the adjoining landowner’s property.

In The State of Washington v. Fox et al., 53 Wash.2d 216, 332 P.2d 943, 946, the Supreme Court of Washington adopted with approval this language from Walker w. State, 48 Wash.2d 587, 295 P.2d 328:

“We have found no authority, nor has any been called to our attention, ■which allows, to the abutting property ■owner, damages allegedly arising from statutes or ordinances (a) establishing one-way streets; (b) forbidding ‘U’ and left turns; or (c) authorizing the use of other suitable traffic-control devices deemed necessary by the proper authorities to warn, regulate, and guide traffic upon public ^thoroughfares.
“Although an abutting property owner may be inconvenienced by one-way traffic regulations immediately in front of his property, he has no remedy if such regulations be reasonably adapted to the benefit of the traveling public”.

In Pennysavers Oil Co. of Texas v. State of Texas, Tex.Civ.App., 334 S.W.2d 546, the state had built a new .“access controlled highway” and the former highway to which plaintiff’s filling station operator had enjoyed complete access was converted into a mere server road. The Court said (548-549) :

“The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a' result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access”.

To the same effect is the holding by the Supreme Court of Arkansas in Arkansas State Highway Commission v. Bingham et al., 231 Ark. 934, 333 S.W.2d 728, stating that the right of ingress and egress is a property right which is compensable, but where condemnee’s remaining land was on access .road there was no taking of such property right, even though access road’s nearest connection with limited access highway was somewhat more than a mile from condemnee’s filling station, and that loss occasioned by 'such diversion of traffic was not compensable. This Court (Christy et al. v. Chicago, B. & Q. R. Co., 240 Mo.App. 632, 212 S.W.2d 476, 479) said: “ * * * when access to property is cut off in one direction by the vacation or closing of a street upon which it abuts but may be had in the other direction, the property is not taken or damaged. It does not suffer damage different in kind from that suffered by the general public although injury to the property may be greater, (citing cases)”.

The trial court found, we find and the evidence is quite clear that while the changes made, make ingress and egress to and from plaintiffs’ business property more inconvenient, especially for motorists traveling north on Highway 71, nevertheless, plaintiffs have direct access to Highway 71 from 47½ feet of their frontage and direct access to the highway system from their remaining 115 feet of frontage. We believe the reasoning of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, is applicable. Justice Holmes said this:

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution”.

The value, for both sale and rental of plaintiffs’ property abutting Highway 71 has varied since the highway was built in 1934, to some extent with the improvements or changes in Highway 71 and the intersection. It increased with the enlargement and improvement of the highway and as the traffic increased. Plaintiffs in common with other owners in the area reaped benefits and saw their real estate appreciate in value. Now an even further expansion in traffic flow has necessitated widening of the highway at the intersection. This change may result in some inconvenience respecting ingress and egress to plaintiffs’ tract. It may have resulted in some lessening of its value but nevertheless free and full access to the highway system remains. Highway improvement would stall and become tied up in a web of controversy if every construction change such as widening a highway to-four lanes, prohibiting left turns, installing safety and traffic islands and diminution of unlimited access gave rise to an enforceable claim for damages. Plaintiffs; have benefited by some of the changes. They must stand the loss occasioned by the public improvement so long as their access rights are not materially altered or destroyed.

The trial court found specifically that the changes here did not result in (a) a practically complete blocking of access or (b) an almost complete curtailment of ingress and egress so as to make it (c)physically impossible for a vehicle to travel directly from the highway to plaintiffs’' property and return to the highway. We concur in such conclusions. The plaintiff Mrs. Filger testified in accordance therewith although asserting the changes made it more inconvenient.

In this case there was no direct taking of any part of plaintiffs’ tangible' property. The Commission utilized only the right-of-way it had secured in 1934 for highway purpose use. None of plaintiffs” east frontage access to the highway system itself was destroyed, but only the direct access to Highway 71 itself was reduced from 163 feet to 47½ feet. That such access was not materially blocked or seriously curtailed so as to make physical' vehicular entrance and exit almost impossible is further evidenced by the fact that plaintiffs’ lessees after the 1958 changes did not avail themselves of the lease privilege of cancellation, but instead have continued to use the tract and building as a roadside eating place and have-continued to pay $350 per month rent, therefor.

Our Missouri Constitution, Art. I, Sec.. 26, V.A.M.S., provides that compensation-must be paid for the taking or damaging• of private property. There has not here been a taking of private property. Access and the right of ingress and egress is a property right which may not be either totally destroyed or practically destroyed without compensating the owner. In this case, in our opinion, access has not been destroyed nor has there been a substantial interference with plaintiffs’ rights of ingress and egress, so as to either destroy or materially lessen the usefulness of this business property. We believe the trial court properly sustained the motion for a directed verdict.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGH-MER, C., is adopted as the opinion of the Court.

HUNTER, P. J., and BROADDUS, J., concur.

CROSS, J., not participating.


author: SPERRY, Commissioner.

text:
    Wayburn SPEAK, pro ami, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent. Inez SPEAK, Plaintiff-Appellant, v. Roger L. PRYOR, Defendant-Respondent.
    Nos. 23306, 23307.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1962.
    Dubiner & Gregg, Arthur T. Stephenson, Kansas City, for appellant.
    Kuraner, Freeman, Kuraner, Oberlander & Lampkin, George T. O’Laughlin, James W. Humphrey, Jr., Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Wayburn Speak, a minor, by his mother, Inez Speak, sued defendant for damages growing out of personal injuries received by him when a car he was operating collided with defendant’s automobile. Plaintiff, Inez Speak, owner of the automobile he was driving, sued defendant for damages suffered by her and growing out of the collision. The cases were consolidated and tried to a jury. There was a verdict for each of plaintiffs, against defendant, in the sum of $2000. Upon motion, the verdicts were set aside and judgment entered for defendant in each case; and the Court, in the alternative, sustained defendant’s motion for a new trial either on the issue of damages only or on all issues.

The collision occurred in the intersection at 17th, an east-west street, and Lawn, a north-south street, in Kansas City. Lawn is 26 feet wide, and carries two-way traffic south of 17th, but north of 17th it is a one-way s.treet, south. The collision occurred June 13, 1958, at about 6:30 p. m. The streets were of asphalt construction, and were dry. Visibility was good. Wayburn Speak, hereafter referred to as plaintiff, was operating his mother’s 1950 Mercury automobile, travelling west on 17th. He was alone. Defendant was travelling north on Lawn and intended to turn left at the intersection. His wife was riding to his right. There was a square, two-story, building located on the east side of Lawn, 13 feet east of the curb line, and 22 feet south of the curb line on 17th. It obscured-the view of both drivers until they reached a point where they could see past the northwest corner of the building.

The case was tried and submitted on the humanitarian theory. Defendant contends that no submissible case was made on that theory because there was no evidence to support it 'except such as was in conflict with plaintiff’s theory of the case, and with his own testimony. He cites Fisher v. Gunn (Mo.Sup.), 270 S.W.2d 869, 875.

He also contends that no case was made because the evidence failed to show that plaintiff came into a position of imminent peril in time for defendant, thereafter, to have stopped his car and avoided the collision.

Plaintiff testified to the effect that he was proceeding west and, when he reached a point tt/2 car lengths east of the east curb line of Lawn, he saw defendant’s automobile proceeding north on Lawn, about 2 car lengths south of 17th; that plaintiff’s speed was 15 miles per hour; that the speed of defendant’s car was faster than plaintiff’s, from 20 to 25 miles per hour; that when plaintiff’s car was one length, 15 or 16 feet-from the curb, proceeding at 15 miles per hour, defendant’s car was then 1¼ car lengths from the curb line of 17th; that, at that point, plaintiff realized there was danger of a collision; that he applied his brakes but travelled 7 or 8 feet before they took hold, about 7 feet from the curb line; that he then travelled ten feet to the point of impact; that the left side of his car was 1 foot north of the center line of 17th; that he did not skid but that he heard defendant’s car skid; that plaintiff entered the intersection first; that, at the point of impact, he was travelling not more than 5 miles per hour; that he tried to turn his car but could not do so because it was in second gear; that plaintiff’s car never changed course; that plaintiff’s car was damaged at the left front corner and left rear fender; that defendant’s car hit him at the right front and right back.

Pictures in evidence, introduced by plaintiff, show that plaintiff’s car -was badly smashed across the enti~e left half of the right front, with some damage toward the right rear. The pictures show that defendant’s car suffered damages on the right side, immediately back of the lamp, but the lamp was not smashed. The testimony and1 the pictures disclose that the vehicles came to rest, near together and side by side, at. the northwest corner of the intersection, virtually against the curb, and headed nearly west. A police officer testified for plaintiff to the effect that a motor vehicle, trav-elling at a speed of 15 miles per hour with, foot off of the brake, could have been stopped at 28 feet; with foot on the brake it could have been stopped at 22½ feet; that, at 12}4 miles per hour, foot off of the brake, it could stop at 20 feet; at 12½ miles, foot on the brake, 15 feet; at 10 miles, foot off brake, 16 feet and with foot on the brake, 12 feet. He stated that if a car left skid marks, overall, of 20 feet before impact, it would indicate its minimum speed to have been 14 miles per hour; and that if 70 feet of skid mark was laid down, a speed of 34 miles per hour would be indicated.

A police officer of the accident investigation unit visited the scene 13 minutes after the collision occurred. He testified for defendant to the effect that he took pictures and measurements; that the pictures in evidence were the same or similar to those taken by him; that plaintiff told him, at the scene, that he was travelling west at 25 to 30 miles per hour when he saw defendant’s car 15 feet away and could not avoid the accident. He further testified to the effect that he observed skid marks, 20 feet in length, leading to defendant’s car, and marks leading from the point of impact 56 feet east, (past the intersection of 17th and Lawn) and 24 feet northwest from the point of impact; that they led to where plaintiff’s car then sat; that those marks would indicate plaintiff’s speed to have been at least 34 miles per hour; that, to a trained eye, they were visible on the pictures; that the point of impact was 11 feet west of the east curb line of Lawn, which is 26 feet wide.

Witnesses for plaintiff testified that there were no skid marks left by his car. Defendant, called by plaintiff, testified to the effect that, as he approached 17th from the south on Lawn, at a point two car lengths south of the intersection he was travelling at a speed of from 10 to 15 miles per hour; that he had his foot on the brake because the location of the building at the southeast corner made it a dangerous intersection; that he was thoroughly familiar with the streets and intersection and had his signal light on to turn left; that when 15 feet south of the curb line he saw plaintiff 3 or 4 car lengths east of the intersection; that, when the front of his car was from 10 to 20 feet south of the curb line he fully applied the brakes; that plaintiff was then from 54 to 72 feet east of the curb line; that he sounded his horn and that his brake was on full force when he reached the curb line.

According to plaintiff’s evidence he was about 22½ feet east of the curb line when he first saw defendant’s car, then 30 feet south of 17th street. Plaintiff said his brakes took hold when he was seven or eight feet east of Lawn; that he travelled about 10 feet further before the collision occurred, at which time his car was 1 foot north of the center of 17th. Other testimony placed the point of impact at 11 feet west of the east curb line of Lawn.

If, as defendant said, he had his foot on the brake before he sighted plaintiff, and if, as he said, he applied the brakes when from 10 to 20 feet south of 17th he could have stopped his car, (at 15 miles per hour) within 22Y2 feet. But he stated his speed to have been from 10 to 15 miles per hour. At 12½ miles per hour, with foot on the brake, the car could have been stopped within 20 feet, which would have been before reaching the point where the cars collided. If he were travelling 12 miles per hour he could have stopped within 16 feet and, at 10 miles, within 12 feet.

Plaintiff, after verdict is, ordinarily, entitled to the benefit of all evidence favorable to his theory and to all favorable inferences to be drawn therefrom. Price v. Nicholson, Mo., 340 S.W.2d 1, 5. Under all of the evidence here, including defendant’s testimony, the jury could have found that defendant could have stopped his car, with safety to himself, his car and others, after he saw and realized that a collision would inevitably follow, and have avoided the collision.

But defendant says that his testimony is not available to plaintiff in order to piece out and make a humanitarian case because such testimony is directly contrary to that of plaintiff himself and is contradictory of his theory of recovery. He calls attention to the fact that plaintiff estimated his speed, when he first saw defendant, at 15 miles per hour, and defendant’s speed as higher than that, perhaps 20 to 25 miles per hour. Even so, these speeds were not based on any mechanical device but were the estimates of a young man who had only five months of driving experience. He offered defendant’s testimony, as his own witness, and such testimony became a part of the body of evidence upon which he relied to establish his theory of recovery. Under such circumstance, he was entitled to the benefit of evidence most favorable to him, De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633; and he was entitled to the benefit of defendant’s testimony as to his own speed, even though defendant stated that his speed was materially lower than that which plaintiff estimated it to be, Tunget v. Cook (Mo.App.), 94 S.W.2d 921, 925. Plaintiff’s estimate of defendant’s speed, under the circumstances existing here, amounted to little more than a guess and does not bind him so as to preclude his benefit from defendant’s testimony. Haddow v. St. Louis Public Service Company (Mo.App.), 38 S.W.2d 284, 286; Davidson v. King (Mo.App.), 309 S.W.2d 132, 135-136; Morgan v. Thompson (Mo.), 325 S.W.2d 794, 797.

Defendant urges that the Court should have ordered a new trial on the issue of liability because plaintiff’s verdict directing instructions, No. 6 and No. 1, did not “hypothesize either by recital or by reference to other instructions, facts essential in law to support the verdict, when the evidence presented two divergent sets of essential facts, and two irreconcilable theories of the case”.

The instructions are similar. The material portion of No. 6 is set out below:

“The Court instructs the jury that if .you find and believe from the evidence that at the time and place mentioned in evidence plaintiff became and was in a position of imminent peril and danger from collision between defendant’s automobile and the automobile plaintiff was driving, and that defendant saw, or by exercising the highest degree of care could have seen, plaintiff in the aforesaid position of imminent peril and danger, if you so find, in time thereafter, by exercising the highest degree of care and with the means at hand, and with safety to defendant, the passenger in defendant’s automobile, and any others at said intersection, to have stopped defendant’s automobile, if you so find, and by so doing could have prevented such collision described in evidence. * * * ”

Plaintiff’s instruction No. 2 was in part as follows:

“The Court instructs the jury that by the term ‘imminent peril’ is meant certain immediate and impending peril and not mere possibility of collision or probability of danger, and that the term ‘position of imminent peril’ referred to in instruction No. 1 means that distance from the point of collision short of which the automobile driven by plaintiff could not have been stopped by his efforts, in the exercise of the highest degree of care and with safety to himself, and the automobile.”

Defendant’s instruction No. 15 told the jury that unless it found from the evidence that defendant could have prevented the collision by stopping his automobile, it must find for defendant.

Defendant relies on the following cases as supporting his position: Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496; Thaller v. Skinner & Kennedy Company (Mo.App.), 339 S.W.2d 487. These are all primary negligence cases.

Instruction No. 1 requires the jury to find that, '‘at the time and place mentioned in evidence”, plaintiff became and was in a position of imminent peril and danger from collision of the two automobiles.

It is, essentially, similar to an instruction approved by the Supreme Court in Price v.

Nicholson, 340 S.W.2d 1, 10. It was further clarified by instructions 2 and IS. There was no misdirection and the instruction is not prejudicially erroneous.

The judgment is reversed and the cause is remanded with directions to reinstate the verdicts and enter judgment thereon.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: HAMILTON, Justice. GRIFFIN, Justice

text:
    VALMONT PLANTATIONS et al., Petitioners, v. The STATE of Texas et al., Respondents.
    No. A-8465.
    Supreme Court of Texas.
    Feb. 14, 1962.
    Rehearing Denied April 11, 1962.
    A. J. Vale, Pope & Pope, F. Randall Nye, Rio Grande City, L. Hamilton Lowe, Austin, for Valmont Plantation et al.
    Ransome & Ray, Brownsville, Cunningham, Yznaga & Duncan, Brownsville, for R. F. Breeden et al.
    Strickland, Wilkins, Hall & Mills, Mission, for W. L. Pickens, Trustee et al.
    Strickland, Wilkins, Hall & Mills, Mission, for Everett Bell et al.
    Will Wilson, Atty. Gen., Austin, Assistant, Houghton Brownlee, Jr., Wayland Rivers, Spec. Asst., Kent, Brown & George, Harlingen, A. G. Haigh, Edinburg, Gibbon, Klein & Ferrero, Harlingen, Truett Hubbard, Donna, J. D. Vollmer, Mercedes, Smith, Mcllheran & Jenkines, Weslaco, Kelley, Looney, McLean & Littleton, Edin-burg, Vinson, Elkins, Weems & Searls, Houston, Sawnie B. Smith, Edinburg, Robertson, Jackson, Payne, Lancaster & Walker, Dallas, Hill & Kin, Mission, for State of Texas et al.
    E. H. Moore, LaFeria, for other respondents.
   HAMILTON, Justice.

This is a suit between appropriators and riparians. It is a class action to determine whether, in the absence of specific grants of irrigation waters, Spanish and Mexican grants along the Rio Grande River have appurtenant riparian irrigation rights.

The State and numerous water districts assert rights of the appropriators, and the owners of lands out of the original grants assert rights similar to those commonly called riparian rights.

The trial court held that although it was of the opinion that the grants did not carry with them riparian rights of irrigation, it was bound by the case of Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, and held that the grants along the lower Rio Grande did carry with them the implied rights of irrigation.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the appropriators, holding that the original Spanish and Mexican grants in question did not carry with them implied rights of irrigation. 346 S.W.2d 853. In so holding that court determined that statements made by way of dicta in Motl v. Boyd to the contrary were not stare decisis of the question. We affirm.

The opinion of Mr. Justice Pope of the Court of Civil Appeals is exhaustive and well documented. We believe it would serve no good purpose to write further on the subject other than to point out that the question of the binding effect of certain statements contained in Motl v. Boyd presents a different problem when applied to a Court of Civil Appeals than it does when applied to this court. The dissent of Chief Justice Murray is largely based upon the proposition that the Court of Civil Appeals is bound to follow the dicta contained in Motl v. Boyd, which he regards as being judicial in nature. We find text statements which are similar in purport to the thesis asserted by the Chief Justice. It is pointed out in Corpus Juris Secundum that:

“It is commonly held that a decision is authoritative only on questions which it was necessary to decide, and were involved, or in issue, in the case. However, inferior courts have been held bound by a decision on a question actually determined by an appellate court even though the decision thereof was not necessary to the determination of the case.” 21 C.J.S. Courts § 190, p. 382.

See also, 21 C.J.S. Courts § 209, p. 316, as to statements made by way of dicta for the guidance of lower courts.

With the granting of the writ of error in this case the question of whether the Court of Civil Appeals should have followed the dicta of Motl v. Boyd became academic. The question now relates to the action which should be taken by this court with reference to such dicta. When we apply the reasoning of Mr. Justice Pope relating to the doctrine of stare decisis (346 S.W.2d 878) to the Supreme Court, the answer is inescapable. Such dicta should not control our disposition of this case. In Vidal v. Girard’s Executors, 2 How. 127, 11 L.Ed. 205, the Supreme Court of the United States (opinion by Mr. Justice Story) re-examined a point of chancery jurisdiction as “strong additional light had been thrown upon the subject” through historical research.

As further discussion is unnecessary it will be pretermitted. The judgment of the Court of Civil Appeals is affirmed and the opinion of that court is adopted as the opinion of the Supreme Court.

GRIFFIN, J., dissenting.

GRIFFIN, Justice

(dissenting).

After diligent search of the authorities I am by no means convinced that the Spanish and Mexican law is as declared by the majority opinion. In fact, I find that the commonly accepted practices of those colonizing the lower Rio Grande Valley demonstrate that since the 1700’s riparian owners have had the right to use the waters of the Rio Grande to irrigate their lands. Irrigation was a necessity if the colonists were to exist and prosper. Since this right has so long been recognized, I would follow that branch of the Spanish and Mexican law which gives the right of irrigation to the riparian owner.

The decision in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458 (1926) established a well recognized rule of property under which many millions of dollars have been invested in riparian lands in the lower Rio Grande Valley. That case reiterated and affirmed what had been the previous announcement of this court regarding the rights of riparian owners. With but one exception, all acts of the Legislature pertaining to riparian rights, beginning with 1889 and continuing to date, have specifically recognized and protected the rights of riparian owners.

It is a grave mistake to hold that the pronouncements in Motl v. Boyd are only obiter dicta rather than judicial dicta. This court in that case (p. 463 of 286 S.W.) said that it was strongly urged on the court to deny the applicability of the doctrine of riparian rights to natural or statutory navigable streams. The Court said: “ * * * This course is insisted on with so much force and so earnestly that we have concluded to investigate the whole subject for the purpose, if me can, of ascertaining the rule applicable in this state, and of harmonizing our statutes and decisions and setting at rest, in so far as we can, the question involved." (All emphases throughout this opinion are mine unless the contrary is shown.) Then after a thorough discussion of the writing and the authorities this court said, (p. 465 of 286 S.W.): “ * * * In view of what we have cited from Hall’s Mexican Law, we believe we are clearly warranted in saying that, in so far as the Mexican law in Texas is concerned, it was one which distinctly recognized the rights of riparian owners of land,” which includes the right to irrigate their crops.

In discussing the Act of January 20, 1840 adopting the common law as the rule of decision, the court said, (p. 466 of 286 S.W.) : “In so far as colonization grants were concerned, this act of the Republic was a distinct recognition of the laws under which the grants were made, and a declaration by the Republic of Texas that these grants and the rights thereunder would be recognized and carried forward under the laws under which they were made, included in which were, we have seen, the rights of riparian owners.”

Summarizing its holding in that cause the court says:

“ * * * On the whole, we think it proper to say that from the Mexican decree of 1823 down to the passage of our appropriation act in 1889, the fixed policy of this state, under all of its several governments, that of Mexico, Coahuila and Texas, Tamaulipas, and the Republic and state of Texas, was to recognize the right of the riparian owner to use water, not only for his domestic and household use, but for irrigation as well.
“What we have thus far said has been predicated upon the history of the subject, and an interpretation of the laws, decrees, and the acts involved. The construction, however, is in harmony with the decisions of this court, which appear to us to have settled the question that riparian rights to the use of the waters of the streams of the state for irrigation purposes were a part of the grants of land when the grants were made. Watkins Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733, 70 L.R.A. 964, 107 Am.St.Rep. 653; Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301; Martin v. Burr, 111 Tex. 57, 228 S.W. 543.”

This is a clear and direct holding by this Court that riparian owners had the right to use the waters of a stream for irrigation purposes prior to the appropriation act of 1889.

The holding in Motl v. Boyd which declared that riparian owners had a vested right to use the water from the stream for irrigating their crops was recognized and affirmed in the cases of Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist. No. 1, 123 Tex. 432, 73 SW.2d 55(9) (1934) and Heard v. State, 146 Tex. 139, 204 S.W.2d 344 (1947). Thus, we see that the principle of the rights of riparian owners to use the stream waters to irrigate as set out in Motl v. Boyd in 1926 has been unquestioned by this Court. It has become and is a rule of property, and I would not overrule it.

The majority decision creates confusion and uncertainty and results in a lack of uniformity of rights as between landowners on the same stream as well as on different streams. The majority recognizes in principle the rights of riparian owners holding under common law grants to use stream waters for irrigation. Many of our longer streams in Texas have on their banks both common law and civil law grants. The rights should be the same, and by following what has been the law up to this decision these grants would continue to have and possess the same rights thus maintaining uniformity. The majority decision creates an impractical patchwork of law applicable along most of our major streams rivaling Grandma’s quilt for variety.

The most serious objection to the majority opinion is that it creates an uncertainty as to what the laws are at the present time, although prior cases have un-equivocably set forth rules and principles of law. How can an attorney advise his clients with any certainty as to the client’s rights? Here the majority overthrows a solemn declaration of law set forth in clear and unambiguous language in Motl v. Boyd in 1926. What attorney can afford to advise his clients in the face of clear declarations establishing a rule of property that such declarations are not the law, but obiter dicta and not binding? The responsibility of this Court is to maintain a consistent interpretation of the law, as well as to render justice in its decisions. The confidence of the people of Texas is not to be treated lightly, nor the legal profession put in doubt as to the lasting effect of a particular holding.

This Court said in Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914, 916 (1952) :

“It may be noted here that respondents suggest a re-examination of the Parker and George cases on the theory that the courts should not attribute to lessors jointly executing a general form lease, without more, an intent to pool or unitize their properties; that the language of the general form lease was never intended to effect or to operate as a pooling agreement. This argument is not entirely unappealing. The Texas rule in this respect is not of universal application. See 116 A.L.R. 1267, et seq. On the other hand, the law of the Parker and George cases have now become a ride of property in this state and 'should not be changed in the absence of other controlling circumstances, even though good reasons might be given for a different holding.’ Tanton [et ux.] v. State National Bank of El Paso [et al.], 125 Tex. 16, 79 S.W.2d 833, 834 [93 A.L.R. 1093].”

In Thomas v. Meyer, Tex.Civ.App., 1932, 168 S.W.2d 681, 685, no writ history, it is said :

“It seems more probable to assume that the holdings upon the point here involved were deliberately made for the guidance of the bench and bar upon a point of statutory construction not theretofore considered by the Supreme Court. It therefore seems that these holdings must at least be considered as judicial dicta rather than mere obiter. * * * a

The lower Rio Grande Valley has attained its present state of development under the rights of riparians to use the flow of that stream to irrigate their fertile fields and orchards. It should be allowed to continue to develop under such rights, subject to the recognized rights of the court to prorate the water in times of extreme drought.

I would not overthrow the accepted practices and understanding of the rights of riparian owners which have been generally accepted for nearly 200 years.

For an academic discussion on this matter see “The Texas Law of Flowing Waters with Special Reference to Irrigation from the Lower Rio Grande,” Davenport & Canales, Baylor Law Review, Vol. VIII, No. 3, p. 283; The Development of the Texas Law of Water, Vol. 21, Vernon’s Annotated Texas Civil Statutes.

I would reverse the judgment of the Court of Civil Appeals and affirm the trial court’s judgment.


author: WALKER, Justice. SMITH, Justice.

text:
    PAN AMERICAN PETROLEUM CORP. et al., Petitioners, v. H. L. CAIN, Respondent.
    No. A-8154.
    Supreme Court of Texas.
    Jan. 17, 1962.
    Rehearing Denied March 28, 1962.
    Turner, Rodgers, Winn, Scurlock & Terry, Dallas, L. A. Thompson, Tulsa, Okl., J. K. Smith, Forth Worth, for Pan American Petroleum Corp.
    Morehead, Sharp & Boyd, Plainview, for Mary Jarman et al.
    William B. Neely, Midland, for William B. Neely, Trustee, et al.
    Fulton, Hancock & McClain, Gilmer, dor Leland Fikes.
    Klett, Evans, Trout & Jones, Lubbock, far respondent.
   WALKER, Justice.

The controlling question presented by this appeal is whether the power to lease •as reserved in a certain deed conveying an ■undivided mineral interest may be exercised by the heirs of the grantor after the latter’s death. By deed dated May 17, 1937, James Kiser conveyed to Mrs. Mae Johnston an undivided one-fourth interest in the minerals in the Northeast Quarter of Section 640, Block D, John H. Gibson Surveys in Yoakum County. Although a printed form was used, the instrument contains the following typewritten paragraph:

“It is also agreed and understood that the Grantor herein reserves the right to lease said land without the joinder of the grantee, he at all times using his best efforts to obtain the highest lease possible and shall never execute a lease wherein less than the regular one-eighth (⅛) royalty is reserved.”

At the time this deed was executed Skelly Oil Company held an oil and gas lease on the land which expired by its own terms on December 24, 1937. While such lease was in force, Mrs. Mae Johnston conveyed an undivided one-eighth interest in the minerals to H. L. Cain, respondent. James Kiser died intestate on February 19, 1948, and was survived by four daughters who are his sole heirs. An additional undivided 90-acre interest in the minerals of the 160 acres, which was owned by James Kiser when he conveyed to Mrs. Mae Johnston, vested in such heirs upon his death and was owned by them when they executed four oil and gas leases on the land to Leland Fikes on May 24, 1955.

Petitioners are: (1) Pan American Petroleum Corporation and Leland Fikes, the present owners of the four leases; (2) certain individuals who claim overriding royalties in part of the land; and (3) the four daughters of James Kiser. They contend that the four leases cover the undivided one-eighth mineral interest owned by respondent, while the latter insists that his interest in the minerals is not under lease. All parties moved for summary judgment in the trial court, and the motion of respondent was granted. The Court of Civil Appeals affirmed on the basis of its conclusion that the power to lease reserved by James Kiser terminated at his death. 340 S.W.2d 93. We approve that holding and affirm the judgment of the Court of Civil Appeals.

The parties as well as the Court of Civil Appeals say that the power to lease, referred to by some writers as the executive right, reserved in the deed from James Kiser to Mrs. Mae Johnston is a power coupled with an interest. It has been so denominated by at least one other Texas court, Superior Oil Co. v. Stanolind Oil & Gas Co., Tex.Civ.App., 230 S.W.2d 346 (aff. 150 Tex. 317, 240 S.W.2d 281); Odstrcil v. McGlaun, Tex.Civ.App., 230 S.W.2d 353 (no writ) ; Allison v. Smith, Tex.Civ.App., 278 S.W.2d 940, wr. ref. n. r. e.; and there can be no doubt that an interest in land and a power with respect to another interest in the same land were vested in James Kiser. It is equally clear, however, that the interest owned by him was not so related to the power that the latter would, in other types of transactions, ordinarily be preserved after the death of the donor or principal. “[T]he interest which can protect a power after the death of a person who creates it, must be an interest in the thing itself. In other words, the power must be engrafted on an estate in the thing.” Hunt v. Rousmanier’s Adm’rs, 8 Wheat. 174, 5 L.Ed. 589. See also Daugherty v. Moon, 59 Tex. 397. As pointed out by a number of eminent legal writers, the executive right reserved to the grantor in a conveyance of an undivided mineral fee interest is not a power coupled with an interest in that sense, because the grantor has no interest or estate in the subject or thing on which the power is to be exercised, i. e. the undivided mineral interest conveyed to the grantee. Walker, Developments in the Law of Oil and Gas in Texas During the War Years — A Resume, 25 Tex.Law Rev. 1, 19; Jones, Problems Presented by the Separation of the Exclusive Leasing Power from the Ownership of Land, Minerals, or Royalty, Second Annual Institute on Oil and Gas Law and Taxation, 271. See also Meyers, The Effect of the Rule Against Perpetuities on Perpetual Non-Participating Royalty and Kindred Interests, 32 Tex.Law Rev. 369, 395.

Mechem suggests that a new nomenclature is needed, because the one now used by the courts in this field is sadly ambiguous. He states that the interest of an agent in the execution of a power may be one of three kinds:

(1) “An interest, not in the thing concerning which the power is to be exercised, or in the results to flow from its exercise, but merely an interest in being permitted to exercise it in order to. earn his commissions.” This is a mere naked power, and is revocable at the will of the principal even though such revocation involves the breach of an agreement not to revoke it.

(2) “An interest, not amounting to a property or estate in the thing itself, but still an interest in the existence of the power or authority to act with reference to it, not for the purpose of earning a commission by the exercise of the power, but because the agent has parted with value, or incurred liability, or assumed obligations, at the principal’s request or with his consent, looking to the exercise of the power as the means of reimbursement, indemnity or protection.” Although this has been referred to by the courts as a power coupled with an interest and is not revocable by act of the principal, it is ordinarily deemed to be revoked by his death. For purposes of his classification, Mechem designates the same as a power given as security.

(3)“An interest or estate in the thing itself, concerning which the power is to be exercised, arising from an assignment, pledge or lien created by the principal, coupled with which is the power to deal with the thing itself in order to make the assignment, pledge or lien effectual.” This is the orthodox power coupled with an interest which is generally held to be irrevocable by the act of the principal or by his death or disability. See Mechem, Law of Agency, 2nd ed. 1914, Vol. I, § 570 et seq., § 588.

It is clear that James Kiser had more than a mere naked power. Although he owned no estate in the subject matter on which the executive right was to operate, the power was reserved to facilitate the leasing of his interest in the minerals. It was for the protection or security of such interest that he stipulated for the power. On the basis of Mechem’s classification, such power might be regarded as one given by way of security but it is not coupled with an interest.

We do not mean to suggest that the death of one to whom an undivided mineral interest is conveyed will necessarily revoke the executive right reserved to the grantor in the conveyance. That question is not presented here, and it perhaps should not be held that a power given by way of security will always terminate at the principal’s death. See Mechem, Law of Agency, 2nd ed. 1914, Vol. I, § 653 et seq. The instrument involved in Drake v. O’Brien, 99 W.Va. 582, 130 S.E. 276, was said to create a power coupled with an interest which was, in effect, a grant or lease for mining purposes, and it was held that the power did not terminate at the death of Mary Gale, one of the grantors. See also Bonzo v. Nowlin (Ky.1955), 285 S.W.2d 153. Moreover, as pointed out by Professor Meyers in his article cited above, it is well to recognize the strains produced by attempting to force modern commercial transactions into moulds that are hundreds of years old.

Our question is whether the reserved leasing power may be exercised by the heirs of the grantor after his death. Petitioners cite the decisions holding that a power coupled with an interest does not necessarily terminate with the death of the agent. Collins v. Hopkins, 7 Iowa 463; Scott v. Cain, 77 Ga.App. 826, 50 S.E.2d 99; Todd v. Guffin, 55 Ind.App. 605, 104 N.E. 519; Lightner’s Appeal, 82 Pa. 301; Boatmen’s Bank v. Vandiver, Mo.App., 281 S.W. 144. In each of these cases the beneficiary or holder of the power owned an interest in the thing on which the power was to be exercised, and the courts were concerned only with whether the power should remain in existence for a relatively short period after the death of the holder in order that his estate or the beneficiary might have, recover or enforce such interest.

In our opinion the executive right terminates with the death of the original holder unless there is something to indicate that the parties intended that the power should survive and be exercised by others. This conclusion finds support in the reasoning and holdings of courts of other jurisdictions where the precise question has been considered. In Howard v. Dillard, 198 Okl. 116, 176 P.2d 500, the instrument provided that the grantor “shall retain management and control of the minerals and privileges hereinbefore mentioned, and that he shall have the sole and exclusive right to lease said lands to any person to whom he may choose and upon such terms and conditions suitable to him * * It was held that the reserved leasing power was personal to the grantor and terminated at his death. A number of years later the same court considered a conveyance in which the reservation was in favor of the grantor, his heirs, executors, administrators and assigns. In support of its holding that the power to lease might be exercised by the assignees of the grantor’s heirs, the court pointed out that “the right was expressly reserved to the grantor, his heirs, executors, administrators and assigns as an exclusive right and a proper subject of ownership. An examination of the mineral deeds * * * show that he clearly expressed his intention to remain vested with the right to lease, and that he intended for this right to constitute a [proper] subject of ownership with a power of assignment.” Stone v. Texoma Production Co., Okl., 336 P.2d 1099, 1101. The expressed intention of the parties was made the basis of a similar holding in Bonzo v. Nowlin, supra.

So far as we have been able to determine, no court has adopted a different approach to the problem. In Drake v. O’Brien, supra, the question of whether the power there granted might be exercised by the personal representatives or assigns of the original grantees does not appear to have been raised. We note, however, that the Restatement abolishes the distinction between powers coupled with an interest and powers given as security, and lays down the rule that a power given for security as there defined is not terminated by the death of the holder unless otherwise agreed by the parties. Restatement of the Law of Agency, §§ 138, 139.

The question did not arise in the Superior Oil Company, Odstrcil and Allison cases, because the executive right was there expressly granted or reserved to the heirs and assigns of the original holder. Petitioners insist that the absence of the words “heirs and assigns” cannot be material because the reservation is governed by Article 1291, Vernon’s Ann.Tex.Civ. Stat. It is there provided that “[ejvery estate in lands which shall thereafter [hereafter] be granted, conveyed or devised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.” We need not determine at this time whether the statute applies to reservations as well as grants, conveyances and devises, because it clearly deals only with estates in land. An estate in land is the degree, quantity, nature and extent of interest which a person has in real property. See Gibbs v. Lester, Tex.Com.App., 41 S.W.2d 28; 19 Am.Jur. Estates § 2; 31 C.J.S. Estates § 1. The statute can have no application, therefore, to a grant or reservation of something other than an interest in land.

We have already noted that the executive right reserved by James Kiser is not a power coupled with an interest, and it is equally clear that the power to lease is not in itself an interest in land. It does not entitle the holder, either presently or at any time in the future, to possession or use of, or any benefit arising from, the land or any part thereof. As pointed out by the Supreme Court of Pennsylvania, “a power is an authority given to dispose of real or personal property of which the donor has the right of disposition. It is not an estate in the property, and its scope and extent is governed by the instrument creating it.” Hupp v. Union Coal & Coke Co., 284 Pa. 529, 131 A. 364, 365. See also Pope v. Safe Deposit & Trust Co., 163 Md. 239, 161 A. 404, where the court observed that a power retained is not an estate in the subject matter of the power.

We agree with the Court of Civil Appeals that Article 1291 does not apply to the reservation in this case. Petitioners’ further argument that Mrs. Mae Johnston and her assigns could never enjoy the executive right because the same was reserved by James Kiser assumes that the parties intended for the grantor, his heirs and assigns, to remain vested with the power to lease in perpetuity, and that is the question .now presented for decision. It also seems clear to ús that a grant or reservation of the executive right is not a covenant, running with the land or otherwise.

While the children of James Kiser may find it somewhat more difficult to lease their interest in the minerals if they do not also have power to lease respondent’s interest, the enjoyment of their interest will not otherwise be affected by loss of the executive right. Subject only to the relative disadvantage of their position in the matter of leasing, they may take possession of, sell or lease such interest, drill for the production of minerals, and enjoy all of the benefits of ownership as fully and effectively as their father might have during his lifetime. This being so, we do not think that termination of the power works such a grave hardship or injustice as to require that the law perpetuate the same beyond the term agreed upon by the parties.

In the article cited above, Professor Meyers urges the adoption of some theory that will enable the courts to uphold the executive right. He points out that full utilization of mineral wealth occurs with exploration and development of the subsurface, and that full development is rendered more probable when the executive right remains in the hands of a single person. This argument has considerable force where the Rule against Perpetuities is concerned, but it does not justify judicial revision of the terms of a conveyance. The rights of the party whose mineral interest is subject to a leasing power held by another must also be considered, and it is well to remember that the executive right, even if held to be perpetually separated from ownership of the interest over which it is to be exercised, will not necessarily remain in the hands of a single person.

The conveyance in the present case contains nothing to suggest that the parties intended for the executive right to be exercised by anyone other than James Kiser. No words of inheritance appear in the reservation, and it was provided that he would at all times use Ms best efforts to obtain the highest lease possible. This latter requirement could not be satisfied by the best efforts of another, whether heir at law, dev-isee, assignee or stranger. We agree with the Court of Civil- Appeals that the power to lease terminated at the death of James Kiser, and it is unnecessary for us to consider the perpetuities question or the other points of error brought forward by petitioners.

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN, SMITH, NORVELL and HAMILTON, JJ., dissent.

SMITH, Justice.

I respectfully dissent. The Court agrees that Kiser reserved something more than a mere naked power. Then it narrows the question to whether this reserved leasing power may he exercised by the heirs of the grantor after his death. I contend that the reservation of power to lease contained in the deed from Kiser to Mrs. Johnston amounts in law to a property right which never at any time passed by the grant, and that when Kiser died, intestate, this interest in land passed by descent and distribution to his daughters. As I will more specifically discuss later, the Court seems to base its holding that the power reserved was personal to Kiser on the proposition that the reservation does not include the words “heirs and assigns”.

Petitioner, Pan American, claims title under four separate but identical oil and gas leases, executed by the four daughters after the death of Kiser, covering the whole of Section 640. The four daughters received their interest in Section 640 under the laws of descent and distribution.

The Respondent, Cain, who holds title to l/s of the mineral interest purchased by Mrs. Johnston, contends that the leases, having been executed by parties other than the original holder of the executive right, have no binding effect on his undivided ⅛ mineral interest. In other words, Cain claims that his mineral interest is not leased. The Court of Civil Appeals has held that the right to lease, unlimited as to time, reserved by Kiser, terminated upon his death and did not pass by descent and distribution to his heirs. The Court here, in holding that the power did not pass to the daughters, lays down the rule that the reserved executive right terminates with the death of the original holder unless there is something to indicate that the parties intended that the power should survive and be exercised by others.

Cain’s contention is that there was a. complete lack of power in the Kiser daughters to ever execute the leases: (a) because of the death of Kiser, and (b) because the reservation to Kiser violated the Rule against Perpetuities, and, also that the power was improperly exercised.

Pan American, et al., including the Kiser daughters, contend that the leases they executed were and are valid, and that their motions for summary judgment instead of Cain’s motion for summary judgment should have been granted. I agree with Pan American. However, since the Court confines its opinion to the question of‘ whether or not the power to lease terminated at the death of Kiser, I shall confine this dissent to that question, and shall not discuss all the reasons why I think the-summary judgment should have been entered in favor of Pan American.

The executive right reserved by Kiser, in-his deed to Mrs. Mae Johnston, to lease the fractional interest therein conveyed was a property right, an interest in land, appurtenant to the mineral interest therein conveyed, and for the use and benefit of the mineral interest retained and owned by Kiser, and as such passed on his death by descent to his heirs. This property right was expressly excepted from the grant. The executive right expressly reserved by-Kiser never, at any time, vested in Mrs.. Johnston for the simple reason that property excepted, or the estate reserved, is neverincluded in the grant. Cockrell v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672.

This Court, as well as the Court of Civil Appeals, apparently misinterpret the true contention of Pan American when it says that the executive right reserved by Kiser is a power “coupled with an interest”. In my opinion, we have here a power “coupled with an interest” not in the sense discussed by these courts, but in the sense that the power reserved was “engrafted on and was annexed” to the ⅛ undivided interest conveyed to Mrs. Johnston. The power was also “annexed” to the remaining 90-acre interest in the minerals which Kiser retained. In the case of Hunt v. Rousmanier, 8 Wheat. 174, 5 L.Ed. 589, the Court speaks in terms of the power being “engrafted on the estate”. The power “connected with” or “engrafted on” Mrs. Johnston’s interest in the mineral estate, which was expressly excepted in the deed to Mrs. Johnston, remained annexed to Kiser’s property interest upon his death, as well as the Johnston-Cain interest. Thus, the power and the interest were united in Kiser. The phrase “coupled with an interest” does not mean an interest in the exercise of the power. It means, in the sense used here, that Kiser retained an interest in the property on which the power was to operate. In the case of Drake v. O’Brien, 99 W.Va. 582, 130 S.E. 276, 1925, it was held that “the power is to be construed liberally in favor of the object to be accomplished”. Although in that case the complete executive rights were conveyed to the grantees, who had purchased only a one-half interest in the 1,000 acres of land involved, the principle is the same where, as here, all of the executive rights have been reserved by the grantor. In the Drake case the Court said: “ * * * The language employed in the Gale deeds aptly fits this definition. By the deed of June 26, 1875, there was conveyed to the grantees a one-half undivided interest in 1,000 acres of land. Not only that, but the deed gave the power to take, operate, and control the entire tract as their own for the production of oil, timber, coal, and salt, with power to lease the same in their own names as owners of the entirety. Thus the grantees had an interest in every stick of timber, bushel of coal, and barrel of oil under the 1,000 acres.” The Court, in holding that the power did not terminate with the death of the grantor, quoted from Perry on Trusts, § 602h:

“It is a universal rule that a power coupled with an interest is irrevocable. * * * Not even the death or the insanity of the grantor or donor will annul or suspend its exercise. * * * In other words, the power is annexed to the property, and is an irrevocable part of the security, and goes with it.” [Emphasis added.]

The Court also states:

“Where the power is coupled with an interest so that it may be exercised in the name and as the act of the donee of the power, the death of the person who conferred the power has no effect upon it.” [Emphasis added.]

Although it is unnecessary to the decision, it could be plausibly argued that since the power was reserved by Kiser, he conferred the power upon himself. In other words, Kiser was actually both the donor and donee. In such a situation^ the general rule announced in the Drake case, and many other cases, that the power does not terminate at the death of the donor-grantor, would certainly be applicable.

The majority opinion says: “Our question is whether the reserved leasing power may be exercised by the heirs of the grantor after his death.” The Court’s opinion indicates that its holding that Kiser’s right to lease terminated upon his death, and. therefore, did not pass by descent and distribution to his heirs, is based largely on the fact that words of inheritance were not used in the language of the reservation. The Court holds that the executive right terminates with the death of the original holder unless there is something to indicate that the parties intended that the power should survive and be exercised by others. The Court then discusses the case of Stone v. Texoma Production Co., Okl., 336 P.2d 1099. In that case the only “something to indicate that the parties intended that the power should survive and be exercised by others” is the fact that “the right was expressly reserved to the grantor, his heirs, executors, administrators and assigns as an exclusive right and a proper subject of ownership.” [Emphasis added.] The reservation in the deed in the present case does not contain the underscored words “his heirs, executors, administrators and assigns”. This is the only possible difference between the reservation in the Stone case and the present case. There is nothing about the Stone case which would lead to the conclusion that the Court based its holding on the fact that the reservation contained words of inheritance. It is clear, from the opinion, that the Court in the Stone case held that the right to lease was reserved to the grantor, and, therefore, the title to such right did not pass to the grantee. The Court further held that the reserved executive right was a proper subject of ownership, and that upon the death of the grantor the right to lease descended to his heirs and they became vested with a right to assign. It is clear to me that the words of inheritance contained in the Stone instrument did not control the Court’s judgment, but rather the controlling factor was the rule that the executive right or interest reserved or excepted was a reserved property right which could never pass to the grantee by reason of the deed containing the reservation or exception. It is well established that an interest or estate in land excepted from a grant is excluded from the grant and does not pass to the grantee. Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645; King v. First National Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260, 262, 163 A.L.R. 1128; Reynolds v. McMan Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778, motion for rehearing overruled, Tex.Com.App., 14 S.W 2d 819; 14 Tex.Jur. 958, Deeds, Sec. 175.

The right to lease, having been reserved by the grantor Kiser in his deed, could not under any circumstances, by reason of such deed, ever become the property of the grantee, Mrs. Johnston, or her subsequent as-signee, Cain.

The argument that the reservation did not expressly provide that the power was to extend to Kiser’s “heirs and assigns is of no force, especially in the light of Article 1291, Vernon’s Annotated Civil Statutes of Texas.

This statute has been construed to apply in the same way in cases involving reservations from grants. Word v. Kuykendall, Tex.Civ.App., 246 S.W. 757, no wr. hist. The effect of this type of statute has'been adequately stated in 26 C.J.S. Declaratory Judgments § 138, p. 1001, in this way:

“ * * * Under a statute providing that a conveyance of realty shall be construed to be a conveyance in fee without the use of the word ‘heirs,’ unless it appears from the language of the instrument that the grantor meant to convey an estate of less dignity, it is not necessary in order to constitute a reservation in fee that the reservation be limited to the heirs of the grantor.”

The purpose of the statute would be thwarted if we were to hold at this late date that technical words of inheritance were necessary to secure to the heirs of the grantor the rights expressly reserved to the grantor.

The Court of Civil Appeals has held that Article 1291, supra, only has reference to the conveying of the fee simple estate. This Court has held that Article 1291, supra, applies to a mineral estate. In the case of Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, this Court said:

“ * * * It would seem to he the better rule that neither words of inheritance nor other words of art are essential to the valid reservation of an appurtenant easement of even unlimited duration. Restatement, supra, § 468, comment b and § 473, comment a; 28 C.J.S., supra. See also Word v. Kuykendall, supra. We are cited no Texas authority to the contrary. Clearly such is the case with reference to an exception clause operating to sever the minerals from the surface. Associated Oil Co. v. Hart, Tex.Com.App., 277 S.W. 1043.” [Emphasis added.]

It is significant that while no technical words of inheritance are included in the reservation involved here, there is likewise no mention in the reservation of any provision directing that the power to lease is to pass to Mrs. Johnston, her heirs and assigns, at the death of Kiser. The clear import of the statute is to require words of reversion in order that the right or interest may return to the party who would otherwise enjoy the same but for the grant or reservation rather than the common law’s requirement that words of inheritance be included in the grant or reservation. Rogers v. Nixon, Tex.Civ.App., 275 S.W.2d 197, wr. ref. Even the states that recognize and follow the common law rule, requiring words of inheritance in order for a reservation to vest in the heirs of the grantor, recognize that the same is not necessary after the passage of a statute such as Article 1291, supra.

The judgments of both the trial court and the Court of Civil Appeals should be reversed, and the motion of Pan American, et al. for summary judgment should be granted.

GRIFFIN, NORVELL and HAMILTON, JJ., join in this dissent.

      . “By the phrase ‘coupled with an interest’ is not meant an interest in the exercise of the power, but an interest in the property on which the poioer is to operate.” [Emphasis added.]

      . “Every estate in lands -which shall thereafter (hereafter) be granted, conveyed or devised to one although other words heretofore necessarily at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law.”


author: MORRISON, Judge.

text:
    Ralph Coleman LOCKHART, and Wildon Mac Springer, Appellants, v. The STATE of Texas, Appellee.
    Nos. 34246, 34247.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.

      Webb, Schulz & Stokes, by Bob R. Hanna, Abilene, for appellant Ralph Coleman Lockhart.
    Scarborough, ‘Black & Tarpley, by Davis Scarborough, Abilene, for appellant Weldon Mac Springer.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The convictions are for rape; the punishment, five years in each case.

These are companion cases, and, although appellants were separately indicted, by agreement they were tried together and the appeals are hereby consolidated

Testifying in their own behalf, each of the appellants admitted having intercourse with the prosecutrix, but each testified that it was with her consent.

At the beginning of the trial, the State, by written motion, requested the trial judge to instruct the attorneys for each of the appellants “not to inquire of the prosecutrix herein as to whether or not she is a virgin, on cross-examination, or otherwise, in the presence of the jury panel on Voir Dire or in the presence of the jury selected to serve in said cause.” The request was granted, appellants’ attorneys were so instructed, and they did comply with the court’s instructions.

After the State and the appellants had rested their cases in chief, the State called two reputation witnesses in rebuttal. These witnesses testified that they knew the general reputation of the prosecutrix in the community where she resided for chastity and virtue, and that it was good.

At this time, appellants, bearing in mind the instructions of the court theretofore given them, requested permission of the court to ask the two reputation witnesses whether or not their testimony would have been different if they had heard that at the time of the alleged offenses she was not a virgin. The court adhered to its previous instructions, refused the requests, and appellants reserved their exceptions.

It was stipulated that on a former trial of these appellants for the same offenses the prosecutrix testified on cross-examination that she was not a virgin at the time of the alleged offenses. It was further stipulated and agreed that had appellants been permitted to ask the prosecutrix on this trial if she was a virgin at the time of the offenses alleged, she would have testified that she was not.

It is the rule that character witnesses who attest the good reputation of another witness may, as affecting the weight, credibility, and sincerity of their testimony be asked on cross-examination if they had heard of specific conduct of said other witness inconsistent with that reputation. 44 Tex.Juris., 1168, sec. 161, and Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109.

The conduct inquired about on cross-examination must be inconsistent with the trait of character to which the witness had attested. Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400; Villarriel v. State, 163 Tex.Cr.R. 654, 295 S.W.2d 222.

There was but one issue in this case, consent or not by the prosecutrix, and any circumstance that could be shown tending to show that the prosecutrix was not a virgin would be admissible as bearing on the 'issue of her consent in a manner consistent with the appellants’ innocence.

The refusal to grant appellants permission to cross-examine the prosecutrix and the two witnesses as requested deprived them of a valuable right which was prejudicial and calls for a reversal.

The judgments are reversed and the causes are remanded.