author: BARROW, Justice.

text:
    Virginia CLEMENTS et al., Appellants, v. Harry McClelland SCHAEFFER, Appellee.
    No. 13987.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 3, 1962.

      Coneway & Forrester, Harlingen, for appellants.
    Strickland, Wilkins, Hall & Mills, Asa V. Bland, Jr., Mission, Fillmore, Schaeffer & Fillmore, Wichita Falls, for appellee.
   BARROW, Justice.

This is an appeal from a judgment awarding custody of a five-year-old boy to his father, Harry McClelland Schaeffer, after a hearing before the court on a writ of habeas corpus. Appellants are the maternal grandmother, with whom the boy resided following the death of his mother, and inter-veners, Ruth C. Smith, sister of the boy’s mother, and her husband.

Harry McClelland Schaeffer and Alice Clements Schaeffer were divorced in the Circuit Court of Boyd County, Kentucky, in February of 1959, and their son, Jefferson King Schaeffer, who was then two years of age, was placed in the custody of his mother with the right of his father to visit Jeff at reasonable times. Immediately following the entry of said decree, and in accordance with its terms, Alice Schaeffer and her son moved to Texas, and lived in Nueces County with her father. Thereafter, Alice married James Bogatz, a chief petty officer in the Navy, and went overseas with him to Italy. She became pregnant and returned to the United States in December 1960, where she lived part of the time with her father in Corpus Christi, and part of the time with her mother in Cameron County, Texas. In August 1961, while living at the home of her mother, she was suddenly taken ill and died. Following her death, Jeff remained in his grandmother’s custody, but spent much time with his aunt and uncle, Ruth C. and Clifton Earl Smith. The affection of the maternal grandmother for Jeff was not in issue, but in view of her age and physical condition she did not seek custody.

Shortly after the death of the boy’s mother, appellee filed a petition in the Boyd County Circuit Court for custody of the child, and out of State service and notice were served on the maternal grandparents. They did not enter an appearance in the Kentucky Court. After a hearing, the Kentucky Court amended the original decree and the care and custody of the minor child was awarded to his father, who then instituted the present proceedings in the 103rd District Court of Cameron County, Texas. Ruth C. Smith and husband intervened and sought custody.

After a full hearing, the trial court awarded the father custody of his son and, at the request of appellants, filed findings of fact and conclusions of law. The trial judge found that the father was a fit and proper person to have the care, custody and control of Jeff, and that the best interest of the boy would be served by placing custody in his natural father. In the conclusions of law, the trial judge concluded that he was required to give full faith and credit to the decree of the Circuit Court of Boyd County, Kentucky, awarding custody of the minor child to appellee, and that there was no change in conditions to justify changing said decree. The court further concluded that there was no showing that the interest of the minor child demands that his natural father be deprived of the custody of his child. Thus it will he seen that the trial court awarded said minor boy to his natural father upon two separate theories: giving full faith and credit to the Kentucky decree, and the right of a fit and proper person to have the custody of his natural child.

We do not deem it necessary to determine application of the full faith and credit of the Kentucky decree, in that ap-pellee joined issue with appellants on their petition in intervention. This gave the court jurisdiction to determine custody. Short v. Short, Tex., 354 S.W.2d 933.

Upon the death of Alice Schaeffer Bogatz, the child’s father, Harry McClel-land Schaeffer, was entitled to custody of said minor child. Vernon’s Annotated Probate Code § 109(a); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. In order to justify changing this custody to an outsider, it was necessary for interveners to show that the surviving parent was not a fit or proper person, or that he had relinquished his parental rights. Castro v. Castellanos, Tex.Com.App., 294 S.W. 525; Prock v. Morgan, Tex.Civ.App., 291 S.W.2d 489; Silva v. Aranda, Tex.Civ.App., 223 S.W.2d 333; Ochotorena v. Galarza, Tex.Civ.App., 210 S.W.2d 473.

The trial court’s finding that appellee is a fit and proper person to have the care, custody and control of his son is fully supported by the evidence. Appellee remarried in November of 1960, and he and his wife maintain a good home; he is gainfully employed by the Kentucky Highway Department; and there is no evidence whatsoever of any intemperate or immoral conduct on the part of appellee.

Appellants assert that appellee did not fully comply with the support provision of the divorce decree prior to the death of Alice Schaeffer Bogatz, and therefore forfeited his right to the custody of his minor son. Appellee introduced evidence to explain his failure to make the support payments. He testified that at the time of the divorce the couple owed debts amounting to nearly $2,500.00, which he paid; that Alice and her new husband advised him that they were able to support Jeff and wanted ap-pellee to make arrangements to provide for Jeff’s secondary education; and he testified to gifts that he made to the boy. His failure to make the support payments was a factor to be considered by the trial court, but that alone would not support a conclusion of his unfitness. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359. The trial court concluded that there was no showing which should deprive the surviving father of the care and custody of his minor child. This conclusion is fully supported by the evidence and the law applicable to this case.

The judgment is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Guy STREET, Appellant, v. Ralph CURTON, Appellee.
    No. 4073.
    Court of Civil Appeals of Texas. Waco.
    Oct. 4, 1962.
    Rehearing Denied Oct. 25, 1962.

      O. M. Street, Dallas, for appellant.
    David G. Copeland, Waco, for appellee.
   WILSON, Justice.

Plaintiff’s petition alleged that on August 26, 1961 he “loaned to defendant $5,000, whereupon defendant executed a promissory ■note of the tenor following:”. The note in the principal sum of $5000, reciting it was “for value received,” was then copied in the body of the pleading. It was a negotiable instrument, dated August 26, 1961. Defendant’s pleading admitted execution of the note, but alleged it was without consideration ; that it was an accommodation instrument, and plaintiff verbally agreed defendant would not be required to pay it. No proof was tendered as to these matters.

The note was introduced in evidence and non-payment was proved. Defendant elicited from plaintiff that he did not loan defendant $5000 on the date of the note, but that it was executed in renewal of a prior note evidencing a loan made in 1952. Defendant says the court erred in overruling his motion for instructed verdict on the ground plaintiff “failed to make out a prima facie case,” since he admitted he had not loaned defendant $5000 in 1961. The court instructed a verdict for plaintiff.

Variance between pleading and proof “as to matters of time connected with the consideration,” such as that consideration and execution were concurrent, is not material. 11 C.J.S. Bills and Notes § 650b(l) (j), b (2), p. 38; and see 9 Tex.Jur.2d Sec. 250, p. 272. Affirmed.


text:
    Edward B. WINN, Appellant, v. Raymond D. NASHER et al., Appellees.
    No. 4048.
    Court of Civil Appeals of Texas. Waco.
    Oct. 4, 1962.
    Rehearing Denied Oct. 25, 1962.

      Lane, Savage, Counts & Winn, Dallas, for appellant.
    H. P. Kucera, City Atty., N. Alex Bick-ley, Asst.- City Atty., Coke & Coke, Saner, Jack, Sallinger & Nichols, Dallas, for ap-pellees.
   WILSON, Justice.

Validity of an ordinance of the City of Dallas, rezoning a 93 acre tract from residential to local retail use by special permit, was tested by lessee’s declaratory judgment action in which summary judgment was rendered declaring the ordinance to be valid.

Appellant urges that Art. lOllf, Vernon’s Ann.Tex.Civ.Stats., required notice of public hearing by the Zoning Commission to be given to all property owners residing within 200 feet of a large tract, ¾ mile in length “(meaning that owned by applicant)”, between Central Expressway and Hillcrest Avenue; and not only to those owning property within 200 feet of the 93 acre tract (1800 feet in length) included in the application for zoning change.

The statute provides that such notice be sent to owners of real property lying within 200 feet “of the property on which the change in classification is proposed”. In this case, in our opinion, it was not necessary to send notices to others than owners of real property lying within 200 feet of the property described in the application on which the change was proposed: “the lot (sought to be re-zoned).” City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 483. It is stipulated notice was sent to these.

Appellant says that Art. lOllf requires the “Zoning Commission” to hold public hearings; and that since the public hearing on the present application was conducted by only five members of the 15-member Commission composing a North Dallas sub-committee, as authorized by the regulations in the basic zoning ordinance of the City, the hearing contravened the statutory requirement. This question has been decided adversely to appellants in Nichols v. City of Dallas, Tex.Civ.App., 347 S.W.2d 326, writ ref. n. r. e.

It is contended, as we understand, that the amendatory ordinance is void because a “site plan” was neither approved nor filed. We find no such requirement in the charter or the statutes. We think the ordinance under attack was equal in legislative force and dignity with the comprehensive ordinance, and the governing body was authorized to omit the requirement of a site plan in the present ordinance, just as it was authorized to prescribe requirements additional to those enumerated in the basic ordinance.

It is insisted, finally, that a fact issue was presented under Rule 166-A(c), Texas Rules of Civil Procedure, which concerned “the existence of any evidence whatsoever on the question of the public necessity for the proposed change.” Although appellant states his position as being that there was "no evidence” at the hearing of such necessity, we assume his position is that a fact issue is presented as to such necessity, since the ordinance recites evidence was heard, recites its passage is required by the public interest and general welfare, and the record clearly shows evidence relating to this question was presented at the hearings.

In passing on the motion for summary judgment the court was governed, among others, by these settled rules: (1) the city acted in the exercise of a legislative power, and the ordinance was presumed to be valid. (2) Interference with its enforcement was not authorized unless the action of the city in its passage was “arbitrary and unreasonable”, and a “clear abuse” of municipal discretion was shown. (3) The “extraordinary” burden rested on applicants, in view of the initial presumption of validity, to show that “no conclusive, or even controversial or issuable fact or condition existed which would authorize” its passage. (4) This presents “a question of law, not a question of fact.” City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 45, and cases there cited. See City of El Paso v. Donohue, Tex.Sup., 352 S.W.2d 713. The record presented, under these rules, negatives existence of a genuine issue of material fact. Affirmed.


author: NORTHCUTT, Justice.

text:
    F. H. VAHLSING, INC., Appellant, v. Eligiro ADAMES et al., Appellees.
    No. 7174.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 1, 1962.
    Rehearing Denied Oct. 29, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Bruce L. Miller, Hereford, for appellant.
    Hay & Gillespie, Lubbock, John B. Stapleton, Floydada, for appellees.
   NORTHCUTT, Justice.

For the purpose of this appeal, we adopt the statement of the case as made by appellant. This is a suit brought by the ap-pellees, Eligiro Adames, Rumaldo Hernandez, Manuel Contreras, Fred Villarreal, and Gilbert Longoria, against appellant, F. H. Vahlsing, Inc., to recover moneys allegedly due appellees from appellant under a claimed contract of hire, allegedly made on behalf of appellant by one C. W. Duncan, and relating to an onion crop in Floyd County, Texas. The issues made on the trial on the merits were (a) whether, as appellees allege, whatever contract they made with Duncan was in fact a contract with appellant, or whether, as appellant asserts, Duncan was engaged in an independent venture in Floyd County, appellant’s connection with which was limited to the selling of certain onion plants, the advancement of certain moneys, and the subsequent purchase of certain onions; and (b) the sufficiency of the evidence, the court’s charge and the jury’s verdict to establish the terms of the claimed contract and the measure of any recovery right appellees might have; and the numerous points of error which follow will each and all relate in some manner to these two primary questions. The jury found the facts in favor of appellees and against appellant, and allowed recoveries as follows:

(a) To appellees, Eligiro Adames and Rumaldo Hernandez, the sum of $4,709.60;
(b) To appellee, Manuel Contreras, the sum of $947.92;
(c) To appellee, Fred Villarreal, the sum of $329.20; and
(d) To appellee, Gilbert Longoria, the sum of $1,038.52;

and from the judgment rendered on this verdict appellant has regularly prosecuted its appeal.

It was the theory of appellees that appellant agreed to furnish onion plants to the farmers on the basis of appellant receiving 20 per cent of the proceeds from the sale of the onions, and the farmers were to set the plants out, labor, water, and irrigate up to harvest time and then appellant was to take over and harvest the onions and sell them and charge the farmers $.85 a sack for harvesting the onions, clipping them, sacking, shipping, and selling them. It was contended this agreement was made in the office of appellant in Mathis, Texas, and made with F. H. Vahlsing, president of appellant.

It was the contention of appellant that no such agreement, as relied upon by the appellees, was ever made but that appellant sold the onion plants to C. W. Duncan and any advances made by appellant to Duncan were credits extended to him. Mr. Vahlsing testified as to the contention of appellant that appellant sold the onion plants to Duncan on credit and advanced him money in harvesting but that Duncan was acting on his own and not in any manner as an agent for appellant. The case was submitted to a jury on special issues. The special issues submitted and the answers of the jury were as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that in the making of the contract sued on herein C. W. Drxn-can was acting for and in behalf of E. H. Vahlsing, Inc., a corporation?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes.
“If you have answered the above and foregoing special issue ‘yes’, then answer the following special issue; otherwise you need not answer the following special issue.
“SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that C. W. Duncan was authorized by F. H. Vahlsing, Inc., to enter into such contract ?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 3
“Do you find from a preponderance of the evidence that the contract sued on was entered into by C. W. Duncan as an individual operator?
“Answer ‘Yes’ or ‘No’.
“ANSWER: No.
“SPECIAL ISSUE NO. 4
“What sum of money, if any, do you find from a preponderance of the evidence is due and owing to each of the plaintiffs under the terms and conditions of the contract sued on?
“Answer by indicating in dollars and cents, if any, opposite the name of each plaintiff in the blank space provided.
“1. Eligiro Adames and Rumaldo Hernandez the sum of $4,709.60.
“2. Manuel Contreras the sum of $947.92.
“3. Fred Villarreal the sum of $329.20.
“4. Gilbert Longoria the sum of $1,038.52.”

Since the numerous points of error relate in some manner to the two primary questions above set out, we will consider the points as they affect the two primary questions. It is undisputed that appellant furnished the onion plants. The onions were set, grown, and harvested. There was a contract made with the appellees to harvest the onions. The onions were harvested by the appellees. Since the contract was made with appellees by Duncan under the contention of the parties, it was necessary to determine whether Duncan was acting for appellant or for himself; and if for appellant, was he authorized by appellant to enter into such contract? The jury found in answer to special issue #1 that Duncan was acting for and in behalf of appellant and under special issue two that he was so authorized. Duncan was in charge of the plant at Lockney and so far as this record is concerned, all transactions had with the appellees were by Duncan other than the telephone conversation had with Vahlsing by Adames. Under special issue #3 the jury found against appellant’s contention and found the contract sued on was not entered into by Duncan as an individual operator. As to appellant’s objection that no proper predicate had been laid for the admission of Adames’ conversation with Vahlsing over the phone, we think that Adames was authorized to so testify since he stated he had known Vahlsing since 1938 and had talked to him and knew his voice. Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 by Com.App., opinion adopted by Sup.Ct.

There is evidence that the onion plants were sent to the farmers by Vahlsing’s truck or one he hired and that he furnished a crew to set the onions, but the farmers paid for such work. It is to be here noticed the plants were sent to the farmers and not to Duncan. There is evidence that at the time of entering the agreement, as to the furnishing onion sets by appellant, Duncan made a deal with Mr. Vahlsing to oversee operation out there in Floyd County for Vahlsing, and Vahlsing was to furnish Duncan expenses as far as labor was concerned. When getting ready to harvest the onions, Duncan contacted Adames and told him, “Eligiro, we need a man to run a packing shed in Lockney.” When Eligiro Adames asked Duncan how much he would pay, Duncan told him that he would have to talk to Vahlsing “in the telephone.” Adames and Hernandez went to the packing shed and Duncan put in a long distance telephone call to Mr. Vahlsing in New York. While Duncan was talking over the phone to the party in New York, Duncan stated to Adames, “He wants to talk to you.” Adames took the phone and talked to Vahlsing, and he knew it was Vahlsing because he recognized his voice. Vahlsing at that time told Adames what he would pay. Adames did not think he could get a crew for the price offered. Adames and a few others worked for a while at the price offered. After being unable to get trucks at the price Vahlsing first offered, Adames, Hernandez, and Longoria talked to Duncan and suggested calling Vahlsing again. Duncan called for Vahlsing over the phone but they did not hear what was said by Vahlsing but did hear what Duncan said; and after the telephone conversation, Duncan told them Vahlsing was going to give them $.45 a hundred and for them to get out and get some trucks.

J. M. Harding was manager of the Hereford division of the F. H. Vahlsing, Inc. The telephone in the Lockney onion shed was in the name of F. H. Vahlsing. The money that was paid to appellees for their labor was received from the appellant’s office in Hereford by check and the check cashed and laborers paid in cash for part of the work done. Every sack of onions that was shipped from the packing shed at Lock-ney had F. H. Vahlsing, Inc., Home Office New York, New York on them. No sacks were ever used other than the F. H. Vahls-ing, Inc. sacks. There were several exhibits offered and other testimony we deem unnecessary here to detail. J. M. Harding, manager of appellant’s Hereford division, testified as follows:

“Q. All right. Will you read along with me here on your truck receipt, do you see Mr. Duncan’s name anywhere —any place on this truck receipt?
“A. No.
“Q. All right. Will you read along with me up here. ‘Any shortage must be deducted at delivered cost from cartage paid by you to Trucker. You will be invoiced in full.’ This is on F. H. Vahlsing’s truck receipt. ‘In the event that no cartage is paid by you, you will wire collect to our main office immediately notifying us of any shortage— otherwise you will be held responsible.’ Is that what it says?
“A. That is what it says.
“Q. Can you tell me any place on there that the person that got that would be notified to get in touch with C. W. Duncan at Lockney, Texas?
“A. No, sir.
“Q. All right. That does instruct, as the language shows there, to get in touch with F. H. Vahlsing, Incorporated, does it not ?
“A. Yes.”

Several of appellant’s points of error are leveled at the sufficiency of the evidence to sustain the recovery of each of appellees as found by the jury. Duncan was in charge of Lockney Onion Shed and was the person dealing with appellees. We will not further discuss the testimony concerning the sums due each of the appellees other than concerning the proposed acknowledgement of Duncan as to the amounts due the appel-lees. Adames had testified that Duncan had gone to get money to pay the appellees and then testified as follows:

“Q. Now, let’s see Adames, where were we here. I think we had got to the packing shed about eight o’clock that morning and then Duncan shows up about noon.
“A. About noon. Yes, sir.
“Q. And said what at that time ?
“A. He said, ‘I didn’t get no money because Mr. F. H. Vahlsing wanted to check the books — wanted to check my books.’
“Q. All right. And then did you ever get paid any more ?
“A. No, sir.”

After the appellees were not paid any more, they contacted Mr. Barnes, Labor Commissioner. Mr. Barnes was dead at the time of the trial. There was testimony that Mr. Barnes went to Lockney and conferred with Duncan and checked Duncan’s books that Duncan kept there at the shed and at that time filled out some forms for everyone and the forms were shown to Duncan, and Duncan agreed that they were correct. These forms had the amount that was supposed to be due each of the appellees. Special issue #4 asked as to the amounts due each appellee, naming them individually. The manner in which said issue was submitted, we do not think was multifarious. Gray County Gas Co. v. Oldham, Tex.Civ.App., 238 S.W.2d 596 and cases there cited. We are of the opinion that the declaration of Duncan, that the amounts set out by Barnes were correct, was admissible against appellant. It is stated in Le Sage v. Pryor, 137 Tex. 455, 154 S.W.2d 446 by Com.App. and adopted by Sup.Ct. as follows:

“Declarations of an agent or employee are admitted against the principal or employer as an exception to the hearsay rule and to make them admissible the facts must bring them clearly within the limitations of the exception. Not only must such declarations be made within the course of the employment, but they must bear close relation to the performance of an authorized duty or act in connection with which they are made. They must not be purely voluntary or made merely in casual conversation. Hinson v. Ely Walker & Co., 65 Tex. 103; Southern Surety Co. v. Nalle & Co., Tex.Com.App., 242 S.W. 197; McCormick & Ray’s Texas Law of Evidence, pp. 658-662, Sec. 508.

See also Deaton & Son, Incorporated v. Miller Well Servicing Co., Tex.Civ.App., 231 S.W.2d 944.

As shown by this record, the way the whole matter was handled, Duncan was the best one to testify as to amounts due each of the appellees since he was in charge at the onion shed and kept the books. Barnes checked Duncan’s books and listed the amounts and Duncan stated that was the correct amounts. We think the record justifies the finding of the jury that Duncan was acting for and on behalf of F. H. Vahls-ing, Inc. and such declaration was properly-admitted against appellant.

It is undisputed that a contract was entered into with the appellees by Duncan ; and it being appellant’s contention that Duncan was an individual operator, then the burden was on appellant to prove that fact. Appellees would not be expected to prove contrary to their contention. We do not believe that special issue #3 misplaced the burden of proof. We find no reversible error and overrule all of appellant’s points of error. Judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    Rienhard O. SCHROEDER, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 4036.
    Court of Civil Appeals of Texas. Waco.
    Sept. 27, 1962.
    Rehearing Denied Oct. 18, 1962.
    Dunnam & Dunnam (on appeal only), Waco, for appellant.
    P. M. Johnston, Waco, for appellee.
   TIREY, Justice.

This is an appeal from a summary judgment. Appellee has filed its motion to dismiss, grounded on the proposition that the transcript fails to show that appellant gave notice of appeal in either of the provisions as prescribed by Rule 353, Texas Rules of Civil Procedure. Defendant filed its Original Answer on February 9, 1962, and on March 7th, filed its motion for summary judgment. Appellant filed no reply to ap-pellee’s motion and, thereafter, on the 26th day of March 1962, the Court entered its order granting the motion and decreed that appellant take nothing. The transcript does not show any exception to the judgment entered, or any notice of appeal. Thereafter, on April 5, 1962, plaintiff filed his motion for a new trial and, thereafter, on the 10th day of May 1962, the court overruled the motion for new trial, and there is no exception to the order overruling the motion, and no notice of appeal given.

Appellee contends that since the transcript shows that appellant did not comply with the provisions of Rule 353 aforesaid that we do not have jurisdiction of the appeal, and that we have no alternative but to dismiss the appeal under the Rule announced in Donald v. John Vinson, Inc., Tex.Civ.App., 344 S.W.2d 751, and cases there cited. But appellant contends that under the doctrine announced in Tarver v. Godsey, Tex.Civ.App., 82 S.W.2d 1031 (April 1935), writ ref., that this Court has jurisdiction by virtue of the affidavit filed June 5, 1952 by attorney, the Honorable Steve Kazanas. We quote the pertinent parts of this affidavit:

“My name is Steve Kazanas. I am a licensed practicing attorney in Waco, McLennan County, Texas. I was and am the attorney for the plaintiff, Rien-hard O. Schroeder in the above numbered cause. On May 10, 1962, Charles F. Koehne, Judge of the 54th District Court of McLennan County, Texas, overruled plaintiff’s motion for a new trial and notified me of that fact by telephone. At that time I told Judge Koehne that T am going to appeal you.’ Thereafter, a written order overruling the motion for a new trial was entered and I did not have an opportunity to read and approve the same, for it was not shown to me prior to the time it was entered. A day or two after May 10, 1962, I was in the courtroom at the 54th District Court and then and there announced to the Judge that T am going to appeal you.’ I state for a fact that within ten days after May 10, 1962, I appeared in open court in the 54th District Court of McLennan Count3r, Texas, and notified the Judge that I thought he was wrong and that I was going to appeal the case. Prior to May 10th, and the time in which the court overruled plaintiff’s motion for a new trial I told P. M. Johnston, Attorney for the defendant, that ‘if the court did not grant me a new trial, I was going to appeal.’ I was mailed a copy of the order overruling the motion for a new trial and received it sometime after May 10, 1962, the exact time I do not know but I state for a fact that I did not read or approve it as to form and did not ever see it prior to the time it was entered.”

We are of the view that the affidavit does not bring the appellant within the provisions of Rule 353 aforesaid in force and effect at the time in question. That Rule provides:

“Rule 353. Notice of Appeal
“(a) An appeal, when allowed by law, may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.
“(b) Such notice, when filed with the clerk, shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.”

We think it is obvious without discussion that the affidavit does not bring the appellant within the foregoing Rule.

Going back to Tarver v. Godsey, aforesaid, at the time that case was decided Articles 2253 and 2254 of the Revised Civil Statutes were in effect. We quote said articles:

“Article 2253. An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county.
“Article 2254. In cases where the appellant is not required by law to give bond on appeal, the appeal is perfected by the notice provided for in the preceding article.”

The Court pointed out in its opinion that the order excepting to the judgment of the lower court and giving notice of appeal provided:

“To which action and ruling of the court defendant Wm. Tarver excepted and gave notice of appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas.”

The Court further points out:

“The transcript shows that the trial judge approved a draft of judgment that contained no exceptions and notice of appeal, and that the exceptions copied above were entered into the minutes below the signature of the judge approving the judgment. The exceptions do not contain the statement that appellant gave notice of appeal ‘in open court,’ as required by article 2253, R.C.S.1925, reading: ‘In cases where an appeal is allowed, the appellant shall give notice of appeal in open court within two days after final judgment,’ etc.; nor is that statement reflected anywhere in the transcript. This article of the statute is jurisdictional in its nature, and, unless the notice of appeal was given in open court, then it was error to overrule ap-pellee’s motion to dismiss. (Citing cases.)
“Though the jurisdictional requirements of article 2253 are not shown by the transcript, it is our duty to receive testimony by affidavit or otherwise on the issue as to whether or not notice of appeal was in fact given ‘in open court.’ See article 1822, which reads as follows: ‘Said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.’” (Citing cases.)

We are of the view that the foregoing language in the court’s opinion points out and distinguishes the Rule in force and effect in 1935, and Rule 353 aforesaid, under which we are now governed. It follows that we are of the view that appellant failed to give the notice required by Rule 353 aforesaid, and that we do not have jurisdiction of this appeal. Accordingly the appeal is dismissed.


author: DENTON, Chief Justice.

text:
    MOORLANE COMPANY et al. v. STATE of Texas et al.
    No. 7235.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 1, 1962.
    Rehearing Denied Oct. 29, 1962.

      Stone & Stone, Amarillo, for appellants.
    Will Wilson, Atty. Gen., T. B. Wright, Asst. Atty. Gen., Austin, Monning & Mon-ning, Amarillo, for appellees.
   DENTON, Chief Justice.

Appellants Moorlane Company and Irvin L. Smith sought an injunction against ap-pellees State of Texas, Texas Highway Department and the City of Amarillo, seeking to restrain the appellees from proceeding with the construction of an overpass and approach thereto as a part of a controlled access highway through the City of Amarillo. Appellants are the owners and the lessees of property abutting the proposed controlled highway. From an order denying a temporary injunction appellants bring this appeal.

Appellant Irvin L. Smith as lessee operates an industrial supply business in a one-story brick building which abuts the west line of Pierce Street. The Highway Department has designated and is in the process of constructing the controlled highway along Pierce Street which runs north and south through the City of Amarillo. As part of this highway, an overpass is to be constructed in the immediate vicinity of appellant’s property. A retaining wall to support the overpass is to be located along the east line of Pierce Street directly across from appellant’s property. The net effect of this construction will be that the paved portion of Pierce Street in the vicinity of appellant’s property will be reduced from 49 feet to 26 feet, and plans call for it to be a one-way street for south bound traffic rather than a two-way street as it is presently designated. Appellant’s building contains a truck bay or large opening which faces east on Pierce Street. This truck bay has been utilized by appellants for several years for the purpose of receiving and delivering merchandise and equipment by large trucks. It is appellants’ contention that such use constituted ingress and egress to their property and that the narrowing of Pierce Street will prevent large trucks from maneuvering and backing into the truck bay, thus denying them of their vested property right of access.

Appellants are seeking equitable relief under the terms of Article 6674w-l, Vernon’s Ann.Tex.St. Under the terms of this statute an injunction may be granted to abutting property owners or lessees if there has been no release of their claim for damages or if no condemnation proceeding has been commenced, and if previously existing access to the property will be denied. It is undisputed that there has been no release of appellants’ claim for damages nor has a condemnation proceeding been commenced. It must therefore be determined whether or not the proposed controlled highway will deny or take away appellants’ access to their abutting property.

The rule is well settled that access to a public highway is an incident to ownership of land abutting thereon and this property right cannot be taken away or destroyed by public services without adequate compensation given therefor. City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640; Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A.,N.S., 1615. However, the Supreme Court in the Pigeonhole Parking case, supra, held this rule does not apply when a governmental authority invokes its police power for the protection of the health, safety and general welfare of its citizens. Article 6674w et seq., V.A. T.S., gives the Highway Commission broad powers in designating and constructing controlled access highways, including authority to control and restrict points of access. Although this broad power does exist, the exercise of such power does not alter the existing rights of persons to compensation for damages suffered as the result of the exercise of such powers. However, it is to be noted we are not required to decide here whether or not appellants are entitled to damages to their access rights.

We think the clear legislative intent in enacting Art. 6674w is that an injunction is available to an owner or lessee of land, physically abutting a proposed highway in order to protect their existing access to such highway. However, in order for such relief to be granted the three prerequisites mentioned above must be met. The primary question to be determined is whether or not appellants’ access or right of ingress and egress will be denied as a result of the Highway Commission order to construct the proposed highway.

As we understand it, appellants’ basic contention is that although a total denial of access to their property is not threatened, their previously existing access will be materially impaired or interfered with due to the inability of large trucks to use the truck bay, and this amounts to such a denial of their rights of access to require the issuance of an injunction. According to Black’s Law Dictionary, Fourth Edition, “In real property law ‘access’ denotes the right vested in the owner of land which adjoins a road or other highway to go and return from his own land to the highway without obstruction.”

In our opinion the proposed freeway will not deny appellants access to their property. No case has been cited, and we have found none, which holds that the inability of certain types or sizes of vehicles to go and return from the abutting property constitutes a denial of access. Access as used here is not a matter of degree in the sense it may be available to some types of vehicles and not available to others. It was established by appellants’ own testimony that some trucks will be able to utilize the truck bay after the construction has been completed. On direct examination appellant Smith testified as follows:

“Q Mr. Smith, when this retaining wall is built, what will have to be done down there to that property if you are going to keep on using it?
“A Well, in my opinion and the opinion of the property owners, that door will have to be closed — the door won’t have to be closed off; we will just have to discontinue using the door and start to using the, what we will call the parking area, all on the west side of the building. A door will have to be put in the building. We will have to bring trucks in off of Second Street and use the west side of the building for all of our retail business.”

Under this record we are of the opinion, and so hold, the proposed construction of the proposed highway and overpass is not such a denial of appellants’ right of ingress and egress to justify the issuance of a writ of injunction. The order issued by the Highway Commission is an exercise of its police powers and the carrying out of such order will not amount to a complete taking of the right of access. Pennysavers Oil Co. v. State (Tex.Civ.App.) 334 S.W.2d 546 (error refused); City of San Antonio v. Pigeonhole Parking of Texas, supra.

The judgment of the trial court refusing the temporary writ of injunction is affirmed, but without prejudice to a subsequent suit for damages.


text:
    HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Shadie C. CLARK, Appellee.
    No. 4046.
    Court of Civil Appeals of Texas. Waco.
    Oct. 4, 1962.
    Rehearing Denied Oct. 25, 1962.

      Harold A. Muller, Dallas, for appellant.
    William F. Billings, Dallas, for appellee.
   WILSON, Justice.

The workmen’s compensation carrier appeals from judgment in the employee’s action to mature the award of the Industrial Accident Board under Art. 8307, Sec. 5, Vernon’s Ann.Tex.Stat. Judgment was for the amount of the award, penalty and attorney’s fees.

The carrier timely filed a suit to set aside the award July 6, 1961. Thirteen days later the employee answered by general denial only, filing no cross-action for compensation benefits. On August 11, twenty-three days after the employee’s answer was filed, the carrier dismissed its suit with prejudice. Notice of dismissal was given to employee’s attorney five days thereafter. The employee did not seek to appeal from the award, or to have the action reinstated. Five months after dismissal this suit to mature the award was instituted.

Appellant’s position is that when it filed its suit to set aside the award and the employee appeared, the award of the Industrial Accident Board was vacated, and could not be matured. Appellee argues that by dismissing its suit the carrier failed to institute and “prosecute” the same as required by Art. 8307, Sec. 5.

When the carrier filed the suit and the employee entered his appearance, there “was nothing further” for it “to do in the way of prosecuting its claim.” This “is all that is necessary to comply with the statute” for “the provision, ‘institute and prosecute,’ and the words ‘bring suit,’ as used in section 5 of article 8307, R.C.S-1925, mean the same thing.” Maryland Cas. Co. v. Jones, 129 Tex. 392, 104 S.W.2d 847, 849; Jasper v. Liberty Mut. Ins. Co., Tex.Civ.App., 119 S.W.2d 386, 387, writ ref.; Ocean Acc. & Guar. Corp. v. May, Tex.Com.App., 15 S.W.2d 594, 597.

When the appeal from the award reached this status the award of the Board was “vacated and was no longer in force,” and the court having acquired jurisdiction, “the burden of obtaining judgment for compensation in the court where the case is pending rests upon the claimant.” Zurich Gen. Acc. & Liab. Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674, 676; Texas Reciprocal Ins. Ass’n. v. Leger, 128 Tex. 319, 97 S.W.2d 677, 678.

Appellee says “all matters were put in issue” by the general denial, under Rule 92, Texas Rules of Civil Procedure. It does not put in issue a claim for affirmative relief on which the employee has the burden. 45 Tex.Jur. p. 796. See Booth v. Texas Employers’ Ins. Ass’n., 132 Tex. 237, 123 S.W.2d 322, 330.

This case does not present a dismissal such as is proscribed in the Leger case, above, and Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767, 769. It was said in those opinions that the insurer would not be permitted to effectively vacate the award by dismissing after “the mere filing of a suit” in court to set aside the award “before that court has acquired jurisdiction of the parties and subject-matter, and before an opportunity is given to all parties concerned to assert their rights therein.” Here the court had been vested with jurisdiction, and appellee was afforded an opportunity to file a cross-action.

Appellee urges he was entitled to wait until “any time before trial on the merits” to assert his claim, and dismissal without advance notice to him prevented his exercise of this right. To adopt the contention would be to hold that by filing a general denial claimant could indefinitely preclude a voluntary dismissal by the carrier without subjecting itself to the hazard of having the award matured with the ensuing penalties. In this case, when appellant’s suit was dismissed there existed no award which could be matured.

Reversed and rendered.


author: WERLEIN, Justice.

text:
    The STATE of Texas, Appellant, v. POOL SIDE CLUB, Appellee.
    No. 13996.
    Court of Civil Appeals of Texas. Houston.
    Oct. 4, 1962.
    Will Wilson, Atty. Gen., Irwin R. Sal-manson and Norman V. Saurez, Asst. Attys. Gen., Austin, for appellant.
    Edward A. Jahn, Galveston, for appellee.
   WERLEIN, Justice.

This is an appeal by the Texas Liquor Control Board from a judgment of the District Court of Galveston County setting aside the order of the Administrator of the Texas Liquor Control Board which can-celled the private club registration permit of appellee, Pool Side Club. The trial court recited in its judgment that it found that Pool Side Club had violated its private club registration permit by having sold and offered for sale liquor so as to constitute an open saloon as defined by the Texas Liquor Control Act, and more particularly Art. 666-3 and Art. 666-15 (e) of Vernon’s Texas Penal Code. In its judgment setting aside the order of the Administrator, dated December 12, 1961, the court decreed that the private club registration permit issued Pool Side Club, License No. 37754, 2312 Boulevard, Galveston, Texas on September 7, 1961, be suspended for a period of sixty days beginning at 12 o’clock noon, January 19, 1962.

The undisputed evidence in the record shows that the permit in question expired under its own terms on August 31, 1962, and that a period of more than twelve months has elapsed since appellee’s violations of Sec. (7) (a), Art. 666-15(e), Vernon’s Texas Penal Code, as found by both the court and the Board, occurred. Therefore, this appeal is moot and should be dismissed.

Appeal dismissed.


author: CHAPMAN, Justice.

text:
    Jack Palmer GLOVER et al., Appellant, v. Ward DAVIS et al., Appellee.
    No. 7170.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 17, 1962.
    Rehearing Denied Oct. 22, 1962.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Frank D. McCown; C. D. Bourne, Jr., Dumas, for appellees.
   CHAPMAN, Justice.

This case was instituted by Aetna Life Insurance Company as an interpleader to determine which of two groups of claimants were entitled to the proceeds of two insurance policies on the life of Weldon Merton Glover, Jr.

On April 8, 1960, the insured; his wife, Ann Glover; their two only children, Brenda Kay Glover and Betty Lou Glover; together with two passengers named Hammer and Sledge were all killed in an automobile collision on North Dumas Avenue immediately north of or in the city of Dumas. Mr. Glover had policies of insurance listing his wife as beneficiary if she survived him, but if she did not survive him then his children, or the survivor of them. The policies provided if none of them survived him, his parents or the survivor of them would be the beneficiaries or beneficiary.

It was stipulated that Weldon Merton Glover, Jr.’s mother; wife, Ann; and daughter, Brenda Kay, did not survive him but that his father, W. M. Glover, Sr. did survive him. It was also stipulated that the only question for termination by the court was whether the older and larger of the two girls, Betty Lou Glover, survived her father.

Upon a trial to the court, following the testimony of three witnesses, judgment was rendered that Betty Lou Glover survived her father. Appeal is perfected from that judgment, and the case is before us without findings of fact or conclusions of law or any requests therefor.

T. A. Cariker, a filling station attendant at what is known as 287 Truck Stop on the west side of Dumas Avenue, was inside the station at about midnight when he heard a crash outside that sounded like an automobile collision. He testified: “Well, I raised up and looked out and there was nobody moving and then finally I walked outside.”

When he went outside and passed a truck parked facing south just off the pavement, he saw an automobile also facing south that looked as if it had “went under the truck and bounced back out a little.” He shined his flashlight in the front seat through the driver’s window and saw a woman in the driver’s seat and two men. He “ * * * didn’t see a bit of sign of life in the front seat.” He further testified:

"Q. Did you hear them breathe?
“A. No, sir.
“Q. Did you see anything that indicated to you that they were alive?
“A. Not one thing.
“Q. Did they appear to be dead to you?
“A. I thought they were.”

It was stipulated that Ann Glover was the woman under the steering wheel and her husband was sitting next to her.

The witness after concluding the three in the front seat were dead shined his light in the back seat and discovered a man and a little girl down on the floorboard and the older of the two Glover children, Betty Lou, “laying up in the seat.” With respect to the child lying in the seat, he testified:

“Q. Did you see any sign of life coming from the little girl that was laying up in the seat?
“A. Yes, sir. She was gasping pretty hard for breath.
“Q. Could you see that occurring?
“A. Yes, sir.
“Q. Would you describe that to the judge?
“A. Well, I thought she was dying then. She was gasping for breath. You could see her whole chest move.
“Q. You said you thought she was dying and you said something after that.
“A. I could hear her gasping and I could see her mouth work when she was trying to breathe.
“Q. Could you hear anything coming from this girl?
“A. Yes, sir.
“Q. Would you describe what you could hear, please?
“A. Well, just like someone that was having a hard time breathing.”

The record shows someone from the cafe then called Mr. Morrison of Boxwell Funeral Home and that Mr. Cariker went back to the car when Mr. Morrison was removing the bodies.

With respect to Weldon Merton Glover, Jr., Mr. Cariker further testified:

“Q. How about the man who was next to her on her right?
“A. As far as I could tell he was dead; there was never a movement.”

On cross examination the witness testified as follows:

“Q. Do you think there is any possibility that you could be mistaken in your conclusion?
“A. About what ?
“Q. As to whether or not the little girl was alive or dead at the time.
“A. No, I was not mistaken about her breathing.”

The next witness for the appellees was Mr. Morrison, manager and funeral director for 18 years, though not a mortician, for Boxwell Brothers Funeral Home in Dumas. He had been in bed asleep when the Police Department called him following the collision. He dressed and drove the ambulance IS or 16 blocks to the scene of the tragedy, pulled the ambulance around to the back of the car involved in the collision and started moving the bodies from the car. He first moved Brenda Kay in order to be able to better handle Betty Lou. He then removed her “because she showed signs of life.”

“Q. What were those signs of life?
“A. She was breathing and gasping.
“Q. Now, at that point could you hear her breathing or is this something that you just saw?
“A. I heard her.
“Q. Holding her there, could you hear her breathing?
“A. Yes, sir.”

He then testified that about the time he put her on the ambulance cot she failed to breathe any more that he could detect.

With respect to the insured he testified that while removing the two girls from the back seat, he didn’t see anything or notice anything that indicated * * * any sign of life from either Mr. or Mrs. Glover.

Appellants called only one witness, Dr. O. J. Richardson, who did not see Betty Lou until they brought her to the hospital. He testified she was dead at the time he saw her and also testified:

“Ordinarily, we look at their eyes. Their eyes are fixed and immobile and no reaction to light. We usually check their heartbeat with a stethoscope and listen to the lungs.”

He testified he considered those are the minimum requirements for determining whether a person is dead or alive and that:

“We also check the pulse to see if the pulse is beating. If there is no pulse, no heartbeat, we consider them dead.”

On cross examination he admitted:

“We usually don’t pronounce them dead until all breathing ceases.”

He also said in his opinion all occupants of the car were killed instantly and that Betty Lou, in his opinion, could not have lived one minute after the collision. However, he admitted no respiration is audible after death. His testimony further shows:

“Q. If you had been physically present it would have been a pretty hard job to tell which one was the last one to take a breath?
“A. It’s hard for one man to see all personally and it was in the dark and a lot of fumes around.
“Q. If you had been there and one of them was breathing, would you have considered there would still be some life in that person?
“A. I would have tried to revive that person and helped that person.
“Q. Why?
“A. First thing I would do is examine the person to see how serious the injuries were.
“Q. If that condition kept up ten or fifteen minutes and without any close examination with a stethoscope or laying your ear on the body, you could hear her two or three feet off breathing, you’d know right then that she had some life in her, would you not?
“A. Yes, sir. I would give her first aid.
“Q. Even though a quite cursory examination of the wounds, not even a close examination, but just seeing they were fatal and there was one still breathing, that would be the one to receive your first attention, would it not ?
“A. Yes, sir.
“Q. Is it your testimony to the Court that Betty Lou Glover was dead instantly at the time she received those injuries together with her father, Weldon Merton Glover?
“A. With the rest of the family. I think they were all killed instantly. I doubt if any of them knew what happened to them.
“Q. It could be possible that one of them could have lived a few minutes longer than the other.
“A. I’m sure that each one of them died at a separate time.
“Q. Some of them could have been close together.
“A. Death was instantaneous. Their injuries were so severe that they could not have survived.
“Q. That’s right. But if one of them was breathing ten or fifteen minutes after the impact, would that person, in your opinion, survive after the others ?
“A. I couldn’t pronounce her dead until she quit breathing.”

In 1940 the National Conference of Commissioners on Uniform State Laws and the American Bar Association approved the Uniform Simultaneous Death Act. The portion pertaining particularly to the instant case is Section S and reads as follows :

“Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary, * * * ”

All emphases herein are ours.

In 1951 Texas first enacted legislation patterned after the above mentioned act. Acts 1951, 52 Leg., page 322, Ch. 196. That legislation is now Section 47, Probate Code, V.A.T.S. and Subsection (e) thereof pertaining to this case reads as follows:

“When the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.”

It should be noted that Section 5 of the Uniform Simultaneous Death Act uses the terms:

“Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence * * * ”

While the Subsection of the Texas Act corresponding thereto reads:

“When the insured and the beneficiary in a policy of life or accident insurance have died and there is no direct ■evidence * *

Appellants contend the use of the term “no direct evidence” places a much greater burden on those seeking to prove the insured and beneficiary died otherwise than simultaneously than does the Uniform Act adopted by many of the states, which uses the term “no sufficient evidence.”

We believe and so hold that the use of the term “direct evidence” by our legislature in this instance was simply intended as the converse of circumstantial evidence with the terms used in their general sense.

Our Supreme Court has plainly distinguished between the two wherein they quoted with approval from a textual statement as follows:

“ ‘Direct evidence is proof of the facts by witnesses who saw the acts done or heard the words spoken, while circumstantial evidence is the proof of collateral facts and circumstances from which the mind arrives at the conclusion that the main facts sought to be established in fact existed.’ ” Texas & N. O. R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164, 167 (Com.App. Opinion Adopted)

We have found no later authority wherein our Supreme Court has changed or altered the above definition distinguishing direct evidence from circumstantial evidence in civil cases and must, therefore, conclude it is still a proper rule in our state to follow. It seems reasonable to say that if all parties in a collision case are unquestionably dead before anyone arrives at the scene or observes any of them alive, it would be necessary to rely on circumstantial evidence in order to prove survivor-ship and therefore they would have to be considered to have died simultaneously under Subsection (e) above. Such is not the situation in our case because we have two witnesses testifying positively that Betty Lou -was still breathing at a time that we believe the trial court could have found the evidence showed was at least 10 to 15 minutes after the collision. There is also some direct testimony from which the trial court could have concluded the insured died instantly—at the immediate time of the collision. The question we must determine then is whether the lay witnesses, Cariker and Morrison, were competent to testify under the circumstances of this case to life and death and if the testimony was sufficient to negate simultaneous deaths of the insured and beneficiary.

The Wisconsin Supreme Court in a case where the parents and two sons perished in a collision between their car and a train upheld a judgment based upon testimony by lay witnesses. The case was tried to the court as here. The witness, Tucker, testified:

“He ‘looked at the mother first and she was gone.’ He stated that ‘from her condition, from the looks of her she was dead. He could see no sign of life.’ ”

He then examined the father by feeling his pulse and testified to training in first aid in the Army. He next observed the boys lying under the back of the car and testified, “One was obviously dead. The other (Anthony) was still alive, gasping, breathing and moving.” He concluded Anthony survived the others.

The witness, McKee, another layman who testified, concluded the mother survived. He gave proof of being a former state trooper and trained in first aid. The court said:

“The ability of Tucker, as well as that of the other witnesses, to determine whether the death of any of the persons involved, existed, were items for the court to consider and decide.” In re Estate of Eannelli (Venci v. Eannelli), 269 Wis. 192, 68 N.W. 791.

Another similar case has been decided by the Supreme Court of Idaho in which the testimony of lay witnesses were upheld and in which the two victims were shown to have died in IS minutes of each other. That court said:

“It having been concluded by the trial court on competent, though conflicting, evidence that Mary Davenport survived her husband James Davenport by 15 minutes, she succeeded to the estate * * * ” In re Davenport’s Estates, 79 Idaho 548, 323 P.2d 611.

Though it involved a will instead of insurance policies, our Supreme Court in White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, gives us some guides to follow. The court in construing the Uniform Simultaneous Death Act or sections of the Probate Code said:

“The cases in other jurisdictions * * * uniformly hold that if there is any evidence of probative force that either party survived the other, even when the deaths occur at approximately the same time, the statute is inapplicable and the question of survivorship requires no higher degree of proof than any other fact.”

The court then cited a number of cases from other jurisdictions. In one of those cases, Sauers v. Stolz, 121 Colo. 456, 218 P.2d 741 the Supreme Court of Colorado construed Section 1 of their Statutory Simultaneous Death Act Laws 1943, c. 197 which says:

“Where the title to property or the devolution thereof depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived * *

Two lay witnesses testified. The victims were Mr. and Mrs. Doyle. Both were severely injured, one witness testifying Mr. Doyle’s head was cracked open and he slowly bled to death. They both testified he survived. The Supreme Court then held:

“The presumption of simultaneous death * * * was not intended to take the place of competent, positive and direct evidence, and the fact of survivorship requires no higher degree of proof than any other fact in the case.”

The Supreme Court then reversed the trial court, which had held there was not sufficient evidence that they died other than simultaneously.

Appellants contend there was no direct evidence that the insured and Betty Lou died other than simultaneously. When the testimony above related is applied to the law herein quoted, we find ourselves unable to embrace that contention. We do realize the quality of the evidence is a serious question. However, no findings of fact or conclusions of law were made by the trial court and none were requested. We must presume, therefore, in passing upon whether there was any evidence to support the implied findings of the trial court that such court resolve in appellant’s favor every issue of fact raised by the evidence, and must view the evidence in the light most favorable to such findings, disregarding all that is contrary thereto. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643. In applying the rule of law just stated in Mc-Williams we could not say there was not any evidence to support the trial court’s implied findings.

The question of the great weight and preponderance of the evidence is also raised. As a court required to pass upon the facts, we must under the constitution and rules of procedure consider and weigh all the evidence in the case and set aside the judgment and remand the cause for new trial, if we conclude the implied findings are so against the great weight and preponderance of the evidence as would be manifestly unjust. Rule 451 Vernon’s Ann. Texas Rules of Civil Procedure; Article 5, Section 6, Vernon’s Ann.Texas Constitution; In re Kings’ Estate (King v. King et al.), 150 Tex. 662, 244 S.W.2d 660.

Not so finding the judgment of the trial court is in all things affirmed.


author: RUARK, Presiding Judge.

text:
    Ruth ASHER and Ernest Asher, Plaintiffs-Respondents, v. Albert THOMAS, Defendant-Appellant,
    No. 8088.
    Springfield Court of Appeals. Missouri.
    Oct. 10, 1962.
    . Wm. T. Powers, Jefferson City, for defendant-appellant,
    Joe R. Ellis and Royle Ellis, Cassville, for plaintiffs-respondents.
   RUARK, Presiding Judge.

This is an appeal from a judgment wherein the plaintiffs-respondents recovered damages in the total sum of $5,250. Judgment was rendered on August 10, 1961. On August 21, 1961, defendant filed motion for judgment in accordance with defendant’s motion for judgment at the close of the evidence, or in the alternative, for new trial. On August 31, 1961, defendant filed motion to amend the foregoing motion by inserting a new ground. On November 14, 1961, the foregoing motions were overruled by the court. On November 29, 1961, defendant filed notice of appeal wherein he appealed from the judgment entered “on the 21st day of November, 1961.” On February 23, 1962, time for filing of transcript was extended to May 26, 1962, because of the inability of the court reporter to prepare the transcript. On May 26, 1962, the transcript was approved by counsel.

On August 25, 1962, respondents served appellant with copy of motion to dismiss the appeal with notice that they would present the same to this court on September 17, 1962, the day the case was set for argument on our docket, and on argument day the motion was so presented. This motion is based on the fact that the judgment became final on November 14, 1961; that notice of appeal was filed on November 29, 1961, and, therefore, was not within 10 days; that no special order permitting appeal had been entered and that it was more than six months from date of final judgment. On the same day (September 17, 1962), appellant filed his suggestions in opposition, wherein he contended that the appeal should not be dismissed because (1) appellant had no notice of the action of the trial court in overruling the motion for new trial on November 14, 1961 and, as the 90-day period (after which the motion is overruled automatically) expired on November 21, 1961 (by our calculations it would have expired on November 20, 1961), the motion was timely, (2) appellant was not aware of the entry overruling the motion for new trial until he received a copy of respondent’s motion to dismiss on August 25, 1962; that he did not receive the transcript until May 26, 1962, and that in the meantime he had been put to the expense of appeal bond, transcript and printing of briefs, (3) the appeal is in good faith, (4) during the period extending from the dates of filing of motion for new trial and motion to amend and up to November 14, 1961, the appellant called the circuit clerk’s office several times by phone (He resided in another part of the state.) to ascertain whether any ruling had been made on such motions, and, “not being notified,” filed his notice of appeal in the belief that the judgment became final on November 21, 1961; that any negligence was excusable under the circumstances, and (5) prayed that the rules be suspended under Civil Rule 83.09, V.A.M.R., and that the motion to dismiss be overruled. These suggestions are not verified or supported by any affidavit or other proof.

We must of course look first to our jurisdiction.

Civil Rule 82.04, V.A.M.R., provides that no appeal shall be effective unless notice be filed not later than 10 days after the judgment or order appealed from becomes final. Civil Rule 82.05, V.A.M.R., provides that, in the event a motion for new trial is filed, the judgment becomes final at the expiration of 90 days after the filing of such motion, or if such motion is passed on at an earlier date, then at the date of disposition of such motion.

It has been held consistently that the statutes and successor civil procedure rules, as they relate to time for filing of notice of appeal, are mandatory, and that such timely filing is an indispensable prerequisite to appellate jurisdiction. Franklin v. Franklin, Mo.App., 344 S.W.2d 282; Robb v. Casteel, Mo.App., 340 S.W.2d 180; Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80; Heard v. Frye’s Estate, Mo.App., 319 S.W.2d 685; Starr v. Mitchell, Mo., 237 S.W.2d 123; McPike v. St. Louis County Bank, Mo.App., 193 S.W.2d 961.

Civil Rule 83.09, V.A.M.R., provides (among other provisions aimed at liberalizing certain portions of the code) that the court may, in certain instances, suspend or modify the rules in a particular case upon a showing that justice so requires. This is a successor to S.Ct. Rule 1.15 which was adopted in 1945. All of the cases cited above were decided while that rule, or its successor, was in effect. The McPike Case, 193 S.W.2d 961, considered the rule and determined that the appellate court had no jurisdiction. It is our conclusion that a notice of appeal filed after 10 days confers no jurisdiction on the appellate court.

Nor can we furnish the would-be appellant any relief under Civil Rule 82.07, V.A.M.R. Our jurisdiction to extend the time for appeal is limited to a period of 6 months after date of final judgment, and that period has expired.

We think that what the appellant may be driving at is a contention that the order overruling the motion for new trial, made on November 14, should be treated as a nullity because of lack of notice; and that this being so, the 10 days would date from the expiration of the 90 days (November 20).

It is the established practice in all circuit courts that the attorneys for the litigants be notified when the court passes upon a matter which involves the rights of the parties, except in those matters which are set for a day certain or the circumstances are such that the attorneys are to be charged with notice. Where the court has a motion for new trial under advisement, and by overruling the same makes the judgment final, we think such notice should be given. In In re Jackson’s Will, Mo.App., 291 S.W.2d 214, we said that a fair amount of diligence did not require the lawyer to sit constantly in the courtroom over a long period of time in order to watch whether and when a sleeping question is to be awakened.

On the other hand, a lawyer can, at least to some extent, protect his client’s right of appeal against an inadvertence resulting in lack of notice by checking with the circuit clerk; and if he marks his calendar and inquires of the clerk immediately after the 90-day period has expired; and if he finds that the motion has been ruled upon and there has been no notice when such should have been given; and if his claim is meritorious; he still has time to apply to the appellate court for a special order of appeal under Civil Rule 82.07, V.A.M.R. He need not wait for the transcript in order to discover the inadvertency.

As to whether the rule announced in Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347, would extend to a situation of this kind, we make no decision. The only “suggestion” of lack of notice is contained in the Suggestions filed in opposition to the motion to dismiss. As stated, these Suggestions are unverified and unsupported by affidavit or any other proof. They are not self-proving nor are they evidence of their contents. Baker v. Baker, Mo.App., 274 S.W.2d 322(4); Bullock v. B. R. Electric Supply Co., 227 Mo.App. 1010, 60 S.W.2d 733; Orlando v. Surwald, Mo.App., 47 S.W.2d 228. We do not intend to convict a trial court of error or inadvertent failure to give notice upon the basis of some unsworn and unproven statement.

The motion is sustained and the case is dismissed.

STONE and McDOWELL, JJ., concur.


author: CULLEN, Commissioner.

text:
    Elizabeth WALTERS, Appellant, v. O. M. ANDERSON, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1962.
    As Modified on Denial of Rehearing Oct. 19, 1962.
    O. T. Hinton, Pikeville, for appellant.
    Dan Jack Combs, Pikeville, for appellee.
   CULLEN, Commissioner.

A parcel of land owned by Elmon Walters was sold under execution upon personal judgments against him for commercial debts. The sale brought a price some $16,000 in excess of the amount of the judgments. Walters assigned his rights in the excess to his wife before the proceeds were paid into court. The purchaser, in paying the money into court, attempted to earmark some $4,000 as the value of Mrs. Walters’ inchoate dower right and by court order that sum was temporarily set aside “pending an adjudication * * * as to the effect of the execution sale on the inchoate right of dower.” Subsequently Mrs. Walters moved, as assignee of her husband, that she be paid the $4,000 (she previously had been paid the balance of the excesf proceeds of sale), and an order was entered directing that the money be paid to her but expressly reserving all questions relating to the dower right and reciting that the order was without prejudice to the rights of Mrs. Walters or the purchaser with respect to the dower matter.

Some two years later Mr. Walters died and his widow then asserted a claim against O. M. Anderson, the purchaser at the execution sale, for her dower interest in the land. The circuit court entered judgment denying the claim and Mrs. Walters has appealed.

The theory upon which the circuit court denied the claim was that Mrs. Walters had estopped herself from claiming dower by seeking and obtaining the $4,000 which the purchaser, in paying the purchase price into court, had attempted to designate as dower value. In view of the fact that Mrs. Walters asked for and was permitted to take the $4,000 as assignee of her husband and in view of the express recitation in the order of payment that it was without prejudice to her dower rights we can see nó possible basis for invoking an estoppel. Admittedly the execution sale itself did not bar the inchoate dower rights of Mrs. Walters. See Fields’ Heirs v. Napier, 26 Ky.Law Rep. 240, 80 S.W. 1110. At no time subsequent to the sale did Mrs. Walters do anything even to suggest that she was surrendering her dower right.

It is our opinion that the trial court erred in not adjudging Mrs. Walters entitled to her dower right. However, her contention that she is entitled to a one-half interest in fee is not sustainable. Under KRS 392.020 the widow of an intestate is entitled to a one-half interest in fee only in real estate of which her husband was seized of an estate in fee simple at the time of his death. With respect to real estate which her husband owned at one time during the coverture but did not own at the time of his death she is entitled only to a life estate in one-third. The execution sale effectively deprived Mr. Walters of all estate he had in the land, so when he died he was not seized of the land. KRS 392.110, protecting dower rights in case of a judgment by default or collusion against the husband, clearly relates only to judgments directly affecting the husband’s title and has no application to a money judgment followed by an execution sale. Accordingly Mrs. Walters’ dower interest is limited to a life estate in one-third.

Mrs. Walters asserted in the circuit court another claim against Anderson for an alleged deficiency of some $800 in payment of the purchase price. An order approving the payments made by Anderson and directing that the sale bond be canceled as satisfied was entered some two years before Mrs. Walters’ present claim, was asserted. The record shows that she was a party to the proceedings at that time and the order recites that she was personally present in court when the motion for discharge of the bond was heard. The order clearly was a final order and, no appeal having been taken from it, could be set aside only by proceedings under CR 60.02. There are no allegations here to warrant relief under that rule. Therefore the circuit court properly rejected the claim.

With respect to the claim of a deficiency in payment of the purchase price the judgment is affirmed; with respect to the dower claim the judgment is reversed with directions to enter judgment in conformity with this opinion.