author: HUGHES, Justice.

text:
    STATE of Texas, Appellant, v. NATIONAL LLOYDS INSURANCE COMPANY, Appellee.
    No. 11019.
    Court of Civil Appeals of Texas. Austin.
    Jan. 23, 1963.
    Rehearing Denied Feb. 13, 1963.
    Will Wilson, Atty. Gen., Bob E. Shannon, Asst. Atty. Gen., Austin, for appellant.
    F. L. Kuykendall, Austin, for appellee.
   HUGHES, Justice.

National Lloyds Insurance Company, having been granted permission by the Legislature, brought suit against the State to recover $6,912.35, alleged to be excess taxes paid the State under Art. 7064, Vernon’s Ann.Civ.St. In a non-jury trial, judgment was rendered against the State for $6,554.-50.

The basic facts were stipulated and are:

“3. Under the provisions of Article 7064, Revised Civil Statutes of Texas of 1925, as amended, National Lloyds became liable during the year 1959 for taxes at the rate of 1.1% on gross receipts received by it during said year after an allowance for returned premiums and dividends paid to policyholders in National Lloyds; that the amount of such tax for the year 1959 was $8,168.37, to which a credit was allowed in the sum of $274.84 for examination fees incurred by the State Board of Insurance, leaving a net amount which was paid by National Lloyds as taxes for 1959 in the sum of $7,893.53. Under the provisions of Article 5.12, Insurance Code [V.A.T. S.], National Lloyds paid for the year 1959 the Motor Vehicle Maintenance Tax of .06 of 1% on gross receipts of $742,007.07, which tax amounted to $445.20, and which tax was paid by National Lloyds.
“4. During the year of 1960 National Lloyds cancelled policies of insurance and made refunds of premiums and paid dividends to its policyholders on policies written during 1959 in an amount which exceeded its gross receipts by $595,863.93 and on which refunded premiums and dividends National Lloyds had paid the gross receipts tax for the year 1959; that 1.1% of $595,863.93 is $6,554.50, which refund National Lloyds is claiming it is entitled to in this suit, together with a refund of .06 of 1% of $596,423.49 paid as a maintenance tax for the year 1959, as required by Article 5.12 of the Insurance Code, which amount is $357.-85, making a total refund claimed by plaintiff in the above styled and numbered cause of $6,912.35.”

The portion of Art. 7064, pertinent here, reads:

“Every insurance corporation * * * shall report to the Board of Insurance Commissioners the gross amount of premiums received upon property located in this State or on risks located in this State during the preceding year, and each of such insurance carriers shall pay an annual tax upon such gross premium receipts of 3.85%, provided that any such insurance carriers doing two (2) or more kinds of insurance businesses herein referred to shall pay the tax herein levied upon its gross premiums received from each of said kinds of business; and the gross premium receipts where referred to in this law shall be the total gross amount of premiums received on each and every kind of insurance or risk written, except premiums received from other licensed companies for reinsurance, less return premiums and dividends paid policyholders, but there shall be no deduction for premiums paid for reinsurance. The gross premium receipts, as above defined, shall be reported and shown as the premium receipts in the report to the Board of Insurance Commissioners by the insurance carriers, upon the sworn statements of two (2) principal officers of such carriers. Upon receipt by the Board of Insurance Commissioners of the sworn statements, showing the gross premium receipts by such insurance carriers, the Board of Insurance Commissioners shall certify to the State Treasurer the amount of taxes due by each insurance carrier which tax shall be paid to the State Treasurer on or before the first day of March following, and the Treasurer shall issue his receipt to such carrier, which shall be evidence of the payment of such taxes. No such insurance carrier shall receive a permit to do business in this State until all such taxes are paid.”

The question presented is whether or not return premiums paid by the company subsequent to the taxable year in which they were collected, and upon which taxes have been paid, can be used as a basis for claiming an overpayment of taxes during the taxable year.

The State says, “Since the tax is calculable on an annual or yearly basis, then the 'less return premiums * * * paid policyholders * ⅜ *’ plainly refers to return premiums made within that same year.”

As an alternative, the State contends that if the above statute is ambiguous in this respect, then the construction placed upon it by the insurance department of the State should control.

It is our opinion that the statute is ambiguous. This conclusion is reached, not so much from the language of the statute as from the language omitted from it. The statutory formula, applicable here, “gross amount of premiums received * * * less return premiums” is simple and plain as far as it goes. The trouble is, it does not place a time limit on premium returns for tax purposes. A practical limit, however, would be the expiration date of the policy of insurance.

Under the States’ contention, an insurer might collect enormous premiums on December 31st and return their major portion on next January 1st, the following day, and be liable for taxes on the entire amount received and not on the difference between the premiums received and premiums returned, as the statute clearly provides.

We believe that our finding of ambiguity in the statute is sustained by the departmental construction of it and upon which the State relies. This construction is that while no cash refund of taxes paid under the circumstances of this case can be made, that, nevertheless, such overpayment of taxes can be credited on taxes accruing the following year. We quote from the testimony of Miss Virginia Gardner, tax analyst for the State Board of Insurance:

“Q All right. Now, let’s assume further that the premiums for the policies written in 1960 were $50,-000.00, but the returned premiums made in 1960 on 1959 policies amounted to $50,000.00. The 1960 taxes would be one percent of $50,000.00 on written premiums, or $500.00, but a credit of one percent of $50,000.00 returned premiums, or $500.00, would be allowed, so that there would be no tax due or payable when the Company files its 1960 report on or before
March 1, 1961; that is' correct?
“A Yes sir; so far, so good.”

Miss Gardner’s testimony regarding the practice of the department in ascertaining taxes due under this statute were based, in part, upon the assumptions of counsel for appellee in interrogating her. These assumptions and resultant conclusions, the validity of which was affirmed by Miss Gardner, are copied below.

Miss Gardner testified:
“A * * * We consider each year a separate entity. The taxes, returned premiums and all are for one year. At the end of the year, if the returned premiums are greater than the direct premiums, there is no tax, but there is no carry-over. Each year is a separate entity unto itself.”

Miss Gardner also testified that if in any calendar year the returned premiums exceeded the gross premiums that no tax was owed and no tax credit was allowed or carried forward or backward, and no refund was made. She further testified that since 1953 she had checked about 9000 tax returns filed under this statute and that less than two or three requests per year were made for refunds under these circumstances.

It is, as stated, our opinion that the departmental practice under this statute affirms its ambiguity.

There is no authority in the statute for a refund of a tax overpayment. Neither is there authority in the statute for a tax credit. If it is legal to give one, it is legal to give the other. Certainly, a rule of fairness requires that if a credit is allowed for a tax overpayment, a refund of such overpayment should be made. The financial impact upon the State and the taxpayer are identical in each instafice.

We believe that the department is correct in considering each calendar year a separate entity in the assessment and calculation of taxes due under this statute. We differ only in the method of treating the business transacted by the taxpayer. The department operates on a simple income and outgo basis, within the taxable year, as far as premiums are concerned. The State never loses under this practice, but frequently the taxpayer does. If a taxpayer pays more taxes than he justly owes, this is unfair; and no ambiguous statute should be construed to bring about this result.

Our view of the statute is that it should be construed to apply to each individual risk assumed by the insurance company for which a premium is charged. In this manner, the State will receive and the taxpayer will pay the tax due on the net premium retained by the company. This is all that the statute contemplates. It, of course, cannot be assumed that any premium returns will be made, and insurance companies will continue to report and pay the tax due on all premiums received, less such refunds as may have been made before report time, and subject to their right to credit or refund for premiums subsequently returned.

Believing that Art. 7064 is ambiguous to the extent indicated, we have construed it to achieve its purpose, and in a manner fair and equitable to both the State and the taxpayer. We have been aided in this construction by the departmental practice and construction. We have followed the principle established by the department in allowing credit on taxes subsequently accruing for return of premiums collected in a prior year. We have merely made a practical extension of this principle so as to include a cash refund of such overpaid taxes. The method of making such refund except, as here, by suit authorized by the Legislature, is not before us.

The judgment of the Trial Court is affirmed.

Affirmed.

PHILLIPS, J., not sitting.

      . Appellee does not complain of the amount of the judgment.

      . The rate of tax may be reduced under other provisions of the Statute, as here, to 1.1%.

      . The parties concede that the taxable year is a calendar year.

      . Assume taxable premiums in 1959 were $200,000.00. Assume rate 1%. Tax would be $2,000.00. Assume taxes were paid when report filed on or before March 1, 1960.
      Assume premiums during 1960 were $200,000.00, but return premiums made in 1960 on 1959 policies amounted to $50,000.00.
      The 1960 taxes would be 1% of $200,-000.00, or $2,000.00 but a credit of 1% of $50,000.00, or a credit of $500.00, would be allowed, so that the tax to be paid on or before March 1, 1961, would be $1,500.00.
      Assume that the premiums from policies written in 1960 were $50,000.00, but return premiums made in 1960 on 1959 policies amounted to $30,000.00.
      The 1960 taxes would be 1% of $50,-000.00 on written premiums, or $500.00, but a credit of 1% of $50,000.00, or $500.00, would be allowed, so that there would be no tax due or payable when the company files its 1960 report on or before March 1, 1961.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    WILSON COUNTY PEANUT COMPANY et al., Appellants, v. Marvin HAHN, Appellee.
    No. 14049.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1963.

      Bradford F. Miller, San Antonio, for appellants.
    Lee & Lee, Mason, for appellee.
   BARROW, Justice.

This is a venue action. Wilson County Peanut Company, a Texas corporation, having its principal office and place of business in Bexar County, Texas, is appealing from the order of the 33rd Judicial District Court of Mason County overruling its plea of privilege.

This suit was brought by Marvin Hahn against Wilson County Peanut Company and Nolan Donop. Wilson County Peanut Company filed its plea of privilege and Hahn filed a controverting affidavit seeking to maintain venue in Mason County under Subd. 29a of Article 1995, Vernon’s Tex. Civ.Stats. This plea was tried prior to the effective date of the 1962 amendment of Rule 86, Texas Rules Civil Procedure, and in view of the controverting plea containing facts that Wilson County Peanut Company was joined in this suit with Nolan Donop, a resident of Mason County, we will consider the application of Subd. 4 of Article 1995. Halbert v. Sylestine, Tex.Civ.App., 292 S.W.2d 135, no writ history; Longhorn Trucks v. Bailes, Tex.Civ.App., 225 S.W.2d 642, mandamus overruled.

The necessary venue facts to be established under Subd. 4 are: that Nolan Donop resides in Mason County; that Wilson County Peanut Company is a proper party to the claim against Donop; and that Hahn has a bona fide cause of action against. Donop. Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347. In our opinion, plaintiff failed to establish a bona fide cause of action against Nolan Donop. This failure would defeat venue under either Subd. 4 or Subd. 29a. Further, Wilson County Peanut Company is not a “necessary” party in plaintiff’s suit against Donop, as required under Subd. 29a. Boggus Motors, Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957, writ dismissed.

Plaintiff alleged that on or about June 20, 1961, he purchased 2750 pounds of certified peanut seed from the defendants and that a large part of same failed to germinate, come up and produce a crop. Plaintiff alleged that the Wilson County Peanut Company, by written certificate, guaranteed that more than 90% of the seed would germinate and produce healthy plants. He further alleged that Donop made the same guarantee, and further guaranteed that such seed would produce more peanuts than ordinary peanut seed, due to their high quality. Plaintiff alleged that he relied upon the promises and guarantee of the defendants; and that 2300 pounds of the seeds were faulty and failed to produce plants.

The evidence was undisputed that Donop sold the seed as the commission agent of Wilson County Peanut Company. Donop testified that the representations made by him were given to him by the Wilson County Peanut Company and that he, in good faith, believed they were true. Donop had nothing to do with the raising or processing of the seed and, in fact, sold the seed in the same bags it was delivered to him. by the Wilson County Peanut Company. Plaintiff, Hahn, testified that Donop had nothing to do with the raising, processing or certifying of the seed. Plaintiff ad-, mitted that Donop was speaking in good faith when he made the representations about the seed. Hahn did not claim that Donop had damaged the seed in any way.

The rule in this State is that where an agent merely repeats the warranty of the principal when undertaking to sell a chattel, only the principal will be held liable thereunder, and the agent is not deemed to be personally responsible in the absence of good faith. Ford Motor Co., Edsel Division v. Boatman, Tex.Civ.App., 345 S.W.2d 782, no writ history; McCoy v. Wichita Falls Motor Co., Tex.Civ.App., 207 S.W. 332, no writ history. The exceptions to this general rule are set forth by the Supreme Court in Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946. It was there held that there are four exceptions to the rule that one who contracts as agent cannot maintain an action, in his own name and right, upon the contract: (1) where the agent contracts in his own name; (2) where the principal is undisclosed; (3) where the agent is authorized to act as-owner of the property; (4) where the agent has an interest in the subject-matter of the contract.

Plaintiff, Hahn, recognizes this rule,, but asserts that the fourth exception applies-in this case, in that Donop had an interest in the subject matter of the contract. It is clearly set forth in Tinsley v. Dowell, supra, that the interest which the agent has must not simply be in the contract, or-ín the proceeds to be derived from it; it must be an actual interest in the subject matter itself. The evidence in this case-does not reveal any such interest by Donop, who admittedly was merely acting as the-commission agent of Wilson County Peanut Company. San Jacinto Rice Co. v. A. M. Lockett & Co., Tex.Civ.App., 145 S.W. 1046, no writ history.

The judgment is reversed and plaintiff Hahn’s cause of action against defendant Wilson County Peanut Company is ordered transferred to Bexar County, Texas, as provided in Rule 89, T.R.C.P.


author: BELL, Chief Justice.

text:
    Stella EHRHARDT, Appellant, v. Charles EHRHARDT, Jr., Executor of the Estate of J. G. Ehrhardt, Deceased, Appellee.
    No. 14068.
    Court of Civil Appeals of Texas. Houston.
    Jan. 24, 1963.
    Rehearing Denied Feb. 14, 1963.
    Stella Ehrhardt, pro se.
    No appearance for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court sustaining appellee’s plea in abatement and dismissing a petition for bill of review filed by appellant.

There is no statement of facts and there is little in the transcript that is helpful to the Court. Our disposition of this appeal is based on our understanding- of the case as shown by the transcript and the unchallenged statements of appellant in her brief. Appellee has filed no brief and did nor orally argue the case. We are in such case authorized to accept as true unchallenged statements made in appellant’s brief. Rancher v. Franks et al., Tex.Civ.App., 269 S.W.2d 926, no writ hist.; Rule 419, Texas Rules of Civil Procedure.

From the meager transcript and appellant’s brief it is shown that the will of J. G. Ehrhardt was admitted to probate in the Probate Court of Harris County November 22, 1955. Thereafter, on November 23, 1956, a contest was filed, apparently by appellant. On January 29, 1957, judgment was rendered in the Probate Court that appellant take nothing by her suit. Her contest is bound to have been a suit to set aside the order admitting the will to probate because it had been admitted to probate before any contest was filed. Appellant excepted to the judgment of January, 1957, and gave notice of appeal to the District Court.

On September 23, 1958, according to a judgment signed December 30, 1958, the cause came on to be heard, it being recited in the judgment that it was an appeal from the order of the Probate Court dated November 22, 1955, admitting the will of J. Gottlieb Ehrhardt to probate. It is then recited that the parties, including appellant and her attprneys, appeared and appellant declined to offer any evidence and moved to dismiss the appeal. The court then made a docket notation that the cause was dismissed on appellant’s motion. Thereafter, on October 3, 1958, a motion was filed by appellee contending that the dismissal of the appeal by appellant was really an involuntary one and asked for a judgment of dismissal with prejudice. A hearing on this motion was set for October 20, 1958 and at such hearing on that date the court ruled he would hear and consider additional evidence notwithstanding appellant’s motion to dismiss her appeal. October 27, 1958 was the date set for hearing evidence. On October 27 the hearing was held. The court’s judgment recites that appellant and her counsel were present and objected to hearing evidence because thirty days had expired since the dismissal of the appeal. The court proceeded to hear evidence and then entered a judgment probating the will. Appellant gave notice of appeal. She did not perfect her appeal to this Court. The judgment was rendered October 27 and was signed December 30.

Two years later, on December 30, 1960, appellant filed her petition for bill of review. Appellee filed his plea in abatement, setting up the failure of appellant to perfect her appeal from the above judgment of the District Court admitting the will to probate. The -court sustained the plea in abatement and dismissed the petition for bill of review. It is an appeal from this order of dismissal that is before us.

It seems to us that while the appellee’s dilatory plea was called a “plea in abatement” it was actually a special exception going to the substance of the pleading. Under the particular facts involved here, however, we think this makes no difference because appellant makes no complaint of this procedure.

Most of appellant’s points of error cannot be considered by us. We will, however, notice two of such points because under a most liberal construction of the rules of civil procedure they may be sufficient.

The petition for bill of review in attacking the judgment signed December 30, 1958, stated it was void because rendered October 27, 1958, more than thirty days after the dismissal of her appeal. Appellant raises this point by a point of error.

Also appellant asserts by point of error that the court erred in not giving her a jury trial on the issue of fraud. We will construe it as a complaint that the court did not hear her bill of review.

The judgment of October 27, 1958 was-not void.

Appellant’s attack m the Probate Court was not to resist probate of the will when it was offered for probate but was through a new suit under Section 93 of the Probate Code, V.A.T.S., to set aside the order of the Probate Court admitting the will to probate. She was therefore attacking a solemn judgment of a court. She there had the burden of proving the invalidity of the will, the validity standing proven as evidenced by the judgment of the court. Crane v. Pierce, Tex.Civ.App., 257 S.W.2d 510, writ ref., and authorities there cited. When appellant appealed to the District Court from the order refusing to set aside the judgment admitting the will to probate, the burden remained on her to establish the invalidity of the Probate Court’s judgment admitting the will to probate by proving the will was invalid. Crane v. Pierce, supra, and authorities there cited. When she moved the court to dismiss her appeal and introduced no evidence supporting her contest and the court granted the motion, this constituted an abandonment of the suit. Sorrell v. Stone, 60 Tex.Civ.App. 51, 127 S.W. 300, writ ref.; Cannon v. Willis, Tex.Civ.App, 130 S.W.2d 920, writ ref.; Scheetz v. Bader, Tex.Civ.App, 251 S.W.2d 427, writ ref.; Turner v. Jackson, Tex.Civ.App, 256 S.W.2d 127, writ ref. While these last cited cases were situations where the contestant in a suit to set aside a judgment probating a will had failed to introduce evidence in the probate court, the principle applicable is the same where the probate court has refused to set aside its judgment and on appeal the contestant in the district court dismisses the appeal. In each case it is an instance in which the contestant abandons her attack on a judgment of the probate court and thus leaves standing the solemn judgment of a court. The will stands admitted to probate.

While in this case the District Court •unnecessarily went forward and allowed proof of the validity of the will, the judgment added nothing to the probating of the will. However, when we construe all the provisions of the District Court’s judgment, particularly that reciting a dismissal of the appeal by appellant, it at least constitutes a reduction to writing of the court’s action in allowing a dismissal of the appeal, and serves as a certification to the Probate Court of the action in the District Court, the effect of which is to notify the Probate Court that its judgment admitting the will to probate is in full force and effect.

There was nothing alleged in appellant’s petition for bill of review which if proven on trial could affect the judgment attacked. The Court did not therefore, err in refusing to hear evidence on such petition.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    WEBB MATERIALS, INC., Appellant, v. Bateman Bell LACEY, Jr., Appellee.
    No. 14036.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.

      Mann, Fisher & Castillon, Laredo, for appellant.
    Gerald Weatherly, Laredo, Will Wilson, Atty. Gen., Joe A. Osborn, Ben M. Harrison, Asst. Attys. Gen., Austin, for appellee.
   POPE, Justice.

This is a double appeal. Plaintiff, Bate-man Bell Lacey, Jr., sued Webb Materials, Inc., for damages and rescission of a lease upon grounds of fraud. The jury found the elements of fraud, and the court awarded Lacey $1,750.00 damages. Webb Materials appeals from that judgment, which we must reverse because there is no proof of damages. Lacey appealed from the judgment because the court refused to order a rescission. We affirm that part of the judgment. The State of Texas intervened to claim ownership of an island in the Rio Grande and, upon jury findings, prevailed. Lacey appealed from that judgment. We affirm that part of the judgment.

We shall first discuss the appeal by Webb Materials from the money judgment against it. On August 4, 1959, Lacey was about to execute a lease from himself to Webb Materials. The lease described an •eight-acre tract on the Rio Grande River, north of the City of Laredo, and was for a rental of $360.00 per year. It was to terminate in five years, with options to renew for two like terms. Webb Materials used the leased tract for its gravel business but did not mine any materials from that tract. It did, however, mine gravel from the island. Lacey urged that the lease was induced by fraud, because Webb Materials •expressly represented that it would mine no gravel from the nearby island which Lacey, Sr., claimed to own. The jury found that these fraudulent representations were made and were relied upon.

Webb Materials attacks the jury findings that it fraudulently induced Lacey to execute the lease. We need not examine all of those grounds, because in any event, Lacey did not prove any damages caused by the fraud. “Damages” was obscurely defined, but the term was apparently intended to mean the difference between the reasonable rental value of the leased tract used for the purposes represented and the reasonable rental value of the land for the use to which it was actually put. We fail to find any proof of the latter element.

The reasonable rental value of the land, if Webb Materials had made known that it intended to mine gravel from the island in the river, was not proved. Lacey, the lessor, testified that he would have charged more if he had known Webb Materials’ true intent. Beyond that he provided no evidence. Lessor’s father, Bateman Bell Lacey, Sr., testified that the tract had always been used for farming and pasturage until this lease was made to Webb Materials. He said that he would have advised his son not to lease the tract for $30.00 a month, or $360.00 a year, if he had known that Webb Materials was going to mine gravel from the island. This does not prove the rental value of the leased tract. Ross Watkins, vice-president of Webb Materials, testified that the company had previously used a site owned by another person, inside the City of Laredo, free of charge, until the dust and operations became so distasteful that the owner asked the company to move. After the company was asked to move, a charge of $150.00 per month was made, and the company then left. This is no proof of the rental value of Lacey’s eight-acre country tract several miles away. T. A. Bunn, a realtor, testified that the market value of the Lacey tract was a maximum of $1,600.00. He did not testify about rental values. If there is any evidence of rental values, we have failed to find it in the record. The jury reached its verdict by speculation, not from evidence, and the judgment for damages must be reversed.

The trial court correctly denied plaintiff’s prayer for rescission. One who enters into a contract that is induced by fraud, and who after knowledge of the fraud accepts the benefits of the contract, waives the right of rescission. Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506; Powell v. Rockow, 127 Tex. 209, 92 S.W.2d 437; Grabenheimer v. Blum, 63 Tex. 369; Witherspoon Oil Co. v. Randolph, Tex.Com.App., 298 S.W. 520; J. B. Colt Co. v. Head, Tex.Com.App., 292 S.W. 198; Roy Klossner Co. v. McIntire, Tex.Civ.App, 301 S.W.2d 197; 26 Tex.Jur. 2d, Fraud & Deceit, § 89. Plaintiff waived his right to rescission. The contract was executed on August 4, 1959. Within sixty days after he signed the lease, he knew the facts upon which he grounds his fraud. At that time he had collected the first and last years’ rentals in advance, and did not tender them back nor take any steps to dis-affirm. Webb Materials’ operations were open and plaintiff saw them all. He knew a bridge was built from the mainland to the island, that scores of trucks operated to haul thousands of loads of gravel from the island. In 1960 he received another year’s advance rental. In 1961 he did the same. He said nothing about rescission, even when he filed his original petition. He asserted grounds for recovery of damages based on waste and surface damage only. It was not until December 12, 1961, that fraud and rescission were mentioned. He did this in his amended petition. For more than two years, plaintiff accepted all the benefits under the contract after he was in possession of the facts which he claims were fraudulent inducements. See, Anderson v. Wise, Tex.Civ.App., 345 S.W.2d 803, affirmed, Wise v. Anderson, Tex., 359 S.W.2d 876.

The final point in the case concerns the claim to a forty-acre island in the Rio Grande River. Lacey, Sr., conveyed this island to Lacey, Jr., after the date of the lease to Webb Materials. The State of Texas intervened to assert ownership of the tract as an island. Whether the tract was or was not an island is the issue upon which the parties met in the trial court. Both tried that issue upon theories of the common law. While this Court has some doubts whether the common law applies instead of the Spanish Law, this appeal will be determined by the same common-law theory upon which the case was tried. State of California Dept. of Mental Hygiene v. Bank of Southwest Nat. Ass’n, Tex.Civ.App., 354 S.W.2d 576, 581; Sorrells v. Coffield, 144 Tex. 31, 187 S.W.2d 980. Moreover, plaintiff, Lacey, proved and relied only upon patents from the State in 1852 and 1879. The trial court first asked the jury whether, at the time the patents were issued, the island was formed on part of the bed of the Rio Grande. The court also asked, as plaintiff, Lacey, contended, if the island was formed by digging and blasting a channel between the island and the mainland. It was Lacey’s contention that the island arose in the river after the date of the patents, and attached itself to the bank which he owned, and that he owned the forty-acre tract. The jury found instead, that the island had already formed in the bed of the river at the time of the patents. Lacey also contended that the “island” was in fact a peninsula attached to his eight-acre tract, and that an island was artificially created by digging a channel between it and the river bank. In our opinion, the finding that the island was not artificially created is supported by the evidence, and the finding is not against the great and overwhelming weight of the evidence.

The real controversy below, and in this Court, was over the trial court’s issue about the island rising in the river bed. The parties disagreed about the proper definition of “island.” The court, on State’s request, defined “bed of the Rio Grande” in this manner:

“The ‘bed of the Rio Grande,’ as used in this charge, is meant that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean state during an entire year, without reference to extra freshets of the winter or spring or the extreme drouths of the summer or autumn.”

Lacey objected and requested this definition of “island”:

“The term ‘island’ as here used, means that the same must be of a permanent character, not merely surrounded by water when the river is high, but permanently surrounded by a channel of the river, and not subject to overflow by a rise in the river and connected with the land when the water is low.”

City of Victoria v. Schott, 9 Tex.Civ.App. 332, 29 S.W. 681, is authority for the proposition that islands in the bed of a river at the time of the grant, as well as those arising in the bed thereafter, belong to the State. The definition used by the court was first stated in Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, and was re-affirmed in Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144. We consider the trial court’s-approach in accord with accepted definitions. From the two jury findings, therefore, the island was neither included in the original patent, nor was it artificially created by excavations.

We have examined the other points and overrule them. That portion of the judgment which awarded Lacey damages grounded upon fraud is reversed, and rendered that Lacey take nothing. In all other respects the judgment is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Annie Mae McGOWEN, Appellant, v. Almarine McGOWEN et ux., Appellees.
    No. 6527.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 10, 1963.
    James E. Faulkner, Coldspring, for appellant.
    J. Edwin Smith, Houston, for appellees.
   HIGHTOWER, Chief Justice.

By Bill of Review, Annie Mae McGowen sought to set aside a judgment in favor of Almarine McGowen and wife for the adoption of two minor girls. She has appealed from an adverse judgment.

Appellant is the natural mother of the children in question, Alma Dean, eight years, and Robin Gina, eighteen months. Appellee and wife, grandparents of the two children, obtained a judgment for their adoption in Cause No. 5161, styled Alma Dean McGowen and Robin Gina McGowen, minors, in the Ninth District Court of San Jacinto County on May 20, 1961.

Appellant first urges error of the court in failing to set aside the judgment of adoption because the children had not lived in appellees’ home six months prior to adoption, and because the affidavit of consent for adoption was only sworn to instead of acknowledged in conformity with Art. 46a, sec. 6, Vernon’s Ann.Civ.St.; because as a matter of law appellees were too. old to adopt the children.

Sec. 6 of Art. 46a, supra, provides that a consent for adoption * * * “shall be sufficient if given in writing * * * and duly acknowledged, * *

In view of the action taken by the Supreme Court in Wilde v. Buchanan, 157 Tex. 606, 305 S.W.2d 778, where a similar affidavit of consent was involved, it is our opinion that the affidavit of consent herein was such a substantial compliance with the statute and article thereof aforesaid as to justify the trial court’s action in refusing to set aside the adoption on such grounds.

We do not think the court erred in regard to appellant’s contentions regarding the requirement of six months residency of the children. It is undisputed that the youngest had lived continuously in appel-lees’ home since it was one and one-half months of age. The testimony is contradictory on the residency of the older child, but the court had the authority to, and did, resolve such conflict in favor of appellees, and we uphold its action. Nor can we sustain appellant’s contentions that appellees were too old to adopt the children as a matter of law. They were respectively sixty-six and forty-nine years of age at the time of adoption. Whether they were too old was a matter resting within the sound discretion of the trial court, and there is no contention that such discretion was abused. We think that is essentially the holding of the Supreme Court on this point in Davis v. Collins, 147 Tex. 418, 216 S.W.2d 807.

We make the same holding in connection with appellant’s contentions that ap-pellees were morally and financially unfit. There was no evidence of probative value that appellees were immoral people, and although appellees’ income per year was slightly below that of appellant’s, and they were supporting four other children as well, we cannot say the court abused its discretion in upholding the adoption.

Lastly, appellant contends that the judgment of adoption was void as having been rendered when the court was in vacation on May 20, 1961. The point is without merit. Since January 1, 19S6, the Ninth District Court of San Jacinto County has been a continuous term court. Art. 1919, V.A.C.S.

Affirmed.


author: McDONALD, Chief Justice.

text:
    EMPLOYMENT ADVISORS, INC., Appellant, v. W. P. SPARKS, Jr., Appellee.
    No. 4080.
    Court of Civil Appeals of Texas. Waco.
    Jan. 24, 1963.
    Rehearing Denied Feb. 14, 1963.

      William R. Pakis, Waco, for appellant.
    David G. Copeland, Waco, for appellee.
   McDONALD, Chief Justice.

This is a suit by a landlord against a tenant for breach of a written lease contract to rent certain premises. A 3 year lease for the period 1 June 1960 through 31 May 1963 was entered into between Employment Advisors, Inc. as Lessee, and Sparks as Lessor. Such lease provided for a total rental of $3240. for the 36 months term, payable at the rate of $90., in advance, each month. Employment Advisors, Inc. paid their rent at the rate of $90. per month for 11 months, and then vacated the premises on 1 May 1961, and have paid no further rent.

Plaintiff lessor sued for breach of the lease agreement, seeking as damages the unpaid portion of the rental, plus attorneys’ fees.

Defendant plead (among other things) that plaintiff failed to remodel the premises according to agreed plans and specifications.

Trial was to a jury which found:

1) Plaintiff had received from the property, after 1 May 1961 to the date of trial, after use of due diligence, $240.
2) Plaintiff will receive 0 for use of the property, after use of due diligence, from date of trial to 1 June 1963.
3) Plaintiff did not fail to remodel the premises in accordance with agreed plans and specifications.

The Trial Court rendered judgment stating that it made all other necessary findings and facts to substantiate its judgment, and awarded plaintiff’s judgment against defendant for $2010, (the unpaid amount due under the lease less the amount of $240. received from the property after 1 May, 1961), plus $201. attorneys’ fees.

Defendant appeals, contending:

1) Plaintiff failed to prove any damages resulting from breach of the lease agreement.
2) There were no jury findings of damages suffered by plaintiff.
3) There was no evidence or insufficient evidence to support the findings of the jury.-
4) Defendant was entitled to an instructed verdict or judgment non obstante vere-dicto.
5) It was error to submit Issue 2, or to award damages for rents beyond the date of the trial.
6) There was no evidence, or insufficient evidence, to sustain Issue 2.
7) 8) 9) It is undisputed that plaintiff failed to remodel in accordance with agreed plans and specifications; and that the adjoining premises were rented to a tenant who created offensive noises which justified defendant’s vacation of the premises; to plaintiff’s damage of $630.

Defendant’s Points 1 through 6 involve the proper measure of damages under the factual situation presented,, as well as the evidence to support such damages. The record is without dispute that plaintiff leased the premises to defendant for 36 months for $90. per month; that defendant moved out after 11 months and made no further rental payments. We are thus confronted with both a breach of contract by defendant as to the rental payments past due at the time of suit, and anticipatory breach of contract as to payments not yet due. Where there is an anticipatory breach of contract, the party not in default may treat the other party’s repudiation of the agreement as a wrongful termination of the contract, and at once institute an action for damages as for a breach. The damages recoverable are those that would have been recoverable if the party guilty of the anticipatory breach had waited until the appointed time for performance before breaching the agreement, and they are subject, of course, to the usual rules concerning mitigation of damages. Furthermore, they may be recovered as of the date on which the defaulting party’s repudiation of the contract is accepted. 13 Tex.Jur.2d p. 574; Greenwall Theatrical Circuit v. Markowitz, 97 Tex. 479, 79 S.W. 1069; Pollack v. Pollack, Tex.Civ.App., 23 S.W.2d 890, Tex.Com.App., 39 S.W.2d 853; Marathon Oil Co. v. Rone, Tex.Civ.App., Er.Ref., 83 S.W.2d 1028; Marathon Oil Co. v. Edwards, Tex.Civ.App., Er.Dism., 96 S.W.2d 551; Stewart v. Kuskin & Rotberg Inc., Tex.Civ.App., (n.w.h.) 106 S.W.2d 1074; Stewart v. Basey, Tex.Civ.App., 241 S.W.2d 353, Affmd. 150 Tex. 666; 245 S.W.2d 484. In the Edwards case, supra, the Court held:

“ * * * they (plaintiffs) had the right, * * * after the breach of the contract and abandonment of the premises by defendants, to sue for compensation for the injury sustained, and the proper measure of their damages is the difference between the contract price for the whole period and such sum or sums as they may have received by way of rentals from third parties, after the use of due diligence to obtain tenants.”

Moreover, the burden is on the party occasioning the loss to show that the other party could have mitigated the loss. Polis v. Alford, Tex.Civ.App., Er.Ref., 273 S.W.2d 79. In the Polis case the court held:

“The burden of proving that losses could have been avoided by reasonable effort must always be borne by the party who has broken the contract.”

The record before us reflects that plaintiff did rent the premises for a short time after breach of the contract by defendant and received some $240. in rent therefor. Credit for this amount was given to defendant in mitigation of plaintiff’s damages by reason of defendant’s breach of contract.

Under the record before us, we think the proper measure of damages was applied; that there is ample evidence to support the judgment awarding damages to plaintiff. Points 1 through 6 are overruled.

Defendant’s Points 7 through 9 complain that plaintiff failed to remodel in accordance with agreed plans and specifications, for which reason defendants were justified in vacating the premises. Defendant contended and put on evidence that plaintiff had failed to remodel according to plans and specifications which called for the offices to be sound proofed; that because the offices were not sound proofed, noises created by an adjacent tenant rendered the premises untenable to defendant and justified its removal from the premises. While the evidence on this conflicted, we think that the jury’s finding on Issue 3 is supported by ample evidence. Points 7 through 9 are overruled.

The judgment of the Trial Court is affirmed.


author: FANNING, Justice.

text:
    Vauda ANDERSON et al., Appellants, v. C. R. COKER et al., Appellees.
    No. 7475.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1963.
    Rehearing Denied Feb. 5, 1963.
    William Andress, Jr., Virgil R. Sanders, Sanders, Nolen & Stevenson, Dallas, W. D. Brown, Quitman, for appellants.
    Jones & Jones, Mineóla, Woodrow Edwards, Mt. Vernon, for appellees.
   FANNING, Justice.

Appellants by what they term as “a highly informal bill of review” attacked a trespass to try title judgment rendered in 1954 by the District Court of Wood County, Texas, wherein Joseph B. Coker recovered judgment against Cecil R. Coker for the title and possession of 80 acres of land in Wood County, Texas. Trial was commenced before a jury. Upon the close of appellants’ testimony the trial court instructed the jury to return a verdict for appellees. Judgment was rendered for ap-pellees that appellants take nothing. Appellants have appealed.

The record in this case is meagre. Appellant Vauda Coker Anderson (the former wife of Cecil R. Coker) testified and appellants introduced in evidence certain exhibits.

In Sedgwick v. Kirby Lumber Company, 130 Tex. 163, 107 S.W.2d 358, it is stated in part as follows:

“It is the settled law of this state that a person who has been injured by a judgment may, at a subsequent term of court, institute a suit to set it aside and retry the original case. Such a proceeding is an equitable one, the essential elements of which are that the party seeking to set aside such former judgment must allege and prove that it was obtained through the wrongful conduct of the opposite party, unmixed with the fault of the complainant, and, further, it must be alleged and proved that the plaintiff has a meritorious defense or offense which, if heard, would bring about a different result. Winters Mutual Aid Ass’n v. Reddin (Tex.Com.App.) 49 S.W.(2d) 1095; and authorities there cited. In this connection, the party seeking to set aside the former judgment must, among other things, plead and prove fraud, accident, or mistake in the procuring of the former judgment. Humphrey v. Harrell (Tex.Com.App.) 29 S.W.(2d) 1963.”

An examination of the meagre record before us reveals that appellants failed to present any evidence of probative force to show that they had a meritorious defense to the trespass to try title judgment attacked by them which, if heard, would bring about a different result.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Peter STACK, dba Texas Sales Engineering Company, Appellant, v. Marlin Q. BOND, Appellee.
    No. 11036.
    Court of Civil Appeals of Texas. Austin.
    Jan. 23, 1963.
    Rehearing Denied Feb. 13, 1963.
    Townes & Townes,- Houston, for appellant.
    Abney, Hammett & Lynch, Philip McConnell, Lampasas, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court in favor of appellee for $3,-225.00, growing out of a suit filed by ap-pellee against appellant to recover such amount as a refund of the down payment on a contract for the purchase of car wash equipment from appellant, for installation at Temple, Texas.

■ The purchase order contract contains the following' provisions:

“In event Customer cannot get financing for equipment or suitable site for business, Seller agrees to refund full down payment less $500.00 for complete set of blueprints.”

Appellee, as plaintiff, alleged, relying on the provision that the contract was conditioned upon plaintiff being able to obtain certain financings and a suitable site, and that after diligent effort he was unable to obtain such financing, and unable to acquire a suitable site for the business using such equipment.

The appellant, as defendant, in answer alleged that plaintiff merely changed his mind and attempts to avoid the contract and had breached and failed to comply with the contract, and that the quoted provision did not become applicable. Further answer was that defendant had made arrangements whereby the purchase could be financed and would assist in the location of a suitable site, but was assured by plaintiff that he had his own financing and did not, until after he had changed his mind, refuse to afford defendant an opportunity to conclude such arrangements. The defendant pled waiver by and estoppel of plaintiff, and for offset against any judgment the court might render.

The appeal is predicated on eight points and are to the effect that neither of the conditions prerequisite to recovery existed, and plaintiff was not entitled to recover on the theory that he could not get financing for the equipment, since by the evidence there was no such problem, and because the undisputed evidence shows that plaintiff selected a site, and the same is still available, and that the question of financing the construction of a building did not constitute a condition in the purchase contract; that there were other sites suitable for the car wash business available in Temple; that the plaintiff did not notify defendant of his inability to secure a site or construct- a building to enable defendant an- opportunity ■to get a different site, and the court should ■have allowed defendant a setoff for expenses, etc.; and finally the judgment of the trial court is so contrary to the great weight and preponderance of the evidence as to be clearly wrong, and the court erred in rendering the judgment.

The appellee, Bond, made investigation concerning the car wash business over a period of several months and located a site in Temple at 23rd and West Adams prior to dealing with, appellant Stack, who told Bond that he would assist in locating a site.

Plans for a building suitable to the car wash business were drawn at the request of Stack, and the purchase order was prepared by Stack to ship the equipment to Bond at West Adams and 23rd Streets, Temple, Texas (which order contained provision for financing as above set out). Stack told Bond, at the time of the order, that he had means of financing the equipment but that it would be to the advantage of Bond to get local financing. The witness Stack testified fully as to his experience in the car wash business, in selling and installing such equipment, and looked at locations of required area with Bond. Bond testified as to conversations with Mr. Brooks and as to drawing of plans.

Mr. Brooks the owner of a site at 23rd and Adams secured bids for the construction of a building but was unable to secure financing. This witness testified that he had been unable to complete negotiations with Bond before the purchase order was signed and that Stack knew that the availability of the Brooks’ site depended on whether he could finance the construction of the building.

The site appears to have been adequate if it had had buildings and other improvements to' make it ■ suitable for the installation of the equipment.

Mr. Bond testified as to his actions in trying to get a location and being unable to secure a location and of a conversation with Mr. Stack in Copperas Cove at which time he asked for a refund and: that Mr. Stack told him that the money could not he given back because equipment had been ordered and would have to be sold before he could give the money back and that at least 30 days would be required to sell the equipment, and some time later Bond saw Stack in Killeen who said it would not be much longer before he could sell it, but that the refund had not been made. Extensive further testimony was given by Bond on both direct and cross-examination, but it is concerned with the action of the parties hereto, and has been substantially recited herein and we will not review it further.

’ Witness Brooks testified to a discussion with Stack over the refunding of the money, in the event Bond could not obtain financing or suitable site, that Mr. Stack said that he was not running a cut-throat company and if Bond could not use the merchandise he did not want to sell him something he could not use.

The judgment of the trial court is supported by the record and we believe that the court was justified in holding as it did and in rendering the judgment in view of the terms of the purchase order and of the evidence in the case and that the order was contingent on Bond being able to secure a suitable site for the business. Contingent means “dependent for effect on something that may or may not occur”. Shaper et al. v. Gilkison, Tex.Civ.App., 217 S.W.2d 878, er. ref. N.R.E.

Under the terms of the contract Bond was made the sole judge of the suitability of a site. The seller was Stack, and that was his sole responsibility and authority. Fred v. Ledlow, Tex.Civ.App., 309 S.W.2d 490, 491, er. Ref. and cases cited therein.

There can be no waiver or estoppel, since the purchase order made provision for financing and securing of a suitable site and appellant had full knowledge of all facts, and was not induced by and relied on representation or conduct of appellee.

The purchase agreement provided for the retention of $500 to cover expenses of blue prints and other expenses which seller would incur and such was allowed by the court. 31 C.J.S. Estoppel § 71, p. 269; Nelson v. Wilson, Tex.Civ.App., 97 S.W.2d 287, er. ref.; Nance et al. v. Currey, Tex.Civ.App., 257 S.W.2d 847, no writ history.

The judgment of the trial court is affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    Mrs. Grace DRESSEL et vir, Appellants, v. Mrs. Lois ANDERSON et vir, Appellees.
    No. 7459.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1963.

      Alfred H. Summers, Palestine, for appellants.
    B. R. Reeves, Palestine, for appellees.
   DAVIS, Justice.

This is an action for damages by plaintiffs-appellants, Mrs. Grace Dressell and husband, William V. Dressell, against defendants-appellees, Mrs. Lois Anderson and husband, K. A. Anderson, as the result of a collision that occurred in Anderson County on April 28, 1961, between the son of appellants and the appellee, Mrs. Lois Anderson.

The case started to trial before the court, without a jury, and the plaintiffs-appellants called the defendant-appellee, Mrs. Lois Anderson, as a witness. They did not call her as an adverse witness, but apparently relied upon the provisions of Rule 182, Vernon’s Ann.Tex. Rules Civil Procedure. At the conclusion of her testimony, the appellees moved for a judgment. The appellants objected and notified the court that they had seven more witnesses they wished to use, but the court went ahead and entered a judgment. The appellants have perfected their appeal and bring forward seven points of error.

Without discussing the various points, it seems that justice demands that this case be reversed and remanded to the trial court. 4 T.J.2d 502, Sec. 901; Victory et al. v. Hamilton et al., 127 Tex. 203, 91 S.W.2d 697, op. approved by the Sup.Ct; 41-b T.J. 61, Sec. 37; 41-b T.J. 136, Sec. 105.

In Willingham v. Kindy (Tex.Civ.App.), 203 S.W.2d 991, N.W.H., where a deposition of an adverse party was offered in evidence, it was unnecessary for them to state that it was offered under the provisions of Rule 182, which would have been a useless formality. In Mundy et ux. v. Stiles (Tex.Civ.App.), 257 S.W.2d 750, W.R., N.R.E., the court held that positive testimony, standing alone, would not support a directed verdict, and reversed and remanded the cause.

There were affidavits filed in support of a motion for new trial that would create a fact issue.

The case must be reversed and remanded to the trial court in order to serve the ends of justice. 4 T.J.2d 502, Sec. 900; Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775; D. C. Hall Transport, Inc., v. Hard, Tex.Civ.App., 355 S.W.2d 257, err. ref., n. r. e.

The judgment of the trial court is reversed and the case is remanded.


author: DIXON, Chief Justice.

text:
    Gil GRAY et al., Appellants, v. Boyd M. ARMSTRONG, Appellee.
    No. 16090.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 14, 1962.
    Rehearing Denied Jan. 18, 1963.

      Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellants.
    Gillespie, Gillespie & Robinson, Charles B. Robinson, Sherman, for appellee.
   DIXON, Chief Justice.

Gil Gray and Gil Gray Circus have appealed from an order overruling their pleas of privilege whereby they sought to have this cause transferred from Grayson County to Dallas County for trial.

Appellee Boyd Armstrong sued appellants and Ed Martin for damages because of personal injuries sustained in a collision in Grayson County between a large trailer truck alleged to be owned by appellants and a pickup truck operated by appellee. Appellants reside in Dallas County. Nevertheless appellee contends venue properly lies in Grayson County under subd. 9a of Art. 1995, Vernon’s Ann.Civ.St.

The statute provides that a suit based on negligence may be brought in the county where the act of negligence occurred. Plaintiff in order to invoke the Statute must establish by a preponderance of the evidence that (1) an act of negligence occurred in the county where suit was filed; (2) such act was that of the defendant in person or his servant, agent, or representative acting within the scope of his employment; and (3) such negligence was a proximate cause of plaintiff’s injuries.

Appellants’ four points on appeal may be boiled down to two contentions; that the trial court erred in overruling their objections to the testimony of Police Officer Bobby Lee Bell regarding' ownership of the truck and for whom operated; and that the court erred in overruling the objections of Gil Gray Circus to appellee’s request for admission and Gil Gray’s answers thereto as evidence against Gil Gray Circus.

The evidence shows that appellee Boyd M. Armstrong was driving a motor vehicle in the City of Sherman, Texas. He had stopped at an intersection because of a red traffic signal. While stationary his vehicle was struck from the rear by a large trailer truck which was transporting elephants— or at least one elephant. In a statement made within a few minutes of the collision Ed Martin, driver of the trailer truck, said that he attempted to stop, but his brakes failed to hold and he ran into the back of Armstrong’s pickup truck. Armstrong testified that he sustained injuries to his neck and back.

The testimony of which appellants complain was given by Bobby Lee Bell, a police officer for the City of Sherman. Bell testified that Ed Martin, driver of the trailer truck, stated to him that the trailer truck was owned by Gil Gray Circus. Appellants objected on the ground that the testimony was hearsay. Appellee contends that the court properly overruled appellants’ objection because admissible evidence shows that Bell arrived at the scene a few minutes after the collision, therefore, the statement of Martin is part of the res gestae.

We agree with appellants. The ownership of the trailer truck and for whom operated did not tend to explain in the least how or why the collision occurred, hence is no part of the res gestae. It is hearsay and has no probative value. Moreover, the fact of agency cannot be proved by declarations of an agent. Brown Express Co. v. Dieckman, Tex.Civ.App., 344 S.W.2d 501; Hill v. Moore, Tex.Civ.App., 278 S.W.2d 472, 480; Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 769; Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, 108. We sustain appellants’ third point on appeal.

Appellee filed requests for admissions directed to defendant Gil Gray. The latter admitted that on March 27, 1959, he was; the owner and operator of a business known as Gil Gray Circus, and that he owned an interest therein; his mailing address or the business address of Gil Gray Circus was 1612 S. Augustine Drive, Dallas, Texas; on March 27, 1959, Gil Gray Circus had title to certain trucks or at least one truck, used in the operation of said business; it was probably true that on March 27, 1959, he owned or had under his supervision a certain 1958 G.M.C. truck bearing Nebraska license tag No. 35-162, but that he had insufficient information to admit or deny the request; it was probably true that on said date Gil Gray Circus had title to the 1958 Model G.M.C. truck bearing Nebraska license tag No. 35-162, but that he had insufficient information to admit or deny the request; on said date Ed Martin was an employee of Gil Gray Circus; Ed Martin had as his duty as an employee of Gil Gray, or an employee of Gil Gray Circus that of driving a truck; on March 27, 1959, Ed Martin, as Gil Gray’s employee, or as an employee of Gil Gray Circus, departed from Dallas in Gil Gray’s truck, or in a truck owned by Gil Gray Circus, with a load of Circus animals.

With reference to nine requests in regard to details as to how the collision occurred, Gil Gray answered that he had insufficient information to admit or deny the requests.

It is significant that Gil Gray in answer to one question admitted that he was the owner and operator of a business known as Gil Gray Circus. True in answer to another request he gave a conflicting answer: he denied that the business known as Gil Gray Circus was not incorporated. In the face of these conflicting statements by the same witness, it was for the court, acting as the fact finder in this case, to resolve the conflict. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563; Durham v. I. C. T. Ins. Co., Tex. Civ.App., 283 S.W.2d 413, 415; Lynch Oil Co. v. Shepard, Tex.Civ.App., 242 S.W.2d 217. Since the court rendered judgment in favor of appellee Armstrong we must presume that fact issues were found in such way as to support the judgment.

In some instances Gil Gray’s answers are evasive. For instance, he was asked to admit that on March 27, 1959 he owned or had in his possession and control certain trucks or at least one truck used in the operation of Gil Gray Circus. To this he answered that the question was so confusing and multifarious that it could not truthfully be admitted or denied. Also he said it was probably true that on March 27, 1959, he owned or had under his supervision and control a certain 1958 Model G.M.C. truck bearing Nebraska license tag No. 35-162, but he had not sufficient information to admit or deny it. In each instance we think his response is so evasive as to amount to a failure to answer, and should be taken as confessed against him. Montgomery v. Gibbens, Tex.Civ.App., 245 S.W.2d 311, 315; Taylor v. Owen, Tex.Civ.App., 290 S.W.2d 771, 776; McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138, 140-141; Rule 169 Texas Rules of Civil Procedure.

Appellee Armstrong testified as to how the collision occurred and that he sustained injuries as a result. There is admissible testimony that Ed Martin was driving the trailer truck. Bobby Lee Bell, the police officer, testified that the trailer truck bore Nebraska license tag No. 35-162 and was a 1958 Model G.M.C. truck and that it had defective brakes. Even if we exclude the inadmissible testimony of Bell in regard to agency, the other testimony and the admissions made by Gil Gray in answering appellee’s requests for admissions meet the requirements of subd. 9a of Art. 1995, V.A.C.S., and support the court’s judgment overruling appellants’ pleas of privilege.

Appellants’ first, second and fourth points on appeal are overruled.

The judgment of the trial court is affirmed.

YOUNG, J., not sitting.

On Rehearing.

Appellants Gil Gray and Gil Gray Circus in a motion for rehearing assert that we erred in holding that there was a conflict between Gil Gray’s answers to appellee’s request for admissions Nos. 2 and 4; and that we erred in holding that the answers of appellant Gil Gray were binding on Gil Gray Circus.

Appellants say in effect that a corporation may be owned and operated by an individual, therefore when Gil Gray answered that he owned and operated Gil Gray Circus his answer is not necessarily in conflict with his later answer that Gil Gray Circus is a corporation.

We see no merit in appellants’ argument for two reasons:

(1) We find no evidence in the record, other than Gil Gray’s answer No. 2, which, according to appellant, could possibly be interpreted to mean that Gil Gray owned all the shares of stock in a corporation styled Gil Gray Circus.

(2) If we give Gil Gray’s answer No. 2 the interpretation for which appellants contend, we must then hold that Gil Gray Circus, a corporation, is but the alter ego of Gil Gray, an individual. In that event we must then further hold that the acts of Gil Gray are binding on Gil Gray Circus, a corporation. Bayou Drilling Company v. Baillio, Tex.Civ.App., 312 S.W.2d 705; Gil v. Smith, Tex.Civ.App., 233 S.W.2d 223; J. & C. Drilling Company v. Crow & Pease, Tex.Civ.App., 144 S.W.2d 300, 302; Toyaho Creek Irrig. Co. v. Hutchins, 21 Tex.Civ.App. 274, 52 S.W. 101.

The motion for rehearing is overruled.

BATEMAN, J., not sitting.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Lavon Walter HADLEY, Appellant.
    No. 49407.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.
    Ellsworth W. Ginsberg, St. Louis, for appellant

      Thomas F. Eagleton, Atty. Gen., Leo. H. MacDonald, Sp. Asst. Atty. Gen., Jefferson ■City, for respondent.
   EAGER, Presiding Judge.

Defendant was charged by information with attempted burglary in the second degree and with two prior convictions. Upon trial, the jury found him guilty and the court, finding that he had been convicted of and sentenced for two prior offenses, sentenced him to a term of five years. That sentence was one-half of the maximum punishment provided for second degree burglary (§ 560.070) and also the maximum provided for the attempted burglary (§ 556.150). No brief has been filed for the defendant. We shall consider such assignments of the motion for new trial as comply with our Rule 27.20, and such matters as are required under Rule 28.02, V.A.M.R.

One assignment thus raised is that the evidence was insufficient and that a motion for acquittal should have been sustained. This necessitates a review of the evidence. On and prior to October 9,1961, Louis Torin operated a “tailor shop” at 515 N. Sarah Street in St. Louis; actually his principal business was the sale of new and used clothing, consisting of suits, topcoats, jackets, sport coats, etc. He kept this clothing in his shop on hangers and racks, visible, at least in part, from the outside. At about 4:00 p. m. on October 9, 1961, he installed a heavy wire mesh or screen inside the glass ■of his front door, locked the door and went home. At that time he left a two-bulb fluorescent light burning near the front of the store. The wires of this screen were about as large as an ordinary pencil; Torin, as was customary, hung the screen on hooks or hangers located near the top of the door, fixed it in place, and locked it at the bottom. The glass in this door was approximately 62 inches by 36 inches. Sarah Street runs north and south; the store faced west. Immediately north of the store was an alley; the store’s front door was apparently placed at an angle, facing northwest at the alley corner, with an entry way in front of it. There were two street lights nearby, one a little north on the same side of Sarah, and one across the street; half a block south was Olive Street, and half a block north was Washington. A couple by the name of Hopkins lived above the tailor shop; Mr. Hopkins was then operating a small confectionery next door. Their mode of entry and exit was a stairway leading up at the side of the tailor shop.

At a time somewhere around 11:00 p. m. on October 9, 1961, Mr. and Mrs. Hopkins had retired; they then heard a rather loud sound of breaking glass beneath them; it was not cold and their windows were open. They looked out into Sarah Street and saw two men walk across it and sit down in a doorway. One of these men was (from this and subsequent observations) definitely identified by both as this defendant; he was wearing a brown checked topcoat. At about the time these men sat down the other man said to defendant, in substance, “What did you hit that glass with, your fist?” To this defendant replied, “No, a brick.” There were no other people on the street, and apparently no traffic. Mr. and Mrs. Hopkins dressed and, together or singly, went downstairs as the men got up and walked toward Olive Street. They saw a hole in the glass of the tailor shop door, five or six inches in diameter, with the remainder of the glass more or less shattered. Mr. Hopkins started toward Olive Street to find a policeman; Mrs. Hopkins went back upstairs temporarily. As Mr. Hopkins proceeded toward Olive Street, these same two men passed him, coming back north on the opposite side of the street, having turned around at or near the corner. Hopkins then saw the men cross Sarah Street and go back to the front of the tailor shop; he found a policeman,, Dan Wilfley, at a drug store at the Olive Street corner, and reported the breakin attempt. Hopkins and the officer immediately proceeded to the shop. In the meantime Mrs. Hopkins, looking from her upstairs window, had watched both men take the remaining glass out of the door, carry it across the alley, and lay it on a church lawn or yard. When Mr. Hopkins and Wilfley arrived (the latter with his service revolver in his hand) all the glass was gone, this defendant was pushing inward on the mesh screen of the door, and the screen was “giving” or sagging; his confederate was standing to his left and somewhat behind him. As soon as defendant saw the officer he took his hand or hands away from the door; Wilfley placed the men under arrest. Defendant had a slight cut on one finger of his right hand, and a little blood was found on one or more of the pieces of glass lying in the church yard. Wilfley saw no other people on the street; he took from the church yard a piece of glass which seemed to have blood on it and turned it in to the police laboratory; he also picked up a brick lying in the alley near the door, initialled it, and turned it in to the laboratory. Both glass and brick were later admitted as exhibits; we note here, somewhat out of order, that upon examination in the police laboratory, it was found that the glass bore the prints of the right thumb and right middle finger of this defendant. Wilfley testified: that defendant walked normally and enunciated satisfactorily; that he thought defendant had been drinking but was not drunk; that his eyes looked “glassy,” but that he did not stagger or tremble. Since defendant had a small cut on one finger, he was taken first to the Emergency Room at City Hospital No. 1. After the officer took the men away, Mr. Hopkins boarded up the door for Mr. Torin, who had then arrived. Torin testified that the mesh screen had been pushed in until one “could almost get through it.”

The defendant did not testify; his counsel produced some evidence, presumably for its possible effect on the jury; it was and is of no materiality on the issues here. Briefly, it consisted of the Emergency Room record with the following notations: “cut ring finger while breaking into house; also complaining he is about to go into dts. * * * patient is extremely nervous, small one-half centimeter superficial laceration right ring finger. * * * closed (or cleansed) laceration * * * diagnosis — impending dts? superficial laceration.” A surgical interne testified that a tranquilizer was administered, that delerium tremens usually occurs when one is withdrawn from alcohol and is accompanied by “shakes” and hallucinations, and that “impending dts” is a rather inexact diagnosis, even without the question mark added.

As already indicated, the court, apart from the jury (§ SS6.280) heard the evidence of defendant’s prior convictions and made findings that he had previously been convicted of the offense of carrying a concealed weapon and that he was ' duly sentenced therefor; also, that he had been convicted of the offense of “operating and running a motor vehicle without the consent of the owner” and sentenced therefor; both convictions occurred in the City of St. Louis, and both were entered upon pleas of guilty. Both offenses are made subject to punishment in the penitentiary. Sections 564.610 and 560.175.

We now take up in order the assignments of the motion for new trial. The first is directed solely to the weight of the evidence; the second is that the verdict “was against the evidence and the weight of the evidence.” These assignments have been held insufficient to raise any issue on appeal. State v. Ivory, Mo., 327 S.W.2d 870, and cases cited.

The third assignment asserts that the evidence was insufficient to make out a case of attempted burglary, second degree, and that defendant’s motion for acquittal should have been sustained. The only such motion preserved here is the one at the close of all the evidence. The recital of facts which we have made shows very clearly that the evidence established every necessary element of the crime of attempted burglary. In State v. Kiddoo, Mo., 354 S.W.2d 883, 884, the court said, in considering and quoting from an information, “There is in effect or directly an allegation of an attempt, the overt acts constituting the attempt, the intent and a failure, prevention or interception in perpetration, and, after verdict and in the absence' of an appropriate specific attack, the information appropriately charges the substantive offense of an attempt to commit burglary in the second .degree.” And see also State v. Bliss, Mo., 80 S.W.2d 162, 163. The defendant here was positively identified by three persons and, according to the evidence, he was apprehended in the very act of attempting a breakin. Further, the evidence showed that defendant’s attempt involved a store where “goods, wares, merchandise” were kept; there is a logical and almost necessary inference of an intent to steal goods from the store. To hold otherwise would border upon the absurd. In State v. Burton, Mo., 357 S.W.2d 927, circumstantial evidence of less weight than the evidence here, was held sufficient to establish this crime. An entry is necessary in the consummated crime of burglary, but not in that of attempted burglary; the reason is simple, — if an entry were made, the crime would be burglary. Here, within the very words of the “attempt” statute, § 556.150, defendant had committed an “act toward the commission of [the] offense” and had been “prevented or intercepted in executing the same ⅜ * jt WOuld be a waste of time to pursue this point further.

The next assignment is that the court failed “to instruct on all the law of the case,” and particularly on the lesser charge of “breaking and entering a building, a misdemeanor * ⅜ The first part of this assignment is too general to be of any substance. The second part is vague, at best, but we shall discuss is briefly. We know of no criminal statute defining and punishing the “breaking and entering of a building * * *,” except the burglary statutes. It is possible that counsel had in mind § 560.395, which makes it a misdemeanor to “willfully and maliciously break, destroy, or injure the door or window of any dwelling house, shop, store * * * or sever * * * any part thereof * * That section has, in substance, been a part of our statutes since the Revised Statutes of 1835; it has been referred to as an act relating to “malicious mischief.” Vaughn v. May, 217 Mo.App. 613, 274 S.W. 969; Vaughn v. May, Mo.App., 9 S.W.2d 156, That offense imports no intent except to injure or destroy, whereas burglary necessarily requires an intent, after entry, “to steal or commit any crime therein” Section 560.070. It would seem that defendant’s counsel was attempting to claim some benefit from § 556.220, which provides that the jury may find an accused guilty of “any degree of such offense inferior to that charged * * * or of an attempt to commit such offense, or any degree thereof.” The malicious destruction of or injuring of property is not a lesser degree of burglary, whether of the first or second degree. In State v. Drake, Mo., 298 S.W.2d 374, at loc. cit. 377-378, the court said: “Defendant’s further claim of error because the court did not give an instruction on malicious destruction of property, apparently meaning the offense set out in Sec. 560.395, is likewise without merit. This is not a lesser degree of the offense of burglary under Sec. 560.070 with which defendant was charged so as to come within the provisions of Secs. 556.220 and 556.230 authorizing conviction of any degree of an offense inferior to that charged or of any offense which is necessarily included in that charged against him. See State v. Davidson, 73 Mo. 428; State v. Dargatz, 244 Mo. 218, 148 S.W. 889; State v. Willner, Mo.Sup., 199 S.W. 126; State v. Hancock, 320 Mo. 327, 7 S.W.2d 273; State v. Villinger, Mo. Sup., 237 S.W.2d 132; State v. Pullan [Pullam], Mo.App., 293 S.W. 484.” And if, perchance, defendant had in mind also § 556.-230 to the effect that a defendant may be found guilty of any offense which is necessarily included in the one charged (i. e., § 560.395) the Drake case, supra, constitutes a complete answer to that contention. Here the evidence, considered as a whole, very clearly pointed to an attempted burglary,— not to a mere malicious destruction of property ; thus, these men took all the glass out of the door, and defendant was pushing upon the screen in an obvious effort to force it loose so that an entry might be made. Where the evidence does not fairly warrant an instruction on some lesser offense, it need not be given, even if offered. State v. Johnson, 326 Mo. 1030, 33 S.W.2d 912, see also State v. Richardson, Mo., 343 S.W.2d 51, 55. Nor do we believe that a trial court should be required to search the criminal statutes to find some offense which might possibly be included within the offense charged, in order to give an instruction upon it of his own motion. Defendant here declined to offer any instructions. This contention is denied.

Assignment No. 5 complained of Instruction No. 2, on the ground that there was no substantial evidence to justify it. The reference to No. 2 may be unintentional, as indicated in the next point. In any event, Instruction No. 2, in an oft-approved form dealt with the presumption of innocence, defined the burden of proof, and stated the rules of law on credibility. We find no error whatever in the instruction.

The last two assignments complain of a quoted portion of “instruction No. 2”; the references are obviously to Instruction No’. 1, and we shall consider them as such. That was the principal instruction describing the charge, hypothesizing the facts necessary to a conviction, and instructing the jury to acquit the defendant if it did not find such facts beyond a reasonable doubt. After setting out four definitions, the instruction concluded with the following paragraph: “You are further instructed that the only issue submitted to you and which you will determine by your verdict is whether the defendant is guilty or not guilty of the charge of attempted burglary in the second degree as set forth in the above instruction which is numbered one, and you will not assess any punishment if you find the defendant guilty as charged and as required by this instruction, numbered one.” The complaints are: that the quoted part of the instruction is ambiguous and misleading in that it tells the jury “that it can assess punishment under certain circumstances, but not these”; that it places undue emphasis on the words “guilty as charged”; and that the words “you will not assess any punishment” were not fully justified by the substantial evidence.

Section 556.280 provides that in cases such as this, where a defendant has previously been convicted, sentenced, and fined or imprisoned, the trial judge shall determine the punishment. The court cannot, with any reason or logic, instruct the jury in such a case without reserving to itself the right to fix the punishment. That is all the court did here and its action was entirely proper; there was no reference to “certain circumstances” or other circumstances, so far as we can see. In fact, the whole paragraph merely told the jury, and properly so, that the only issue for it to determine was whether defendant was guilty or not guilty of the crime of attempted burglary as charged, and that it should not assess any punishment if it did find defendant guilty. It could not have done otherwise; there was no undue emphasis, the “substantial evidence” fully justified this and the other instructions, and the objections, individually and collectively, are without merit.

The amended information was sufficient (State v. Bliss, Mo., 80 S.W.2d 162), the verdict is in proper form, and we find no error in any other matters which we are required to examine under our Rule 28.02.

The judgment is affirmed.

All of the Judges concur.

      . All references are to RSMo 1959 and V.A.M.S., unless otherwise stated.


author: HOUSER, Commissioner

text:
    STATE of Missouri, Respondent, v. Roy WATSON and Don Eggar, Appellants.
    No. 49402.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.

      Clyde Rogers, Gainesville, for appellants.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner

Under § 559.210 defendants Roy Watson and Don Eggar were charged with and convicted of having feloniously made an assault upon one Eldon Welch by striking him with their fists, whereby he received great bodily harm. The jury assessed the punishment of Watson at three years in the penitentiary, and that of Eggar at imprisonment in the county jail for three months and a fine of $100. Both defendants have appealed from the judgment and sentence.

Six or eight months prior to the incident in question Watson and Welch had trouble over Welch’s claim that Watson’s hound-dog had eaten chicken pellets and eggs belonging to Welch. Watson had “made [Welch] out a liar about the dog.” Welch had told Watson to keep his dog at home, and threatened to kill Watson’s beagles for chasing rabbits in Welch’s alfalfa. One witness said Welch included the Watson house dog in his threats.

On August 2, 1961 a small white house dog, which belonged to Watson’s daughter, was shot, came home wounded, and died. The next day Watson and his stepson Eg-gar were at a place on the public road, looking at some cattle belonging to one Nance, which were pastured in a field leased to Nance by Welch. Welch came out of his nearby house and joined Watson and Eg-gar.

According to the state’s witnesses, Watson asked Welch why Welch killed his dog. Welch had not killed the dog, and denied the killing. Watson swore and said he did. When Welch turned around, Eggar grabbed Welch’s arm, jerked him down in a ditch, pinned his arm behind him and Watson twice struck Welch on the left jawbone with his right fist, while Eggar was holding Welch’s arm behind him. Welch was standing up (in the ditch) when Watson struck him. Welch had not struck Watson up to this time. Then “they” pushed and shoved Welch into “the car” and took him to see one Alvis Thomas to confirm in Welch’s presence the fact that Welch had threatened to shoot the little white dog. In the car Welch tried to strike Watson with a pop bottle, which Eggar took away from him and threw away. En route Watson told Welch “they” were going to run him out of the country. According to Welch, Thomas did not confirm the threat as to the little white dog hut did say that Welch had told Thomas he was going to shoot Watson’s big dogs for running rabbits in Welch’s alfalfa and knocking it down. On the way home in the car Eggar pulled Welch and Watson shoved him, “just the same manner as they put [him] in the car.” One White testified that six weeks before the trouble with Welch, Watson told him Welch would be run out of the country. Watson, prior to the occasion in question, told one Morehouse that when he got through with Welch “he wouldn’t be a-botherin’ around Romance there for awhile.” Watson’s blows fractured Welch’s jawbone. Welch was in the hospital three days. For six weeks he wore a brace which was screwed into his lower jaw to hold it in place while it healed.

Defendant’s evidence showed that Watson asked Welch why he killed his little white dog; that Welch denied killing the dog but said he knew who did. Watson asked “who” and Welch said it was none of his business; that he (Welch) did not kill the dog. Watson said he knew Welch did because he heard the shot. Welch called him a liar, and drew back his right arm as though he was going to strike at Watson, and Watson threw up his left hand and Welch struck Watson on the arm. Watson then “punched” Welch with his right hand. Watson had no weapon “or anything” in his hand. After more words Welch grabbed Watson by the left arm and started kicking him on the shins, hard enough to cause bleeding and leave scars. Watson then struck Welch a second time, with his fist, on the left jaw. He struck both blows trying to defend himself, believing from the threatening gestures that it was Welch’s intention to do him harm. After Watson struck Welch the second time Welch “kinda squatted down” and said “Don’t hit me no more.” Watson replied, “O.K.” and desisted. The parties then agreed voluntarily to go see Alvis Thomas. Welch was not forced or shoved into the car. Thomas told Watson in the presence of Welch that Welch had threatened to kill his beagles and white dog. Watson testified that he had no prior intention to do any bodily harm to Welch. Eggar did not touch Welch at any time during the fracas. There were no cuts, scratches, abrasions or anything to indicate that Watson had used anything other than his bare fist in striking Welch.

On this appeal appellants have made three points which are supported by citation of- authorities and carried forward in their argument.

Appellants’ first point is .that the court erred in overruling their motion for judgment of acquittal at the close of all the evidence, for failure to prove that appellants’ acts would have constituted murder or manslaughter if death had ensued. Appellants argue that in a prosecution under § 559.210 all of the defenses applicable to murder and manslaughter prosecutions are available to a defendant; that under § 559.050 a homicide is deemed excusable if it occurs in the doing of any lawful act by lawful means, with usual and ordinary caution, and without unlawful intent, or if it occurs upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner. Conceding that great bodily harm was done, appellants contend that the evidence, viewed in the light most favorable to the state, does not show that appellants’ acts would have constituted murder or manslaughter if Welch had died; that Watson’s acts were excusable or justifiable under the circumstances (sudden combat, no dangerous weapon but only naked fists used; no undue advantage taken; no cruel and unusual assault) .

Appellants’ first point is without merit. The state’s case, if believed, disclosed no such lawful action on appellants’ part as that portrayed by appellants in their testimony. While there is no contention that appellants’ acts would have constituted murder if death had ensued, their acts, considered from the viewpoint most favorable to the state, would have supported a conviction of manslaughter, which is defined by § 559.070 as the killing of a human being by the act of another not declared by law to be murder or excusable homicide. And this is true notwithstanding the great bodily harm was done only with the -fists. State v. Webb, 266 Mo. 672, 182 S.W. 975, 976. From the evidence the jury could have found, death ensuing, that defendant Watson provoked an argument in the course of which defendants committed an inexcusable and unjustifiable assault and battery upon Welch which resulted in his death. “Where death results from unlawful assault and battery and the assault is without malice, the assailant is guilty of manslaughter, even though death was not intended and the assault itself was not such as to be likely to result in the death of the person assaulted.” See State v. Kinard, Mo.Sup., 245 S.W.2d 890, 891 [2], in which defendant struck deceased on the right side of the face with his fist, knocking him down and fracturing his skull, and this Court held the jury reasonably could find defendant guilty of manslaughter. And see State v. Black, 360 Mo. 261, 227 S.W.2d 1006, 1010 [12], and State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 713 [6],

Appellants’ second point is that the court erred in failing to give an instruction on common assault. Section 556.230 authorizes the jury or court trying a prosecution for felonious assault to acquit the defendant of the more serious charge and find him guilty of any offense, the commission of which is necessarily included in that charged against him. Common assault is included within a charge of felonious infliction of great bodily harm under § 559.-210; a simple assault must be proved as a necessary element of the greater offense. 42 C.J.S. Indictments and Informations § 287 b., p. 1310. Section 546.070(4) requires the court to instruct on all the law of the case. It is not mandatory, however, in all cases to instruct on a lesser offense or on an offense included within that charge. An instruction on the lesser or included offense is required only if there is evidence to support such a submission. Where the evidence so clearly shows the commission of the more serious crime as charged that no other interpretation of the defendant’s conduct is reasonably possible, and there is nothing to justify a finding of common assault only, a defendant charged with a felonious assault is not entitled to an instruction on common assault. State v. Burns, Mo.Sup., 328 S.W.2d 711, 713 [5, 6]; State v. Bazadier, Mo.Sup., 362 S.W.2d 603, 607 [9]. But “[i]t is only where the state’s evidence, if found to be true, establishes a felonious assault and no other that the defendant must either be convicted of the offense as charged, or else be entitled to a verdict of not guilty.” (Emphasis supplied.) State v. Lynn, Mo.App., 184 S.W.2d 760, 1. c. 767; State v. Barton, 142 Mo. 450, 44 S.W. 239; State v. Schloss, 93 Mo. 361, 6 S.W. 244. The evidence in this case does not necessarily compel one of two results (conviction of inflicting great bodily harm, under § 559.210, or outright acquittal). The evidence justifies a submission and conviction of common assault. There is no evidence that the assault was made with a dangerous and deadly weapon. Under the state’s evidence Eggar used his hands, and Watson used his fists only, striking but two blows to Welch’s jaw. There was evidence of provocation, that Welch drew back his right arm in a threatening manner and struck Watson on the arm, immediately before Watson struck him. The evidence was such that a jury reasonably could interpret defendants’ conduct as a common assault merely, thus requiring an instruction on the lesser offense.

This error alone is sufficient reason to reverse the judgment. On remand and retrial, however, the court again wili he confronted with the question raised by appellants in their third point, i. e., whether the court on these facts was required to give an instruction on accident or misfortune based upon § 559.050. For that reason we will consider the point. The state apparently concedes that any defense submissible in a manslaughter case under § 559.060 can be submitted in a charge of felonious wounding under § 559.210. The state contends, however, that there was no error in not submitting the defense of accident or misfortune because there was no evidence that the injuries in this case were caused thereby; that under all of the evidence defendant Watson provoked the incident, and “meant to strike Eldon Welch on the jaw each time he struck him. The breaking of Eldon Welch’s jaw by these appellants would be the ‘natural and ordinary consequences of defendant’s intentional acts.’ ”

If the evidence warrants an instruction on excusable homicide because of accident, such an instruction must be given as a part of the law of the case, whether requested or not, and it is error not to give such an instruction. State v. Vincent, Mo. Sup., 321 S.W.2d 439, and cases cited, 1. c. 444.

We find no evidence in this case, however, warranting the giving of an instruction on accident or misfortune. The two blows administered to the jaw of Welch by Watson were not accidental, and the effect of the blows was not accidental. All of the evidence, including that of appellants, shows that the two blows delivered to the jaw of Welch were intentionally inflicted. According to Watson’s testimony he intentionally struck Welch in the necessary defense of his person, anticipating bodily harm from Welch. The issue of self-defense was properly submitted to the jury. There is no substantial evidence in the record that Watson “did not intend to inflict the wounds which he did, nor is there anything to show that such wounds were not the natural and ordinary consequences of [Watson’s] intentional acts.” State v. Vincent, supra, 321 S.W.2d 1. c. 444. There was no error in failing to instruct on accident or misfortune.

Appellants rely heavily upon State v. Coff, 267 Mo. 14, 183 S.W. 287, and State v. Reed, 154 Mo. 122, 55 S.W. 278. Those cases are not in point. In the first case, there was evidence that defendant’s head struck the curb of a gutter after he was shoved by the defendant. In the second case, there was evidence that the cause of death was that defendant’s head struck a pick lying on the sidewalk. In both of those cases there was evidence, lacking here, that after the deceased was struck a blow by the defendant something else occurred, something intervened, which was not the natural and ordinary consequence of defendant’s intentional acts and which, by way of accident or misfortune, was sufficient to account for the final result.

The judgment is reversed and the cause remanded for a new trial.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges of the Division concur and STONE, Special Judge, concurs.

      . “If any person shall * * * receive great bodily harm ⅜ * * by the act * * * of another, in cases and under circumstances -which would constitute murder or manslaughter if death has ensued, the person by whose act * * * such injury * * * shall be occasioned shall * * * be punished * * (All section references are to RSMo 1959, V.A.M.S.)

      . See Note : On page 520.

      . See Note 1 on page 520.

      . “Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases: (1) * ⅞ ⅞ jn doing any * * * lawful act by lawful moans, with usual and ordinary caution, and without unlawful intent; or (2) In heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.”

      .“Whenever it shall appear to any jury, upon the trial of any person indicted for murder or manslaughter, that the alleged homicide was committed under circumstances or in any case where, by any statute or the common law, such homicide was justifiable or excusable, the jury shall return a general verdict of not guilty.”