author: NORTHCUTT, Justice.

text:
    Tom SEAY, Appellant, v. DIVERSIFIED, INC., Appellee.
    No. 7393.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 21, 1964.
    Rehearing Denied Oct. 19, 1964.

      Tom Seay, Amarillo, for appellant.
    Neal, Hazlewood & Wolfram, Amarillo, for appellee.
   NORTHCUTT, Justice.

This, is an action brought by appellant on an itemized verified claim for attorney’s fees for $3,500 for legal services performed by appellant for Diversified, Inc., covering a period from July of 1955 through November of 1961,., The undisputed evidence shows that shortly after Diversified was incorporated the president of such company informed appellant that the company would, like for him to do all its legal work but that it needed all of the funds that it had on-hand, as well as its current income, for the purpose of carrying on its business and expanding its activities, and proposed an arrangement under the terms of which appellant would permit his fees to accumulate and would not bill the corporation • until some future date when the corporation’s need for capital was not so pressing. ' In consideration of appellant permitting his' fees to accumulate as requested, it was agreed that the corporation would refer a substantial amount of future legal business to appellant, and would not only pay him substantial fees for future legal services but also would eventually issue stock to him for - services as general counsel and acting in an advisory capacity during the' period in question.

It is further undisputed that the arrangement to let the fees accumulate was discussed on numerous occasions, at least once a year, and such agreement was ratified and confirmed by them during the period here in question. In November of 1961, the matter of appellant’s accumulated fees was again discussed by the parties and it was agreed that appellant would be paid from the proceeds from the sale :of certain land still owned by the corporation or, if he preferred, the corporation might convey a portion of such land to appellant for services. Before such fees were computed and before such agreement could be consummated, suit was filed for the appointment of a receiver for Diversified, and appellant represented the corporation no further.

A receiver was appointed for Diversified, and appellant prepared an itemized verified account and presented the same to the receiver for payment. The receiver filed with the court his objections to such claim asserting all items except Item No. 27 was barred by the two-year statute of limitations: A hearing was had by the court upon appellant’s claim presented to the receiver and judgment was entered declaring all of appellant’s claim for legal services barred except two items amounting to $35. From that judgment appellant perfected this appeal.

Appellant requested the court to make Findings of Fact and Conclusions of Law. The court found appellant’s agreement with Diversified did not establish any certain time for payment of attorney’s fees for services rendered by appellant and did not determine any ascertainable event upon which payment would be paid; that appellant at any time during the period covered by his account could have and would have been entitled to demand payment of all sums of money then due him by Diversified for legal services rendered; that appellant was negligent in failing to press his claim prior to the expiration of the two-year statute of limitations as to each item of the claim. The court further found as follows:

“Periodically, the president of the corporation requested of claimant permission to defer payment until some unspecified future time when it was hoped that the corporation would prosper in a highly speculative enterprise and in this connection it was represented by the president to the claimant that in such event he would be liberally compensated and would, in addition, receive an unspecified amount of shares of stock in the corporation.”

The court concluded as a matter of law that all of appellant’s claim except $35 was barred by the two-year statute of limitations; that all the items of appellant’s account constituted demand obligations and were due and payable upon demand of appellant; that Diversified was not, by the equities in the case, estopped from pleading the statute of limitations and that Tom Cannon, President of Diversified, had no authority to acknowledge appellant’s claim in writing at the time that the letter from him to the receiver was written after the receiver had been appointed and that said letter did not preclude the operation of the statute of limitations.

Appellant presents this appeal upon four points of error as follows: the trial court erred in finding that all of appellant’s claim was barred by the two-year statute of limitations except for $35 because such holding was wholly unsupported by the evidence; in finding all of the items in appellant’s account constituted demand obligations and were due and payable upon demand of appellant ; in finding that Diversified was not, by equities in the case, estopped from pleading the statute of limitations, and in finding that Tom Cannon, President of Diversified, had no authority to acknowledge appellant’s claim in writing at the time the letter from him to the receiver was written, said letter being in evidence as appellant’s exhibit No. 3 and that said letter did not preclude the operation of the statute of limitations.

We do not consider the letter written by Tom Cannon to the receiver was an attempt to preclude the operation of the statute of limitations but was introduced as confirming the evidence of the appellant as to the agreement of accumulating appellant’s fees. Whatever rights the appellant had at the time the receiver was appointed remain enforceable. The appointment of a receiver destroys no vested right nor does it determine any right as between the parties by reason of a preexisting contract. Those rights remain enforceable. Ex Parte Britton, 127 Tex. 85, 92 S.W.2d 224.

It is undisputed that appellant and Diversified entered into an agreement that appellant was to let his fees accumulate to he paid later and this agreement was confirmed and extended and agreed to at least once a year. This could only mean the fees earned one year were to be extended and added to the fees for the following year. This was done for the purpose of assisting Diversified in expanding and in assuring appellant of more fees and stock in the company. There were no misrepresentations on the part of anyone but was purely a contract extending the payment of fees and has never been denied, contested nor repudiated by Diversified. The receiver is placed in no better position than Diversified to plead the statute of limitations. Although there is nothing in this record to even indicate that Diversified desired to plead limitation but under this record if it should have pleaded the statute of limitation, we are of the opinion it would have been estopped from so pleading. It is stated in Moutos v. San Saba County Peanut Growers Ass’n, Tex.Civ.App., 268 S.W.2d 761 at 765 as follows:

“It is well established that a person by words or conduct/or by both, may es-top himself from pleading limitation. Panhandle Const. Co. v. Hood, Tex. Civ.App., 114 S.W.2d 632, error ref.; 28 Tex.Jur., Sec. 149, p. 246. In Mc-Neese v. Page, Tex.Civ.App., 29 S.W. 2d 489, 493, error dism., the Court said: ‘In 10 R.C.L. 835, mention is made of situations where estoppel may be urged against the plea of limitation, as follows : Where an agreement is made “that a claim is to abide the issue of a suit on another claim, or any agreement whereby the creditor is lulled into security and thereby delays action, is held to create an estoppel barring the debtor from relying on the statute.” ’ ”

The Supreme Court stated in the case of Kuehne v. Denson, 148 Tex. 54, 219 S.W.2d 1006 at 1009 as follows:

“ ‘The purpose of estoppels is to prevent inconsistency and fraud resulting in injustice.’ 31 C.J.S., Estoppel, § 1, page 192. Although the case involves only estoppel in pais, Davis, Receiver, v. Allison, 109 Tex. 440, 211 S.W. 980, 984, applies as well to all other estop-pels when it declares: ‘Estoppel is a doctrine for the prevention of injustice. It is for the protection of those who have been misled by that which upon its face was fair, and whose character as represented parties to the deception will not, in the interest of justice, be heard to deny. But one entitled to its protection must have been misled.’ ”

See also Hubacek v. Manufacturer’s Cas. Ins. Co., Tex.Civ.App., 247 S.W.2d 173 and the cases there cited.

To hold the appellant’s claim was barred would certainly be inconsistent with his contract and agreement with Diversified to accumulate his fees and extend them for payment thereof and would result in great injustice and we think under this record Diversified would have been estopped to plead the statute of limitations. Since the receiver was placed in the same position as Diversified, we hold the receiver was es-topped to contend this claim was barred. Judgment of the trial court is reversed and rendered in favor of appellant for the sum of $3,500.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    LIVERPOOL & LONDON & GLOBE INSURANCE COMPANY et al., Appellants, v. Roy L. SWANN, Appellee.
    No. 6680.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 17, 1964.
    Rehearing Denied Oct. 7, 1964.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellants.
    Dies, Anderson & Dies, Lufkin, for appellee.
   STEPHENSON, Justice.

This is a suit to recover under three fire insurance policies for the loss of a frame building destroyed by fire and owned by plaintiff. The case was tried before a jury and judgment was for plaintiff. The parties- will be referred to here as they were in the trial court.

The jury found that plaintiff’s wife requested the insurance agent, Jim Pinkerton, to renew the insurance policies in question before the fire of February 24, 1957, but that Jim Pinkerton did not promise to renew such policies. The three policies of insurance had been written upon these premises, with February 23, 1957, as the expiration date. The defendants, contended the policies had expired and had not been renewed. No new policies of insurance were written. Plaintiff contends a letter written by Jim Pinkerton to him dated January 24, 1957, constituted an offer and that the request by his wife constituted an acceptance. This theory of the case is consistent with plaintiff’s pleadings. The letter read as follows:

“Dear Roy: Please let me know if you wish the insurance renewed on your liquor store property in Trinity County. Very truly yours, Jim Pinkerton.”

Defendant contends this letter was nothing more than an “inquiry of intention”.

Defendants urge that as there was no promise to renew on the part of Jim Pinkerton that no contracts of insurance were entered into. We hold to the contrary. The letter above referred to from Jim Pinkerton to plaintiff constituted an offer to renew the policies of insurance. The jury findings that plaintiff’s wife requested Jim Pinkerton to renew the policies constituted an acceptance and contracts were thereby made. The law applicable to this case is stated in Prudential Fire Ins. Co. v. Williams, Tex.Civ.App., 148 S.W.2d 264, as follows:

“ ‘The law is well settled in this state that an insurance company, through its duly authorized agent, may contract by parol for the renewal of a fire insurance policy; and, in the absence of an agreement to the contrary, the presumption is that the renewal is upon the same terms, conditions, and amount as provided in the original policy.’ See St. Paul Fire & Marine Ins. Co. v. Stell, Tex.Civ.App., 20 S.W.2d 399, point 3, page 401, for collation of authorities.”

See also Trinity Universal Ins. Co. v. Rogers, Tex.Civ.App., 215 S.W.2d 349:

“In this connection attention is also called to the following: authorities: The renewal of a policy is a new contract of insurance and ‘cannot be effected or consummated without the mutual assent of the parties; i. e., a meeting of the minds as to the essentials of the contract.’ Redeman v. Preferred Accident Ins. Co. of New York, 215 Wis. 321, 254 N.W. 515, 518. Any offer by the insurer to renew an insurance contract must be accepted by the insured completely and unequivocally to constitute a new contract. Metzger v. Aetna Ins. Co., 229 App.Div. 26, 240 N.Y.S. 755; City Mortgage & Discount Co. v. Palatine Ins. Co., Ltd., 226 Ala. 179, 145 So. 490; Frank v. Metropolitan Life Ins. Co., 227 Wis. 613, 277 N.W. 643, etc. It is held that where an insurance company proposes by letter to renew a policy, and the insured retains the policy but does not reply to the letter or pay the premium or indicate an acceptance until after a fire several months thereafter, there is no completed contract of insurance. W. P. Harper & Co. v. Ginners Mutual Ins. Co., 6 Ga.App. 139, 64 S.E. 567; Richmond v. Travelers’ Ins. Co., 123 Tenn. 307, 130 S.W. 790, 30 L.R.A.,N.S., 954; Pennsylvania Fire Ins. Co. v. Sorrells, 23 Ga.App. 398, 98 S.E. 358. An insurance policy is a contract, and the fundamental law of contracts requires that an offer be accepted before a contract arises.”

The finding of the jury that Jim Pinkerton did not promise to renew the policies does not defeat plaintiff’s cause of action. This finding of the jury is mere surplusage. The offer having been accepted, required no new promise on the part of Jim Pinkerton in order to make a contract.

Defendants contend there was no evidence to support the verdict of the jury, that the evidence was insufficient and that the verdict was contrary to the overwhelm-' ing weight and preponderance of the evidence. The “no evidence” point is one o£ law to be determined by considering only the evidence favorable to the finding of the jury.

The letter set out in the first part of this opinion from Jim Pinkerton to Roy Swann was admitted in evidence without objection. The authority of Jim Pinkerton to bind these defendants also is not questioned. The matter as to whether or not this letter constituted an “offer” is one of law for the court to determine. The question of fact is then for the jury to determine whether or not plaintiff’s wife requested Jim Pinkerton to renew the policies in response to this letter. Mrs. Swann testified she told Jim Pinkerton they were not contemplating any changes in the policy at all and to go ahead and take care of it. She further testified she told Jim Pinkerton to renew the policies as they were. There is no testimony that the offer to renew the policies was withdrawn before accepted. The evidence supports the finding of the jury that plaintiff’s wife requested Jim Pinkerton to renew the policies.

In passing upon the “insufficient evidence” and “against the great weight of the evidence” points, we have considered the entire record. Jim Pinkerton denied that he had been requested to renew the policies by either the plaintiff or his wife. This did nothing more than raise an issue for the jury to decide, which the jury did in favor of plaintiff. We do not find this answer to be clearly wrong or manifestly unjust. The points are overruled.

Affirmed.


author: CHAPMAN, Justice.

text:
    Thornton G. DEWEY, Appellant, v. AMERICAN NATIONAL BANK et al., Appellees.
    No. 7375.
    Court of Civil Appeals of Texas. Amarillo.
    June 15, 1964.
    Rehearing Denied Oct. 12, 1964.

      Harris E. Lofthus, Amarillo, for appellant.
    Culton, Morgan, Britain & White and Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellees.
   CHAPMAN, Justice.

This suit was filed by Thornton G. Dewey under Article 5073 Vernon’s Ann.Tex.Civ. St. seeking to recover $40,152.46 allegedly due him on usurious interest and penalties growing out of a note executed by him bearing date of April 1, 1959, in the sum of $100,000 and bearing 10 per cent interest. Defendants-appellees are the American National Bank of Amarillo, Texas, Derrell Henry and W. D. Owen.

Prior to April 1,1959, Dewey was seeking a loan of $100,000 for which he was prepared to pay 10 per cent interest. The security he had to offer was his undivided interest in land notes received from the sale of a section of land bought for subdivision purposes. The notes were non-interest bearing, had several payees, required partial releases when payments were made as lots were sold in the subdivision, had a provision suspending payments in the event of war and were not the type security for a “bankable loan.”

The record shows he first contacted a man by the name of Grady Truett, identified as a loan broker, and sought his help in securing the loan. Mr. Truett took Mr. Dewey to talk with two potential lenders, one of whom was appellee, Owen. Neither of these efforts resulted in the consummation of the loan.

After Mr. Truett’s efforts to secure the loan for appellant did not materialize, Dewey came in contact with appellee, Der-rell Henry. As to which one initiated the contact the record is in dispute. Appellant contends Henry first called him by telephone and told him if he would come by the American National Bank he would help him secure the loan. Mr. Henry testified the first contact he had with Mr. Dewey concerning the loan was when he came into the bank seeking it.

It is uncontradicted that Henry subsequently influenced appellee Owen to make the loan and that before the loan was finally consummated, appellant agreed to terms whereby he would borrow the $100,000 at 10 per cent per annum interest, that he would pay Henry a commission of $5,000' for ■ securing the loan and would pay the expenses incident to the closing thereof, ‘ including attorney’s fees.

Mr. Owen admitted that after he had first rejected the loan because it appeared too complex and undesirable for him to handle, that Mr. Henry later came to his home in an effort to convince him that the loan was safe, telling him the mortgagors on the security to be pledged were highly reliable, financially sound men, and assuring him that he would personally service the loan for him without expense. He also testified he and Mr. Henry were friends, that he knew Mr. Henry was getting a commission for making the loan and that fact might have had a minor influence on his final decision to make it.

Based on the advice of Mr. Owen’s attorney, W. M. Sutton, the note to be executed by appellant was to be made payable to Mr. Henry, Trustee, and it was not to be disclosed to Mr. Dewey or anyone else who was actually furnishing the money for the loan or who the beneficial owner of the security would be. Mr. Sutton gave' as his reason for such advice the fact that someone would have to be available to execute the partial releases on the lots in the subdivision representing the security and that a purchaser of any of such property could rely upon a release from a trustee without the necessity of determining the authority of the trustee to execute the releases only if the beneficiary was not disclosed.

Mr. Sutton required an abstract of title to be brought to him for examination on the property securing the notes pledged to the payment of the $100,000 loan. After it had been examined and the necessary papers prepared, Mr. Henry and appellant went to Mr. Sutton’s office, where the $100,-000 note was signed. Though appellant testified he supposed the money he was getting was bank money he admitted that “I still don’t think it’s a bankable loan.”

Mr. Owen did not have sufficient cash in the bank at the time to make the loan because “he had his money at work” but he made arrangements with the bank before he left for Tucson for a $60,000 loan and authorized Mr. Henry to distribute the funds when Mr. Sutton approved everything involved in the transaction in the event the transaction was consummated. The testimony shows he had done business with the American National Bank for many years and it is without question in the record that Mr. Owen was a man so materially circumstanced that a loan of that size made to him involved no risk whatever to the bank. The loan provided 5 per cent interest, which was the going rate for that type loan, and it was repaid in a few months after Mr. Owen withdrew some money he had in a loan association and in stocks.

When the loan to appellant was ready for closing Mr. Owen’s account was charged with $100,000, a cashier’s check was purchased in that amount payable to Dewey and endorsed by him. After endorsement, it was exchanged for three cashier’s checks, one to appellant for $94,500, one to Henry for $5,000 and one to Underwood, Wilson, Sutton, Heare & Berry, Attorneys,-for $500. Mr. Dewey paid the 10 per cent interest on the $100,000 borrowed until the debt was retired then filed this suit contending the $94,500 item was all upon which he was obligated to pay interest.

The record shows that on the same day Mr. Henry deposited to W. D. Owen’s account the $5,000 fee he had received but it is without dispute in the testimony that he had borrowed that amount from Mr. Owen a few months previous in order that he could clear some bank stock so as to-qualify himself as a director of the bank. There is not anything whatever in the record above innuendoes to suggest that Mr. Henry did not earn and was not paid the $5,000 as a broker’s commission. No issue was requested or given asking if Mr. Owen benefited any from the Henry commission. The question was asked Mr. Dewey on cross examination if he ever agreed to pay Mr. Henry a $5,000 commission. He answered: “Well, for my actions in signing the check, I did, yes.” A pleading sworn to by Dewey was introduced into evidence which alleged:

“That upon said occasion, Plaintiff and Defendant Derrell Henry agreed to the terms of the loan whereby Plaintiff Dewey would borrow the sum of $100,-000 at 10 per cent per annum interest, paying to Defendant Derrell Henry a commission in the amount of $5,000 upon said loan, and paying also the expenses incurred in making such ' loan

The jury found that Mr. Henry was acting as an agent for Mr. Dewey in procuring the loan and there is sufficient evidence to support the finding. They also-found that Mr. Owen did not require the payment of a commission of $5,000 to Mr. Henry and there is sufficient probative evidence to support that finding.

There is not anything in the record beyond innuendoes showing that appellee bank had anything whatever to do with the $100,000 loan except it loaned Mr. Owen, a customer, $60,000 which he used in making the Dewey loan. That transaction, as shown by this record, was perfectly legitimate and the testimony is uncontra-dicted that the bank did not receive any interest whatever from the Dewey loan.

Appellant tendered a trial amendment alleging partnership, conspiracy and joint adventure between the three appellees. There is not any probative evidence in the record to support such pleading, so it was properly refused. Therefore, the trial court correctly instructed a verdict for the bank.

The basis of appellant’s contention is that more than 10 per cent interest was charged and paid because out of the principal amount of $100,000 Derrell Henry received $5,000 as a “finder’s fee” or brokerage commission; the law firm handling the transaction through their Mr. Sutton received $500 for services rendered in connection with the loan; and the interest was charged from the date of the note and appellant did not receive the proceeds of the loan until two days later.

The jury found upon an issue submitted and with sufficient evidence to support it that the charge of interest two days before Dewey received the proceeds of the loan was a mistake in calculating interest, so the amount representing overpayment was paid into the registry of the •court. That question then goes out of the case.

There is not any probative evidence in •the case showing that Mr. Henry had any .authority from Mr. Owen to make the loan ■other than as trustee after Mr. Owen and/or "his attorney had approved the security, the rate of interest, etc. It is uncontradicted •that Mr. Owen received none of the broker’s ■commission.

In Special Issue Number Two the ■court asked the jury if Derrell Henry .acted as agent for Mr. W. D. Owen in procuring the loan in question and the jury -•answered affirmatively. Appellant now urges error of the court in refusing him a judgment based on the answer of the jury to said issue; yet, the record shows he obj ected to the court asking the question for the reason that it fails to cover any controlling issue in the case. We agree that it does not cover any controlling issue in the case, since it was not conditionally submitted in connection with other material issues, if any, raised by the pleadings and evidence. There is evidence showing that Mr. Henry was a procuring cause of Mr. Owen making the loan, because of convincing him that the sureties on the notes pledged to the payment of the loan were dependable and because he promised to service it. However, from the record made here he was only a special and limited agent. The court defined an agent as “ * * * one who undertakes to transact some business, or to manage some affair, for another, by the authority and on account of the latter,” and there is not any probative testimony showing Mr. Henry as anything more than a special and limited agent of Mr. Owen.

Mr. Owen was asked by counsel for appellant who Henry was working for in the loan transaction and he replied: “He was working for Mr. Dewey as his agent in soliciting the loan.

“Q. Didn’t you consider that Derrell was working for you rather than somebody else?
“A. No, sir. He certainly was not.
* * * * * *
“Q. Well, in this particular transaction between him and between yourself and Mr. Dewey, was he your man or was he Mr. Dewey’s man?
“A. I think that he was definitely representing Mr. Dewey in securing this loan and, after he secured the loan, he acted as a trustee for both our interests.”

Since Mr. Henry had no authority from Mr. Owen to make the loan, Mr. Owen received none of the commission, Mr. Dewey agreed to pay both the $500 processing fee to the law firm and the $5,000 brokerage fee to Mr. Henry, those fees so charged do not render the loan usurious. Under a closely analogous situation our court has specifically so held and the Supreme Court has agreed with us. Noel v. Panhandle Building & Loan Ass’n, Tex.Civ.App.1935, 85 S.W.2d 773 (writ refused); Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464.

The case here presented is simply that of a borrower (Dewey) employing a broker (Henry), who has no regular or established connection with the lender (Owen) for the payment to the broker of compensation for his services to effect the loan. Therefore, the loans made by the lender cannot be tainted with usury by virtue of the “finder’s fee” paid by the borrower (Dewey) to the loan broker acting for the borrower to effect the loan. Great Southern Life Ins. Co. v. Williams, Tex.Civ.App.1939, 135 S.W.2d 241 (dismissed, judgment correct).

Appellant tendered numerous requested special issues which the court rejected. Even if some of them were proper issues to be submitted, a question we do not find it necessary here to pass on, there is no error shown. They were tendered en masse.

Where more than one issue is embraced in a single request, the trial judge in determining whether a particular issue should be given or refused, etc., must consider whether all others should be given or refused, etc., else he must re-write them in order to make the required separation and proper endorsement of his action on each if one or more of the issues should not have been given. Therefore, when one or more of the special en masse issues should not have been given, the trial court is justified in refusing to give any of them. Texas General Indemnity Co. v. McNeill, Tex.Civ.App.1953, 261 S.W.2d 378 (N.W.H.); Walton v. West Texas Utilities Co., Tex.Civ.App.1942, 161 S.W.2d 518 (ref. w. m.).

Clearly some of the en masse issues should not have been given. Some were duplications of issues given.

“It is well settled that special issues are to be submitted separately and distinctly and not generally or in groups or combinations.” Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111. We believe what we have said completely disposes of all legitimate points raised by appellant, many of which were repetitious. All purported points not specifically mentioned are hereby overruled and the judgment of the trial court is in all things affirmed.

ON MOTION FOR REHEARING

That part of Appellant’s Motion for Rehearing- designated “Conclusion” exhibits such bitterness and display of feeling toward this court that we are compelled to hold it is tainted with contempt of court and should be stricken from the files.

The function of a motion for rehearing is to present to the court the errors of law which have been committed by the court, in the opinion of the movant, together with such argument, authorities, and statements from the record which may, in the opinion of such movant, support the motion.

The two paragraphs preceding the prayer in Appellant’s Motion for Rehearing contain statements and innuendoes suggesting this court is unfair toward appellant and prejudiced in favor of appellees.

If counsel for Appellant does not now know that such contemptuous charges directed toward this court have no place in a motion for rehearing, it is well that he learn that lesson now.

Accordingly, appellant is allowed fifteen days within which to file a substitute motion for rehearing in proper form purged of such bitterness and display of feeling.


author: CLAY, Commissioner.

text:
    Kenneth GIBSON, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellant, v. J. D. HARTMAN, Appellee.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Rehearing Denied Oct. 30, 1964.
    Carroll Franklin, Laurence T. Gordon, Franklin & Gordon, Madisonville, H. G. Breetz, M. D. Jones, Louisville, for L. & N. R. Co.
    L. B. Weir, Madisonville, for Gibson and Hartman.
   CLAY, Commissioner.

This is a railroad crossing case. An automobile driven by Gibson, with whom Hartman was riding as a passenger, collided with a coal car of the defendant railroad company as its freight train was moving slowly over a country crossing. Both men sued for damages.

The trial court directed a verdict for the defendant on the claim of Gibson (on the ground of contributory negligence). Hartman’s claim went to the jury, which returned a verdict of yl7,000 for him. On these consolidated appeals Gibson contends it was error to direct a verdict against him, and the defendant contends it was error not to direct a verdict for it with respect to the claim of Hartman.

The principal issue is whether the defendant was negligent. If not, neither Gibson nor Hartman was entitled to recover.

The accident happened about midnight at a crossing over a gravelled rural road. The weather was clear, although there was some testimony concerning patches of fog. The Gibson car was following another occupied by three of their friends and driven by one Johnson. The parties were just riding around.

Both cars were being driven, according to the testimony, at a speed of about 30 to 35 miles an hour. The Gibson car was from 50 to 125 feet behind Johnson. The Johnson car was kicking up a cloud of dust estimated to be from six to nine feet high. It had its bright lights on; Gibson had dimmed his lights.

The approach to the crossing is downgrade with a gradual curve to the left. In daylight the crossing is in full view from a distance of at least 500 feet.

Ninety feet from the crossing, on the right as the cars approached, is a lane leading off the main highway. When the Johnson car was at least 100 feet from the crossing (the distance must have been greater but it is not important), Johnson observed the freight train occupying the crossing. It was moving slowly to the right and Johnson could even see the numbers on the coal cars. Instead of stopping and flagging down the Gibson car which was following him, he applied his brakes and turned off into the lane on the right. Gibson continued on through a cloud of dust and testified he was within 30 feet of the crossing before he saw the train. He was unable to stop in time.

The crossing was marked by one cross buck sign situated on the opposite side of the tracks from which Gibson approached, and to the left. There was no such sign on his side of the crossing on the right. Several hundred feet from the tracks on his side of the crossing there was a highway sign marked RR, but there is some question about its being hidden by weeds. Gibson was not familiar with this crossing, although Johnson was.

The train crew testified a fusee had been lit on the side of the crossing from which the cars approached, but we must accept Gibson’s and Hartman’s evidence to the effect that there were no lights or other special warning signals there.

This cannot be classified as an extra-hazardous crossing from a topographical standpoint. The issue is, therefore, whether the railroad company on the night in question, while blocking the entire highway with its train, fairly could be found negligent in failing to have, or post, additional warnings to travelers on the highway.

The evidence introduced on behalf of Gibson and Hartman establishes clearly that a special condition was a principal contributing factor to the cause of this accident. It was the existence of the dust cloud created by the Johnson car which so obscured Gibson’s vision that he did not see the train until too late. Obviously the defendant was not responsible for this condition, nor could it reasonably be held to have anticipated it. However, we must determine if the defendant could justly be found negligent in failing to maintain additional signs or in failing to have special warnings at the crossing as the train went by.

There are a number of things defendant could have done. For general purposes an additional cross buck sign would have furnished a better warning of the existence of the crossing. The train crew could have had lanterns or flares there. It is urged on behalf of Gibson that the engineer (then about 500 feet away) should have flashed a light back over the cars. Any or all of these additional warnings could have been given and possibly might have prevented this accident. The question is whether reasonable care under the circumstances may be said to have required any of them.

We first examine the need for an additional cross buck sign. KRS 277.160 requires signal boards to be placed at railroad crossings “so as to be easily seen by travelers”. Apparently this statute has not been construed as to require more than one sign at a crossing. One sign in the immediate proximity of the tracks easily observable by a traveler approaching from either direction may be adequate. However, the purpose of such sign is to warn of the presence of the crossing so that the traveler may be on the lookout for the approach of trains. Burkhead v. Pennsylvania R. Co., 275 Ky. 841, 122 S.W.2d 970.

Gibson contends that if defendant had maintained a cross buck sign on the right side of the tracks as he approached he would have been able to see it over the dust and would have had sufficient warning. This is entirely speculative and is contrary to the physical facts established by him.

Obviously the presence of a train on a crossing, blocking the entire highway, is a bigger and better warning than a cross buck sign. In a long line of cases we have held that a train occupying a crossing is an effective and adequate warning to travelers on the highway at night, and that under such circumstances a railroad company cannot be held negligent because other warnings were not given. Louisville & N. R. Co. v. Mischel’s Adm’x., 272 Ky. 295, 114 S.W. 2d 115; Scarbrough v. Louisville & N. R. Co., 276 Ky. 292, 124 S.W.2d 88; Louisville & N. R. Co. v. Reynolds, 305 Ky. 54, 202 S.W .2d 997; Louisville & N. R. Co. v. Branson, Ky., 267 S.W.2d 945; Bibbs v. Kentucky & Indiana Terminal R. R., Ky., 300 S.W.2d 229. The reason for this rule is that the railroad company has a right to assume the traveler, operating his vehicle in a reasonably prudent manner, with adequate lights, will apprehend the presence of the train in ample time to avoid a collision. Chesapeake & O. Ry. Co. v. Switzer, 275 Ky. 834, 122 S.W.2d 967; Illinois Central R. Co. v. Maxwell, 292 Ky. 660, 167 S.W.2d 841.

The adequacy of such a warning under normal conditions was proven by the facts of this case. Johnson, who was preceding Gibson at the same speed, observed the presence of the train on the crossing in tune to practically stop his automobile and make a right angle turn into a narrow lane when he was 90 feet away from it. He was the ordinary driver the defendant could anticipate might be approaching the crossing. (The fact that he was familiar with the crossing played no part in his actual observance of the presence of the train.)

As we have before suggested, a significant causative factor in this accident was the lack of visibility experienced by Gibson as the result of an unusual condition created by the tandem operation of these two automobiles. The defendant not only had nothing to do with the creation of this condition, but it cannot be held to have anticipated its development or the blind driving of Gibson when he could no longer guide on the taillights of the Johnson car. The circumstances do not justify imposing on defendant a special duty to Gibson and/or Hartman.

It is apparent the sole cause of this accident was the failure of Gibson to exercise care in the operation of his automobile after his fellow traveler Johnson had given him ample warning (by flashing his stop light and leaving the highway) that some unexpected development had taken place. No fair inference of negligence on the part of the defendant can be drawn from its failure to foresee a situation of this sort and take prior or contemporaneous additional steps to guard against it (which in all probability would have been unavailing).

The court correctly directed a verdict against Gibson. Since we have concluded defendant was not negligent under the circumstances shown, Hartman’s claim against it must likewise fall as a matter of law. The defendant was entitled to a directed verdict .on Hartman’s claim.

Gibson contends the trial court erred in certain rulings with respect to the admission and exclusion of evidence. We find no ■error of the trial court in this respect. Even if all of Gibson’s contentions on this point were upheld, it would not change the result heretofore reached in this opinion. 'We have throughout accepted Gibson’s version of the facts. Additional evidence of •collateral matters adds nothing to his claim.

The judgment in the case of Gibson v. Louisville and Nashville Railroad Company is affirmed. The judgment in the case of Hartman v. Louisville and Nashville Rail-Toad Company is reversed with directions to enter judgment for the defendant.


author: WADDILL, Commissioner.

text:
    Joseph C. HOFGESANG, Appellant, v. Hoffman KASEY et al., d/b/a Kestler Sand & Gravel Company, Appellees.
    Court of Appeals of Kentucky.
    June 12, 1964.
    As Modified on Denial of Rehearing Oct. 30, 1964.
    Ewing L. Hardy, Sr., Ben B. Hardy, Hardy, & Hardy, Henry A. Triplett, Boone & Triplett, Louisville, for appellant.
    Marshall P. Eldred, W. G. Hume, Brown & Eldred, Louisville, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment permanently enjoining appellant from obstructing the entranceway onto appellees’ property and directing him to remove a barricade he had erected thereon.

By a deed recorded in 1893, the tract of land now owned by appellant was made subject to a 25-foot easement for a roadway. Since 1907, when a roadway was laid out and graded, it has provided the land now owned by appellees with its only outlet to a county road.

Appellant maintains that the appel-lees’ predecessors in title had abandoned their easement by using Putnam Street which was allegedly constructed parallel to it on adjacent land in 1926. The Chancellor found, in effect, that the portion of ap-pellees’ entranceway barricaded by appellant lies within the easement granted in the 1893 deed and has been used continuously since 1907. Two witnesses, whose family had owned this land from 1906 until ap-pellees purchased it in 1960, testified that the area in dispute had been used as an en-tranceway since 1907. This testimony, along with the 1893 deed and a land survey introduced by the appellees, adequately support the Chancellor’s finding. It is, therefore, unnecessary to consider the arguments of appellant which are based upon the assumption that this finding is erroneous.

It is contended that the failure to make appellant’s wife, who owns an interest in his land, and the Greater City Realty Corporation, which owns the adjacent property, parties to the action constitutes reversible error. Since this was an action solely to enjoin appellant from maintaining a barricade on appellees’ entranceway, these persons were not indispensable parties to this proceeding.

Finally appellant insists the trial court erred in considering a survey of the property in question. The contention is based upon the assumption that KRS 73.120 prohibits the introduction of an unofficial survey. However, in Gannon v. Pearl, Ky., 311 S.W.2d 184, we held that this statute merely eliminates the necessity of authenticating official surveys prior to being introduced in evidence.

The judgment is affirmed.

PALMORE, J., not sitting.


author: A. MURRAY BEARD, Special Commissioner.

text:
    John STANLEY, Appellant, v. Joe ELLEGOOD, who sues by his next friend, Mildred Ellegood, Appellee.
    Court of Appeals of Kentucky.
    May 16, 1964.
    Rehearing Denied Oct. 30, 1964.

      Edward J. Hogan, Joe H. Taylor, Henry V. B. Denzer, John L. Bennett, Louisville, for appellant.
    James F. Thomas, Thomas & Thomas, New Castle, for appellee.
   A. MURRAY BEARD, Special Commissioner.

Joe Ellegood, four days prior to his 14th birthday, was seriously injured while riding as a guest passenger in the car of John Stanley, a neighbor and friend 29 years of age. Two other passengers, Eddie Willis and Ronnie Chilton, a young soldier, were in the car. No explanation was given as to the cause of the accident. The three passenger occupants, the only witnesses to the accident, could not state why it happened, and John Stanley, the driver, who also was seriously injured, did not remember anything about it. The jury gave a verdict of $22,129.80 for Joe Ellegood and a judgment was duly rendered by the lower court. This is an appeal from that judgment.

Appellant contends that he was entitled to a directed verdict or a judgment n. o. v. because :

1. “Appellee, in his pre-trial deposition, judicially admitted that he voluntarily entered the appellant’s automobile knowing appellant was under the influence of intoxicants, or ‘half drunk’ and the appellee was, therefore, contributorily negligent as a matter of law.”
2. “The appellee’s attorney’s closing argument was highly prejudicial since he repeatedly over appellant’s objections and motions to discharge the jury, which were overruled, invoked classic examples of the ‘Golden Rule’ argument, which this Court has repeatedly condemned.”

The four parties involved in the accident which is the subject of this action met in a parking lot in Campbellsburg and were going to the Go-Cart races at Vevay, Indiana. Appellant, John Stanley, was driving his own car and the others were riding with him. The accident occurred about five or six miles from the parking lot. The road was curving, and the car for some unexplained reason left the road on a curve and struck a bridge.

The appellee stated in a pre-trial deposition that in the parking lot and prior to the time he entered appellant’s car, appellant appeared to be under the influence of intoxicants and while in this condition took another drink of whiskey. He further stated that appellant continued to act as if he were under the influence of intoxicants throughout the ride and at times exceeded the speed limit on a curving road. The substance of appellee’s testimony regarding intoxication was as follows:

Q. “When you met him in Campbells-burg did he appear to be under the influence of intoxicants?”
A. “He was just acting like it. I didn’t know whether he was or not.”
Q. “He acted as though he were, is that right?”
A. “Yes sir.”
Q. “Describe how he acted that caused you to think he was under the influence of alcohol?”
A. “He was just — you know how funny they are and everything. He acted funny and talking like he was about half drunk.”
Q. “And that was when you met him in the parking lot ?”
A. “Yes sir.”
Q. “And then after you observed him iñ that condition he had still another drink, is that right?”
A. “Yes sir.”
Q. “And I assume his actions continued in that manner, is that right?”
A. “Yes sir.”

The above statements, although contradicted by the testimony of the other witnesses were not denied or satisfactorily ■explained by the appellee on the trial of the case, and the appellant insists that they constitute a judicial admission of contributory negligence as a matter of law.

It was shown by the evidence that the appellant and appellee had been friends for several years, that appellee had ridden with appellant on previous occasions and that appellant had been a careful driver. It was also shown that appellant was a man 29 years of age and appellee was a boy four days short of being 14 years of age.

We cannot say that a boy 14 years of age does not know the difference between a drunk man and a man that is sober, or that he cannot tell when a man is drinking and acting “half drunk”. But in considering all the facts in this case we feel that the same reasoning should be applied to Joe Ellegood that was applied to Sandra Quisenberry in the case of Cassidy v. Quisenberry, Ky., 346 S.W.2d 304. He stated that he saw appellant take a drink and that he acted “half drunk,” but he expressed some doubt about it in his answer, “He was just acting like it. I didn’t know whether he was or not.” As far as he knew, Stanley was an experienced and careful driver. Appellee’s age and inexperience are factors bearing upon his appreciation of the risk he was taking in riding with a driver in Stanley’s apparent condition. Reasonable minds could differ as to whether he realized the peril to which he was exposed. We cannot say as a matter of law he should have been cognizant of this danger and consequently we cannot declare as a matter of law that he was guilty of contributory negligence. The appellant, therefore, was not entitled to a directed verdict or a judgment n. o. v.

Appellant’s contention, however, that he is entitled to a new trial because of prejudicial statements made by counsel for appel-lee in his closing argument has merit. These statements were:

“There is another thing that shows so plainly how little some people are interested in other people’s worries, they come to twelve Henry County citizens and tell you, they are being so honest and nice to you, that man stood up before you and told you that splitting a man wide open like you gut a fish, taking out his spleen wasn’t going to hurt him, he didn’t need his spleen anyway. You really feel that way? Would you feel like you would want your child taken to the hospital and pumping blood in him — ”
* * * * * *
“You heard the testimony. For ten days he couldn’t eat and his intestines swelled up and they stuck these tubes down his nose. He had to eat through his veins. What would you take for ten days of that ? Just how much money ?”
* * * * * *
“You’re not giving him anything, as a matter of fact, just putting him back where he would have been to that extent, for Twenty-five Thousand ($25,-000.00) Dollars, I wouldn’t have had it done for that, and I don’t believe you would.”
* * * * * *
“We really feel that we are entitled to have for this boy the full Twenty-five Thousand ($25,000.00) Dollars and the doctors’ and hospital bills. We are going to leave it to you. This boy and his mother leave it to you. You are their last chance. If he loses this Twenty-one Hundred ($2100.00) Dollars, with a permanently injured leg, lacking a spleen, all the suffering he has gone through for nothing. We don’t believe you will, and that you will treat him like you would want yourselves to be treated.”

Appellant’s objections to each of these remarks were overruled; hence the jury was not admonished to disregard them. A timely motion to discharge the jury likewise was overruled.

In Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661, 663, counsel’s asking for such a verdict as the jurors would think right if they had a son who was “badly crippled or killed by one of these cold-blooded, mercenary coal companies” was held manifestly improper.” In Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242, 243, it was held improper to call on the jurors “to render such a verdict as they would be willing to take to have such marks upon their child through life or upon themselves through life,” and “to make the rich taxi company pay.” These are the two cases most often cited in support of the position that in this jurisdiction the “golden rule” type of argument is not permitted. It will be noted, however, that in each of them the impropriety was compounded by invidious allusions to the nature and financial condition of the defendant, a circumstance that was bound to have had a significant bearing on the question of prejudicial effect. Whether the court would have found the “golden rule” argument prejudicial of itself is a matter of speculation.

Granted that an argument was improper, the difficult question nearly always is whether the probability of real prejudice from it is sufficient to warrant a reversal, and in this respect each case must be judged on its own unique facts. An isolated instance of improper argument, for example, will seldom be found prejudicial. Cf. H. P. Selman & Company v. Goldstein, Ky., 278 S.W.2d 713. But when it is repeated and reiterated in colorful variety by an accomplished orator its deadly effect cannot be ignored.

In some cases the court has declined to find that improper remarks were prejudicial in view of the modest or conservative amount of the verdict. See Louisville Water Co. v. Robinson, 312 Ky. 786, 228 S.W.2d 444; Wilson v. Dalton’s Adm’r, 311 Ky. 285, 223 S.W.2d 978; Square Deal Cartage Co. v. Smith’s Adm’r, 307 Ky. 135, 210 S.W.2d 340; and Droppelman v. Willingham, 293 Ky. 614, 169 S.W.2d 811. In this case it is not suggested that the verdict was “excessive.” Yet it was quite substantial in comparison with the verdicts in the examples just cited, and certainly we are unable to say that it negates the probability of prejudicial influence by the improper argument.

On the whole, it is our judgment that the remarks above quoted were improper and prejudicial, requiring reversal for a new trial. We so recommend.

The opinion is approved by the court and the judgment is reversed with directions that a new trial be granted.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Horace Edward WILLIAMS, Appellant.
    No. 50453.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Burton H. Shostak, Special Asst. Atty. Gen., St. Louis, for respondent
    Donald Gunn, Jr., St. Louis, for appellant.
   STORCKMAN, Presiding Judge.

A jury found the defendant guilty of the offense of burglary in the second degree. Section 560.070, RSMo 1959, V.A. M.S. The trial court heard evidence in chambers and made a finding that the defendant had been convicted of prior felonies. The punishment was, therefore, assessed by the court and the defendant was sentenced to five years in the custody of the Department of Corrections. Section 556.280, RSMo 1959, V.AM.S. The principal contentions on appeal are that the trial court erred in failing to sustain the defendant’s motion to dismiss at the close of the evidence, in finding that he had been convicted of prior felonies, in the admission of certain evidence, and in the giving and refusal of instructions to the jury.

On January 5, 1963, at approximately 9:40 p. m., police officers were dispatched to the premises of S. M. Arnold, Incorporated, a dealer in sponges, located at 1701 Papin Street in the City of St. Louis, which is on the northwest corner of the intersection of 17th and Papin. • A one-story addition had been built onto the rear of the original two-story building. When the officers arrived, two men jumped from the roof of the one-story addition and ran. They outdistanced the two officers who pursued them on foot, but the defendant was arrested almost immediately thereafter by another officer in a patrol car as the defendant was trying to crawl under a gate in a wire fence enclosing a lot of the Union Electric Company on the southwest corner of 18th and Gratiot Street. Eighteenth Street is one block west of 17th, and Gratiot Street is one block north of Papin.

Investigation of the sponge company’s premises disclosed that a hole 30 inches wide and about 22 inches high had been made in' a 9-inch brick wall at the rear of the original building at the roof level of the addition. Through this hole a person could go to all parties of the building including the one-story addition. A flashlight and a crowbar were- found in front of a company safe on the first floor of the premises. An employee who was the last to leave on the day in question testified that the premises of the sponge company were locked and secure when he left, that there was no hole in the brick wall and the crowbar and flashlight were not in front of the safe. This coupled with the fact that two men were seen jumping and running from the building constituted substantial evidence that someone broke and entered the building in which there was at the time goods, wares, merchandise, and other valuable things with the intent to steal, which is the offense of burglary in the second degree under § 560.070.

The defendant contends that the evidence was insufficient to prove that the defendant was the person who burglarized the property and therefore his motion for a verdict of acquittal should have been sustained. He relies upon State v. Scott, 177 Mo. 665, 76 S.W. 950, and State v. Tracy, 284 Mo. 619, 225 S.W. 1009, in which it was held that suspicion of guilt, no matter how strong, was not sufficient to support a conviction. But there is more than mere-suspicion in this case.

Detectives Menniges and Drazen were-the first to arrive at 17th and Papin and were about 50 to 75 feet from the two-Negro men who jumped from the building and fled, one of whom was described by the detectives as a man about 5 feet, 10’ inches tall, weight about 160 pounds, wearing a dark green jacket, light pants, and a., dark hat. This man ran west on Papin- and then northwesterly across a vacant lot with the detectives in pursuit. When De- ' tective Menniges saw a marked patrol car in the vicinity of where the man was running, he gave up that pursuit and went after the other man who had gone toward' the railroad tracks but was unáblé to apprehend him. Detective Grazen continued his pursuit of the man in the green jacket and saw the fleeing man crossing 18th-toward Gratiot. Detective Drazen then-called to the officer in the marked patrol car and returned to the sponge company. The police officer, William Price, took up-the pursuit in his patrol car and later brought to the sponge company a Negro-man, about 5 feet 10, wearing a dark green-jacket, khaki trousers and a dark hat. The-■officers identified the man in the green jacket as the defendant. The place where he was captured was about a block to a block and a half from the sponge company. There was evidence that the lighting from spotlights on parking lots as well as streetlights rendered visibility in the area good. No person, other than the man captured, was observed running west on Papin and northwest toward the Union Electric lot.

Officer Price testified that when he .arrived at the scene of the burglary in his patrol car, he saw the detectives pursuing a man of the description given. Officer Price drove his car west and saw the man running across 18th Street. He took over -the pursuit in his patrol car when Detective Drazen called to him, and caught the man as he was trying to get under the •gate. He.took the man into custody and •eventually returned him in a police cruiser to the vicinity of the sponge company where he was viewed by the two detectives. ■Officer Price further testified that the man he arrested was wearing the same kind of clothing as the man he saw running across 18th Street. The man arrested was adequately identified as the defendant. There were smears or smudges of brick dust on -the green jacket which he was wearing -when he was arrested. Microscopic examination made of these dust particles in the police laboratory disclosed that they were similar in appearance to samples taken from the wall of the building that had 'been breached.

It is apparent from the record that the police officers had the fleeing man in sight all or practically all of the time .after he jumped from the roof of the bur- • glarized premises until he was arrested shortly thereafter within a block and a half of the scene of the crime. This and -the fact that he had smears of brick dust on his clothing similar to that taken from the wall of the building burglarized was • substantial evidence connecting the deferid- . ant with the commission of the crime and sufficient to support the judgment -of con- ■ viction. State v. Zammar, Mo., 305 S.W. 2d 441, 447 [10]; State v. Giden, Mo., 369 S.W.2d 212, 214 [6] ; State v. Davis, Mo., 367 S.W.2d 517, 519 [2, 3]; State v. Burton, Mo., 357 S.W.2d 927, 930 [3]. The court did not err in denying the motion for a judgment of acquittal.

John Klosterman, a chemist employed by the St. Louis Police Department, attended Wisconsin State College and Michigan State University majoring in chemistry and police science. He graduated from Michigan State University with the degree of bachelor of science in police science. He had been employed by the St. Louis Police Department for two and one-half years and had previously done similar work for the State of Michigan for three and one-half years. Mr. Klosterman testified that he made a microscopic examination of the brick dust found on the defendant’s jacket and on the crowbar found with a flashlight in the building and he found this dust to be similar to the sample of brick dust from the wall in question. The defendant charges that the trial court erred in admitting the testimony of Mr. Klosterman on the ground that it was highly speculative, conjectural and completely meaningless. He relies upon State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, in which the evidence showed that there were tracks made by a man’s shoes in the field from which a stationary gasoline engine was stolen. These tracks appeared to be the same or similar to shoe tracks in a public road nearby where the evidence tended to prove the defendant had been. No measurements or comparisons of the shoe tracks were made by anyone and the court held that the testimony that they appeared to be the same was lacking in probative value. But the evidence in the instant case is more substantial. The defendant was observed at the scene of the crime, was pursued and captured nearby. The fact that he had smears or smudges of brick dust on his clothing without more was substantial and admissible evidence in these circumstances. The witness Kloster-man was qualified and the result of his microscopic examination and comparison of dust particles and other substances was a proper subject of expert testimony. State v. Menard, Mo., 331 S.W.2d 521, 524 [1-3]; State v. Giden, Mo., 369 S.W.2d 212, 213-214 [3]; State v. Burton, Mo., 357 S.W.2d 927, 930 [3]. The court did not err in admitting the testimony of Mr. Klosterman.

The defendant complains on two scores of the court’s finding that the Habitual Criminal Act was applicable to him. His first objection is that the evidence did not show that .the defendant was subsequently placed on probation, paroled, fined or imprisoned pursuant to the convictions as required by § 556.280. He cites State v. Kent, Mo., 375 S.W.2d 40, in which there was no evidence as to what disposition was made of the defendant. This court reversed and remanded with directions to take proof in that regard. But in this case the defendant is -mistaken in claiming that such evidence is -lacking.

The state introduced and read into evidence the circuit court record of the defendant’s three prior convictions in the Circuit Court of the City of St. Louis. Also admitted in evidence were state’s exhibits A-l and A-2 which were certified transcripts of the serial records of Horace Edward Williams in the Missouri Department of Corrections. These records are competent evidence of the defendant’s imprisonment pursuant to his convictions. State v. Garrison, Mo., 305 S.W.2d 447, 452 [9, 10]. 'One of defendant’s prior convictions was appealed to this court. State v. Williams, Mo., 343 S.W.2d 58.

The defendant further complains that the proof of the defendant’s convictions of prior felonies was insufficient because the state failed to prove that the defendaht and 'the' persons referred to -in the records-'of convictions were the same person: Identity óf -names is sufficient proof prima facie to establish -that the defendant and the person named in the records .of prior, convictions .wer.e one--and the same person. State v. Griffin, Mo., 339 S.W.2d 803, 805 [3]; State v. Hands, Mo., 260 S.W.2d 14, 18 [1]; State v. Davis, Mo., 367 S.W.2d 517, 521 [11]. The defendant did not offer any evidence that he was not the person named in the court and prison records. The trial court did not err in applying the Habitual Criminal Act in reliance upon these records

Instruction No. 5 given at the instance of the state told the jury that, if they found that the defendant “attempted to escape to avoid arrest”, such circumstance might be considered in determining the defendant’s guilt or innocence. The defendant contends the giving of the instruction was error because the use of the word “escape” conveys to the ordinary person the idea that the defendant was under lawful arrest and departed which was contrary to the evidence. The criticism is not sound. The primary definition of “escape” is to get away, as by flight. Webster’s 3d New International Dictionary. The cases cited dealing with prosecutions for escaping prison are not in point since being in custody in such case is a prerequisite of the crime. The word is influenced by the context in which it is used. Here it plainly states that it was an attempted “escape to avoid arrest” which negates any notion that the accused has escaped from custody. The term “flight”, ordinarily used in such circumstances, denotes the act of leaving the scene or vicinity of the crime, and the fact of flight may be shown as a circumstance indicating guilt. State v. Silvey, Mo., 296 S.W. 128, 131 [10]; State v. Peterson, Mo., 305 S.W.2d 695, 700 [11]. In the circumstances of this case, the jury could not have been ■misled by the instruction.

The defendant’s .final assignment is ■ that the trial court erred in refusing to • give instruction A offered by the defendant- dealing with circumstantial evidence. We cannot agree that the evidence was entirely circumstantial. As we view the records the testimony-of Detectives Men-niges and Drazen was sufficient to identify the defendant as one of the persons seen jumping from the building which had been burglarized and fleeing. The court gave instruction 4 which defined and distinguished direct and circumstantial evidence and in its second paragraph covered adequately, and perhaps more favorably, all elements of the offered instruction. The trial court cannot be convicted of error in refusing to instruct on a matter that is fairly and adequately covered by other instructions. The assignment is denied.

We have considered all questions presented for review and find them to be without merit. The defendant was present throughout the trial including his allocution and sentencing. He was effectively represented by able counsel throughout the trial and on appeal. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be in proper form and free from error.

Accordingly the judgment is affirmed.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Henry Eugene WEBB, Appellant.
    No. 50535.
    Supreme Court of Missouri, Division No. 1.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty.. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    Donald S. McDonald, St. Louis, for appellant.
   HOUSER, Commissioner.

Defendant Henry Eugene Webb and his brother Louis Webb, Jr. were jointly charged with the crimes of burglary in the second degree of and stealing from the store and bar of Thomas Lee Floyd, in the City of St. Louis certain property of the value of $153.70. Each defendant was charged under the habitual criminal act, the information alleging that each had been previously convicted of five felonies. Both defendants pleaded not guilty. Lois Webb, Jr. later withdrew that plea and entered a plea of guilty. Trial of the charges against defendant Henry Eugene Webb resulted in a jury verdict finding him “guilty of Stealing property in the amount of over fifty dollars” and not guilty of the burglary charge. On a finding that defendant had been previously convicted of five felonies the circuit court adjudged that he be committed to . the department of corrections for a period of 6 years. Defendant’s trial-counsel filed a brief in this court on appeal.

Defendant’s sole point on this appeal is that the court erred in overruling his motion for a judgment of acquittal because the state failed to produce any substantial evidence to sustain a conviction on the charge of stealing; that the state’s evidence was insufficient to prove that defendant feloni-ously did take, steal and carry away 33 pints of whiskey worth $33, 4 cases of beer worth $8, the property of Thomas Lee Floyd, and 41 cartons of cigarettes worth $112.70, the property of Guy Vending Company, Inc., with intent to deprive the owner of the use thereof and to convert it to his own use, as charged in the information.

In determining the sufficiency of evidence to sustain a conviction on a motion for a judgment of acquittal the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Watson, Mo.Sup., 350 S.W.2d 763, and cases cited 1. c. 766.

The state contends that the evidence of defendant’s recent possession of stolen property was sufficient proof that he was the thief to make a case and support the verdict. Defendant contends that the state’s evidence and the reasonable inferences to be drawn therefrom might be entirely true and yet the defendant be entirely innocent of the charge of stealing; that at best the state’s evidence establishes only that defendant came into possession of the stolen property in conjunction with others after this property was actually taken from Floyd’s Bar, but that this is insufficient to convict him of the offense of stealing; that in order for a defendant’s recent possession of property stolen in a burglary to afford evidence of his guilt his possession must be personal and exclusive; that this is a case of joint possession of the property in a residence shared by Louis Webb, the admitted thief* Pauline Webb and defendant, with no evi■dence of conspiracy or a common purpose to commit the offense; and that there was no evidence that defendant exercised any ■control or dominion over the stolen prop■erty, such as claiming it or undertaking to sell it or control its disposition.

Appellant’s statement of the facts was .adopted by the state as fair and accurate. We draw upon it liberally, without the use •of quotation marks, in stating the following facts, which the jury could have found:

Thomas Lee Floyd owned and operated a •tavern on North Broadway in St. Louis. Sometime between 2:30 a. m. Saturday, August 3, 1963, when Mr. Floyd closed his tavern for the evening, and 8:45 a. m. .August 3, when he returned to his tavern, someone broke into the tavern and took therefrom certain quantities of whiskey and beer, the property of Mr. Floyd, together with a number of cartons of cigarettes, •and money from the cigarette machine, the property of Guy Vending Company. The total value of the property removed was over fifty dollars. About 1:30 on Sunday afternoon, August 4, while Mr. Floyd was washing his car in the rear of his tavern he ■ saw defendant and defendant’s brother, Louis, in an area close to the back ■of his tavern at the residence of a Mr. Ray Brawley, the father-in-law of Louis Webb. Defendant and his brother were •there from time to time for a period of ■several hours. Between 4 and S p. m. that ■day Mr. Floyd saw defendant drive away from the Brawley residence in a black 1950 model Ford automobile which “looked to be heavily loaded,” and about 15 minutes later defendant walked back up the alley to the Brawley residence. The contents of the automobile were not known to Mr. Floyd. At no time while he observed defendant and Louis at the Brawley residence ■did Mr. Floyd see any of the items taken from his place of business during the ■early hours of Saturday morning. At about 7:30 or 8 p. m. on Sunday, August 4, Mr. Floyd and his brother-in-law Jasper Valenti ■saw defendant, Louis Webb and one Robert ■Nelson on 17th Street, near Madison, carrying whát appeared to be beer boxes, a wine case, a black satchel or suitcase, and a fan from the back of the black 1950 Ford’which defendant had driven away from the Braw-ley residence earlier that day. The actual contents of the boxes, wine case and satchel or suitcase were not seen. The three men were transporting these items to defendant’s residence, at 1635-A North 17th Street. Defendant made two trips, during which he carried at least 4 or 5 cartons. Messrs. Floyd and Valenti "went to police headquarters, conversed with a lieutenant, and thereafter returned to the vicinity of defendant’s home, accompanied by three policemen, at approximately 8:30 or 9:30 p. m. Sometime between their arrival and 10:15 p. m. Louis Webb arrived at defend- . ant’s residence driving the black 1950 Ford. Louis was then and there placed under arrest. At approximately 10:15 p. m. the three policemen were joined by a police officer. Immediately thereafter the policemen entered deferldant’s home and found therein defendant, Pauline Webb and Pauline’s child. Pauline Webb was the wife of Billy Joe Webb, brother of defendant and Louis. Pauline was living with defendant in .defendant’s 3-room flat, sleeping in the same bedroom with defendant. Pauline’s husband was then serving a term in the city jail. Defendant was placed under arrest and a search of the premises was conducted. A cardboard box containing various half-pint bottles of liquor, vodka and whiskey was found in the kitchen closet. A black carrying case containing various brands of cigarettes was found under the bed in the bedroom and three cases of beer were also found there. Some of the half-pint bottles of whiskey and vodka bore Mr. Floyd’s name and his state license number and the cigarettes found bore the city stamp assigned to Guy Vending Company. The whiskey, cigarettes and beer found in defendant’s house were the items taken from Mr. Floyd’s tavern on North Broadway between 2:30 and 8:30 a. m. on August 3.

Defendant did not take the stand. Several relatives and close associates of defendant testified to facts which, if believed, would have established an alibi. Defendant’s brother, Louis Webb, testified that he (Louis) burglarized Floyd’s bar on North Broadway in the early morning hours of August 3 and removed the whiskey, beer and cigarettes found by the police Sunday, August 4, at defendant’s residence; that defendant was not with him but that he was alone in the commission of the offense and had not discussed or planned it with anyone; that after removing the whiskey, beer and cigarettes from the tavern he loaded the property into an automobile Louis had stolen the preceding Friday and proceeded to defendant’s house at 1635 North 17th Street, where he, Louis, was then living. There he unloaded the cases containing the stolen property and put them under the bed and in the kitchen closet; that no one helped him unload the stolen merchandise; that after unloading it he awakened defendant and Pauline Webb, who was at defendant’s residence at this time, and told them that he had stolen some property and brought it into the house. The boxes and the suitcase in which the stolen articles were found in defendant’s residence were similar to the containers in which the stolen property was located when he placed it in defendant’s house. Louis Webb was an inmate in the penitentiary at the time of trial, doing 10 years on three or four convictions of burglary and stealing, and car theft. He had previously been convicted of operating a motor vehicle without the consent of the owner, larceny of a motor vehicle (twice) and attempted robbery, first degree.

The recent, exclusive and unexplained possession of property stolen in the course of a burglary is sufficient to sustain a finding that the possessor participated in the theft. State v. Knicker, Mo.Sup., 366 S.W.2d 400, and cases cited, 403; State v. Jones, Mo.Sup., 358 S.W.2d 782. That the possession was recent, the property having been found in defendant’s house on the day following the burglary, is not questioned. Defendant’s possession was unexplained in the minds of the jurors, for they rejected the explanation offered by defendant’s witnesses. Defendant’s explanation was a question of fact for the jury. State v. Jones, supra, 358 S.W.2d 1. c. 784 [3]. With respect to the requirement that the possession be exclusive, the property was found in a closet in the kitchen and under the bed in the bedroom of defendant’s residence. It is argued that since defendant’s brother and sister-in-law were also occupying the same premises with defendant, the possession was not exclusively that of defendant. The requirement of exclusive possession does not mean that the possession necessarily must be separate from all others, State v. Watson, supra, 350 S.W.2d 1. c. 766, provided there is other evidence to connect defendant with the offense, State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, 486 [6], e. g., evidence that defendant, with conscious knowledge of the fact that the property was stolen, exercised dominion and control over it. The fact that stolen property is found on the premises of a man who has several relatives living with him, in a place to which others in the family have free access, would not alone be sufficient to sustain a conviction of stealing, 32 Am.Jur. Larceny, § 141; that bare fact would disclose only a prima facie constructive possession. State v. Drew, 179 Mo. 315, 78 S.W. 594, 596. In this case, however, there is sufficient other evidence, in addition to the evidence that the stolen property was found on defendant’s premises, to connect defendant with the offense, and to show actual, conscious possession of, and the exercise of dominion and control over, the stolen property.

The jury could find that defendant knew as early as Saturday morning, only a few hours after the burglary, that the property was stolen merchandise. Defendant’s brother Louis, called as a witness for defendant, testified that he informed defendant of this fact at that time. Louis also testified that he hauled the property away from the tavern in a 1950 Ford automobile which Louis admitted he had stolen the previous night for that purpose. Defendant was seen driving that automobile the next day, on Sunday afternoon, and it appeared to be heavily loaded. The jury could infer that the stolen merchandise, placed in the automobile on Saturday morning, was still in the automobile when defendant drove it on Sunday afternoon. The jury could disbelieve Louis’ testimony that he alone and unaided had unloaded the merchandise and carried it into defendant’s apartment just before daybreak on Saturday morning, and could find from the evidence that the merchandise was not unloaded from the automobile and placed in defendant’s apartment until Sunday evening, August 4, between 7:30 and 8 o’clock, at which time defendant, Louis and Nelson were observed carrying boxes and a black suitcase into defendant’s apartment. The foregoing, together with the testimony that defendant was then seen carrying at least 4 or S cartons, in two trips, from the black 1950 Ford to defendant’s apartment, and Louis’ testimony that the boxes and suitcase in which the stolen property was found in defendant’s residence were similar to the containers in which the stolen property was contained when it was brought into defendant’s house, was sufficient to authorize the jury to infer and find that the boxes and suitcase carried into 1635-A North 17th Street on Sunday evening, August 4, between 7:30 and 8 o’clock, contained the stolen property; that defendant then had conscious knowledge that it was stolen property, and that defendant was then and there exercising dominion and control over it.

We have compared the facts in the cases cited by defendant for the proposition that a conviction based upon suspicion, surmise and conjecture may not be permitted to stand. Without undertaking a case-by-case analysis suffice it to say that the facts in these cases are so different from the facts under review that the principles of law announced therein have no application here.

The amended information was sufficient in form and substance to charge the crimes of burglary in the second degree and stealing under § 560.156, V.A.M.S., State v. Edmonds, Mo.Sup., 347 S.W.2d 158 [3], and to charge defendant under the habitual criminal act, § 556.280, V.A.M.S. The verdict, finding defendant “guilty of Stealing property in the amount of over fifty dollars” and not guilty of burglary, second degree, is not correct in form because it does not state that the jury found defendant guilty of stealing property of the value of over fifty dollars. Reference to the amended information, evidence and instructions, however, indicates without doubt that defendant was charged, tried and convicted of stealing property of the value of more than fifty dollars, and under the ruling in State v. Mitts, Mo.Sup., 347 S.W.2d 677 [3], this is not reversible error. The parties stipulated that defendant had been previously convicted of the five felonies as alleged in the information, and the court made its proper finding and assessed the punishment correctly under the habitual criminal act. The 6-year sentence is within the range of punishment in the penitentiary (two to ten years) prescribed for the crime of which defendant was convicted. § 560.-161, subd. 1(2), V.A.M.S. Defendant was represented by an attorney throughout the trial, at the time of the granting of allo-cution and passing of sentence, and on appeal. The judgment is unexceptional and is responsive to the verdict.

Tire judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . State v. Watson, Mo.Sup., 350 S.W.2d 763; State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17; State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085; State v. Carter, Mo. Sup., 36 S.W.2d 917; State v. Mathis, Mo.App., 129 S.W.2d 20; State v. Jackson, 126 Mo. 521, 29 S.W. 601.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thomas KENT, Jr., Appellant.
    No. 50687.
    Supreme Court of Missouri, Division No. 1.
    Oct 12, 1964.
    Thomas F. Eagleton, Atty.- Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    John D. Connaghan, St. Louis, .for appellant.
   HYDE, Presiding Judge.

Defendant, charged under the Habitual Criminal Statute (Sec. 556.280), was found guilty of possession of a narcotic drug and sentenced to ten years’ imprisonment. Secs. 195.020 and 195.200 (statutory references are to RSMo and V.A.M.S.); State v. Kent, Mo.Sup., 375 S.W.2d 40. However, while a prior conviction of defendant was shown, there was no evidence offered to show that, after sentence in the prior case, defendant was “subsequently placed on probation, paroled, fined or imprisoned therefor” as required by Sec. 556.280 to make the Habitual Criminal Statute applicable. Therefore, we declared the sentence void (375 S.W.2d 1. c. 43) and remanded the cause with directions to the trial court to follow the same procedure stated and applied in State v. Hill, Mo.Sup., 371 S.W.2d 278, 282, 283. The court held a hearing on these issues and found “that the defendant has been formerly convicted of a felony and has been sentenced therefor and duly imprisoned and discharged therefrom.” After overruling his motion for new trial, thereafter filed, defendant was again sentenced to ten years’ imprisonment and has appealed.

On this appeal, defendant makes three assignments of error: (1) the court erred in taking additional testimony, as directed by our mandate, on the applicability of the habitual criminal statute because Sec. 556.-280 makes it mandatory that said hearing shall be held prior to submission of the case to the jury; (2) the court erred in overruling his objection to the State’s exhibit, a City Workhouse record, because it was not properly identified under the Uniform Business Records Act, Secs. 490.660-490.-690, or shown to be an official record; (3) the State’s evidence failed to establish beyond a reasonable doubt, that defendant served any sentence for any crime in any State Correctional Institution.

As to the first assignment, of course at the trial the court must hear evidence, “prior to the submission of the case to the jury,” Sec. 556.280(2), on the essential issues of the applicability of the habitual criminal statute, in order to decide whether the court or the jury shall determine the punishment. The court did so at defendant’s trial; but the State, while showing the prior conviction, failed to produce evidence of subsequent probation, parole, fine or imprisonment therefor. This was not relevant to the issue of guilt but only to the sentencing. Thus as we said in the Hill case, on the authority of Wilfong v. Johnston, U.S.C.A. 9th, 156 F.2d 507, 510, and In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149, “[Wjhere the conviction is correct, and the error or excess of jurisdiction has been as stated (in sentencing), there does not seem to be any good reason why jurisdiction of the prisoner should not be reassumed by the court that imposed the sentence, in order that its defect may be corrected.” We adhere to this view and hold that the trial court had the authority to hold a hearing on this issue as directed by our mandate and impose sentence upon proof and finding of defendant’s imprisonment on a prior conviction of an offense-punishable by imprisonment in the penitentiary.

As to the second assignment, defendant says there was no evidence of the-method or time of preparation of the record admitted, sources of the information it contained, or when entries on it were made. However, the warden of the workhouse-said the record was an official record maintained in the course of duties by him and his staff, prepared “from the commitment that accompanies the man when he enters-the institution”; and was a part of “a complete file that dates back to the early thirties,” kept in the main office. It showed the name, occupation, education and other information concerning Thomas Kent, Jr.,, showing sentence, date, charge, dates received and released and defendant’s signature on being released, as well as the signature of the releasing officer. We consider the State’s showing sufficient under our rulings in State v. Weindorf, Mo.Sup., 361 S.W.2d 806, 810, and Rossomanno v. Laclede Cab Co., Mo.Sup., 328 S.W.2d 677, 681-682, overruling Lockhart v. St. Louis-Public Service Co., Mo.Sup., 318 S.W.2d 177, cited by defendant; see also State v. Lindner, Mo.Sup., 282 S.W.2d 547, 553; State v. Hands, Mo.Sup., 260 S.W.2d 14,. 20-21, and cases cited. We hold the court did not err in admitting this record.

As to the third assignment, we find', ample evidence that defendant was imprisoned for and served the sentence shown, to have been imposed for his 1957 conviction, which was a graded felony. (For range of punishment see Sec. 195.200, RS-1949, V.A.M.S.; see also State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 334-335.) His imprisonment was shown not only from the workhouse record but also from the testimony of the warden that defendant, whom he identified at the hearing, was in the workhouse during 1957 and also from-the testimony of Officer Head in charge of prisoners at the workhouse. See annotation, 11 A.L.R.2d 880-886, and Missouri cases cited. Officer Head said defendant was in the workhouse from March 1957 through July 1957 and worked there under his direction on the scrub gang doing cleaning work.

The judgment of conviction and sentence is affirmed.

All concur.