author: LOONEY, J.

text:
    AMERICAN SURETY CO. OF NEW YORK v. FITZGERALD.
    No. 10819.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1931.
    Rehearing Denied March 7, 1931.
    Additional Conclusions of Facts March 9, 1931.

      Bartlett, Thornton & Montgomery, of Dallas, for appellant.
    Crane & Crane, of Dallas, for appellee.
   LOONEY, J.

M. B. Webster was appointed guardian of the person and estate of his daughter, Alice Webster, a minor, by the Surrogates’ Court of the county and state of New York, where they resided, and thereupon, on application to the probate court of Dallas county, was appointed guardian of,the minor’s estate in Texas, as authorized by chapter 13, title 69, R. S. 1925 (articles 4285-4289). The estate consisted of cash, $764.88, and an improved lot in the city of Dallas, valued at $40,000, incumbered with a lien indebtedness to the extent of $2,061.44, and yielding gross revenue of approximately $400 per month. Webster’s bond was fixed at $6,000, which ' he gave with the American Surety Company of New York, appellant, as surety, and duly qualified and received letters of guardianship on May 13, 1921.

On August 9, 1928, Hugh Nugent Fitzgerald, the minor’s grandfather, as next friend, filed in the cause a petition for the removal of Webster as guardian, and for the appointment of himself guardian to fill the vacancy. Webster was cited to answer the petition, in the manner provided by statute for service upon nonresidents, but he neither appeared nor answered. Grounds alleged in the petition for removal are reflected by the court’s findings, to the effect that Webster failed and refused to make any accounting for moneys received from the date of his qualification, May 13, 1921, to January 1, 1923; that he did not expend, on the ward, the amounts reported in the several accounts filed, but spent substantially less and had misapplied and embezzled funds belonging to the estate; therefore, lie was removed as guardian, his letters were revoked, and he was ordered by the. court to account for all property belonging to the estate, and deliver same forthwith to Hugh Nugent Fitzgerald, whom the court appointed guardian.

Prior to the filing of the petition for the removal of Webster, the, ward changed her residence from New York to Texas, and was at the time residing with her grandfather in Austin, Tex.; the order appointing Mr. Fitzgerald guardian recites: “That the said minor is over 14 years of age, has entered her written appearance herein, wherein she has made choice and selection of him (Mr. Fitzgerald), as the guardian of her estate in Texas.”

On December 12, 1928, Mr. Fitzgerald, guardian, filed in the proceedings in Dallas county a petition in the nature of a bill of review, to re-examine and set aside certain orders of court hereinafter mentioned, and f!or |a re-examination and restatement of the accounts of Webster, from the beginning to the end of his guardianship. Both Webster and appellant, his surety, were made parties, the former was served with notice in New York, in the manner provided by statute for service of process on nonresidents, but he neither appeared nor answered, appellant pleaded misjoinder of parties, the plea was sustained, and the proceedings dismissed as to it, without prejudice, however, to the rights of the minor.

On hearing, the court found, among other things, that Webster failed to account for certain cash items received as guardian, to wit, the sum of $764.88 from the registry of court, and $600 collected as bonus for transfer of lease; failed- to render any account of moneys received or disbursed from the date of his qualification, May 13, 1921, to December 31, 1922; failed to support with vouchers items alleged to have been expended on behalf of the ward; failed to disclose the true condition of the estate for periods the accounts filed purported to cover, in that he did not give a true and correct statement of all moneys received, nor a true and correct account of disbursements; that the orders of court approving accounts were made upon the erroneous assumption that they' were true, correct, and supported by proper vouchers, whereas in fact they were grossly inaccurate, and not supported by vouchers or other evidence showing their correctness. On these findings the court set aside the orders approving accounts, ordered a restatement of the accounts, held that, because Webster’s failure in these respects had caused expense and loss to the estate, he had forfeited the 5 per cent, commission on receipts and disbursements allowed by law.

After a re-examination, from the beginning to the end of the guardianship, the court restated the accounts, found that Webster was indebted to the estate of the minor, on November 13, 1928, the date of his removal, the sum of $17,216.29, the net balance unaccounted for, of which he had deposited in court, with his final report, only $238.58, leaving balance-, due and owing the estate the sum of $16,977.71. The following paragraph concluded the judgment: “The said M. B, Webster is hereby ordered and directed to at once pay over to the petitioner, Hugh Nugent Fitzgerald, as guardian of the estate of Alice Webster, a minor, the sum of Sixteen Thousand Nine Hundred Seventy-Seven and 71/100 Dollars ($16,977.71), and upon compliance with this order said M. B. Webster and the surety upon his bond shall be discharged from further liability therein.”

. Webster failing to comply with the order of court, this- suit was instituted by Mr. Fitzgerald, guardian, against the American Surety Company, surety; Webster, being a nonresident, was not made a party, the case was tried before the court February 19, 1930, and resulted in judgment for Fitzgerald, guardian, against appellant, on its bond, for the sum of $6,364, with 6 per cent, interest and all costs, from which this appeal is prosecuted.

The questions hereinafter discussed were properly raised and briefed.

Appellant contends that the probate court of Dallas county, after having removed Webster as guardian, was without jurisdiction to appoint Fitzgerald his successor, or to call Webster to an accounting for his stewardship as guardian; hence the judgment upon which this suit is founded was and is null and void. The reasons stated for this position are these: That the statute under which Webster was appointed guardian in Texas is one of comity, and recognizes the right of a guardian of an- estate in another jurisdiction to exercise in this state his authority as domiciliary guardian; that the general statutes of this state controlling guardianships are not applicable in such a case; that the probate court of Dallas county was not concerned with the administration of the guardianship in Texas, except to protect local creditors; that the statute does not require a nonresident guardian to account in this state for property removed to the state of domicile, that being a matter for the probate court of that state; that no person, other than the domiciliary guardian, was entitled to letters in this state; that no person was eligible to be appointed his successor by the Texas court, unless such person had been first appointed successor by the court of primary jurisdiction; that Webster was responsible alone to the Surrogates’ Court of New York, and must make an accounting to that court, whereas the judgment of the probate court of Dallas county required Webster,¾ the domiciliary guardian, to account to it; that no creditor had complained, their rights were not involved, and, as the only debt against the estate was less than 10 per cent, of the value of the land by which it is secured, the right of the guardian to remove property of the ward to the state of domicile should be recognized as if no debt actually existed. Therefore, as the probate court of Dallas county was without jurisdiction either to appoint Fitzgerald guardian, after the removal of Webster, or to examine and restate Webster’s accounts, its judgment, upon which this suit is based, was and is null and void.

We cannot accept this view of the case. Webster, as nonresident guardian, was required to take the oath and give the bond required of guardians generally, and, in our opinion,, was controlled by the statutory provisions, applicable to guardianships as in other cases, except those peculiar to a guardianship of this class. His, appointment by the Surrogates’ Court of New York gave him no authority over the ward’s estate in Texas; his authority in this respect resulted exclusively from • his appointment as guardian by the probate court of Dallas county, whose jurisdiction he invoked, ana by this token obligated himself to administer the estate under its supervision and direction, and in obedience to Texas laws.

Webster’s bond not only protected local creditors of the estate, but the ward as well. He and surety are liable for property of the estate removed from Texas and wrongfully appropriated, and the jurisdiction of the probate court of Dallas county to compel an accounting is, in our opinion, adequate. In re Guardianship of Caskey, 183 Iowa, 1323, 166 N. W. 751.

The orders of the probate court, removing Webster, canceling, his letters of guardianship, and appointing Fitzgerald successor, were not appealed from, are final judgments, and therefore immune from collateral atack.

The court, having power to appoint Webster, nonresident guardian of the ward’s estate in Texas, retained jurisdiction to control his activities, to remove him for cause, and to appoint his successor. See Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153, 156; Marlow v. Lacy, 68 Tex. 154, 2 S. W. 52; Logan v. Robertson (Tex. Civ. App.) 83 S. W. 395, 397; Usury v. Usury, 82 Ga. 198, 8 S. E. 60.

We therefore overrule the assignments and propositions that challenge the jurisdiction of the probate court of Dallas county in the respects mentioned above.

Appellant also insists that the bill to revise and correct certain orders of court, to examine, restate, and surcharge Webster’s account, was not authorized by the bill of review statute (article 4328), in that Webster had filed no report covering part of the period of his guardianship; several annual accounts filed by him had not been acted upon by the court; no inventory or report of certain property belonging to the ward had been made; that the court had rendered no decision or judgment in regard to these matters, hence as to these there was nothing to review; and, as the probate court was without jurisdiction of at least a part of the subject-matter 'essential to the determination of the amount the court found was owing by the guardian to his former ward, that the judgment is void in part, and, being indivisible, is void in its entirety.

Bearing upon this question, the record discloses that, on March 20, 1924, Webster .filed •his first annual report, in which, without giving an itemized statement of receipts and disbursements from the inception of the guardianship, he stated the “condition (of the estate) as of January 1, 1923,” in general terms, that is, credits were given as follows: “Real estate $40,000.00, cash $285.-06, less an encumbrance on real estate of $2061.44, net assets as of that date $38,-223.62”; this was followed by a statement of certain receipts and disbursements from January 1, 1923, to December 31, 1923; an,d on March 14, 1925, filed his annual account for 1924; on April 12, 1926, for 1925; on March 21, 1927, for 1926; March 5, 1928, for 1927; and, after being removed on November 13, 1928, in compliance with the or-' der of court, filed as his final account covering the period from January 1, 1928, to November 30, 1928, and deposited in the registry of court the sum of $238.58 as the amount of cash on hand belonging to the estate. The first four accounts above mentioned were approved by the court, the last two, however, were never acted upon.

Appellant’s position, in short, is that it was not permissible for Fitzgerald in the same petition to seek revision and correction of decisions and orders of court, and to seek an accounting as to matters not acted upon by the court, such as receipts and disbursements not reported, and accounts on file but never acted upon.

We find no objection to this method of procedure. Webster could not have been prejudiced. Besides, the judgment of court is final and not subject to collateral attack. However, if all indebtedness found by the court be eliminated, except the amount found on revision and correction of prior orders approving accounts, there will remain sufficient to more than absorb the amount of appellant’s liability under the bond. As before shown, the first account filed by Webster, March 20, 1924, gave a general summary and stated the condition of the estate as of January 1, 1923. It was his duty, under the statute (article 4225, R. S. 1925), to include in this account all property belonging to the -ward not previously inventoried, and to give a complete account of receipts, disbursements, and all property and money on hand. His report implied as much, and, relying upon this fact, the court was induced to make an erroneous order approving the same, whereas on revision and correction found that, after allowing all credits to which Webster was entitled, he had on hand January 1, 1923, $5,358.-22 belonging to the estate, instead of the sum of $285.06, as reported by him. The court also approved accounts for 1923,1924, 1925, and 1926, but these orders of approval were set aside, and on revision and correction the court found that Webster had on hand January 1, 1927, the sum of $16,596.51 instead of $46 as reported by him. Therefore, it can be conceded, which we do not, that the order of court ascertaining Webster’s indebtedness to the estate was erroneous in part, for reasons stated; still the amount found as the result of the revision and correction of accounts approved by orders of court, excluding other items, is more than sufficient, twice over, to absorb the amount of the bond sued upon.

This contention of appellant is based upon the decision of the Commission of Appeals in Yates v. Watson, 221 S. W. 966, 967; the language in point is as follows: “The amount paid out as attorney’s fees was never inventoried or appraised as part of the estates of the minors, or referred to directly or indirectly in any of the orders of the court.” Further the court said: “No decision, order, or judgment was made or entered by the court concerning it; hence there was nothing relating to it to review in this suit.” The precise situation presented in the Yates-Watson Case is not the situation here, for it seems that no effort was made in that case, as was attempted in the proceedings under review, to have the guardian make an additional and correct accounting. On that point, the Commission of Appeals said: “Neither an additional nor a new inventory was sought in any of the proceedings in this case.” This language implies that, in the opinion of the commission, it was not only proper in a bill of review proceeding to require additional or a new inventory or an accounting, but that such was in fact necessary.

The holding of the Commission of Appeals, as to the scope of a bill of review, indicated by the language employed, is based upon an expression found in Nicholson v. Nicholson, 59 Tex. Civ. App. 357, 125 S. W. 965, 967, which cites as authority Francis v. Northcote, 6 Tex. 186, and this in turn cites Ingram v. Maynard, 6 Tex. 130. So, when we trace to its origin the doctrine announced by the commission in Yates v. Watson, supra, we find that it had its birth in the midst of facts and under controlling statutes, dissimilar to those involved here; in truth, the earlier decisions were prior t.o the enactment of the review statute, article 4328, under wíiich the proceedings being considered were prosecuted. But, aside from this, we are of opinion that the scope of a bill of review under the statute in question, as limited by the language in Yates v. Watson, quoted above, is in sharp conflict with the doctrine announced by the Supreme Court on the same subject.

The purpose of a bill of review, originally, was to obtain a new trial and a revision of an order of court for error or defect apparent upon the face of the proceedings. This is announced in R. C. L. vol. 10, p. 571, § 360, as follows: “The simplest form of the bill of review is that which lies for error apparent. This bill has been denominated the ‘pure bill of review.’ Such a bill sets up no new facts or newly discovered matter, and its sole purpose is to obtain a review and reversal of the decree for some error or defect on the face of the proceedings, or, as is said, for error apparent. On a bill of review for error apparent, the court will not consider or correct any error resulting from an erroneous inference of fact or conclusion from the evidence. The only questions open for examination in such a case are such questions of law as arise on the pleadings, proceedings, and decree exclusive of the evidence.” Apparently, this is the rule applied by the Commission of Appeals in Yates v. Watson, and announced by the Court of Civil Appeals in Nicholson v. Nicholson, but, as will be seen, is not the rule approved by the Supreme Court.

In Young v. Gray, 60 Tex. 541, a bill of review was brought under this statute to inquire into and have re-examined and reviewed the action of the court in passing upon the final account and settlement of a guardian, among pther things, the bill sought to have the guardian make a more complete exhibit of the estate, alleging that the same had not been fully accounted for. In passing upon the matter, the court, among other things, said: “But in so far as the bill of review seeks to inquire into, and have re-examined and revised, the action of that court in passing upon the final account and settlement of the guardian, such action being w’ithin the power and jurisdiction of that court, is a proper subject of investigation there, and of consideration and revision, on appeal, in this form, by the district court.” In Jones v. Parker, 67 Tex. 76, 79, 3 S. W. 222, 224, Judge Gaines, for the Supremo Court, said: “It has been held by our courts, in several decisions upon this [Article 4328] and similar statutes, that a bill of review, under our system, need not conform to the rules, and is not limited to the restrictions, of the equitable practice as applicable to that remedy” — citing Janson v. Jacobs, 44 Tex. 574; Seguin v. Maverick, 24 Tex. 526, 76 Am. Dec. 117;

In Janson v. Jacobs, 44 Tex. 575, 576, the court said: “It is not our opinion that a petition formed under this article [the same here involved] must conform to the requisites of a bill of review in a court of chancery, nor do we think that the error to be shown in such a petition must necessarily be error of law apparent on the face of the proceedings. If the petition sets forth with reasonable certainty the proceedings sought to be revised, and shows that there was error therein, whether it be error of law, or error growing out of fraud or mistake, and only apparent in the light of facts not then made known to the court, it contains enough to enable a party interested to maintain the application. This view of the statute is borne out by a reference to former statutes on the same subject.” Thus it is apparent that the limited scope of a bill of review brought under this statute, given in Yates v. Watson and Nicholson v. Nicholson, supra, was not authorized by the doctrine announced by the Supreme Court on the subject.

Appellant contends further that the finding of the probate court of Dallas county to the effect that Webster was indebted to his former ward in the sum of $16,977.71 was a judgment in personam against a nonresident on personal service had in the state of New York rendered in the absence of a personal appearance or of any proceeding in rem against property; and, further, the court, having removed Webster from the guardianship, acquired no jurisdiction of his person by the service of a nonresident notice. For these reasons, appellant insists that the judgment of the probate court, upon which the suit is based, was and is null and void.

We dissent from this view. The proceedings filed by Fitzgerald to review the order of the probate court and for a full accounting by Webster as guardian was neither an action at law nor in equity, but simply a summary proceeding for the ascertainment of the delinquency, if any, of Webster as guardian, as a predicate for the institution of suit on his bond for the recovery of the amount the court found he was due the estate. Fort v. Fitts, 66 Tex. 595, 1 S. W. 563; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153, 156; Kingsberry v. Hutton, 140 Ill. 603, 30 N. E. 600, 601; Chapman v. American Surety Co., 261 Ill. 594, 104 N. E. 247, 250, 251.

Webster, as an officer of court, was bound to settle his account as guardian when and as directed by the court, having voluntarily invoked its powers by seeking and obtaining appointment as nonresident guardian of the ward’s estate in Texas, submitted in advance to the laws of the state, including. the statute prescribing the method, employed in this case, of obtaining service of process on him as it non-resident. See Spencer v. Houghton, 68 Cal. 82. 8 P. 679, 683; Trumpler v. Cotton, 109 Cal. 250, 41 P. 1033, 1035; Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S. W. 100; Michigan Trust Co. v. Ferry, 228 U. S. 346, 33 S. Ct. 550, 57 L. Ed. 867. Notwithstanding Webster’s removal as guardian, the court retained jurisdiction to determine what, if any, effects he had belonging to his former ward, and to require delivery of same to Mr. Fitzgerald successor in guardianship. The judgment of the probate court in the proceedings is as conclusive and binding upon appellant, surety, as upon Webster, guardian, and, in our opinion, furnished sufficient basis for the suit and judgment. Bopp v. Hansford, 18 Tex. Civ. App. 340, 45 S. W. 744, 746; Sheffield v. Goff, 65 Tex. 354; Hornung v. Schramm, 22 Tex. Civ. App. 327, 54 S. W. 615; Gray v. McFarland, 29 Tex. 169; Stewart v. Morrison, 81 Tex. 396, 399, 17 S. W. 15. 26 Am. St. Rep. 821; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153, 157; Fahey v. Boulmay, 24 Tex. Civ. App. 279, 59 S. W. 300; Minchew v. Case (Tex. Civ. App.) 143 S. W. 366; Holman v. Ward (Tex. Com. App.) 288 S. W. 148.

Appellant insists that, as the probate court of Dallas county authorized Webster to remove from Texas to the state of New York the sum of $764.88 belonging to his former ward, jurisdiction of that portion of the estate was surrendered, and the court was without authority, in restating the guardian’s account, to charge him-with that sum.

We do not assent to the correctness of the proposition that the order of court permitting Webster to remove the fund to the state of his domicile absolved him, on a proper accounting, from showing a legal disbursement thereof; but, if appellant should be correct in this contention, yet the amount removed under the order of court is so small in comparison with the amount removed without authority, and in violation of the statute, that the result of the litigation could, in no event, be affected thereby.

The statute (article 4288, R. S. 1925) reads: “There shall be no removal from the State of any of such property, until all debts known to exist against the estate have been paid, or the payment thereof secured by bond payable to the county judge and' approved by the clerk.”

Webster violated this statute; his only authority for the removal of property was an order entered June 3, 1921, ■ authorizing the .removal of the sum of $764.88. The estate at that time was indebted, no bond was given as required by statute, and throughout Webster’s tenure as guardian the estate was indebted ; at first the amount was $2,061.44, which, instead of being paid or reduced, was permitted by him to increase, and at the time the court removed him from the guardianship had increased to the sum of $3,054.

Haying considered all assignments and propositions urged for reversal, and finding no error, tlie judgment of the court below is affirmed.

Affirmed.

Additional Conclusions of Pacts.

At 'the request of appellant, the following additional conclusions of facts are made: (1) Before M. B. Webster was appointed guardian of the ward’s estate in Texas, he had been duly appointed guardian of her person and estate in the state of New York, at that time the state of her domicile, and the American Surety Company of New York became surety on his bond as such domiciliary guardian, in the sum of $29,000. (2) Prior to the filing by appellee of the bill of review herein, no order was made by the probate court of Dallas county on annual accounts filed by Webster for any period subsequent to December 31,’ 1926. (3) The appointment of Hugh Nugent Fitzgerald, guardian of the ward’s estate in Texas, was made after the removal of Webster by the probate court of Dallas county and' in the same proceedings.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    ALDRIDGE v. STOUT.
    No. 12420.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 17, 1931.
    Rehearing Denied Feb. 21, 1931.
    Collins & Houston, of Dallas, for appellant.
    Adams & Jones and W. D. Garnett, all of Gainesville, for appellee.
   BUCK, J.

This suit was originally filed by W. R. Stout against S. J. Aldridge for damages to Stout’s car, alleged to have been sustained in a collision between a truck driven by defendant’s employee and a truck driven by plaintiff. Éefore the trial, defendant died, and his administratrix, who also was his widow, was made defendant, and represented the estate of the deceased defendant. Upon a trial before the court, judgment was rendered for plaintiff for $602.50; the judgment being rendered against the estate of S. J. Aldridge. Prom this judgment the defendant has appealed.

Opinion.

The only question involved in this case is: Did any cause of action against the defendant survive the death of the defendant wrongdoer?

In 1 Corpus Juris, pp. 184 and 185, § 339 et seq., it is said:

“Actions and, Causes of Action ecu Delicti - — a. In General — (1) At Common Law — (a) The General Rule. At common law, where a-cause of action for injury to either the person or property of another was such that it could be enforced only by an action ex delicto for damages, in which the plea of the general issue must be not guilty, it did not, as a general rule, survive the death of the person to or by whom the wrong was done; and this is still the rule, so that such a cause of action, or a pending action thereon, abates on the death of either party, except in so-far as the rule has been modified or abolished by statute.” Under this text is cited Texas cases as follows: Gibbs v. Belcher, 30 Tex. 79; Watson v. Loop, 12 Tex. 11; Ellyson v. International, etc., Ry. Co., 33 Tex. Civ. App. 1, 75 S. W. 868.
“Tort of Third Person. The maxim, Actio-personalis moritur cum persona, does not apply to a case where the tort out of which the cause of action grows is the tort of a third party and not of the party deceased.
“Sec. 340. (¾) Injury or Benefit to Estate, Where, however, the estate of the injured person was diminished by the. wrong, his-personal representatives might in some cases, even at common law, recover for the injury. ⅜ * * But in order that a right of action arising out of a tort should survive against the executor or administrator of the tort-feasor, it was generally held essential that the latter should, by the wrongful act, have acquired specific property by which, or by the proceeds of which, the assets in the hands of his personal representatives were increased.”

The courts of Texas and authorities seem to have construed the rule somewhat liberally. Judge Townes, in his work, Townes on Torts, p. 264, says: “At common law, causes of action arising from violation of personal rights do not survive the death of either the wrong doer or the injured party. Liability for tort against property rights did survive. This is the rule at this time in the Federal Courts and in those states in which no statutes affecting the subject have been passed. The tendency of modern legislation is to prevent abatement of liability for personal wrongs and in many states they survive. In Texas all causes of action survive death of either or both, whether they be for violation of personal or property rights, except in the one case of liability for the damages recoverable by the injured party for injuries which subsequently result in death.”

“The true line of demarcation at common law separating those causes of action which survive from those which do not, is that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter, the injury complained of is to the person' and the property and rights of property affected are merely incidental. In the former case, the cause of action survives, while in the latter it abates.” 1 Corpus Juris, vol. 1, p. 174.

In The Margaret B. Roper Case, 106 F. 740, the Circuit Court of Appeals held that a suit for collision, brought in behalf of the owners of a vessel and cargo by the master, is one in which the cause of action survives the death of the libelant; and, where he has given bond binding himself and his heirs and legal representatives to abide the judgment of the court, and pay the costs adjudged against him, on his death, pending an appeal, his administrator may be substituted in his stead.

In Texas & 1ST. O. Ry. Co. v. Smith, 35 Tex. Civ. App. 351, 80 S. W. 247, 248, it was held that a cause of action for injury to real estate survived the owner’s death and passed to his heirs. The defendant specially objected on the ground that such damage did not survive and descend to the heirs of deceased.. The court said: “The general rule is that actions which may be assigned will also survive. It cannot be doubted that Mrs. Smith could have assigned.her right of action for injury to her .land, and the as-signee could have maintained a suit thereon. Such being the case, we see no reason why the cause of action for such injury should not survive to her heirs. We are of opinion that, the injury being to the property of the decedent, the cause of action' therefore became an asset of her estate and passed to her heirs.”

In the case of City of Marshall v. McAllister (Tex. Civ. App.) 43 S. W. 1043, and also 22 Tex. Civ. App. 214, 54 S. W. 1068, the plaintiff was injured and his buggy injured by falling through or off of a defective bridge. The court said that, the suit being for personal injuries and for injuries to property, the cause of action survived.

In Williams v. Harris, 193 S. W. 403, 404, the Texarkana Court of Civil Appeals, speaking through Justice Levy, writ of error refused, says: “The personal actions which at common law die with the person are causes of action where the damages are personal in nature; as for instance, anguish of mind, injury to character, deprivation of liberty, and bodily injury. [Citing eases.] But where the damages sustained affect property rights or interest therein, the right of action survives against the executor or administrator.”

In Dowlin v. Boyd, 284 S. W. 636, 639, this court said: “Where the cause of action is a tort unconnected with contract, and which affects the person only, and not the estate, such as assault, libel, slander, and the like, there the rule ‘Actio personalis moritur cum persona,’ applies.”

This case is also quoted in 291 S. W. 1095, 1098, and Justice Short, speaking for the Supreme Court, said: “Justice Buck, for the Court of Civil Appeals * * * in our opinion correctly says: ‘That the true test is not so much as to the form of the cause of action as to the nature of the cause of action. Where the cause of action is a tort unconnected with contract, and which affects the person only and not the estate, such as assault, libel, slander, and the like, there the rule “actio personalis moritur cum persona,” applies.’ ”

In Texas Jurisprudence, vol. 1, § 13, p. 31, under the subject of “Abatement and Survival,” it is said: “And it is the rule in Texas that an action does not abate when the injuries complained of do not affect the person injured either physically, morally or mentally, but affect only his property (citing cases), provided the action does not seek exemplary damages for the tort, but simply the value of the property.”

See, also, G. H. & S. A. Ry. v. Freeman, 57 Tex. 156; 1 R. C. L., under Abatement and Survival and special sections 11 and 18.

We conclude after a somewhat careful investigation, that the cause of action asserted by tbe plaintiff in this cause is merely one for injury to his personal property and involves only property rights ánd survives the death of the wrongdoer.

The judgment of the trial court is therefore in all things affirmed.

On Appellant’s Motion for Rehearing.

The maxim, “actio personalis moritur cum persona,” as stated in the citation from Corpus Juris, heretofore mentioned, does not apply to a case where the tort out of which the cause of action grows is the tort of a third party and not of the party deceased. Under this announcement in Corpus Juris is cited the case of Dayton v. Lynes, 30 Conn. 351, where a sheriff was charged with the default of a deputy sheriff, and it was held that after the death of the sheriff an action was maintainable against the latter’s administrator. It is probable that this holding is a modification of the rule of law applied in many cases where death has closed the mouth of one party to the transaction, and the law closes the' mouth of the other party. The case of Mayer v. Ertheiler, 144 App. Div. 158, 128 N. Y. S. 807, holds: “The test of survivorship is whether there was an injury to the pecuniary interests of the plaintiff, and it is immaterial whether the wrongdoer profited by his wrong.”

We conclude that we have correctly disposed of this case in the original opinion, and therefore that the motion for rehearing should be overruled, and it is accordingly so ordered.


author: PELPHREY, C. J.

text:
    BAUDER et al. v. JOHNSON.
    No. 2507.
    Court of Civil Appeals of Texas. El Paso.
    March 26, 1931.
    Rehearing Denied April 2, 1931.
    J. H. MeBi'oom and Frank B. Clayton, both of El Paso, for appellants.
    C. W. Croom, of El Paso, for appellee.
   PELPHREY, C. J.

This suit grew out of the sale of a Hupmo-bile automobile by appellants to appellee.

Appellee paid $450' to appellants, and executed a note for $300 due ninety days from date.

Appellee alleged that appellants and their authorized agents represented to him that the automobile was a little over one year old, was in perfect mechanical condition, and that it had run less than 17,000 miles; that he relied upon such representations; that the representations were untrue, in that the automobile was over two years old, was not in perfect mechanical condition, and had been run over 35,000 miles; that,, upon learning the untruthfulness of the representations, he tendered back the automobile and demanded the return of the amount he had paid thereon, and tendered the automobile into court, demanding the return of the amount paid by him and the cancellation of his note for $300⅛

In the alternative he alleged the automobile, if it had been as .represented by appellants, would have been worth the contract price of $750, but that it was actually worth only $300, and that he was damaged in the sum of $455, for which he sued.

Appellants answered by general demurrer, general denial, and by cross-action, seeking to recover the amount of the note given by ap-' pellee, together with interest and attorney’s fees.

The jury, in response to special issues, found that J. M. Morrison (who the record shows was a salesman for appellants) told ap-pellee that the automobile was a little over a year old, was in perfect mechanical condition, and had been run less than 17,000 miles; that these statements were untrue; that ap-pellee relied on these statements, and would not have entered into the transaction but for such representations; and that the reasonable cash market value at the date of the sale was $455. Judgment was rendered canceling the note and in favor of appellants against appellee for the sum of $5.

This appeal is from such judgment.

Opinion.

The third point presented by appellant is that the court should have instructed a verdict in their favor -because (1) there was no evidence of reliance by appellee on the misrepresentations alleged to have been made, and (2) there was no evidence that the ear was worth less than the price paid for it, and hence no showing of damage resulting from the misrepresentations.

"The “judgment rendered by the trial court was one for damages, according to our view of its effect.

The court did not award the automobile to appellants; neither did he give appellee judgment for the amount paid by him. Both of these things would have been necessary in a judgment for rescission.

The judgment rendered evidently was based on the finding of the jury that the automobile was worth only $455 instead of the contract price of $750, which would show that ap-pellee was damaged in the sum of $295. He then evidently, in offsetting that amount against the outstanding $300 note, did so by canceling the $300 note and rendering judgment in favor of appellants for $5 ; that sum being the difference between the $295, or damage suffered by appellee on account of the fraud, and the $300 note.

It cannot be disputed that a recovery of damages for fraud cannot be had unless there is allegation and proof that the article received was worth less than the amount paid. Therefore, unless there is proof here that the automobile was worth less than $750, there can be no recovery of damages for the fraud.

We have read over the testimony with care, and find no evidence to show that the car was worth less than the $750 contracted to be paid, and all the evidence on the question of value ■seems to show that it was worth that amount or more.

Tom Ford, the prior owner of the automobile, said he considered it well worth $750 at the time he traded it to appellants.

George Putnam said he did not know the . value of the car, but that, as far as he knew, it was doing nicely and performed all right while Ford owned it.

J. L. Roberts, an auto mechanic, said he worked on the automobile a short while before Ford disposed of it; that it was in first-class shape, and in his judgment was worth $750.

H. W. Bauder, one of appellants, said they took the automobile in at $765, and that its reasonable market value was around $750.

It seems also to be well settled that the equitable remedy of cancellation is not available because of fraudulent representations made to induce the execution of a contract, unless it be shown that some pecuniary damage has resulted to the party claimed to be aggrieved. Russell v. Industrial Transp. Co., 113 Tex. 441, 251 S. W. 1034, 258 S. W. 462, 51 A. L. R. 1; Bryant v. Vaughn et al. (Tex. Sup.) 33 S.W.(2d) 729.

It is therefore clear that, únder the record here, appellee was not entitled to either form of the relief prayed for. We cannot agree with appellant that the little card reading: “Continental No. 1. ■ Stanton and Montana. Phone Main 42, El Pago, Texas. Greased 36296. Date, 12 — 30—29, Oil chgd. 6 qts. heavy, Mileage 36296. Date 12 — 30—29. by Geo.,” was not properly admitted in evidence ; it being shown that the prior owner of the car had had it serviced at the station designated; that it was the custom of that station to put such a card on cars greased there; that the card in question was found on the car bought by appellee; that the card was in the handwriting of the witness Putnam, who testified that he had on occasions serviced the car while Ford owned it.

The testimony of appellee and his son as to the representations made by Morrison were properly admitted. Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S. W. 873, and authorities cited.

Because of the lack of evidence as to pecuniary damage, we think the judgment must be reversed and the cause remanded.


author: SHORT, P. J. CURETON, C. J.

text:
    Sam UNDERWOOD et al., Plaintiffs in Error, v. J. D. PIGMAN et al., Defendants in Error.
    Motion No. 9401; No. 1237-5617.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.
    W.. 'E. Lessing, of Abilene, for plaintiffs in error.
    Henry Russell, of Pecos, for defendants in error.
   SHORT, P. J.

On the 26th day of November A. D. 1930, the Supreme Court rendered judgment in this case in favor of the plaintiffs in error for the title and possession of the land in controversy, reversing the judgments of the district court and of the Court of Civil Appeals [21 S.W.(2d) 703], but remanded the case, with instructions to enter judgment for the title and possession of the land in favor of the plaintiffs .in error, and also to hear testimony on the question of rents and enter such judgment as the facts might warrant with reference to such question. 32 S.W.(2d) 1102.

The defendants in error have not filed any motion for rehearing, but the plaintiffs in error have filed a motion to the effect that they do not claim anything for rents on- the land sued for, but upon the contrary waive any such claim for rents, and pray that the judgment of the 'Supreme Court so rendered on the 26th day of November, 1930, remanding the said cause, with instructions, be set aside, and that judgment be rendered by the Supreme Court that the plaintiffs in error, Sam Underwood, J. B. Underwood, Mrs. B. Beaty and her husband, W. R. Beaty, Miss May Underwood, Mrs. Ola Keithley and her husband, J. M. Keithley, Della Shelby and her husband, C. M. Shelby, take nothing by reason of their plea for rents against the defendants in error, and that they recover of and from the defendants in error, J. D. Pig-man, N. E. Fielding, J. H. Hicks, John Pig-man, Frank Pigman, S. W. Estis, H. B. Duna-gan, Coca-Cola Bottling Company, a firm composed of J. H. Hicks and others, the names of the others being unknown, the title and possession of the land described in the cross-action of plaintiffs in error, as follows: “All that certain tract or parcel of land lying and being in the county of Ward, State of Texas, containing four and 135/1000 acres (4.135) acres of land, and being a part of Section Fifty-one (51), Block ‘N’ originally granted to Gunter and Munson, Maddox Bros, and Anderson and described by metes and bounds as follows: Beginning at the S. E. corner of the 10 acre tract owned by M. M. Cox and the S. W. corner of 4.135 acre tract known as the Mrs. Maud Hoeker tract, said beginning corner being at a point on the South boundary line, of Monahans Town plat tract, a distance of 666 feet South 16½ degrees East from the S. E. comer of Block Ño. 25, of Monahans, Texas; Thence S. 16½ Deg. E. Six-hundred and sixty-six feet (666 ft.) to the S. E. corner of 10 acres known as the W. F. Stewart tract; Thence No. 73½ Deg. E. 270 feet for corner; Thence N. 16½ Deg. W. 666 feet .to S. E. corner of Mrs. Maud Hoeker tract (4,135 acres); Thence South 73½ Deg. West along and with the South boundary line of said Mrs. Maud Hoeker Tract 270 feet to the place of beginning and conveyed to W. F. Stewart by G. B. Devall on the 4th day of October, 1905” — and that a writ of possession issue to plaintiffs in error, as provided by law, and that the plaintiffs in error recover of defendants in error all costs.

Service of this motion for judgment and waiver of rents has been waived by the defendants in error, who enter their appearance upon said motion. We think the motion should be granted.

We therefore recommend that the Supreme Court grant said motion and that the following judgment be entered, to wit:

It is considered, adjudged, and decreed by the Supreme Court of Texas that the judgment of said Supreme Court so rendered on the 26th day of November, 1930, remanding said cause, with instructions, be set aside, and that judgment be and the same is here rendered in accordance with the above-stated prayer in favor of the'above-named plaintiffs in error against the above-named defendants in error for the title and possession of the above-described land, and that a writ of possession issue to plaintiffs m error, as provided by law, and they recover of the defendants in error all costs for which execution may issue.

On Rehearing.

CURETON, C. J.

Previous judgment vacated, judgments of the district court and Court of Civil Appeals reversed, and judgment here rendered for plaintiffs in error, as recommended by the Commission of Appeals.


author: LATTIMORE, J.

text:
    Harry BROWN v. STATE.

      No. 14084.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    A. H. Mount, of Dallas, and Williford & Williford, of Fairfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for felony theft; punishment, two years in the penitentiary.

We find in this record an affidavit in due form made by the appellant, requesting that his appeal he dismissed. The request will be granted.

We observe that this affidavit is dated October 30, 1930, and that', instead of being sent as a separate document accompanying this record, and the attention of the clerk of this court called to the fact that there is such affidavit on file, said affidavit was incorporated in the record as a part thereof, and the attention of the clerk or members of this court not- called to the fact that such affidavit was filed until the case was regularly reached and submitted. The pursuing of this course has been the cause of this appellant being kept in jail at the expense of the taxpayers. This case was filed in this court in November, 1930. Had our attention been called to the filing of this affidavit, the case would have been promptly acted upon, and the expense and loss of time to the appellant would have been avoided.

The appeal is dismissed.

HAWKINS, J., not sitting.


text:
    Jess CARMICHAEL v. STATE.
    No. 14055.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    D. T. Moore, of Aquilla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for unlawfully carrying a pistol ; punishment, a fine of $100.

The record is before us without bills of exception or complaints of procedure. The only matter presented is the sufficiency of the testimony. Examining the facts, we observe that appellant himself admitted that he carried the pistol in question; his defense being that he had it for the purpose of protecting himself against an attack which he thought was going to be made upon him. The issue thus raised was submitted to the jury. They have solved same adversely to appellant. ■

No error appearing, the judgment will be affirmed.


text:
    Leonard COURSEY v. STATE.
    No. 14162.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    W. M. Tucker, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, two years and six months in the penitentiary.

, We find in this record an affidavit in due form made by the appellant requesting that his appeal be dismissed. The request is granted.

The appeal is dismissed.

HAWKINS, J., not sitting.


author: MORROW, P. J.

text:
    J. H. DOWDY v. STATE.
    No. 14323.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    B. L. Palmer, J. R. Hill, and H. J. Bernard, all of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is embezzlement; penalty, confinement in the penitentiary for a period of two years.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    J. H. DOWDY v. STATE.
    No. 14324.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    H. J. Bernard, J. R. Hill, and B. L. Palmer, all of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for embezzlement; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Harold HENRY v. STATE.
    No. 14208.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    D. A. Puckett, of Houston, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for unlawfully carrying a pistol; punishment thirty days in the county jail.

The record is here without statement of facts or bills of exception. The indictment appears to conform to the law, and, no error appearing, the judgment will be affirmeS.


author: CHRISTIAN, J.

text:
    Bob HOLLEY v. STATE.
    No. 14188.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Owsley & Owsley, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for twenty-five years.

The testimony is substantially the same as that brought forward in the case of Sam Reed V. State, 36 S.W.(2d) 730, this day delivered. The questions presented in the companion case of Reed v. State are also found in the present case.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, J., not sitting.


author: • MORROW, P. J.

text:
    Bud INGRAM v. STATE.
    No. 14351.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Ed Westbrook, of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   • MORROW, P. J.

Theft of hogs is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Joe McDANIEL v. STATE.
    No. 14348.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    R. R. Donaghey, of Vernon, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for forgery; penalty assessed at confinement in the penitentiary for two years.

The appellant has filed his written motion, duly verified by his affidavit, requesting that his appeal be dismissed.

The request is granted, and the appeal ordered dismissed.


author: HAWKINS, J.

text:
    Benigno MARTINEZ v. STATE.
    No. 14260.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Crane & Hartwell, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor; the punishment being three years in the penitentiary.

Appellant has filed his affidavit in this court advising that he does ¡not further desire to prosecute his appeal, and, at his request, the appeal is ordered dismissed.


text:
    Jose DE PENA v. STATE.
    No. 14291.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    See, also, 25 S.W.(2d) 1106.
    M. V. Ward and Chas. Owen, both of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the penitentiary for life.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Asa PENDLETON, alias Harry Ward, and Whitey Hays, v. STATE.
    No. 14251.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    O’Brien St-evens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is attempt to commit burglary; penalty assessed at confinement in the penitentiary for a period of two years.

The record is before this court without statement of facts or bills of exceptions. No fundamental error has been pointed out or perceived.

The appellant, Whitey Hays, has filed his sworn request to withdraw his appeal. As to him the appeal is dismissed, and as to Asa Pendleton, alias Harry Ward, the judgment is affirmed.


text:
    Lonnie PRESCOTT v. STATE.
    No. 14060.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The verdict of the jury, which follows the indictment and the charge of the court, finds appellant guilty of possessing intoxicating liquor for the purpose of sale. The judgment and sentence recite that appellant is guilty of transporting intoxicating liquor. The judgment and sentence are reformed to show that appellant has been adjudged to be guilty of possessing intoxicating liquor for the purpose of sale.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion -of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Irvin PRICE v. STATE.
    No. 14161.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    W. M. Tucker, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of four years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    James SEE v. STATE.
    No. 13988.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    G. L. Patterson, of Cuero, for appellant. -
    Lloyd W. Davidson,. State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is rape by force; penalty assessed at confinement in the penitentiary for a period of fifteen years.

The subject of the alleged rape is Lalla R. Carroll. She gave testimony to the effect that the appellant had fearnal knowledge of her by force. He testified to the carnal knowledge, claiming that it was with her consent. They were both young people. They had gone to a dance together and were returning at night in an automobile when the transaction occurred.

The indictment is regular. The evidence is ahfficient to support the verdict. No questions of law are presented for review' by bills of exception or otherwise, and no fundamental errors have been discovered in the record. The controverted question of fact touching consent was determined against the appellant by the verdict of the jury.

The judgment is affirmed.


text:
    M. SOSA, Jr., v. STATE.
    No. 14332.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Andrew H. Young and E. B. Chambers, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction was for embezzlement of property of less than $50 in value; punishment being assessed at confinement in jail for a period of five days.

Appellant perfected an appeal to this court. He has now filed his affidavit advising the court that he does not further désire to prose-' cute his appeal, and the same is dismissed at his request.


text:
    Luke WILLIAMS v. STATE.
    No. 14242.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Shivers & Baker, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for a period of two years.

The indictment is regular. The motion for new trial was overruled November 4, 1930. No statement of facts or bills of exception are found in the record, and the time allowed for their preparation and filing has expired. No fundamental error has been perceived or pointed out. Nor is there any matter presented for review save the fact that the court, in writing the judgment and sentence, ignored the Indeterminate Sentence Law (Code Cr. Proc. 1925, art. 775). The judgment should condemn the appellant to suffer confinement in the penitentiary for a period of not less, than one nor more than two years.

The judgment is reformed in that particular, and, as reformed, it is affirmed.


text:
    Ex parte Sefrino YBARRA v. STATE.
    No. 14311.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Ney Wade and L. D. Stroud, both of Bee-ville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an appeal from an order refusing to release appellant on a writ of habeas corpus.

The transcript is not certified.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court:


author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. Harry Lee STUVER, Appellant.
    No. 48956.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.
    Thurman, Nixon & Blackwell, Hillsboro, for appellant.
    Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Appeal by Harry Lee Stuver from a judgment of the Jefferson Circuit Court convicting him of the felony of burglary in the second degree and imposing as punishment a sentence of five years’ confinement in the custody of the Department of Corrections. The case is before us on a full transcript and the state’s brief, but without a brief on the part of the complaining party, who will be hereinafter referred to as defendant. We look, then, to the motion for new tnal for his assignments of error, and examine such of them as may preserve anything for review, and are necessary to the proper disposition of this appeal.

The building charged to have been burglarized is located on U. S. Highways 61 and 67 in Jefferson County just north of Imperial, and known as Welcome Inn Bowling Lanes. It was owned by Al Red-inger, and the equipment therein used in the operation of the bowling alley was owned by his son-in-law and daughter, Jim and Marie Herrell. The structure is 165 feet long and 52 feet wide, contains eight lanes, each 85 or 90 feet in length, and has several rooms — among others, a kitchen and a furnace room. At the time in question the structure and equipment were leased to Joe Cunningham. Soda, candy, cigarettes and similar items of merchandise were kept on hand and sold as a part of the business. Oliver Blaha, the manager, lived in a trailer some 50 feet south of the building, and the Herrells lived next door to the bowling alley, but on the opposite or north side.

In the early morning hours of April 20, 1961, Blaha closed the bowling alley, and in the presence of Mr. and Mrs. Herrell fastened all the doors and windows and then went to his trailer. In a short while the burglar alarm “went off” or sounded in the trailer, indicating an intrusion into the bowling alley. Blaha called the sheriff’s office, and two deputies, Henry Graf and Robert Edney, were sent to the scene. They arrived in eight or ten minutes. Blaha summoned the Herrells by telephone, and these five persons (Blaha, Graf, Edney, and Mr. and Mrs. Herrell) proceeded to the bowling alley. Entering by way of the furnace room, they turned on all the lights. At first, no intruder was discovered. A search was instituted throughout the entire building, and when it was seen that the juke box and pinball machines had been broken open, the officers “called three times to anyone in the building to give themselves up.” No response was received, but when the search progressed to the point where some member or members of the group reached the automatic pinsetting machines, two men (Lawrence Noel Manley and Carl Stiebing) came out of the darkness behind those machines, and, with their hands up, surrendered. Neither of these men proved to be the defendant in this case, although Manley was admittedly his “blood brother.” (The difference in their surnames arises from the fact defendant had been adopted by a family in another state.) Manley and Stiebing were taken forthwith to Hillsboro, the county seat, and lodged in jail. Blaha, after again locking up the bowling alley, returned to his trailer, and shortly thereafter (about 4:30 a. m.) the burglar alarm sounded, but this time it indicated only that the kitchen door had been opened, and left so. Blaha did not report the fact of the second alarm to the authorities until 8 or 9 o’clock that morning, but he did return to the bowling alley and searched around the area to see if he “could find anybody that come out of that door.” The kitchen door had been opened from the inside, but he neither saw or heard anyone, nor did he hear any car start. To the best of his knowledge, nothing was taken from the bowling alley, although the pinball machines and juke box had been “jimmied”. Entry had been effected by forcing the kitchen window.

Defendant was apprehended the next day,, and upon interrogation by the authorities admitted his participation in the burglary. He stated that he, too, was behind the automatic pinsettcrs at the time his two companions surrendered, and, in fact, at that time had his gun pointed at the officer. He further stated he was glad the latter did not shine his flashlight on him because if he had, he (defendant) was so scared he would have shot the officer. He also told the officers where he had “stashed” the gun, and, upon investigation by the officers,, it (and another one) was found at the place indicated by defendant.

The defendant was the only witness called' in his behalf. He denied his guilt, and testified to the circumstances under which he and his wife and eight-months-old baby, together with Manley and Stiebing, had come to Jefferson County from Wisconsin a day or so before he was arrested at Hills-boro. He further testified he had confessed because of threats made by the officers that they would lock up his wife and1 child unless he did so.

The foregoing facts effectively refute the ground of defendant’s motion for a new trial that the evidence was insufficient to make a submissible case. Their mere statement demonstrates beyond peradventure that the jury could reasonably have found the essential elements of the offense of burglary in the second degree, as defined by § 560.070, RSMo 1959 and V.A.M.S. State v. Lindner, Mo., 282 S.W.2d 547, 549 [1]; State v. Parks, Mo., 336 S.W.2d 369, 370[2, 3]; State v. Grant, Mo., 275 S.W.2d 332, 333-334[4]; State v. Miller, Mo., 202 S.W.2d 887, 889[1, 2].

State’s instruction S-2-P-1 submitted the hypothesis of ownership in Joe Cunningham as to both the building and any goods, wares and merchandise then and there kept and deposited. The motion assigns this as error because there was, allegedly, no evidence in the record showing Joe Cunningham to be such owner. The information averred the building to be “the property of Joe Cunningham,” and the only evidence on that subject was that introduced by the state. It was directly to the effect that Cunningham’s occupancy was as a tenant under a lease from the owner, A1 Redinger. This was sufficient to sustain the allegation of ownership of the building in Cunningham. See State v. Carey, 318 Mo. 813, 819, 1 S.W.2d 143, 146, where, in reaffirming State v. Harrison, Mo., 285 S.W. 83, 87, and quoting approvingly from State v. McGuire, 193 Mo. 215, 226, 91 S.W. 939, 942, it was said, “[Pjroof of ownership of a building burglarized does not refer to the title, but the occupancy. * * * ‘In burglary, ownership means any possession which is rightful as against the burglar’ (citing cases).”

The ownership of goods within a building alleged to have been burglarized not being an element of the crime of burglary in the second degree under § 560.070 (the single offense charged in the information in this case), proof of such ownership was immaterial and unnecessary. State v. Goehler, 193 Mo. 177, 91 S.W. 947, 949; State v. Lackey, 230 Mo. 707, 132 S.W. 602, 604; State v. Tyrrell, 98 Mo. 354, 11 S.W. 734. It was, therefore, error to submit by said instruction the question of the ownership of such goods (as distinguished from the requisite finding of their being kept and deposited in the building at the time it was burglarized), but this was error against the state, and not the defendant, and he, not having been prejudiced thereby, will not be heard to complain.

This brings us to the consideration of the one serious question in the case, and that is as to the propriety of giving in the first instance (and not supplementarily) state’s instruction S-4, which reads as follows:

“The Court instructs you that if, under the evidence and under the other instructions given to you by the Court, you find the defendant guilty, then it is your duty to determine and to assess the defendant’s punishment. However, the Court further instructs you that if, under the evidence and under the other instructions given you by the Court, you do find the defendant guilty, but you are unable to agree upon the punishment to be assessed, then you shall so state in your verdict, and in that event, but not otherwise, the Court will assess the punishment.”

The state does not undertake to support the court’s action in so giving the instruction either as to the timeliness or text thereof. Indeed, its brief does not even mention the instruction, although it was directly challenged by the motion for a new trial as being erroneous for the reason (among others) that it “encouraged the jury to bring in a verdict without assessing the punishment.”

Under § 546.440, RSMo 1959 and V.A. M.S., the court may properly (and, in fact, is required to) assess the punishment in instances where the jury agrees on a verdict of guilty, but fails to agree upon the punishment or does not declare such punishment; but the propriety of instructing the jury in this regard is strictly limited. Where the jury reports it has agreed upon guilt, but cannot agree upon punishment, it is held to be proper for the court to give a supplemental instruction substantially in the form of S-4 here challenged (State v. Bunch, 333 Mo. 20, 25, 62 S.W.2d 439, 442), or for the court to inform the jury that a verdict so stating could be returned (State v. Howard, 324 Mo. 145, 159, 23 S.W.2d 11, 16), and in connection therewith to submit a form of verdict for use in that contingency. State v. Burton, 355 Mo. 792, 797, 198 S.W.2d 19, 22; State v. Jackson, 340 Mo. 748, 757, 102 S.W.2d 612, 618; State v. Ward, 337 Mo. 425, 434, 85 S.W.2d 1, 6. Originally, even this practice was not permissible. Fooxe v. State, 7 Mo. 502.

The only case we have found wherein such an instruction was given in the first instance is State v. Gilbreath, 130 Mo. 500, 32 S.W. 1023, and that action was held to be error. In reversing and remanding the case for that error (and another), this court said, “The court erred in giving instruction No. 4. The law devolved upon the jury the duty of affixing the punishment of the defendant. The court invited the jury to disregard that portion of their duty by giving this instruction.”

In referring to State v. Gilbreath, supra, this court, in State v. Hubbs, 294 Mo. 224, 232, 242 S.W. 675, 678, said this: “In the Gilbreath Case the instruction held to be erroneous appears to have been given with the general instructions prior to the retirement of the jury for deliberation. In such case what was said in the Fooxe Case, that the court ‘told the jury in substance, that this was no part of their duty,’ was peculiarly applicable — more so, indeed, than the facts of the Fooxe Case called for. * * * It is the primary duty of the jury to assess the punishment. -To permit the court in the first instance to point out the way for the jury to avoid its duty in this regard, as was done in the Gilbreath Case, may well be regarded as contrary to the policy of the law." (Italics, the present writers.) These italicized sentences are quoted approvingly by the court en banc in State v. Bevins, 328 Mo. 1046, 1052, 43 S.W.2d 432, 435.

Insofar as we are aware, the only case even hinting a contrary view is State v. Levan, 306 Mo. 507, 267 S.W. 935; but it did not involve a situation where an instruction on the subject under discussion was given in the first instance, nor, for that matter, at any time except by way of a form of verdict furnished after the jury had reported agreement on a verdict of guilty, and inability to agree on punishment. While there is somewhat loose language in that opinion which appears to advocate the practice of instructing the jury in advance with respect to the provisions of what is now § 546.440, the opinion does not purport to overrule the Gilbreath and Hubbs cases either expressly, nor, do we think, by fair implication. And in any event, even if they were, they were restored to full vigor by the later Bevins case. And certainly it has never been the practice to so instruct in the first instance, and the error of doing it in the instant case would seem to be emphasized by reason of the fact that the verdict returned found defendant guilty, but did not assess the punishment. This was subsequently done by the court, as the instruction told the jury it would be in the event such a verdict were returned.

Other assignments involve matters which are not likely to recur upon another trial, so they need not be determined. For the error in giving instruction S-4 in the first instance with the general instructions, the judgment is reversed and the cause remanded.

All of the Judges concur.