author: DAVIS, Justice.

text:
    The STATE of Texas, Appellant, v. Conover H. ABLE et al., Appellees.
    No. 7462.
    Court of Civil Appeals of Texas. Texarkana.
    May 28, 1963.
    Rehearing Denied June 18, 1963.

      Will Wilson, Atty. Gen., Felix Salazar, Jr., Asst. Atty. Gen., Austin, for appellant.
    Levert Able Houston, for appellees.
   DAVIS, Justice.

A condemnation case. The appellant, State of Texas, filed suit against appellees, Conover H. Able, et al., in the County Court at Law of Harris County, Texas, on August 26, 1960, to condemn certain described lands used for business purposes situated in the incorporated City of Bellaire, Harris County, Texas. At the bottom of the petition, there was an “Order Appointing Commissioners”, followed by the notation of “Madison Rayburn, Judge, County Court at Law of Harris County, Texas”.

On August 1, 1960, Judge Madison Rayburn signed an order of exchange of benches, as authorized by Art. 1970-94a, R.C.S.

The petition in condemnation was presented by appellant to William A. Miller, Jr., Judge of the County Civil Court at Law No. 2. In obedience to the exchange of benches, Judge Miller signed the “Order Appointing Commissioners” as follows:

“s/ Wm. A. Miller, Jr., Madison Rayburn, Judge Presiding, (in writing) County Court at Law of Harris County, Texas”

The Special Commissioners took their oaths and set the matter for hearing on September 14, 1960. Nowhere in the petition for condemnation did appellant refer to the County Civil Court at Law No. 2. The order setting the hearing and the award by the Special 'Commissioners was filed with the Judge of the County Court at Law on November 1, 1960. The notices addressed to each of the condemnees by the Special Commissioners show that the appellant filed the petition on August 26, 1960, with the “Judge of the County Court at Law”. The award was accepted, the petition and award were filed with the County Clerk, and was numbered 103,782. The appellees filed their objections to the award in the County Court at Law on November 8, 1960. Appellant filed its objections to the award in the County Court at Law on November 10,1960. On December 19, 1960, appellant deposited the sum of $104,742.50 with the Clerk of the County Court at Law, subject to the orders of the appellees, and filed an application for a writ of possession. On January 3, 1961, at the order of Madison Rayburn, Judge of the County Court at Law, appellees withdrew said funds from the Clerk. Judge Rayburn issued an order giving the appellant the right to possession of the land. Appellant took possession of said land.

By an act of the Legislature, Art. 1970-77, R.C.S., was amended in 1961, changing the name of the County Court at Law to “County Civil Court at Law No. 1”. This case came on for trial on January 29, 1962, in the County Civil Court at Law No. 1. Trial was to a jury, and the special issues were answered in favor of the appellees. Judgment was entered, and the appellant has appealed: It brings forward 15 points of error.

The foregoing statement was made because of the 1st point of error. Appellant takes the position that the County Court at Law, or the County Civil Court at Law No. 1, did not have jurisdiction to try the case because the petition “in the above numbered and entitled cause was filed on August 26, 1960, with the Honorable William A. Miller, Jr., Judge of the County Court at Law No. 2, Harris County, Texas. The award and objections to such an award were filed with the Honorable Madison Rayburn, Judge of the County Court at Law Harris County, Texas, which said court proceeded to try the case * * * ”. The point of error goes on to state that the petition was filed in a different court from that in which the award and objections were filed. The petition in condemnation was filed in the County Court at Law by appellant. Judge William A. Miller, Jr., who appointed the Special Commissioners, in the absence of Judge Madison Rayburn, was merely acting on the exchange of benches under the order signed by Judge Rayburn.

The appellant filed a motion for new trial in which motion it raised the point of error for the first time. At the hearing on the motion, appellant announced to the court that they wished to waive the point of error. Such waiver is set out in the order overruling the motion for new trial. It cites Henderson v. Texas Turnpike Authority (Tex.Civ.App.), 308 S.W.2d 199, err. ref., and Lemmon v. Giles (Tex.Civ.App.), 342 S.W.2d 56, err. dism’d. The cases are not in point. The appellant, in this case, actually filed the petition in condemnation. Judge Miller signed the order appointing the Special Commissioners as “Judge Presiding” by exchange of benches, not as Judge of the County Civil Court at Law No. 2. Actually, there is no irregularity in the condemnation proceedings. If there was any irregularity, the appellant can not take advantage of the irregularity that it has caused. 29 C.J.S. Eminent Domain § 319, page 1355. J. F. Wilcox & Sons v. City of Omaha, 220 Iowa 1131, 264 N.W. 5.

Art. 1970-79, R.C.S., reads in part as follows :

“The jurisdiction of the county court of Harris county for civil cases and of the judge thereof shall extend to all matters of eminent domain on which jurisdiction has been heretofore vested in the county court of Harris county or in the county judge thereof.”

The condemnation proceedings are administrative only until the petition and objections were filed with the clerk. It was held in Jones v. City of Mineola (Tex.Civ.App.), 203 S.W.2d 1020, err. ref., that the jurisdictional prerequisites of an effort by condemnation authority to a lack of notice of commissioners hearing was waived by the owner appearing before the Board of Commissioners and contesting the condemnation on its merits. Such an irregularity was caused by the condemnees. In State v. Carpenter (Tex.Civ.App.), 55 S.W.2d 219, reversed on other grounds, 126 Tex. 604, 89 S.W.2d 194, it was held that the State waived and was estopped to complain of the jurisdictional error in filing the award with the County Clerk instead of the County Judge where it filed its objections with the Clerk and proceeded to trial and did not raise the point until it filed its motion for new trial. It was held in Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, that the District, after filing a petition in condemnation, making a deposit in the court, and then taking possession of the land, can not then dismiss the petition and file another suit in condemnation. The taking possession of the property causes the condemning authority to lose right to abandon the project or the purpose of taking. It was held in Crockett v. Housing Authority of the City of Dallas (Tex.Civ.App.), 274 S.W.2d 187, N.W.H., that where there was an attempt to condemn certain land but the proceedings were invalid for want of statutes authorizing such condemnation, the owner, by accepting compensation assessed by the Commissioners, makes the transaction effectual and the owner could not successfully complain that initial statement in writing to condemn the land was fatally defective as to the description. In Schlottman v. Wharton County (Tex.Civ.App.), 259 S.W.2d 325, wr. dism., the Court said:

“* * * Actions as in question here are necessarily pursuant to statutory duties. Public officers are presumed to have performed their duties and to have acted in a regular and lawful manner. As to such — • if the appellant had desired to raise the question as to the prematurity of the suit based upon the propriety of the action having been initiated without proper foundation by way of an order on the part of the Commissioners’ Court authorizing the offer in question to be made to him,— or authorizing an attempt to be made to agree with him upon or within a certain figure for the land desired, — he was obliged to raise the matter himself by way of an affirmative pleading in bar. His entitlement to adduce evidence thereon must be predicated by special plea, and his would be the burden thereon. Not having done so iii this case, nor having raised the matter by any objection to the suit touching on such alleged irregularity prior to announcing ready for trial on the issues presented, the appellant has waived the right to contest the judgment by reason thereof. 33 Tex.Jur., p. 477, sec. 55 (Pleading); 17 Tex.Jur., p. 276, sec. 75 (Evidence—Civil Cases); Texas Law of Evidence, McCormick & Ray, p. 92, sec. 54 and p. 100, sec. 57; 14 Texas Law Review 414; Farm & Home Savings & Loan Association of Missouri v. Muhl, Tex.Civ.App., 1931, 37 S.W.2d 316 (Waco), writ refused, and cases therein cited; State v. Palacios, Tex.Civ.App., 1912, 150 S.W. 229 (Austin), error refused; Sanders State Bank v. Hawkins, Tex.Civ.App., 1911, 142 S.W. 84 (Texarkana).”

Point No. 1 is overruled.

By point 2, appellant says the court erred in constantly questioning McClure, a witness for appellant. Objections had been made by appellees to the witness testifying as an expert. Apparently, the court was attempting to help qualify him as a witness. Appellant cites the cases of Hargrove v. Fort Worth Elevator Co. (Tex.Comm.App.), 276 S.W. 426, and Texas Employers’ Insurance Association v. Butler (Tex.Civ.App.), 287 S.W.2d 198, W.R., N.R.E. The cases are not in point. In addition to the questions asked, the court made the following statement as to his qualifications :

“The Court: I wanted to see what it was based on. Gentlemen, I am inclined to allow the witness to state his opinion, and let it go to the weight rather than to the admissible, for whatever it may be worth, if anything, to the jury.
“Mr. Able, (Attorney for Appellees) : Note our exceptions.”

The appellant did not make any objections to the questions by the court. It raised the point for the first time in its motion for a new trial. It appears that the court was trying to ascertain the facts in response to the objections of counsel for the Abies, and did not have any reference whatever to the testimony of the witness, McClure. If the appellant thought it was improper, it should have objected to the same. An instruction by the court to disregard the same would have cured the error, if any. If the questioning and comment was error, it was waived. Holden v. Gibbons (Tex.Civ.App.), 101 S.W.2d 837, err. dism.; Noyl Corporation et al. v. Houston Independent School District (Tex.Civ.App.), 317 S.W.2d 756, N.W.H.; Loumparoff v. Housing Authority of City of Dallas (Tex.Civ.App.), 261 S.W.2d 224, N.W.H.; Burgess v. Sylvester (Tex.Civ.App.), 177 S.W.2d 271, affirmed 143 Tex. 25, 182 S.W.2d 358. Point 2 is overruled.

By points 3, 4, 5, and 6, appellant contends that the court erred in refusing to let it offer in evidence sales of residential property. The property being condemned was business property; used as a furniture factory and a furniture repair shop. There was no showing of similarity or comparability of the residential property and the business property. The trial court properly excluded such evidence and exhibits without such showing. The property being condemned was zoned by Ordinance for being used as a furniture business. Later, the court invited the appellant to re-offer the sale of said property separately, showing the similarity and comparability, and he would admit the same. The appellant stated to the court that it could not prove the similarity or comparability, and elected not to re-offer such evidence and exhibits. It, thereby, waived any error. The points are overruled.

The other points have been carefully examined and found to be without merit. They are overruled.

The judgment of the trial court is affirmed


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    Burl JONES et al., Appellants, v. O. T. EAMES, Appellee.
    No. 3808.
    Court of Civil Appeals of Texas. Eastland.
    June 21, 1963.

      James H. Thornhill, Jr., Dallas, for appellants.
    Thomas A. Melody, Dallas, for appellee.
   COLLINGS, Justice.

O. T. Eames, a partner in the firm of Eames and Sanders brought suit against Burl Jones and Thomas E. King to recover the value of materials used by Jones in the construction of the home of King and to foreclose a materialman’s lien upon King’s property and for interest and attorney’s fees. Summary judgment was rendered for O. T. Eames for the sum of $899.32, for attorney’s fees in the sum of $250.00 plus 6% interest, and for foreclosure of plaintiff’s materialman’s lien on King’s property. Burl Jones and Thomas E. King have appealed.

In appellants’ first point it is contended that the court erred in granting appellee’s motion for summary judgment because under the pleadings and affidavits substantial and material fact issues existed.

Appellee Eames by his sworn pleadings sought to recover the sum of $899.32, represented to be the value of materials furnished by him and used by Jones in building the home of appellant King and also sought to foreclose his alleged material-man’s lien in the same amount. Appellant Jones first filed a general denial and thereafter filed a verified amended answer and cross-action setting forth detailed facts in support thereof in which he alleged under oath that Eames at the time he furnished the material in question owed Jones a sum of money in excess of the claim alleged by Eames and that Eames agreed to pay his indebtedness to Jones by delivering to him sufficient materials to offset such indebtedness, and that the materials were delivered to Jones in part payment of Eames’ indebtedness to him. Jones also set up a counterclaim against Eames for the sum of $245.68, alleged to be the amount of Eames’ indebtedness to him after allowing plaintiff credit for the material furnished. King answered alleging that he had no dealings with Eames and owed him nothing but tendered into court the sum of $899.32, the alleged amount of the materialman’s lien.

Thereafter, appellee Eames filed his motion for summary judgment. In this motion he alleged that his suit was based upon a mechanic’s lien duly and properly filed under the laws of the State of Texas in the amount of $899.32, as alleged in his original petition and attached thereto. He further alleged in such motion that although defendant had filed an answer that the answer was not verified and did not conform to the rules of civil procedure; that accordingly, since no answer had been filed sufficient in law, appellee was entitled to judgment as a matter of law as prayed in his original petition. Appellee’s allegation in his motion for summary judgment that the answer of appellant Jones was not verified was in error. Jones did file a general denial which was not verified but thereafter, as above noted, filed his first amended answer and counterclaim, which was duly verified.

Appellants Burl Jones and Thomas E. King filed their answer to the motion of Eames for summary judgment including therein by reference all the pleadings in the case. Appellants asserted in their answer to appellee’s motion for summary judgment that there were disputed and material fact issues in the case which could not be disposed of by summary proceedings but required determination by a jury; that such disputed fact issues included questions of whether or not defendant Jones ever owed Eames for such materials, whether or not such materials were given Jones in payment of a debt owed by Eames to Jones, whether or not, if it should be found that Jones purchased the materials as claimed by Eames, that he was paid therefor by cancellation of a pre-existing debt which he owed to Jones, and whether or not Eames is indebted to Jones as set forth in the cross-action of appellant Jones.

In our opinion there were disputed and material fact issues and the court erred in entering summary judgment for appellee, O. T. Eames. Appellee by verified pleadings and certified copy of his alleged materialman’s lien duly and properly recorded sought judgment for the value of the material furnished and foreclosure of his lien. Appellant Jones filed a verified pleading and cross-action, denying any indebtedness to appellee Eames. He did not deny the receipt of the materials but denied any promise or obligation on his part to pay therefor, alleging that Eames owed him a sum of money at the time of the delivery of such material in excess of the value thereof and that Eames delivered such material as part payment of such indebtedness. The only evidence submitted by Eames in support of his motion for summary judgment was a certified copy of the mechanic’s lien claimed and filed by him as attached to his original petition.

Where, as here, a defendant has denied under oath a claim for materials furnished, the burden is upon the plaintiff to prove his claim by a preponderance of the evidence. It is held that the defendants’ affidavit of denial destroys the character of the account as prima facie evidence and places in issue the correctness of all items constituting the account and the existence of any indebtedness based thereon. Rules 166-A, 185 and 93 Texas Rules Civil Procedure; Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235; Layne Glass Company v. Parker, Tex.Civ.App., 340 S.W.2d 363; Toliver v. Bergmann, Tex.Civ.App., 297 S.W.2d 208; Rees v. State, Tex.Civ.App., 258 S.W.2d 823; Tucker v. Neal Oil Corp., Tex.Civ.App., 255 S.W.2d 302; H. G. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W.2d 570; Opryshek v. McKesson & Robbins, Inc., Tex.Civ.App., 367 S.W.2d 357. Since the record discloses material issues of fact summary judgment was improperly entered.

The judgment is reversed and the cause is remanded.


author: WILSON, Justice.

text:
    STRACHAN SHIPPING COMPANY et al., Appellants, v. PETTY GEOPHYSICAL ENGINEERING COMPANY, Appellee.
    No. 4112.
    Court of Civil Appeals of Texas. Waco.
    June 13, 1963.
    Rehearing Denied July 18, 1963.

      Eikel, Feltner & Goller, Robert Eikel and Theodore Goller, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Thomas A. Brown, Jr., Baker, Botts, Shepherd & Coates, Donald F. Mc-Niel, II, Houston, for appellee.
   WILSON, Justice.

Appellee recovered judgment against an ocean carrier and its agent acting as stevedore for damages to a seismographic drill truck being loaded on a vessel for overseas transportation. The jury found appellants’ negligence proximately caused the damage resulting when the equipment fell to the deck. Appellants’ principal points complain of the damage issues. Appellee alleged it was the owner of a “new truck”, specifically described in the petition. It further alleged it had engaged another defendant, acquitted of negligence, to modify and equip the “truck” for “use as a seismographic drill truck”. Evidence of separate damages to truck and drill unit was introduced without objection.

Appellee pleaded damages in a specified sum in general terms, alleging that the truck was “seriously injured and impaired in value”, and that damages had been sustained for loss of use and diminution in market value. There was no special exception to the pleading. Special issues were submitted inquiring as to the value of the truck before and after it fell to the deck of the vessel. Appellants’ only objections to these issues asserted lack of pleadings, and lack of evidence to support “an affirmative answer” to these issues. After verdict, for the first time, appellants asserted in a motion to disregard the issues that they submitted an improper measure of damage, and the proper measure should have been based on market value at destination. This is the substance of their chief contention here. By another issue the court inquired as to the reasonable cost of repair of the drilling unit. Absence of pleading on which to base submission of this issue, and of evidence on which to “base an affirmative answer” thereto were again the only objections made. Although appellants now say the court thereby erroneously submitted “different and distinct theories of damages,” they made no such contention in the trial court before verdict, and may not now do so.

Rules 90 and 294 Texas Rules of Civil Procedure provide that defects, omissions and faults of form or substance in pleadings, not specifically brought to the Court’s attention before the charge to the jury, are waived. Rule 274 requires a party objecting to the charge to point out distinctly the objectionable matter and grounds of objection. “Having failed to do so, it cannot thereafter be heard to say that the measure of damages as submitted was improper.” Whitson Co, v. Bluff Creek Oil Co., 156 Tex. 139, 293 S.W.2d 488, 493.

Appellants now also contend there were no pleadings to support the issue on cost of repairs to the drilling unit because appellee “alleged only that it sustained damages for diminution in value of the truck”. Appellants’ general objection that there was no pleading to support submission of the issue did not advise the trial court “specifically”, as required by Rule 274, of the complaint now pointedly particularized. The objection did not attack the form of the issue, the measure of damage, the presently asserted defect or fault in pleading; it did not urge variance. In our opinion the objection did not preserve the point. Missouri Pac. R. Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, 285; Alcazar v. Southwestern Bell Tel. Co., Tex.Civ.App., 353 S.W.2d 933, 936; Texas Mexican Ry. Co. v. Bell, Tex.Civ.App., 110 S.W.2d 199, 200; Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, 155; 3 McDonald, Texas Civil Practice, Sec. 12.29(b), p. 1141; Sec. 12.30(a), p. 1144.

It is said recovery for loss of use of the equipment is not authorized because there was no showing of appellants knowledge of special circumstances rendering special damages a probable consequence of the occurrence. The rule urged is applicable to breach of contract, to which form of action appellants would have us confine appellee. The case was pleaded, tried, and submitted as a tort action, and loss of use was a proper element of damage, Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 129, irrespective of knowledge of special circumstances.

Other points have been fully considered and are overruled. Affirmed.


author: McDONALD, Chief Justice.

text:
    PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 4092.
    Court of Civil Appeals of Texas. Waco.
    June 13, 1963.
    Rehearing Denied July 11, 1963.

      Bryan & Patton, Houston, for appellant.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellee.
   McDONALD, Chief Justice.

This suit was bought by General Motors Acceptance Corporation to recover from Lee Roy Halpen the unpaid balance on a note given for an automobile, and to recover from Phoenix Assurance Company the actual cash value of the automobile, under the provisions of an insurance policy issued to Halpen by Phoenix, and which named G. M. A. C. as loss payee of such policy. Plaintiff alleged that the automobile was taken from Halpen’s possession by persons unknown, and that Phoenix was obligated to pay G. M. A. C. its loss to the extent of its interest.

Defendant answered, denying liability on the policy, contending among other things that Halpen had filed a “swindling purported proof of loss” (claiming car rental not actually true), and was precluded from recovery on the policy, and plaintiff, G. M. A. C., being a loss payee, was not entitled to recover as its rights were dependent on Halpen’s rights.

The evidence established that G. M. A. C. financed Halpen’s purchase of the car; that defendant, Phoenix, issued its policy to Halpen with G. M. A. C. as loss payee; that Halpen was in possession of the car on December 11, 1959 but not thereafter ; that the car was found in the Bayou in June 1961; that the car was worth $2800. on December 11, 1959, and worth $17.00 when recovered from the Bayou; that G. M. A. C. had no knowledge of the statements Halpen made in the proof of loss until after they were made to defendant.

Trial was to a jury which found that the car was worth $2800.00 on December 11, 1959 (the date it disappeared). The court found from the evidence that the car was worth $17.00 at the time of its recovery from the Bayou in June, 1961. The Trial Court entered judgment for plaintiff against defendant Halpen for the amount due on his note; and against defendant Phoenix for $2783.00 (the value of the car on December 11, 1959 less its value in June, 1961).

Defendant Phoenix appeals on 23 points, which contend:

1) Plaintiff G. M. A. C.’s rights are derivative through the rights of Halpen. Halpen could not recover because of false statements he made in the proof of loss he submitted. Therefore, G. M. A. C. cannot recover.

2) Halpen made misrepresentations at the time of the issuance of the policy, which would preclude Halpen from recovery ; and which preclude G. M. A. C. from a recovery.

3) G. M. A. C. alleged theft as the exclusive cause of loss and a fact issue was presented in this respect.

4) G. M. A. C. participated in or had knowledge of Halpen’s misrepresentations and false proof of loss, and is precluded from recovery as a loss payee.

Defendant’s 1st contention is that Halpen, the insured, made false claims in his proof of loss submitted to the Company, and was precluded from recovery, and that G. M. A. C.’s rights, as loss payee, are derivative through Halpen, and it can recover only if Halpen is entitled to recover.

Conceding that Halpen made claims in his proof of loss, which would preclude a recovery by him, such cannot preclude recovery by G. M. A. C., the loss payee. The action Halpen took was after the loss, and at a time when G. M. A. C.’s rights were fixed and G. M. A. C.’s rights cannot be taken away by the acts of Halpen alone, committed after the occurrence of the loss. Superior Lloyds of America v. Boesch Loan Co., CCA, W/E Dism’d., 153 S.W.2d 973; Minniefield v. Consolidated Lloyds, CCA, (n. w. h.) 316 S.W.2d 428; Nelson v. Consumers County Mut. Ins. Co., CCA, W/E Dism’d., 326 S.W.2d 535. See also 7 Baylor L. R. 163; 38 A.L.R. 379. Contention 1 is overruled.

Defendant’s 2nd contention is that Halpen made misrepresentations in his application for the policy concerning his true residence, and prior policy cancellations, which preclude Halpen from a recovery, and which likewise preclude G. M. A. C. from a recovery.

Defendant’s answer did not plead misrepresentations of residence, and prior cancellation of insurance, as a defense. Defendant is not entitled to avoid the policy because of misrepresentation of residence and prior cancellation, unless it plead same as a defense, and obtained findings that such were material to the risk or contributed to the contingency on which the policy became due. Article 21.16, V.A.T.S., Vol. 14A; See also Mecca Fire Ins. Co. v. Stricker, CCA (n. w. h.), 136 S.W. 599. Since defendant failed to plead, prove, and submit jury issues on the asserted defenses concerning misrepresentation of residence and prior policy cancellations, defendant’s contention 2 is overruled.

Defendant’s 3rd contention is that G. M. A. C. alleged that the loss of the car was by theft, and that a theft was not proven. G. M. A. C. alleged that defendant was indebted to it by reason of the “theft and wrongful taking and the insurance agreement.” The loss of the car was proven, and in fact the car was recovered from the Bayou in a condition wherein it was worth only $17.00. We think that G. M. A. C. effectively alleged and proved a loss under the policy, and was not tied to proof of the technical elements of theft, in order to recover under the loss payee clause of the policy. The contention is overruled.

Defendant’s final contention is that G. M. A. C. is precluded from any recovery because it participated in or had knowledge of Halpen’s misrepresentations and false proof of loss. There is no evidence that G. M. A. C. had knowledge of or participated in any misrepresentations or false statements of Halpen.

All of defendant’s points and contentions are overruled. The judgment of the Trial Court is affirmed.


author: ARCHER, Chief Justice.

text:
    Donna Scrogum WALLACE et vir, Appellants, v. L. G. SCROGUM, Appellee.
    No. 11114.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1963.
    Rehearing Denied July 17, 1963.
    William C. McDonald, San Angelo, for appellants.
    O’Neal Dendy, San Angelo, for appellee..
   ARCHER, Chief Justice.

This is a child custody suit. The trial was before the court below without a jury, and judgment was rendered by the trial court on March 1st, 1963, awarding the custody of the three small children involved to appellee.

The appeal is predicated on two points,, as follows:

“First Point: The error of the trial court in refusing to give full faith and credit to the judgment of the District Court of San Juan County, State of New Mexico.
“Second Point: The error of the trial’ court in awarding the custody of the three minor children to appellee, and in not awarding such custody to appellant Donna Scrogum Wallace.”

The suit is a proceeding between the divorced parents of three children, two. boys, ages seven and five years and a girl, age two years, to determine custody of the children.

The principals in this cause have had an unhappy marital life and the children an unhappy life as a consequence.

The parents were first married on March 5, 1954, in Farmington, New Mexico. The parties were divorced on February 14, 1957.

Mrs. Scrogum came to Texas and remained until Mr. Scrogum came and they were remarried and returned to New Mexico in September 1958 and the third child was born there. The parties separated on January 10, 1962. Mr. Scrogum took all of the children and came to San Angelo, Texas. On January 11, 1962, appellant filed a suit for divorce in New Mexico.

On January 18, 1962, appellee obtained a temporary custody order for the children and a restraining order against appellant from removing the children.

On January 19, 1962, appellant took the oldest child and returned him to New Mexico. A hearing was had on January 26, 1962, and the custody and control of the children were awarded appellee, with limited visitation rights in appellant.

On February 19, 1962, appellant was granted a divorce in New Mexico and was awarded custody of the oldest boy then in New Mexico.

In April 1962, appellee went to Farm-ington, New Mexico, and without appellant’s knowledge, returned the child to Texas.

On February 25, 1963, a trial on the custody case was had and by order dated March 1, 1963, the custody and control of all three children were given to appellee and from this final judgment the appeal is made.

We recognize that the prime concern in custody cases is the welfare of the children. Furrer v. Furrer, Tex.Civ.App., 267 S.W.2d 226; Rauh v. Rauh, Tex.Civ. App., 267 S.W.2d 584; Mumma v. Aguirre, Tex., 364 S.W.2d 220.

We have the question before us of the decree made by the District Court of a sister State in which the custody of one of the children, Louis G. Scrogum, was awarded to the mother and the propriety and effectiveness of an order by the Texas Court in awarding the custody of this child to its father.

We do not believe that the New Mexico Court would have entertained custody proceedings regarding the oldest boy had it been aware of the circumstances under which the boy was taken to New Mexico.

The mother, in removing the child, Louis G. Scrogum, from Texas after she had been restrained from doing so, was in contempt of the District Court in Tom Green County, Texas, and she cannot benefit as a result. See Meyer v. Meyer, Tex. Civ.App., 361 S.W.2d 935, er. dismd.

The testimony at the hearing from which this appeal is taken is lengthy and bizzare in many respects and we will not attempt to review it in detail but a serious question is presented as to the suitability of either parent to have care and custody of the children.

The Trial Court saw and heard the parties themselves as well as other witnesses and concluded that the best interest of the children was that they be placed in the custody of the father.

We believe the three children were properly domiciled in Tom Green County when the judgment below was rendered.

“Domicile” has been defined to mean a place where a person lives or has his home, true, fixed and permanent, his fixed habitation. 21 Tex.Jur.2d, Domicile, § 1, p. 61.

In 21 Tex.Jur.2d, p. 68 it is stated:

“A person who is under the power and authority of another possesses no right to choose a domicil. Thus a minor, because he is not sui juris, can neither select nor change his domicil. The domicil of a minor child is usually that of the father, and necessarily changes with any change of the father’s domicil without regard to the actual facts as to residence of the child.”

We appreciate the difficulty that a trial judge encounters in custody proceedings and that the trial judge generally is in a better position to determine what is for the best interest of the children, and absent a showing of an abuse of discretion an appellate court is reluctant to disturb the decision.

In the award in this case the trial judge did not fix reasonable visitation privileges, or times when the children could be with their mother and such should be done. The judgment, however, is affirmed.

Affirmed.


author: FRASER, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Wiley T. CULPEPPER and Rena Mae Culpepper, Appellees.
    No. 5630.
    Court of Civil Appeals of Texas. El Paso.
    June 26, 1963.
    Rehearing Denied July 17, 1963.
    Brewster & Hoy, El Paso, for appellant.
    Pearson & Speer, Don Lee Cotton, El Paso, for appellees.
   FRASER, Justice.

This was a suit filed by appellee Wiley T. Culpepper against appellee Rena Mae Culpepper, his wife, for divorce and division of the community property of appel-lees. Mr. and Mrs. Culpepper assume the status of co-appellees herein by virtue of an attempted intervention by appellant in the divorce suit between the two Cul-peppers. The divorce suit was instituted on October 1, 1962; on October 19, 1962 ap-pellee Rena Mae Culpepper filed her answer and cross-action in which she asked for a restraining order enjoining appellee Wiley T. Culpepper from, among other things, encumbering or making any disposition of community property and funds. Upon her sworn petition, a restraining order and notice to show cause was granted by the trial court on October 19, 1962. On October 26, 1962 hearing was had in the trial court on the application of appellee Rena Mae Culpepper for temporary injunction and other relief. After hearing, the court, on October 31, 1962, granted the temporary injunction enjoining appellee Wiley T. Cul-pepper from, among other things, encumbering or making any disposition of community property or major expenditure of community funds during the pendency of the suit. After these proceedings had occurred appellant, Maryland Casualty Company, on November 5, 1962, intervened in the above-mentioned divorce suit, asked for and obtained a temporary restraining order, and made application for temporary injunction against both Wiley T. Culpepper and Rena Mae Culpepper. The basis of appellant’s intervention was a judgment obtained by intervenor as plaintiff against appellee Wiley T. Culpepper, as defendant, in cause No. 89884 in the District Court of El Paso County, Texas, Forty-first Judicial District, on November 18, 1958, in the amount of $14,991.66, plus the further sum of $4,000.00 as attorney’s fees. The trial court granted the restraining order and issued a notice to show cause to appellees upon intervenor’s application for temporary injunction. The temporary restraining order was extended by proper orders of the court and the hearing on application for temporary injunction duly extended to the 26th day of November, 1962, when hearing on such application for temporary injunction was held, and application denied and temporary restraining order dissolved, to which order appellant excepted and gave notice of appeal to this court. Thereafter, motion was duly made to reinstate the temporary restraining order andi continue the same in force pending this, appeal. Such motion was granted and su-persedeas bond properly posted as required' by the order of the court. Appeal bond was thereafter posted.

Plaintiff’s Motion to Strike Intervenor was filed November 26, 1962, and on December 20, 1962 the court considered the motion and ordered that the divorce proceeding be severed from the interventioni. Appellant’s intervention in the divorce suit was obviously an attempt to protect or realize on an unsatisfied judgment against the husband. Appellant argues that the temporary restraining order should have beeni granted in order to maintain the status quo, and to prevent irreparable harm, loss or damage.

First of all, we must keep in mind that this is an appeal from an order of the trial court denying a temporary injunction-—a matter wherein the court has wide discretion — and the sole question here is whether or not the trial court abused such discretion. The order denying the application for temporary injunction appears to> have been entered after a full hearing, including oral testimony and arguments by-counsel. The order does not set forth any findings of fact, but confines itself to the dissolution of the temporary restraining order and denial of the application for temporary injunction. The order reinstating the temporary restraining order states as follows:

“No findings of fact are hereby made by the Court either expressly or impliedly on the matters which were before the Court and determined by it in its order dated November 26, 1962 and signed and entered herein by the Honorable J. H. Starley, Judge Presiding.”

The appellees maintain that there was no testimony indicating that they were attempting to dispose of any of their property; that they were merely trying to get it divided and set apart as a part of the divorce judgment between them. Among other things, they owned a home in El Paso, Texas which was admittedly their homestead. There were no children.

As we see this case, it is a divorce case between Wiley Culpepper and his wife, wherein the appellant is attempting to intervene in order to protect or collect a judgment against Mr. Culpepper. It is not disputed that the court heard considerable testimony and arguments from both sides. It has been stated by both text books and courts that the trial court, in a matter of this nature, is clothed with broad discretion and may, if he sees fit, require or request evidence from both parties in addition to the allegations of a verified petition, even though the defendant files no pleadings whatever. Hutchison et al. v. Ross et al., 89 S.W.2d 495 (Tex.Civ.App.); Texas Practice (Lowe & Archer) — Injunctions and Other Extraordinary Proceedings, Sec. 337; 31 Tex.Jur.2d 262 — Injunctions —Sec. 148.

Chief Justice Hickman, of the Supreme 'Court, in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, et al., 151 Tex. 239, 248 S.W.2d 460, said as follows:

“The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.”

We do not find that the trial court abused his discretion in any way in refusing to grant the temporary injunction. As stated by appellees, such order could well cause hardship to them in the use or disposition of their homestead, against which, while it remains a homestead, a judgment of this sort, of course, could not be collected. It is not clear to us upon what legal right the intervenor bases its contention that it has a right to intervene in a divorce case and freeze or immobilize the property of the contestants; nor is it clear how said inter-venor could or would be harmed by the orderly disposition of the property involved in this divorce case. According to the record its judgment was four years old, and of course it had the right to file or record it wherever such might be useful, and to avail itself of other remedies provided by law for the collection of a judgment. We do not believe that the intervention here attempted is proper or legally authorized under the facts and circumstances here present. We repeat, it is not made clear to us, and must not have been to the trial judge, how the divorce proceedings could impair any of the rights appellant has had ever since the date of its judgment. We have not found any cases permitting intervention of the type proposed here. We should like to point out, too, that it does not appear that intervenor, the applicant here for an injunction, has qualified by showing the absence of adequate remedies at law, nor do we feel that it has adequately proven that it might suffer irreparable harm or loss. As stated above, intervenor has now, and has always had, the remedies provided for in the collection of a judgment, including garnishment, attachment, liens, etc.

For the reasons set forth above we cannot find that the trial court abused its discretion in declining to grant the temporary injunction. Some of the cases -discussing this matter and various factors pertinent thereto are as follows: Youngblood v. Youngblood, Tex.Civ.App., 163 S.W.2d 731; Magnolia Pipe Line Co. v. Moore, Tex.Civ.App., 292 S.W.2d 142; Long v. City of Fort Worth, Tex.Civ.App., 333 S.W.2d 644; Sakowitz Bros. et al. v. McCord, Tex.Civ.App., 162 S.W.2d 437.

In Bledsoe v. Grand Lodge of United Brothers of Friendship, Tex.Civ.App., S3 S.W.2d 73, the court clearly enunciates the rule as follows:

“It is a well-settled rule that in order to obtain relief in equity through the means of a temporary writ of injunction, the complainant must show that he has no other adequate legal remedy, and the petition must negative every fact from which it could reasonably be inferred that he has a legal remedy against the wrong complained of.”

For the reasons set forth above, we hold that the trial court did not abuse his discretion in declining to issue the temporary injunction.

Appellant’s point is overruled and the judgment of the trial court is in all things affirmed.


author: HOLMAN, Judge.

text:
    STATE ex rel. DONIPHAN TELEPHONE COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.
    No. 49617.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Motion for Rehearing and to Transfer to Court En Banc Denied July 22, 1963.

      Forrest C. Donnell, St. Louis, for Don-iphan Telephone Co.
    J. B. Schnapp, of Schnapp & Cooper, Fredericktown, for Roscoe Myers and forty eight petitioners.
    Glenn D. Evans, General Counsel, Thomas J. Downey, Asst. General Counsel, Missouri Public Service Commission, for respondent.
   HOLMAN, Judge.

This is an appeal from a judgment of the Circuit Court of Cole County which affirmed certain orders of the Public Service Commission of Missouri (hereinafter referred to as the “Commission”) relating to the matter of providing telephone service in an area consisting of the south three miles of Madison County, Missouri, hereinafter referred to as the “Three-Mile Strip.” The orders provided that the service should be furnished by Southwestern Bell Telephone Company (hereinafter referred to as “Bell”). The Doniphan Telephone Company (hereinafter referred to as “Don-iphan”) appealed to the circuit court, and has appealed to this court from that court’s judgment of affirmance.

On July 1, 1951, the Commission granted a Certificate of Convenience and Necessity to Doniphan to engage in rendering telephone service, among other places, to the town of Greenville and the territory adjacent thereto. In 1957, Doniphan made a visual survey of the three-mile strip and on November 21, 1957, filed a map with the Commission whereby it purported to add the three-mile strip to the area served by the Greenville exchange. Doniphan has never furnished any service to the three-mile strip, nor has it offered to furnish service, and the nearest line it has to this strip is 19 miles away.

This proceeding was commenced on January 4, 1960, by the filing with the Commission of a petition by W. R. Meyers and forty-eight other residents of the three-mile strip in which they stated that they had no telephone service, and desired that such service be furnished by the Fredericktown exchange of Bell because most of their business was transacted in Fredericktown. Doniphan and Bell were notified of the filing of this petition and the matter was set for formal hearing, at which both of said companies appeared and participated. The evidence of the petitioners at the hearing tended to prove that Fredericktown was the county seat of the county in which they resided; that substantially all of their business was transacted there; that they obtained medical and ambulance service, as well as fire protection and law enforcement protection from Fredericktown, and that they did not desire to be served by Don-iphan because, in that event, every call to Fredericktown would be a long distance call. It was also shown that Bell had lines running to within 100 yards of the three-mile strip and was furnishing service to the three-mile strip by means of five pay stations located therein and connected with its Flat River exchange; that Bell has a cable circuit located about four miles from the three-mile strip which contains 50 pairs of wire which are not in use and are connected with the Fredericktown exchange.

It was the contention of Doniphan before the Commission, and is here, that the filing of the map on November 21, 1957, extended its certificate of convenience and necessity to include the three-mile strip; that it has pending before the Federal Communications Commission a petition seeking to have that Commission require Bell and American Telephone and Telegraph Company to make certain physical connections which would enable it to put into effect what is referred to as its Comprehensive Plan; that it also has made application to the Rural Electrification Administration for a $1,000,000 loan; that if the order is obtained from the Federal Communications Commission, and the loan is obtained from the Rural Electrification Administration, it proposes to increase its exchanges from six to twelve and construct an additional 250 miles of line; and in that event, at some future time, would furnish service to the residents of the three-mile strip; that such service would not be furnished from the Greenville exchange but from a new exchange to be established in the one-store village of Clubb. Doni-phan’s president testified that the Company would be very reluctant to furnish telephone service to petitioners under existing rules and conditions because “it would be a losing proposition to us at the very best” and would be a heavy burden upon the subscribers who would be required to make large construction contributions.

Bell opposed the petitioners’ application at the hearings before the Commission but did not appeal from the Commission’s order.

The Commission entered a preliminary order on August 10, 1960, in which Bell was directed to make a survey of the area referred to as the three-mile strip “to determine the number of people who would actually become subscribers to their service under their current extension rules and to determine, in general, the feasibility of rendering service to such subscribers,” and to report such findings to the Commission “on or before the 14th day of October, 1960.”

Thereafter, on February 20, 1961, another hearing was held and a supplemental order entered on May 19, 1961, which was, in part, as follows: “That the Southwestern Bell Telephone Company be and is hereby directed to make use of its present unused facilities located along Highway 67, or in the Marquand area, in the southern part of Madison County and provide facilities in connection therewith to render telephone service to the Complainants therein located in the Three-Mile Strip and furnish toll and Fredericktown Exchange service to said Complainants under the same conditions and rates that are now in effect throughout the Fredericktown Rural Exchange area.”

The Commission filed a motion to transfer this cause to the Kansas City Court •of Appeals and that motion was ordered taken with the case. Doniphan, in its jurisdictional statement, says we have jurisdiction because of certain constitutional questions it has raised. Art. 5, § 3, Constitution of Missouri 1945, V.A.M.S., states that the “supreme court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state * * *»

Doniphan’s first constitutional contention is that by its order directing Bell to furnish telephone service to the residents of the three-mile strip, the Commission deprived Doniphan of its property without due process of law and denied it the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States, and in violation of §§ 2 and 10 of Art. 1 of the Constitution of Missouri. We have decided that this contention may be determined without a construction of any of the constitutional provisions cited. In that connection it should be noted that Doniphan does not complain that it did not have notice of the proceeding or that it was deprived of an opportunity to be heard. Doniphan was present at every hearing and makes no complaint concerning the procedure before the Commission or in the circuit court. Moreover, no attack is made as to the constitutionality or validity of the statutes which provide the jurisdiction and powers of the Commission in a case of this kind. Don-iphan simply says that by its order directing Bell to infringe upon its alleged territory the Commission has deprived Don-iphan of its property without due process or equal protection of the law.

For the purposes of this opinion we will assume (but do not decide) that Doniphan had a certificate of convenience to furnish telephone service to the three-mile strip. Such a certificate, however, would not necessarily entitle it to a monopoly in that area. “The question of whether regulated monopoly or regulated competition will best serve the public convenience and necessity in a particular area at any time is for the commission to decide, subject to the qualification that the commission must not act arbitrarily or unreasonably, * * State ex rel. City of Sikeston v. Public Service Commission of Missouri, 336 Mo. 985, 82 S.W.2d 105, 110.

Since Doniphan does not complain of any procedural matter affecting due process, and makes no attack upon the validity or constitutionality of the statutes defining the powers of the Commission in this type of case, the only conceivable complaint remaining within the scope of the instant contention is that the Commission exceeded its authority. What Doniphan is really saying is that the Commission did not have the power or authority to make the orders it made. It is not necessary to construe any constitutional provision in order to determine that contention. It may be decided by a construction of the applicable statutes for the purpose of ascertaining whether the Commission exceeded its authority in making the orders. “The commission is not a court. It is a creature of the Legislature. Its jurisdiction, powers, and duties are fixed by the statute. The constitutionality of such statute is not attacked. Since the jurisdiction of the commission is fixed by statute, and since the validity of that statute is not attacked, the case may be properly determined by a construction of the statute for the purpose of determining whether or not the commission exceeded its statutory authority. The Court of Appeals has authority to construe the statute for that purpose.” State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Commission, 338 Mo. 572, 92 S.W.2d 882, 884. See also State ex rel. Harline v. Public Service Commission, Mo. Sup., 332 S.W.2d 940.

The next point mentioned in the jurisdictional statement is that the orders in this case take or damage Doniphan’s private property for public use without just compensation in violation of Art. 1, § 26 of our constitution, which reads, in part, as follows: “That private property shall not be taken or damaged for public use without just compensation.” We do not think this contention requires a construction of the quoted provision. In that connection we observe that Doniphan has not, at any stage of the proceeding, contended that it should recover compensation from Bell and that Bell did not seek (in fact, opposed) the right to furnish service in the three-mile strip. “The Public Service Commission is not invested with the power of eminent domain and cannot subject private property to public use. City of Kirksville v. Hines, 285 Mo. 233, 225 S.W. 950; Richards v. Public Service Commission, 293 Mo. 625, 239 S.W. 838. The commission ‘has no power to declare or enforce any principle of law or equity’ (State ex rel. Jenkins v. Brown, 323 Mo. 382, 19 S.W.2d 484) and as a result it cannot determine damages or award pecuniary relief.” American Petroleum Exchange v. Public Service Commission, Mo.Sup., 172 S.W.2d 952, 955. We have also said that “[t]he just compensation clause of the Constitution contemplates a lawful taking of private property for public use.” Elkins-Swyers Office Equipment Co. v. Moniteau County, 357 Mo. 448, 209 S.W.2d 127, 131. It would therefore appear that the alleged taking of Doniphan’s private property for public use as a result of the instant orders of the Commission does not create a situation which would call for an application of the provisions of Art. 1, § 26.

There is another reason why it is not necessary to construe the provision in question. The Public Service Commission Law is based upon the police power of the state. State ex rel. Missouri Southern R. Co. v. Public Service Commission of Missouri, 259 Mo. 704, 168 S.W. 1156. It has long been settled by this court that a valid exercise of the police power is not a taking of private property for public use within the meaning of Art. 1, § 26, supra. See cases cited in note 14, 1 V.A.M.S., p. 613. And this court will not take jurisdiction of a case upon the ground that a constitutional question is involved when the question sought to he invoked has been settled by prior decisions of the supreme court. Swift & Company v. Doe, Mo.Sup., 311 S.W.2d 15.

The final constitutional point relied on to vest appellate jurisdiction in this court is rather difficult to understand so we here quote what is said in the argument portion of the brief concerning it: “The proceeding, petition in which was filed on December 31, 1958 with Federal Communications Commission, related to commerce among the states and to commerce with a foreign nation. The Three-Mile Strip was included in the territory covered by the Comprehensive Plan. Inasmuch as (a) the proceeding in Federal Communications Commission was instituted to require the establishment of certain physical connections which it was believed would permit and enable Doniphan Telephone Company to operate the Comprehensive Plan and (b) action, during the pending of said proceeding, by Missouri Public Service Commission which might threaten future income by Doniphan Telephone Company from its territory by introducing competition, and thus creating fear of introduction of further competition, in its territory could adversely affect the prospects of Doniphan Telephone Company in said proceeding before Federal Communications Commission, it follows that Missouri Public Service Commission,” in making the orders herein, “acted contrary to, and without recognition of, the power of the Congress under Section 8 of Article I of the Constitution of the United States to regulate commerce with foreign nations and among the several states and regulated, restricted, obstructed, burdened, impeded and interfered with interstate and foreign commerce.” No cases are cited in support of that contention.

We see nothing in this point which would call for a construction of the interstate commerce clause of the United States Constitution. No question concerning interstate commerce was directly involved in this proceeding. The fact that the decision of the Commission herein might adversely affect Doniphan’s chance of prevailing in another proceeding pending in another forum is of doubtful relevancy on this appeal. However, even if we assume that the interstate commerce clause should be considered, and perhaps applied, in determining this point, we see nothing presented which would call for a construction thereof.

Since no point is raised whidi would require a construction of a constitutional provision, and since it does not appear that there is any other basis for vesting jurisdiction in this court, we rule that the supreme court is without appellate jurisdiction of this cause and the motion to transfer is accordingly sustained.

This case is therefore transferred to the Kansas City Court of Appeals.

All concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Lawrence MOBLEY, Appellant.
    No. 49624.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Norman S. London, St. Louis, for defendant-appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

This defendant was convicted of second degree burglary and stealing in the Circuit Court of the City of St. Louis. He was also charged with sundry prior convictions; the court assessed his punishment at ten years’ confinement for the burglary and five years for the stealing, the terms to run consecutively. Defendant was and is represented by counsel of his own choice and the case has been briefed. No point is made on the sufficiency of the evidence, and our recital of the evidence need not be made in any great detail.

The Ambrose Package Liquor Store at the corner of Kingshighway and Cates Avenue in St. Louis was protected by a burglar alarm system which would become activated upon any entry after the alarm was set. At midnight on November 27, 1961, the night manager set the alarm, locked the place and left; the inside was left well illuminated, as was the custom. At 3:52 a. m. on November 28, 1961, the burglar alarm registered in the central office of the operating company, the Potter Electric Alarm Company; the operator immediately called the police on a direct wire, and notified the owner of the business, Mr. Isadore Newman. Two police cars answered the call, a sergeant’s car and the regular district patrol car. The sergeant’s car arrived first. In that car were Sgt. James McGauley, Jr., and Patrolman Warren Johnson who happened to be talking to the sergeant when the call was heard. They were only three or four blocks from the scene and they estimated that they arrived within approximately two minutes. Officer Johnson testified, in substance: that as they approached the liquor store he saw a man moving around inside; as they pulled up to the front window Johnson got out with his revolver drawn, the man ran from the rear to the front, and Johnson called to him to halt, that they were police officers; the man, however, whirled around, stepped through the shattered glass of a side window, and started to run toward the rear; Johnson stepped over to a point where he could see him, yelled at him again to halt, and then fired three shots at him. One took effect, entering the right buttock and emerging from the lower abdomen; the man fell along the side of the building, toward the rear. Johnson testified that this man had never gotten out of his sight, and he definitely identified defendant as the intruder. The sergeant saw only a part of the proceedings, as he was apparently trying to cross behind the car to get closer; he stated that for a short time the man stopped at the front window with his hands raised, and that he later saw him running down a “gangway” as Johnson fired. When found, defendant was lying more or less slumped against the rear bumper of a car. At about this stage of the proceeding, the district patrol car arrived and those officers proceeded to call a conveyance to take defendant to a hospital. He was moved there on a stretcher.

The officers searched defendant rather casually on the spot; they found his billfold and name, untied a mask (possibly a scarf) from around his neck, found a screwdriver in his side pocket and a pair of gloves near him on the ground. At the hospital $24 in currency and some keys were found on him; his clothes were sent to the police laboratory for examination. Johnson testified that he saw no blood on defendant at the scene; McGauley testified that he was bleeding considerably.

When the owner arrived, the premises were entered and examined. A large side window, approximately four feet wide and five or six feet high, had been shattered, leaving a hole described as 32 x 24 inches with some rather jagged places left near the bottom. Some of the glass had apparently been taken out and laid outside, the rest being shattered and lying both inside and out. Three cash registers and a change drawer had been forcibly broken open. Currency was found to be missing from a cigar box in which the proceeds of money order sales were kept; Mr. Newman, after checking, testified that the amount so missing was $44. This box had been placed on a lower shelf, but was found under the broken window, empty except for a few pennies. There was no evidence concerning money missing from cash registers. Fragments of the broken glass were delivered to the police laboratory for examination. There was expert testimony that glass fragments taken from defendant’s clothing were identical in density with fragments found at the broken window; also, that the refractive index of each of the two groups was identical; these were supposedly recognized comparative tests.

The State offered evidence of prior convictions as follows, all on pleas of guilty: two of larceny of motor vehicles, two of second degree burglary, two of second degree burglary and larceny, one of tampering with a motor vehicle, and one of stealing over $50. In two instances pleas had been entered to three offenses on the same day and sentences were imposed to run concurrently, these being for two and one-half years and four years, respectively. Defendant had thus served sentences in the Intermediate Reformatory, the State Penitentiary, and the St. Louis Workhouse. On cross-examination defendant admitted these convictions and, in fact, seems to have admitted an additional conviction for burglary and larceny which fell in with his second group of guilty pleas. On this evidence the court made a specific finding of prior felony convictions.

The defendant testified in substance: that he had been working on a toilet and sink for his mother-in-law at her beauty shop a short distance from this store, leaving there a little before 4:00 a. m.; that as he drove along he was suddenly seized with an impelling desire to urinate, turned off Kingshighway, parked on Cates near this store, and entered a “gangway” where he relieved himself; that he had walked about halfway out when he was shot; that he fell, and tried to protect himself behind or under a car; that he had not been inside the store at any time, had not broken the window, had stolen nothing, and did not have any mask or scarf, tools, or gloves; that he explained to the police what he was doing there. The defendant did not put his character in issue.

Cora Taylor, defendant’s mother-in-law, corroborated his testimony in part by testifying that he was at her place from about 11:30 p. m. to shortly before 4:00 a. m. putting in a sink which she wanted for service the next day in her shop; that he was late because he had been working somewhere else earlier.

Defendant briefs three points; the first and most serious concerns the closing argument of the Assistant Circuit Attorney. In order to explain this accurately, we think it better to quote the pertinent parts, omitting obj ections, requests, motions, colloquies and rulings. The argument was interspersed with objections and motions sufficient to preserve the points now raised. To facilitate the matter, we have arbitrarily inserted numerals in the quoted portions. In part, counsel for the State said: (1) “In this case, I appear here as a representative of the decent, law-abiding people of the community. He just represents a client, a guilty client, by the way, and you represent our very system of justice itself. It is as simple as that. (2) * * * possibly the missing twenty-dollar bill might be very easily explained by the defendant, himself; after all, he is a man with a great deal of experience in this sort of thing. (3) * * * He said to you that it is impossible that this occurred, because it happened so quickly; the alarm went off at 3:51, the police were there within a very, very short time. Why, of course; we are dealing here with a professional burglar, a man who has had a great deal of experience in burglary, by his own admissions. (4) * * And then, you consider the most important thing of all. You consider the criminal record of the witness who testified and asked you to believe him.

“(5) Mr. Hailey and Mr. Newman don’t have any criminal records. These police officers have no criminal records, they are part of the organization which you and the rest of the people of this community have established to protect yourselves and your families.

“Now, who is it who points the finger at these witnesses and says that they are liars and perjurers? Why, it is Lawrence Mob-ley. And who is Lawrence Mobley? Lawrence Mobley is a notorious criminal, a professional burglar — * * * Lawrence Mobley is a notorious criminal, a professional burglar, a man who has shown, by his long record, that he has no regard or respect for the rights of other people. He has shown by his conduct that he has nothing but contempt for you and for all— (6) * * * Surely a man who has dedicated himself to a life of crime— * * * his oath cannot be accepted, his oath cannot prevail over the oath of law-abiding, God-fearing, respectable and respected citizens ^7) * * * The evidence in this case shows Lawrence Mobley to be an habitual criminal. * * * It shows him to he an habitual criminal, a professional burglar, and a dangerous criminal to be let loose upon society. You, and only you, by your verdict, can deter him. You, and only you, by your verdict, can send word to other Lawrence Mobleys that the people of this community did have the intelligence and determination to defend ourselves against their deliberations. The Lawrence Mobleys are at war with the people and, if you don’t defend us, we are helpless.” The only objection or motion sustained was in a ruling which struck the “first part” of the second paragraph of (5) above, and instructed the jury to disregard it.

Defendant’s counsel concedes here, as he must, that the State may legitimately comment on defendant’s prior convictions as affecting his credibility; and see § 491.050, RSMo 1959, V.A.M.S. But he further says that here counsel repeatedly referred to defendant’s character and almost continuously appealed to the jury to convict him because of his past record; and consequently, that counsel’s motions to strike, and for instructions to the jury, and for a mistrial should have been sustained. We note that only in one instance did the court strike any part of the foregoing argument or instruct the jury to disregard it; that one action could hardly suffice here. After much consideration, we hold that the State’s counsel here so far overstepped the bounds of legitimate argument as to create reversible error, and that the rulings may not be sustained by the cloak of discretion so broadly conferred upon trial courts. The following statement in defendant’s brief is apropos. “The Defendant’s criminal background is certainly not to be commended, but under our law he is still entitled to a fair and impartial trial on the offense on which he is presently charged.” At certain points the State’s counsel did argue credibility, vigorously and legitimately. But the attempt now to justify all this argument as such seems rather forced and unreal. Actually, we must consider the argument from the point of view of the jury, —the ordinary jury, —and not in the light of some subsequently expressed intent of the Prosecutor or the State. Thus, was the State seeking to get a conviction in this case because of defendant’s prior record, either in whole or in part?

The law is well settled that the only legitimate purpose of an argument concerning prior convictions lies in its bearing upon the credibility of the defendant. State v. Jones, Mo., 221 S.W.2d 137; State v. Jones, 249 Mo. 80, 155 S.W. 33; State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339; State v. Baber, Mo., 297 S.W.2d 439; State v. Reagan, Mo., 108 S.W.2d 391; State v. Mitchell, Mo., 86 S.W.2d 185; State v. Cook, Mo., 282 S.W.2d 533, 535; State v. Wellman, 253 Mo. 302, 161 S.W. 795. It is improper to argue prior unconnected crimes as reflecting upon the defendant’s character or as a basis for a conviction in the case on trial. See the cases just cited. And certainly the prior convictions could not have been argued here as a ground for a heavier punishment, as was permissible under the prior law, State v. Robertson, Mo., 328 S.W.2d 576, 584, for the court now assesses the punishment.

Even in the admission of evidence, proof of separate and distinct crimes is not admissible “when not properly related to the cause on trial,” for such evidence violates the defendant’s right to be tried for the offense for which he is then on trial. State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 306-307. That rule has some analogy here, and there is no contention that any of defendant’s prior offenses had any connection with the offense for which he was on trial, nor would they tend to establish any of the elements held to constitute exceptions, as set out in Reese, supra, at 274 S.W.2d loc. cit. 307. The evidence was admissible here, initially, for the sole purpose of establishing a basis for the assessment of punishment, after a finding of guilty. When the defendant testified, it also became material on the question of his credibility. But, on no theory did it ever become proper, either as substantive evidence or by way of comment upon the evidence, to prove defendant’s guilt in the case on trial.

When we examine in some detail the arguments made here, we find that (2) and (3) refer to defendant’s experience in burglary as indicating a suggested ability to explain the discrepancy in the money stolen and the money found, and an ability, from such experience, to perform so many different acts within such a short period. These remarks had no bearing on defendant’s credibility and they constituted poorly veiled comments upon defendant’s character. The point now made that defendant’s past history of burglary demonstrated a proficiency therein, actually amounts to an admission that the Prosecutor was thus using the fact of prior convictions as substantive evidence of guilt, and not merely as affecting defendant’s credibility. Much of (4), (S) and (6) constituted arguments on credibility; the trial court saw fit to strike out a part of (S); we are not quite sure what part this was (i. e., the “first part”), nor do we think the jury understood. Enough remained, however, to remind the jury that the defendant had placed himself beyond the pale, that he had dedicated himself to a life of crime, and that he had demonstrated his contempt for society. Upon this background came the following (No. (7), set out again here at the expense of repetition) : “The evidence in this case shows Lawrence Mobley to be an habitual criminal. * * . * It shows him to be an habitual criminal, a professional burglar, and a dangerous criminal to be let loose upon society. You, and only you, by your verdict, can deter him. You, and only you, by your verdict, can send word to other Lawrence Mobleys that the people of this community did have the intelligence and determination to defend ourselves against their deliberations. The Lawrence Mobleys are at war with the people and, if you don’t defend us, we are helpless.” Objection was made after the first sentence, and prior objections and motions were renewed. All these were overruled. In these statements the Prosecutor made no pretense of arguing the question of credibility. We are well aware of the fact that a prosecutor is entitled to argue the necessity of law enforcement as a deterrent to crime; State v. Turner, Mo., 320 S.W.2d 579; State v. Laster, Banc, 365 Mo. 1076, 293 S.W.2d 300. This means, generally, the right to argue the necessity of a' conviction in the case on. trial, based on the evidence in that case. Here the Prosecutor went further and argued the defendant’s individual character and criminal proclivities, as shown by his past offenses, and the necessity of deterring him, not as an example to others, but to prevent further injury to society by him. We have concluded that the argument as a whole, in which the repetition and the persistency employed were major factors, constituted reversible error. All lawyers and judges know that a jury’s knowledge of prior convictions is, in itself, a most damning thing in the trial of a criminal case. When used for legitimate purposes, the defendant must take his chances on this. But prosecutors'should not seize upon such an opportunity to further prejudice the defendant by undue repetition and insinuations, or to convey the idea of guilt by reason of the prior offenses. The arguments made here bear some analogy to those in State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339, where the conviction was reversed for prejudicial argument, although there the argument bore directly upon the question of punishment. We have considered the arguments of defense counsel brought here in a supplemental transcript, to which the State now says it was retaliating. Therein counsel argued at various points and in different ways the question of credibility, stated that the case was to be determined solely on the evidence in the case, and that defendant’s prior record could be considered only on the question of credibility; he also argued the interest of the police officers in obtaining the conviction of a man whom one of them had shot. We see nothing in that argument upon which we could rule the State’s argument to be retaliatory, except in so far as the latter was actually confined to the question of credibility.

We would have a somewhat different question here if the court had taken some action in connection with the erroneous parts of the argument; we might then need to determine whether the drastic remedy of a mistrial was required. We do not reach that point here, for essentially the court took no action. The State has cited several cases where the use of epithets in argument was held not to be prejudicial. State v. Richmond, 321 Mo. 662, 12 S.W.2d 34; State v. Ayers, Mo., 305 S.W.2d 484; State v. Eison, Mo., 271 S.W.2d 571; State v. Armstead, Mo., 283 S.W.2d 577; State v. Harris, Mo., 351 S.W.2d 713. The rulings in those cases involved a somewhat different principle. In those cases, generally, it was held that the evidence created an inference reasonably justifying the application of such epithets, although such language should ordinarily be avoided. Here we have no question as to what the evidence does or does not support, but a positive rule of law that an evidential showing of prior convictions shall not be used as the basis of an attack on the defendant’s character, or as indicating guilt in the case on trial. Each case and each argument vary, but we are convinced here that, in its totality, this argument was prejudicially erroneous, particularly in view of the almost complete lack of action by the trial court.

The second point concerns the refusal of a proffered instruction, the giving of another instruction, and a verdict form. All of these dealt with a submitted offense of stealing property of a value less than $50, independent of any burglary. If such a submission is justified upon another trial, counsel for the State may consider the suggestions now made in connection with its own instruction and the verdict form. We need not discuss the propriety of defendant’s proffered instruction, for if the field is adequately covered in one or more instructions, the same substance need not be repeated in another. We note, however, that there appears to be some confusion or inconsistency in the phrase of the proffered instruction, —“and unless you so find the facts to be you will acquit the defendant altogether,” when related to the first part of the instruction dealing with burglary.

We shall comment briefly on the third point, in view of another trial. Counsel complains of the denial of his requests for leave to examine, or to have the court examine, any reports or statements made by the two police witnesses. These oral requests were made when Officer Johnson and Sergeant McGauley were on the stand. Counsel “felt” that such reports or statements might develop inconsistencies upon cross-examination concerning the particular witness’ observations and his recollection of defendant’s statements at the scene. These requests obviously proceeded upon the assumption that there were such reports or statements; there was no showing as to who made the usual police report or that there was any written statement or report made by either witness, or that any such documents would contain anything of value to defendant; Officer Johnson expressly stated that he did not make the police report. This whole request and inquiry was vague and somewhat confusing, and we can only guess that counsel sought to examine the police report, in order to see if it recited statements made orally by either of these witnesses, together with any possible written statement by either or both.

No effort was shown to subpoena the police report in advance of trial, or to examine its contents by any method of discovery, nor indeed to learn if there were any written statements. The trial court should not be ambushed by any such shotgun procedure as this. See State v. Gilliam, Mo., 351 S.W.2d 723. There is nothing in the substantive holding of the case of State v. Crayton, Mo., 354 S.W.2d 834, cited by defendant, which aids him here, nor are the facts similar; and as justifying the court’s action under the present circumstances, see State v. Redding, Mo., 357 S.W.2d 103. In the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, relied on by defendant, the court was applying its supervisory power over federal courts, and the decision involved no question of constitutional due process. Nor are we concerned with the federal statute, § 3500, Title 18, U.S.C.A., announcing a rule of federal practice, which was apparently enacted for the purpose of limiting the effect of the Jencks decision.

For the errors noted in the final argument, the judgment is reversed and the case remanded for a new trial.

All of the Judges concur.