author: WALTER, Justice.

text:
    James Monroe BARHAM, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 4013.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 3, 1965.
    Rehearing Denied Jan. 14, 1966.
    Orville A. Harlan, Houston, for appellant.
    Joe Resweber, County Atty., Bruce D. Mosier, Houston, for appellee.
   WALTER, Justice.

James Monroe Barham filed suit against the Texas Department of Public Safety for a declaratory judgment and for injunctive relief. He alleged that on June 29, 1964, he was convicted of the offense of driving a motor vehicle while intoxicated; that at his request his appeal from such conviction was dismissed on January 27, 1965; that the Department suspended his license on January 29, 1965, being the date when the mandate was issued; that he contends that June 29, 1964, is the date of his final conviction; that he seeks a declaratory» judgment as to the date a misdemeanor conviction becomes final and as to the validity of the administrative order suspending his license effective January 29, 1965.

The Department answered and asserted that Barham’s license was suspended under Section 24(a) (2), Article IV of Article 6687b, Vernon’s Ann.Civ.St.; that the Court of Criminal Appeals dismissed his appeal on January 29, 1965, based upon Barham’s motion ; that such conviction was abated during the appeal and that judgment became final upon dismissal of the appeal.

The court found that the judgment of conviction became final on January 29, 1965, and the automatic suspension of Bar-ham’s license became effective on that day and not before.

Barham has appealed. The Department’s motion to dismiss the appeal because appellant’s brief does not contain a statement of the points upon which the appeal is predicated and does not direct the attention of the court to the error relied upon has given us some concern. Nevertheless, under the authority of Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, we have decided to consider the appeal.

Section 24(a) (2) of Article 6687b, V.A. C.S. provides:

“(a) The license of any person shall be automatically suspended upon final conviction of any of the following offenses:
⅜ ⅜ * * ⅜ ⅝
2. Driving a motor vehicle while under the influence of intoxicating liquor * ^ * tf

When does a conviction become final within the meaning of said Article ? This court answered that question in Hays v. Department of Public Safety, 301 S.W.2d 276, (error dis.). Speaking of Article 6687b, Section 24(a), subdivision 2, the court said:

“This statute has been interpreted to mean exactly what it says, that is, that upon the final conviction of any person of the offense of driving a motor vehicle while intoxicated his license is automatically suspended. It is not necessary for the suspension to be provided for in the judgment. Gilbert v. State, Tex.Cr.App., 212 S.W.2d 182; Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167 (Writ Ref.). The suspension is not conditioned upon the surrender of license as directed by Section 25 of the statute, nor upon the date a defendant begins serving the jail sentence provided by the judgment. The automatic suspension begins when the judgment of the conviction becomes final. The question is when the judgment became final. It is held in civil cases that a judgment becomes final when the Supreme Court refuses a petition for writ of error, or at least when the time for filing a motion for rehearing thereon has expired. Continental Gin Co. v. Thorndale Mercantile Co., Tex.Com.App., 254 S.W. 939; Rittenberry v. Capitol Hotel Co., Tex.Civ.App., 69 S.W.2d 491 (Writ Ref.).
******
For the purposes here involved the judgment in question became final when it was affirmed by the Court of Criminal Appeals and the time for filing a motion for rehearing had expired.”

We hold that a judgment of conviction for the offense of driving an automobile on a public highway while intoxicated which has been appealed becomes final when the appeal is finally determined by the Court of Criminal Appeals.

The judgment is affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    W. B. UHLHORN et al., Appellants, v. Gary H. REID et al., Appellees.
    No. 14368.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 20, 1965.
    Rehearings Denied Dec. 8, 1965.

      Brundidge, Fountain, Elliott & Churchill, Dallas, Carter, Stiernberg, Skaggs & Koppel, Harlingen, for appellants.
    Andress, Woodgate, Richards & Condos, Dallas, Mann, Cronfel & Mann, Fansler & Fansler, John E. Fitzgibbon, Raymond J. Goodman, Laredo, for appellees.
   MURRAY, Chief Justice.

The parties here involved will hereinafter be referred to as follows: W. B. Uhlhorn, d/b/a Uhlhorn Construction Company, as “Uhlhorn”; Gary H. Reid and Associates, as “Reid”; Trinity Universal Insurance Company, as “Trinity”; Herbert Huch, Vice-President of Trinity, as “Huch”; Ray Hughston, a representative of National Surety Corporation, who wrote Uhlhorn’s bonds, as “Hughston”; Union National Bank of Laredo, as “Union Bank”; Har-lingen National Bank of Harlingen, as “Harlingen Bank”; the furnishers of materials on the Laredo job, collectively, as “Materialmen.”

The nature of this suit was stated by Justice Barrow when the case was before us upon a question of venue. Reid v. Uhlhorn, 359 S.W.2d 278. We here repeat that statement:

“This controversy arose out of the performance of a public housing contract in the City of Laredo, Webb County, Texas (known as Carlos Richter Courts). Uhl-horn was the principal contractor. Reid was the masonry subcontractor, and all other defendants, except the Union National Bank of Laredo, the Harlingen National Bank of Harlingen, and Trinity Universal Insurance Company, had furnished labor or material in performance of the subcontract. (The United States Government was an intervener.) In October, 1959, Uhlhorn entered into a contract with the Housing Authority and duly filed a performance and payment bond as required by Article 5160, Vernon’s Tex.Civ.Stats. He then entered into a masonry subcontract with Reid for $175,000.00, and although the subcontract required both a performance and payment bond of Reid, the record reflects that only a performance bond with Trinity Universal Insurance Company as surety was delivered to Uhlhorn.

“After a few months Reid was in financial difficulty, and arrangements were made with the Harlingen National Bank for Uhlhorn to deposit money to cover payroll and material checks of Reid as they were presented. This agreement was set forth in a letter of March 25, 1960, from Reid to Uhlhorn, and was accepted by Uhlhorn. It reads as follows:

With reference to contract which I, the undersigned, have with Uhlhorn Construction Company, being Job known as the Laredo Public Housing Project, I hereby assign, pledge and transfer to the Harlingen National Bank, Harlingen, Texas, all monies now due or to become due under this contract.
‘You are hereby authorized and requested to make all checks payable under this contract to the Harlingen National Bank and the Bank is hereby authorized to use these funds to pay any and all notes which they have signed by myself and the balance of the funds are to be deposited to my checking account with said Bank.’

“Difficulties arose between Uhlhorn and Reid, and in September, 1960, Uhlhorn took over this subcontract and finished it at a cost of approximately $900.00. Upon finishing the work, Uhlhorn had $3,496.74 remaining of the original subcontract of $175,000.00, which sum was interpleaded in this cause. Reid has asserted a claim against Uhlhorn of $18,916.80 for extra work.

“In the meantime, ten persons and firms, including five residents of Webb County, made demand upon Uhlhorn for payment of labor and material used in performance of the subcontract. In August, 1960, the Union National Bank of Laredo filed suit against Reid for checks which had not been paid by the Harlingen Bank and served writ of garnishment on Uhlhorn. Default judgment was taken against Reid, but no judgment has been entered against him. The entire project was accepted on October 31, 1960, but the sum of $24,620.88, which is the total of the demands asserted against Reid and Uhlhorn by the ten creditor defendants, has been withheld from Uhlhorn by the Laredo Housing Authority.

“On January 24, 1961, Uhlhorn filed the interpleader, to which Reid filed his plea of privilege. Each of the other defendants, except the Harlingen National Bank and Pete Herrera, filed cross-actions against Reid and also asserted claim to the inter-pleaded sum. The plea of privilege was duly controverted, and by agreement of all parties the action on this plea shall control venue on the cross-actions.

“Appellant, Reid, concedes that if the bill of interpleader was proper, venue lies in Webb County. He asserts, however, that there was no basis for interpleader and that the Webb County defendants were simple creditors holding open accounts for contract balances against him.

“This is based primarily on two propositions: first, that the defendant creditors did not comply with Art. 5160 as amended in 1959 (referred to as the McGregor Act), and, second, the agreement of March 26, 1960, with the Harlingen Bank, was an assignment, and after Uhlhorn’s acceptance, the subsequent suppliers of Reid, who had not complied with the above statute, had no claim to the fund.

“It is not necessary to this appeal, and we expressly do not determine that one of the creditor defendants, residing in Webb County, Texas, had fully complied with the McGregor Act. Rule 43, Texas Rules of Civil Procedure, materially broadened the interpleader’s practice of this State as it existed prior to 1941. The stakeholder may initiate an interpleader action joining persons having claims against him when he is or may be exposed to double or multiple liability. Vol. I, McDonald, Tex.Civ.Prac-tice, § 3, 39; Security State Bank of Pharr v. Shanley, Tex.Civ.App., 182 S.W.2d 136, 138.”

The cause has now been heard upon its merits before the Laredo, Webb County, District Court without the intervention of a jury and, speaking generally, has resulted in a recovery in favor of Reid against Uhlhorn in the sum of $17,050.00, part of which grows out of an Eagle Pass job; in favor of the U. S. Government against Reid and Uhlhorn, for federal taxes in the sum of $11,809.87; in favor of Union Bank against Uhlhorn in the sum of $1,054.00, together with $350.00 exemplary damages, with interest. Uhlhorn recovered a judgment over against Trinity for such sums as he might be required to pay due to Reid’s defaults. Seven of the° materialmen were permitted to recover various sums against Uhlhorn, Trinity and Reid. Uhlhorn recovered of Reid the sum of $4,250.00 for extra work on the Laredo job.

From this judgment Trinity and Uhlhorn have prosecuted this appeal.

The first question we will discuss is the trial court’s finding that as of July 5, 1960, Uhlhorn took over the performance of the subcontract in place and stead of Reid who had defaulted in its performance. Almost the entire judgment is based upon this finding. - This finding is in, conflict with the statement in our previous opinion, that in September, 1960, Uhlhorn took over this subcontract and finished it at a cost of approximately $900.00. If Uhlhorn took over on July S, 1960, it cost him many times $900.00 to finish the contract. Furthermore, if Uhlhorn took over on July S, 1960, he is responsible to the government for the federal taxes, including employment taxes for the third quarter of 1960, and to the materialmen for material furnished after July 5, 1960.

The trial court further rendered a declaratory judgment as follows:

"f. UNITED STATES recover Judgment against UHLHORN finding and declaring, and it is hereby found and declared, that beginning on July S, 1960, and continuing until the completion of the masonry work on the Carlos Richter Courts at Laredo, Texas, W. B. UHLHORN, doing business as W. B. UHLHORN CONSTRUCTION COMPANY, was the employer of all employees whose names appeared on the reports made to the Laredo Housing Authority of the employees working for GARY H. REID, or GARY H. REID and ASSOCIATES, or both, and as such employer, W. B. UHLHORN was responsible for:
(1) Withholding from the wages paid to such employees all amounts required to be withheld from such wages by the Internal Revenue Code of the United States.
(2) For paying the amounts so withheld, or which should have been so withheld, to the United States.
(3) For making all reports and tax returns as to such employees required of employers by the Internal Revenue Code of the United States.
(4) Paying all taxes due under the Internal Revenue Code of the United States by reason of the employment of such employee.”

This declaratory judgment must be set aside because the evidence shows that Uhlhorn did not take over the performance of Reid’s subcontract on July 5, 1960. The record goes no further than to show that on July 5, 1960, Reid was in financial difficulties, apparently due to the fact that the federal government had seized a large portion of his bank account, not for taxes he owed on the Laredo job, but for taxes that he owed the government on prior jobs. This led to a conference in which it was decided that Reid would be permitted to go into the retainage of the Laredo job in order to complete his subcontract, and that all funds owed Reid would be paid into the Harlingen Bank, and paid out only on Reid’s checks which met with the approval of Uhlhorn or his agent. Reid stayed on the job, contracted for material, met his payroll and hired and fired the employees either himself or through his foreman. Reid testified that on September 8, 1960, he came down in his truck, picked up his equipment and abandoned the job when it was practically completed.

Although Uhlhorn had joint control of Reid’s account with the Harlingen Bank in that Reid’s checks could not be paid by the Bank without Uhlhorn’s approval, Reid was still in charge of the work to be done under his subcontract, and he had not abandoned it on July 5, 1960. Uhlhorn had not taken over the performance of the subcontract merely by having joint control of Reid’s bank account, and did not become liable for the federal taxes. Century Indemnity Co. v. Riddell, 9 Cir., 317 F.2d 681; Phinney v. Southern Warehouse Corp., 5 Cir., 212 F.2d 488; Westover v. William Simpson Const., 9 Cir., 209 F.2d 908.

In Century Indemnity Co. v. Riddell, supra, the surety on the bond of a subcontractor brought an action against the District Director of Internal Revenue for the Los Angeles District of California, for the refund of federal income withholding taxes paid under protest by the surety. The U. S. District Court for the Southern District of California, Central Division, entered a judgment for the surety in part, and both the surety and the District Director appealed. The Court of Appeals held that the surety was not an employer liable for the federal taxes merely because the subcontractor gave the surety joint control over the account into which the job payments were to be made. The Court said:

“Joint control of a trust account into which all contract payments are required to be deposited, even from the inception of a contract job as in this case, which still leaves the common law employer in control of all the incidents of employment except the requirement of the concurrence of its bonding surety on checks for withdrawals from such account, does not have the dual effect required by Section 1621(d) (1) of establishing (1) that the contractor ‘does not have control of the payment of the wages’, and (2) that the surety, whose concurrence is required, does have such ‘control of the payment of such wages.’ Here, neither has sole control, but neither is the subcontractor without any such control.”

The other two cases cited above are largely to the.same effect.

The sums recovered by the several ma-terialmen were based upon the finding that Uhlhorn took over the subcontract on July 5, 1960, and this finding being erroneous necessitates the setting aside of each of those recoveries.

The recovery against Uhlhorn in favor of the Government must be set aside. The fact that Uhlhorn issued three post-dated checks aggregating the sum of $9,310.61 upon the request of Reid to cover federal taxes, but which checks were never delivered to the Government and later returned by Reid’s attorney to Uhlhorn and payment stopped on same, did not obligate Uhlhorn to pay Reid’s taxes on this sum. Payment was stopped on the checks before they were delivered to the Government, and therefore there was no obligation on Uhl-horn to pay Reid’s federal taxes. The mere writing of the post-dated checks payable to the Government and sending them ta Reid or his lawyer, did not constitute an assignment to the Government of $9,310.61. Williston on Contracts (Rev.Ed.1936), § 428, p. 1232.

The judgment in favor of the Union Bank against Uhlhorn rendered in the garnishment proceedings must be reversed because it is not shown that at the time Uhlhorn was served with the writ of garnishment, and during the twenty-day period within which he was required by law to answer, Uhlhorn had funds in his hands belonging to Reid which were subject to garnishment. Any funds that he may have had in his hands belonging to Reid were so involved at the time as not to be subject to garnishment. Union Bank expressly waived any lien in favor of the U. S. Government on the funds paid into court by Uhlhorn.

This brings us to a consideration of the court’s conclusion:

“1. In view of the equitable maxim that the law will regard as done that which ought to have been done, this Court concludes that Trinity must be regarded as having written a payment bond in the amount of $175,000.00 with a defeasence clause conditioned upon the payment in full by Reid of all labor and materials provided to him for the performance of his subcontract with Uhlhorn, and that Trinity is estop-ped to deny that it wrote and delivered both a performance bond and a payment bond in the amount of $175,000.00 inuring to the benefit of Reid’s laborers and materialmen.
“2. That Trinity is liable to the laborers and materialmen who are parties to this action in the amounts for which Reid is liable to such laborers and materialmen, in the amounts as set out in the stipulation on file herein, plus attorney’s fees as hereinafter set out.”

The subcontract provided that Reid was to furnish all labor and material called for by the plans and specifications to complete the masonry part of the contract to build the Laredo job, and Reid further agreed to furnish to the general contractor a performance and payment bond in the amount of $175,000.00.

Reid applied to Huch, Vice-President of Trinity, the proper person to issue such bond, for the bond or bonds called for in the subcontract and furnished Huch with a copy of the subcontract. Huch agreed to furnish such bond or bonds as were called for by the contract. As a matter of fact, Trinity acting through Huch furnished only a performance bond and delivered it to Hughston, who in turn delivered it to Uhl-horn, who filed it away and authorized Reid to proceed to perform his subcontract as though the proper bonds had been furnished. Apparently, one bond could have been written guaranteeing both performance and payment, or two separate bonds could have been written, one a performance bond and the other a payment bond.

It is quite clear that Trinity should have written both a performance and a payment bond, and it received a premium which would have been sufficient for both a payment and a performance bond, but the fact remains that it executed only a performance bond.

The materialmen cannot recover upon a payment bond that was never written. It is true that the bond given must be read in connection with the provisions of the subcontract, but the liability of Trinity to the materialmen must be fixed by the terms of the bond that was written. Employers’ Liability Assurance Corp. v. Trane Co., 139 Tex. 388, 163 S.W.2d 398; Bill Curphy Co. v. Elliott, 5 Cir., 207 F.2d 103. Equity cannot be invoked to create a contract which the court considers should have been made but was not. Head v. Sellers, 251 Ala. 453, 37 So.2d 664; Bair v. Willis, 218 Ga. 563, 129 S.E.2d 774; Jacobs V. Abraham Lincoln Life Ins. Co., 223 Iowa 1157, 274 N.W. 879; Wilkie v. Phil. Life Ins. Co., 187 S.C. 382, 197 S.E. 375.

It has been said that equity is a shield and not a sword. Even though Trinity might be estopped to deny that it executed a payment bond, it still remains that no payment bond was ever executed. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660; Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Alco Oil and Gas Corp. v. Concord Oil Co., Tex.Civ.App., 375 S.W.2d 463; Marek v. Goyen, Tex.Civ.App., 346 S.W.2d 926; Great American Reserve Ins. Co. v. Mitchell, Tex.Civ.App., 335 S.W.2d 707; Powell v. American Cas. & Life Co., Tex.Civ.App., 250 S.W.2d 744; Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry & Dye Works, 85 S.W.2d 937; Guggenheim v. Dallas Plumbing Co., Tex.Civ.App., 59 S.W.2d 105.

The court erred in holding that Trinity is liable to the laborers and mate-rialmen in the amount for which Reid is liable, based on an alleged verbal agreement to pay the materialmen, because such an agreement was barred by the two-year statute of limitation. Art. 5526, Vernon’s Ann. Civ. Stats.

Reid recovered from Uhlhorn the sum of $7,851.00 as a balance and additional sums due him on the Eagle Pass job. $3,-178.00 of this amount represented five separate items of extra costs totaling the sum of $3,178.00, to which Reid added 20% for overhead and profit. The subcontract between Reid and Uhlhorn on the Eagle Pass job contained the following provisions

“No extra work or charges under this contract will be recognized or paid for unless agreed to in writing before the work is done or the charges made.”

This clause precluded Reid from recovering any of the items claimed by him. There was no agreement in writing for these items, and they were for extra work and charges under the subcontract. The trial court erred in allowing Reid to recover upon these items. State v. Martin Bros., 138 Tex. 505, 160 S.W.2d 58; City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536; Chambless v. J. J. Fritch General Contractor, Inc., Tex.Civ.App., 336 S.W.2d 200.

The recovery by Reid against Uhlhorn in the sum of $4,679.00 must he reversed because it is not supported by the pleadings or the findings of fact by the trial court. Attorney for Reid orally asked leave of the court to interline this item in his pleadings. The court did not rule upon this request, and such interlineation was never made in the pleadings. The trial court refused Uhlhorn’s leave to file a trial amendment pleading payment of this item, which had not been plead by Reid. The trial court was required to file findings of any fact concerning any balance owing to Reid by Uhlhorn on the Eagle Pass job. Rule 299, Texas Rules of Civil Procedure; McDonald, Texas Civil Practice, § 16.09, p. 1300; Pinson v. Dreymala, Tex.Civ.App., 320 S.W.2d 152. A judgment cannot be supported by implied findings where no element of the ground of recovery has been found by the trial court. Jack Ritter Inc. Oil Co. v. Fred Bandas and Sons, Inc., Tex.Civ.App., 387 S.W.2d 70.

That part of the judgment which granted Uhlhorn a recovery against Reid in the sum of $4,250.00 for extra labor on the Laredo job is based in part upon the court’s finding that Uhlhorn took over Reid’s subcontract on July 5, 1960. We have herein-before set this finding aside as being unsupported by the evidence and therefore this recovery by Uhlhorn must necessarily fail. The date on which Uhlhorn took over the subcontract from Reid is still an undetermined question of fact, and this Court can go no further than to determine that it occurred some date subsequent to July 5, 1960. There are other questions of fact which must first be determined by the trial court. With these questions of fact undetermined this Court cannot here render judgment.

For the error above pointed out, the judgment is reversed and the cause remanded to the trial court for a new trial not inconsistent with the holdings made in this opinion.

On Motions for Rehearing.

Appellant W. B. Uhlhorn, in his motion for rehearing, has called to our attention the fact that we did not expressly dispose of that portion of the judgment of the trial court which gave Reid judgment against Uhlhorn for $9,199.00 owing on the Laredo job. The Laredo contract contained the same provisions against claims of “extras”, unless authorized in writing, as the contract governing the Eagle Pass job. For the same reasons stated with reference to the claim for extras on the Eagle Pass job, Reid cannot justify a claim for extras on the Laredo job. Any judgment awarded Reid for “extras” on the Laredo job is reversed and set aside. We will not attempt to here render judgment on these items because we have remanded the entire cause and the trial court can better take care of them when it has the entire case before it on a new trial.

The motions for rehearing by Uhlhorn, the United States Government, Union National Bank of Laredo, Gary H. Reid, Herring-Price Lumber Company, Inc., West-Texas Builders Supply Company, Laredo Brick Company, Inc., and P. C. Chapa, have all been carefully considered by us and are each overruled.


text:
    Jerome SMISER, Appellant, v. PETROLEUM REFINING COMPANY et al., Appellees.
    No. 3995.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 17, 1965.
    Rehearing Denied Jan. 14, 1966.
    Escar A. Wren, Houston, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellees.
   WALTER, Justice.

Petroleum Refining Company and Fidelity Casualty Company of New York filed suit against Jerome Smiser and others. They alleged the defendants were officers and directors of the Petroleum Products Company before its assets were sold and the corporation dissolved or, in the alternative, that defendants benefited from the transaction of which the plaintiffs complain. The plaintiffs further alleged that just prior to dissolution of the Petroleum Products Company, its assets, excepting accounts receivable, were sold to Petroleum Refining Company; that thereafter an agent of the defendants, who was also working for the plaintiffs, transferred $30,982.13 to Petroleum Products Company without the knowledge or consent of plaintiffs; that defendants knew or should have known that Petroleum Products Company had no claim to the money, but they allowed this money to be received and retained it. Plaintiffs further pleaded that the retention of this money constituted an unjust enrichment and, in the alternative, constituted money had and received. Plaintiffs pleaded a joint and several cause of action against all defendants. Smiser filed a plea of privilege and the other defendants filed answers.

Plaintiffs controverted Smiser’s plea of privilege and relied upon subdivision 4 of Article 1995, Vernon’s Ann.Texas Civil Statutes. The court overruled the plea of privilege and Smiser has appealed.

Appellant’s point that the court erred in overruling his plea of privilege because appellees’ cause of action was barred by the two year statutes of limitation cannot be sustained. The defense of limitation, if properly pleaded, would be a proper matter to consider in a trial on the merits, but it is not material in a venue case.

In order to maintain venue under subdivision 4 of article 1995, Vernon’s Ann. Revised Civil Statutes, the plaintiff must establish by a preponderance of the evidence (1) that one of the defendants resides in the county where the suit is filed and (2) that he has a cause of action against the resident defendant. He must also allege facts showing that the non-resident defendant is properly joined in the suit but he need not prove a cause of action against the nonresident defendant. Ladner v. Reliance Corporation et al., 156 Tex. 158, 293 S.W.2d 758; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

Appellant’s point that the court erred in overruling his plea of privilege because there was no evidence that appellees had a cause of action against him is without merit. Appellees had no burden to prove a cause of action against the non-resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Shell Oil Company v. Greenburg, Tex.Civ.App., 380 S.W.2d 758, (no writ history).

We find that the record contains some evidence of probative force in support of the court’s finding that appellees proved a cause of action against one of the resident defendants. Staats v. Miller, 150 Tex. 581, 243 S.W.2d 686. Smiser was a proper party, as shown by appellees’ petition. In Shell Oil Company v. Greenburg, 380 S.W.2d 758, the court said:

“Evidence is not necessary at all with respect to the claim alleged against the non-resident. Once there is evidence of a claim against the resident, resort is then made to the pleadings to see if the action is joint, or is intimately connected, with that alleged against the non-resident.”

We have considered all of appellant’s points and find no merit in them. They are overruled. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Gerald H. FORTNEY, Appellant, v. OLIVETTI UNDERWOOD CORPORATION, Appellee.
    No. 14684.
    Court of Civil Appeals of Texas. Houston.
    Jan. 6, 1966.

      Flowers & McManus, Ervin Flowers, Channelview, for appellant.
    Parrish & Webb, Don S. Webb, Houston, for appellee.
   COLEMAN, Justice.

This case originated as a suit on a sworn account. In response to appellant’s answer setting up the applicable statutes of limitation as a defense, appellee filed an amended petition in which it alleged a written acknowledgment of indebtedness. The principal question to be determined is whether or not appellee alleged and proved compliance with the condition attached to the promise to pay contained in the letter.

Plaintiff’s original petition was filed August 4, 1964. The first amended petition, filed February 19, 1965, on Which appellee proceeded to trial, sought to recover the purchase price of two typewriters, one purchased November 30, 1959, and the other September 9, 1960, together with repair charges in the sum of $34.50 allegedly incurred between February 10, 1960 and June 23, 1960, making the total recovery sought the sum of $977.90 plus interest and attorney’s fees. Paragraph V of this petition reads:

“Further and without waiving any of the heretofore alleged matters Plaintiff shows in reply to the answer of the defendant that said account is barred by the Statute of Limitations, that on or about the 16th day of January, 1962, the defendant wrote to the plaintiff a letter, attached hereto as EXHIBIT B and made a part hereof by reference, said letter being made in response to several requests for payment by plaintiff of the indebtedness owed to it by the defendant. Plaintiff says and alleges that by reason of this written acknowledgment and promise to pay by the defendant of this debt and account that said account or indebtedness is not barred by the Statute of Limitations, and in the alternative, the sum of at least $552.10 is not barred by the Statute of Limitations.”
Exhibit B reads as follows:
GERALD H. FORTNEY
Lawyer
111 East Texas Avenue
Baytown, Texas
January 16, 1962
Stanley K. Oldden, Inc.
36 West 46th Street
New York 36, New York
Attn: Mr. Stanley K. Oldden
Re: Underwood Account
Dear Mr. Oldden:
I am enclosing my check to Underwood Corporation for $200.00, constituting partial payment on the above referenced account. You will note that on the back the endorsement provides that it acknowledges the full balance remaining unpaid to Underwood is $352.10.
As I told you on your collect telephone call, I have been out of my office for several months, and out of town the majority of the time for almost a year, and have admittedly neglected my correspondence. Since your call, however, I have checked into this matter, and find the following facts with reference to this claim:
At the time this equipment was bought from the Underwood Corporation, a check in the amount of $117.70 was given as down payment. For some reason, unknown to me, this check wasn’t sent to my bank for a period of approximately six months; and according to my bank, was then returned to the Underwood Corporation. Prior to this time, and prior to the time the first payment was due, we wrote the Underwood Corporation, asking about disposition of this check and the payment schedule. We have not received a reply from Underwood to either of these requests; nor have we ever received any correspondence or requests for payment until December, 1961, at which time their request for payment was for a sum almost double the purchase price.
If you accept the enclosed check in accordance with these terms, the remaining balance will be paid on or before February IS, 1962.
If you have any further questions in this matter, please feel free to call on me at any time.
Yours very truly,
/s/ Gerald H. Fortney
Gerald H. Fortney
GHF/rk
Enel.

During the course of the trial appellee abandoned his suit as to the original account and relied solely on the letter and check. The check referred to in Exhibit B was held by appellee for several months, but was deposited by appellee. It was returned by appellant’s bank. It bears the notation “Insufficient funds.” Appellant testified that he received a letter from ap-pellee refusing to reduce the account and then stopped payment on the check. There is testimony that the check was sent through the bank several times and that it was never paid.

When appellee first offered the letter and check into evidence, the trial court refused to admit it, stating as his reason that “the testimony shows it (the check) accompanied the letter offering a compromise of a disputed claim. The testimony shows it was refused by the plaintiff.”

After the attorney for appellee stated to the court that he was “contending that the plaintiff is due the sum of $552.10, and I am basing my case on this letter,” the letter and check were re-offered. The court then stated: “In that case the letter is not an offer of a compromise of a claim. It admits the entire claim you made. Consequently, it is now admissible and your offer is accepted and it is admitted in evidence.”

The letter which appellant testified he received from appellee refusing his compromise offer was marked as an exhibit, but was never received into evidence.

The rule of law applicable to this case was announced by the Supreme Court in Coles v. Kelsey, 2 Tex. 541, 542 (headnote), as follows:

“If a cause of action appears on its face to be barred by the statute of limitations at the commencement of a suit, and the plaintiff relies on a subsequent promise tó' remove the bar, he must allege that promise in his petition as the foundation of his action, and set out the original cause of action, only as the consideration for the subsequent promise.

« ⅜ ⅜

’ “It is of no importance, whether the subsequent promise was made before or after the bar was complete under the statute. If the plaintiff relied upon the subsequent promise to remove the bar, in either case, he must declare upon that promise in his petition.”

In White v. Stewart, Tex.Civ.App., 19 S.W.2d 795, err. ref., the court, after quoting from Coles v. Kelsey, supra, and citing other cases, said:

“Under the above authorities, appellee Stewart was required, if he relied upon the new promise, to' have alleged that promise in plain and emphatic terms, as the basis of Ms cause of action; this he failed to do, as is demonstrated, not only by his petition, but by his interpretation thereof, * * ⅜.

⅜ * *

“ * * * The statute of limitation put in motion against a judgment cannot be suspended or in any respect prolonged by the making of a new promise; for the making of a new promise to pay a claim, either before or after the completion of the bar of such claim, creates a cause of action upon the new promise, and the statute of limitation applicable to such new promise can only be invoked, which, in the instant case, is four years, and was put in motion on the date of the making of the alleged new promise, as no date was fixed therein for its performance.”

White v. Stewart, supra, was cited as authoritative by the Commission of Appeals of Texas in General Missionary Soc. etc. v. Real Estate Land Title & Trust Co., 134 Tex. 564, 136 S.W.2d 599, opinion adopted.

The cause of action alleged in appellee’s amended petition, with an exception to be not^l, was on the original debt. He alleged that by reason of the new promise the account, or, in the alternative, $552.10 thereof, was not barred by the statute of limitation. This was not a pleading of a cause of action on the new promise with the old debt set up as consideration. However, appellee did plead as a basis for relief the check in the amount of $200.00. This check, when considered in connection with the letter and testimony, constituted a recognition of indebtedness, together with a conditional promise to pay the sum of $200.00 on acceptance of the condition and the additional sum of $352.10 on or before February 15, 1962. The condition was an agreement that this total sum would constitute full settlement of the disputed claim for $977.90. There is no allegation that this condition was accepted by appellee. There is no testimony that appellee ever agreed to these terms in settlement of the disputed claim. Appellant testified that appellee refused to agree to the terms of settlement which he proposed in the letter. .The only evidence of acceptance is the fact that appellee deposited the $200.00 check for collection and that the check bore on the back thereof the notation “Endorsement of this check constitutes acknowledgment that the balance due payee from payor, after the payment of this check, is the amount of $352.10.” There is no testimony that the check was endorsed by ap-pellee. While the check was introduced into evidence, the reverse side of the check does not appear in the statement of facts or the transcript.

Tested by the rule stated in Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791, the fact that the check was sent to the bank for payment through the usual banking channels might be a sufficient basis for an inference that appellee accepted the endorsed condition and that it had endorsed the check.

Since this was a trial before the court without a jury, ordinarily it would be presumed in support of the judgment of the trial court that he had rejected appellant’s testimony that the proposed settlement had been rejected by appellee and that he had found, on the basis of the presentment of the check, an acceptance of the condition written thereon.

However, appellant filed a request for findings of fact and conclusions of law with the District Clerk May 8, 1965. The case proceeded to trial on March 24, 1965, but the judgment recites that it was entered May 10, 1965. Subscribed on the request for findings is: “Noted May 13, 1965. Request denied because it is filed too late.” followed by the signature of the trial judge. The request was timely filed. Rules 297, 306a and 386, Texas Rules of Civil Procedure.

While appellant did not call the attention of the trial judge to his failure to file the requested findings within five days after the period for making such findings, as required by Rule 297, T.R.C.P., this failure is immaterial in view of the action taken by the trial court in denying the request. The importance of findings of fact in this case is made clear by the comment of the trial court that the testimony showed that the compromise offer was refused. It is apparent that the presentation of appellant’s case on appeal was hindered by the failure of the trial court to file his findings.

That the issue of acceptance by appellee of the condition attached to the promise to pay is a vital one is settled by a long line of cases illustrated by York v. Hughes, Tex.Com.App., 286 S.W. 165, where the court said:

“An unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an unwillingness to pay same, will raise the implication of a new promise to pay the indebtedness. But if the acknowledgment of the existence of the indebtedness be qualified by an expressed promise to pay same conditionally, a promise different from the one so expressed will not be implied. In such a case the fulfillment of the named condition becomes a prerequisite to the debtor’s liability on the new promise. Salinas v. Wright, 11 Tex. [572, 574]; McDonald v. Grey, 29 Tex. 80; Webber v. Cochrane, 4 Tex. 31; Smith v. Fly, 24 Tex. [345] 354, 76 Am.Dec. 109; Mitchell v. Clay, 8 Tex. 443; Coles v. Kelsey, 2 Tex. [541] 556, 47 Am.Dec. 661; Rowlett v. Lane, 43 Tex. 274; Howard v. Windom, 86 Tex. 560, 26 S.W. 483.”

To the same effect see Lange v. Carothers, 70 Tex. 718, 8 S.W. 604; American Exchange Nat. Bank of Dallas v. Keeley, Tex.Civ.App., 39 S.W.2d 929, writ dism.; Remy v. Sayeg, Tex.Civ.App., 13 S.W.2d 472; Rappmund v. Zalontz, Tex.Civ.App., 137 S.W.2d 870; Smallwood v. Melton, Tex.Civ.App., 97 S.W.2d 781, writ dism.

It also appears from the comment of the trial judge that his judgment may have been based on the fact that during the course of the trial counsel for appellee in effect accepted the condition by stating that he based his case on the letter and check.

In Mitchell v. Clay, 8 Tex. 443, the court said:

“The error in the instruction was that it treated the acknowledgment as unconditional. The essential inquiry was whether there had been an acceptance or offer to accept the proposition within a reasonable time. That question was left out of view, or, in effect, withdrawn from the consideration of the jury by the instruction.

“What was a reasonable time must depend upon the places of residence and the relative positions of the parties, their means of intercommunication, and the other facts and circumstances of the case.”

The error of the trial court in refusing to file findings of fact and conclusions of law requires that this case be reversed and remanded for a new trial. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117.

Reversed and remanded.


author: CLAUDE WILLIAMS, Justice.

text:
    Prentis COOPER, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16649.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 3, 1965.
    Rehearing Denied Dec. 24, 1965.
    Daugherty, Bruner & Lastelick, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appel-lee.
   CLAUDE WILLIAMS, Justice.

This is an appeal from a judgment of the County Court at Law No. 4, Dallas County, Texas, affirming and upholding an order of the Corporation Court of Dallas, Texas, that appellant was an habitual violator of the traffic laws of Texas, pursuant to Art. 6687b, Sec. 22(b), Subdivision 4, Vernon’s Annotated Texas Civil Statutes, and suspending his driving privileges for a period of one year.

During the de novo trial in the county court at law, before the court without a jury, appellee Texas Department of Public Safety assumed the burden of proving that appellant was an habitual violator within the meaning of the statute by proving that he had been convicted of four moving violations within a twelve-month period. These convictions consisted of three convictions for speeding and the fourth, a conviction for “driving without lights” on September 7, 1963. Appellant Cooper did not attack the three speeding violations but defended his position in the county court at law solely upon the proposition that the conviction of September 7, 1963 was not for a moving traffic violation within the contemplation of the statute. Appellant does not deny that he was arrested on September 7, 1963 and that he paid a fine following conviction for an offense on that occasion but contents himself with a denial that such offense was a “moving violation” within the purview of the statute.

During the trial of the case appellant admitted that he was driving a motor vehicle on Harry Hines Boulevard in the City of Dallas, Texas at midnight on September 7, 1963 and that on that occasion he was arrested for driving without lights. He admitted that he was driving his automobile at the time of his apprehension and arrest but contended that he had on his “parking lights” instead of headlights. Police Officer Barnes of the Dallas Police Department testified that he arrested appellant about midnight on September 7, 1963 for driving his vehicle without lights. The trial court, in his findings of fact and conclusions of law, found inter alia, that appellant was convicted in the Corporation Court for committing a moving traffic violation on September 7, 1963, to-wit, driving without lights; that the violation was a moving traffic violation; that the attack made on the judgment of conviction was a collateral attack.

We find no legal basis for appellant’s attack upon the trial court’s judgment in this case. The trial court heard conflicting testimony relating to the facts surrounding the arrest and conviction of appellant on September 7, 1963. He resolved such conflict by finding that appellant’s arrest and conviction was for a moving traffic violation within the meaning of the statute. There is ample evidence to support this finding and it will not be disturbed.

Moreover, appellant’s attack upon the judgment of conviction complained of was a collateral attack in the county court at law. Such collateral attack is invalid. Texas Department of Public Safety v. Richardson, Tex.Sup.Ct., 384 S.W.2d 128; Texas Department of Public Safety v. Miller, Tex.Sup.Ct., 386 S.W.2d 760.

Appellant infers in his brief that the trial court should have determined the length of suspension in this case since the 59th Legislature amended the law providing that the court, upon appeal, may determine the length of suspension. Chapter 717, p. 1665, Acts of the 59th Legislature 1965. While it is true that the Act was amended the effective date of same was August 30, 1965. Judgment in this case was rendered May 3, 1965, which was prior to the effective date of such amendment.

We have carefully considered appellant’s points and finding them to be without merit they are overruled and the judgment is

Affirmed.


author: DOERNER, Commissioner.

text:
    Al BAKER, Claimant-Respondent, v. KREY PACKING COMPANY, Employer and Self-Insurer-Appellant.
    No. 32094.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Rehearing Denied Dec. 16, 1965.
    Application to Transfer Denied Feb. 14, 1966.
    R. C. Reis, St. Louis, for employer and self-insurer-appellant.
    Harry J. Nichols, St. Louis, for claimant-respondent.
   DOERNER, Commissioner.

Appeal by the employer and self-insurer from a judgment of the Circuit Court of the City of St. Louis affirming a final award of the Industrial Commission, by which award the claimant was allowed compensation for a permanent partial disability.

Al Baker, the claimant, began to work for the Krey Packing Company, the employer, in 1955, driving hogs. In 1956 he was transferred to’ the employer’s loading dock, where his duties consisted of loading and unloading trucks and trailers. On September 26, 1961, the date of the alleged accident, claimant was 34 years of age, six feet in height, and weighed about 160 pounds. He began work that day at noon, and about 4:00 P.M. he was engaged in loading a trailer with cardboard boxes containing pork loins, lifting the boxes off of a handtruck on which they had been wheeled into the trailer and stacking them on top of one another. The boxes were 12 inches wide, 12 inches high, and 3 feet long, and had handholes at either end, like a beer case. Each contained 5 pork loins, about 32 inches in length, so that the loins were around 4 inches shorter than the boxes. At one point in his testimony claimant stated that the average weight of a loin was from 12 to 16 pounds, which would imply that the box in question may have weighed from 60 to 80 pounds, plus the 2 pound weight of the box; but on cross-examination he testified that the box he was stacking when the incident occurred was, “ * * * around sixty or seventy pound box, somewhere around in there.”

The stack of boxes in the trailer had reached a height of approximately 5 feet 10 inches when claimant attempted to place another box on it. In doing so he lifted the box off of the bed of the handtruck, about 8 inches off of the ground, put his left hand under the bottom of the box, rested the far end of the box on the top of the stack, and pushed the near end of the box with his right hand. When the far end of the box rested on top of the stack the box was at an angle of about 45 degrees, and as claimant pushed the near end with his right hand the loose loins in the box shifted back on him. As the weight shifted he felt a popping and pain in the lower part of his back. He leaned against the side of the trailer for a few minutes and then walked outside and reported the incident to his supervisor. Subsequent to the occurrence claimant continued to do the same work, and lost only 2 or 3 days up to the time of the hearing.

On cross-examination the claimant testified :

“Q. Now, loading trucks with boxes of loins like this is the type of thing that you do every day, is that right?
“A. That’s right.
“Q. And these loins, you say, will shift in the box, they’ll slide back. How far would you say they’d slide?
“A. Four inches, I guess.
“Q. When does this occur, when you are putting the box up there and when you push it forward to push it on top of the stack?
“A. When you go up, when you push it up the weight shifts back.
“Q. When you push it up to put it up on the stack, then is when it shifts back?
“A. Right.
“Q. It does this all the time?
“A. Yes.
“Q. This isn’t unusual, is it?
“A. I guess not.
“Q. Because it happens almost every time you put the box up there?
“A. I don’t get loins all the time. It’s a different box, you know.
“Q. Well, how often, would you say, that you load boxes of loin? Do you do that almost every day sometimes ?
“A. Right.
“Q. If there is some shifting in the box, that is very common and happens almost every time you handle one of these, is that right?
“A. Right.”

In his amended claim claimant alleged that prior to the day in question, “ * * * I had a congenital or developmental defect in my low back. This condition was a spondylolisthesis of L-5 on S — 1; though this condition preexisted and disposed me to injury I had no prior disability from a functional standpoint prior to my injury of 9/27/61. * * * ” The preexisting forward displacement of claimant’s 5th lumbar vertebra was confirmed by both Dr. Lee T. Ford, who testified on behalf of claimant, and Dr. George E. Scheer, who appeared on behalf of the employer. Dr. Ford rated the claimant’s disability at the time of the hearing at 15 to 20% of the whole man, and took the position that since the preexisting spondylolisthesis had not functionally disabled claimant, all of the disability was attributable to the alleged accident. Dr. Scheer, on the other hand, testified that claimant had a permanent partial disability of 20%, of which 15% was due to the preexisting spondylolisthesis and 5% due to the aggravation of that condition. Both of the doctors agreed that the preexisting spondylolisthesis created an unstable condition of the vertebrae which made claimant more susceptible to injury.

The Industrial Commission presumably adopted the view of Dr. Scheer, for by its final award it found that the claimant had incurred a permanent partial disability of 5% of the body as a whole, caused by the aggravation of the preexisting spondylolis-thesis which had a disabling effect of 15%. The compensation awarded was $40 per week for 20 weeks for the permanent partial disability. In support of its finding that the claimant had suffered an accident arising out of and in the course of his employment the Industrial Commission stated:

“The Commission finds that when the pork loins shifted in the box which employee was lifting, same constituted an accident within the meaning of the Workmen’s Compensation Statutes.”

The sole point raised by the employer in its appeal is that the trial court erred in affirming the final award of the Industrial Commission for the reason that the claimant did not sustain an accident within the meaning of the Workmen’s Compensation Law. By way of establishing a basis for the scope of our review it is appropriate to point out that the employer did not offer any evidence regarding the occurrence in question and that the only evidence on that feature of the case is that contained in the testimony of the claimant. Thus no question of conflict, credibility or weight is present. This, then, is a case where the award which the Commission should have entered became a question of law. Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252; Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292. And where, as here, the finding of the ultimate fact by the Commission is reached by the interpretation or application of the law, as distinguished from a determination of facts, it is not binding upon us and falls within our province of review and correction. Merriman v. Ben Gutman Truck Service Co., supra; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

Thus the precise question presented is whether, as a matter of law, the occurrence is an accident within the ambit of our Compensation Law. That term is defined in Section 287.020(2), RSMo 1959, V.A.M.S., to mean: “The word ‘accident’ * ⅜ * shall * * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” As the court pointed out in Hall v. Mid-Continent Mfg. Co., Mo.App., 366 S.W.2d 57, 60, the question as to just what facts and circumstances constitute an accident so as to be compensable under our Compensation Law has been disputed for many years; and in determining the law and applying it to various factual situations the Missouri appellate courts in the past have not been completely consistent. However, more recent decisions have clarified the statutory definition in those cases involving the intentional act of the employee in exerting muscular force. The decision of this court in Howard v. St. Louis Independent Packing Co., Mo.App., 260 S.W.2d 844, 845, that “* * * where the injury results from the intentional act of the employee in exerting muscular force ⅜ * * ” ⅛ cannot be classified as an accident under the Compensation Law unless there is “ * * * some unusual occurrence, such as a slip, or a fall, or an abnormal strain * * * ” was expressly overruled by the Supreme Court en Banc in Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401. The court there stated that it had examined many cases from other jurisdictions and found the general rule to be that an abnormal strain causing an injury to a workman may be classified as an accident. However, in reaching the conclusion that an abnormal strain or exertion constituted an accident the court was careful to distinguish such occurrences from those in which the injury results from a normal strain or exertion. Pointing to the Commission’s finding in State ex rel. Hussman-Ligonier Co. v. Hughes, Mo., 348 Mo. 319, 153 S.W.2d 40, 41, “ * * * that employee, at the time of said alleged accident, was not subjected to any unusual strain or exertion but was doing the usual and ordinary work incidental to his employment ⅜ * ” and its decision that no accident had occurred, the court said (307 S.W.2d 401, 404): “ * * * The vital difference between the two cases is that in the Howard case the abnormal strain caused the injury complained of while in the Hussman-Ligo-nier case, the injury was the result of natural causes and no abnormal strain was present.”

Decisions subsequent to the Crow case have served to emphasize and illustrate the vital difference between the two lines of cases. In Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, claimant was engaged in installing kitchen equipment and got under a heavy table to raise it by resting it on his back. In order to move it off of the legs he raised himself on his toes and gave an “extra surge of power,” which caused an injury to his back. The court held the claimant had suffered an abnormal strain and that his injury resulted from a compensable accident. To the same effect is Brotherton v. International Shoe Co., Mo.App., 360 S.W.2d 108, where the claimant, having exhausted other means, sought to unlock a perforating machine by using a pipe wrench with a pipe over the handle to gain more leverage. He bounced up and down on the pipe in his effort, his foot slipped, and his back was injured. Basing its decision not on the combination of muscular exertion and slipping, but on the basis of the claimant’s abnormal and unusual strain, the court held that claimant had sustained a compensable accident. The most recent of this line of cases is that of Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292, where claimant, a truck driver, while engaged in making deliveries, sought to move a heavy coil of rope in order to get to certain boxes and containers. Because other shipments were in his way the claimant attempted to lift the rope while in an extended and unusual position, using all of the strength he had. As a result he sustained an injury to his back. The court reviewed the Crow, Williams and Brotherton cases, supra, and held (392 S.W.2d 298) that: “ * * * The strain was thus abnormal ; was unexpected in that it was more strain than claimant anticipated he would exert, and hence was an accident within the meaning of Section 287.020(2), supra. * * ⅜ ” However, in again emphasizing the distinction between a case where an abnormal strain is present and those in which no such exertion occurred, the Supreme Court continued: “ * * * For these same reasons (abnormal strain and unusual position), this case is not a case of disability overtaking the claimant while at work as did the claimants’ heart conditions in State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40, and De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; nor is it like a case of pneumonia resulting from exposure in the ordinary course of work as in Joyce v. Luse-Stevenson Co., 346 Mo. 58, 139 S.W.2d 918; and it is not like the case of usual work in righting a barrel of oil in the same manner as on many other occasions as in Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257.”

While there were earlier cases in which compensation was denied where the injury was the result of performing routine work in a normal manner, as in Higbee v. A. P. Green Fire Brick Co., Mo.App., 191 S.W.2d 257 and Sciortino v. E. Salia & Co., Mo.App., 157 S.W.2d 535, we have found but one decision subsequent to that of Crow v. Missouri Implement Co., supra, which falls within the other line of cases. We refer to Hall v. Mid-Continent Mfg. Co., Mo.App., 366 S.W.2d 57, where because of a faulty notching machine it was so difficult for the operator to extract, aluminum extrusions that at times the combined efforts of two women were required to pull them loose. On the occasion in question the claimant, in an attempt to remove the stuck material, put one foot up on the machine and with both hands pulled as hard as she could. As she did so she experienced an intense pain in the lower part of her abdomen, and on being examined by a physician was found to have sustained a hernia. The Industrial Commission denied compensation, the final award was affirmed by the circuit court, and in upholding the Commission’s final award the court pointed out (366 S.W.2d 57, 63):

“In our case Mrs. Hall does not claim that she slipped or fell. She was doing the same work that she had done for months and doing it in the same way. Her method in attempting to loosen the machine was identical with the method used by her on various other occasions and over a period of many months. The Commission found ‘it was routine for the employee on occasion to place her foot on the machine for additional pulling power as she struggled to remove the extrusion’. There is substantial evidence to support this conclusion. The Commission found that on this occasion she was not exerting any more force or pulling in any different manner than on other occasions. And further, the strain cannot be said to have been abnormal or unexpected — ‘Only the result, to-wit; the injury, can be said to have been unexpected’. We believe that all of these conclusions are supported by the evidence. It must be remembered that this court, as to factual findings, cannot substitute its judgment for the finding of the Commission, but rather must affirm that body unless the findings are unsupported by substantial evidence.
“It is our ultimate conclusion that under the law and the facts the Commission was correct in holding that ‘employee did not sustain an injury by accident arising out of and in the course of her employment’.”

Having in mind the vital difference between the two lines of cases which was pointed out in Crow v. Missouri Implement Tractor Co., supra, and reaffirmed in Merriman v. Ben Gutman Truck Service, Inc., supra, and after carefully considering the facts in the instant case, we have reached the conclusion that claimant did not sustain an accident within the meaning of that word as defined in Section 287.020(2). Because of the claimant’s preexisting spondy-lolisthesis which predisposed the claimant to injury the facts in the instant case are very similar to those in De Lille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834 and State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40. Those cases established the rule that an employee with a latent preexisting condition whose disability or death is caused or hastened by the normal exertion required by the nature of his work does not sustain a compensable accident. We prefer, however, to rest our decision on the broader ground that the occurrence as described by the claimant did not constitute an accident within the statutory definition. No evidence was introduced nor is any claim made that the claimant slipped or fell. According to his own testimony he was doing exactly the same kind of work he had done practically every working day for approximately five years, and was performing it in his usual and customary manner. The Industrial Commission did not find and the evidence does not indicate that claimant was in any extended position while lifting or pushing on the box, or that he exerted any abnormal muscular force while in that position, which combination of factors formed the basis for the court’s decision in Merriman v. Ben Gutman Truck Service, Inc., supra. Nor can it be successfully contended, in the light of claimant’s own testimony, that the shifting of the loins in the box was “ * * * an unexpected or unforeseen event happening suddenly and violently * * * ” within the contemplation of the statute. For according to the claimant, the weight shifted “almost every time” he handled one of the boxes and there was no evidence that the shift of the weight in this box exerted any unusual force on claimant or subjected him to any unusual strain. In short, all that claimant’s evidence showed was that the injury occurred while he was performing his routine work in a normal manner, a factual situation which does not constitute a com-pensable accident under the Workmen’s Compensation Law. Crow v. Missouri Implement Tractor Co., supra; Merriman v. Ben Gutman Truck Service, Inc., supra; Higbee v. A. P. Green Fire Brick Co., supra; Sciortino v. E. Salia & Co., supra.

It follows that the judgment of the circuit court should be reversed and the cause remanded with directions to enter up a new judgment reversing the final award of the Industrial Commission. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C, is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded with directions to enter up a new judgment reversing final award of the Industrial Commission.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: RUDDY, Judge.

text:
    Sudie M. CAUSEY, Individually, and as widow of the deceased, Calvin E. Causey, (Plaintiff) Appellant, v. Alvertis WILLIAMS and Henrietta Williams, his wife, (Defendants) Respondents.
    No. 31825.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Rehearing Denied Dec. 16, 1965.
    Application to Transfer Denied Feb. 14, 1966.

      Harry J. Stadin, J. Raymond Dyer, St. Louis, for appellant.
    Max Sigoloff, St. Louis, for respondents.
   RUDDY, Judge.

Plaintiffs contend they have an easement over that portion of an alleged concrete common driveway located on the property of defendants and through this action they seek to have a mandatory injunction requiring defendants to remove a concrete dividing curb and woven wire fence which have been placed on said driveway by defendants and which plaintiffs claim are obstructing their use of said driveway. Plaintiffs seek to establish an easement by implication over the entire portion of the alleged concrete common driveway located on the property of defendants. In addition, they seek actual and punitive damages against the defendants. The trial court denied the mandatory injunction and the other relief sought by plaintiffs and dismissed plaintiffs’ petition. Plaintiffs have appealed from this decree and judgment.

Plaintiffs are the owners of improved real property known as 1459 Laclede Station Road in the city of Richmond Heights, Missouri. Their property, which shall be referred to hereinafter as Lot A, is the north half of Lot 67 of Rannell’s Home Farm Subdivision and consists of a tract of land fronting 50 feet on the west line of Laclede Station Road with a depth westwardly of 120 feet. The north line of said Lot A is parallel to and 100 feet south of the south line of Hicks Avenue, which is the first intersecting street north of said lot. Defendants are the owners of the south half of said Lot 67, together with improvements thereon, known as No. 1463 Laclede Station Road and said lot fronts 50 feet on the west line of Laclede Station Road with a depth westwardly of 120 feet. Defendants’ property will be referred to as Lot B.

Defendants’ lot is improved with a brick residence 37 feet wide and 28 feet deep, set back 35 feet from the east line of said lot and 7.01 feet from the north line thereof. Plaintiffs’ Lot A consists of a similar improvement and the brick residence on said lot of plaintiffs is 7 feet from the south line of said lot. Between plaintiffs’ residence and defendants’ residence is a concrete driveway running west from said Laclede Station Road to the rear of the two residences and approximately 40 feet beyond. The driveway occupies the entire space between the two residences.

The evidence shows that Lots A and B were originally 'owned by the St. Louis County Realty Company. At the time of their ownership there were no improvements on either of said lots. About May of 1959 the St. Louis County Realty Company commenced the construction of two houses, one on Lot B for the defendants herein and one on Lot A for Margaret M. Brown. In the construction of said houses the St. Louis County Realty Company built the driveway referred to between the two houses. There was no right-of-way by which either defendants or Margaret M. Brown could get into their lots from the rear.

On October 9, 1959, the St. Louis County Realty Company conveyed Lot B by warranty deed to the defendants herein. Said warranty deed contained the following reservation: “Subject to reservation of St. Louis County Realty Co., its successor and assigns for driveway purposes over the North one (1) foot of the above described property, for the use and benefit of the property adjoining on the North.”

On the same day, namely, October 9, 1959, the St. Louis County Realty Company conveyed Lot A by warranty deed to Margaret M. Brown. Said warranty deed contained the following reservation: “Subject to reservation of St. Louis County Realty Co., its successors and assigns for driveway purposes over the South one (1) foot of the above described property, for the use and benefit of the property adjoining on the South.” On April 27, 1960, Margaret M. Brown conveyed Lot A by warranty deed to Calvin E. Causey and Sudie M. Causey, his wife, the plaintiffs herein. Said warranty deed conveyed said Lot A “subject to restrictions, conditions, easements, reservations etc. now of record, if any.”

The warranty deed executed by the St. Louis County Realty Company conveying Lot A to Margaret M. Brown was recorded in the office of the Recorder of Deeds, County of St. Louis, Missouri, on October 13, 1959, at 11:37 A.M., and the warranty deed executed by the St; Louis County Realty Company conveying Lot B to defendants herein was recorded in the office of the Recorder of Deeds, St. Louis County, Missouri, on October 13, 1959, at 11:39 A.M. We mention the time of these recordings because of a point raised by plaintiffs which we will discuss later.

We summarize the evidence we think pertinent to the contention of plaintiffs. We pause to comment that the record in this case is extensive and contains much testimony of witnesses, offered by plaintiffs, that we find is immaterial and irrelevant to the issue and contention sought to be established by plaintiffs. Thus, we limit our summation to the relevant and pertinent evidence that relates to the contention of plaintiffs, namely, that they have an easement by implication over the entire portion of the alleged common driveway located on the property of defendants.

One of the defendants, Alvertis Williams, called as a witness by plaintiffs, testified that he purchased Lot B and the improvements thereon in 1959 and that thereafter he and his wife moved into the property. At the time he moved into the property Margaret M. Brown resided in and owned the house to the north of his property, which house was an improvement on Lot A. He said he did not use that part of the driveway north of his property line and on the property owned by Mrs. Brown and stated that he only used the driveway on his side, namely, to the south of his north line. He said there was no mark or line on the driveway that indicated his northern boundary or the southern boundary of Lot A. He remembered when the plaintiffs moved into the property formerly owned by Margaret M. Brown and said that he and Mr. Causey, one of the plaintiffs, undertook to extend the driveway to the rear of their respective lots. He stated there was no discussion with reference to a common use carport and that he had no idea of building a common use carport or garage with the Causeys. Witness engaged Max Platzelman to bring the material for the extended driveway and paid him his (Williams) portion of the cost, which he thought was “approximately $100 or better.” At the same time that witness extended the driveway to the rear of his house he built a concrete patio or slab on his property at the back of his house, which he said was built for the benefit of the family. He further stated that he used the front portion of his driveway to park his car and did not use the portion to the rear of his house because he reserved that as a playground for the children.

In August of 1962 he (Williams) built a fence on his property and, as he described it, a dividing or separating curb, which he said was approximately 6 inches or 9 inches in width and about 6 to 9 inches in height. He engaged a contractor to do this work. He said his purpose in building the fence and curb was to “be able to have access to my property without coming in conflict with anyone else.” The fence and the curb were built one foot south of his north line, which limited his driveway to “six feet between the curb and the house.” Building the fence and curb at this location left the width of plaintiffs’ driveway at 8 feet, which included the southern 7 feet of plaintiffs’ lot and the northern one foot of defendants’ lot. Witness further testified that he and Mrs. Margaret Brown bought the SO foot lots of vacant ground and had the St. Louis County Realty Company build their residences and the adjoining driveways between the residences.

On cross examination Alvertis Williams testified that plaintiffs and their visitors would block defendants’ portion of the driveway and prevented defendants from using the driveway. Witness further testified that before he built the fence and concrete curb he consulted the Building Commissioner of his area and the St. Louis County Realty Company and was advised that he was within his rights in building the fence and curb as long as he placed them on his property.

Allan R. Hoffman, another witness produced by plaintiffs, testified that he was President of the St. Louis County Realty Company and that Lots A and B were originally owned by the company. He said that the defendants and Margaret M. Brown were friends and came into the company’s office together and that defendants and Margaret M. Brown simultaneously entered into contracts to purchase the respective tracts of land; defendants to purchase Lot B and Margaret M. Brown to purchase Lot A. He further testified that the two residences were constructed pursuant to orders received from the respective purchasers and that the building of the improvements and the completion of the purchase arrangement were reasonably within the same time. He said that his company built the two residences. He testified that “In the contract we first entered into it was agreed between all parties that they would each have a one foot easement, and it was agreed in the contract and naturally it was placed in the deed when we recorded the deed.” He said that the certificates of title of the respective properties said nothing about a reservation or grant of a one foot easement but said that this was not unusual in the certificates of title. He said his company built the driveway, that is, had a contractor build it, and as far as he knew there was nothing to indicate the center of the driveway. However, he said “Actually there were two driveways. They may háve poured it at the same time and may not have shown a definite division but it was poured as two driveways.” Several times he said that in building the improvements that there were two separate and distinct houses and two separate and distinct driveways. He admitted that he told Mr. Williams that it was all right to build the fence and the curbing as long as he left the one foot easement clear and said that the building of the fence and curbing did not cut down the space available to the plaintiffs because they never had any more than a one foot easement. He added, “from the date we started with the Browns and Williams there was never any question, everybody was happy.”

Margaret M. Brown, produced as a witness by plaintiffs, testified that she purchased Lot A on October 9, 1959, and had the improvements built thereon. She said that in April of 1960 she sold the house and lot to the plaintiffs. She gave the following testimony concerning the use of the driveway: “Q. * * * Now, were you given to understand when you bought this property there was a mutual use of this driveway ? A. There was not mutual use. * * A. No, there was no mutual use. Q. Did you use the driveway? A. I used half of the driveway. Q. Did Mr. Williams use the driveway? A. He used the other half. Q. You are talking about the north half? A. I am talking about half adjoining my property, I was using that half and the strip down the middle was used interchangeably in order to give room to get out of the cars.” She said she had no difficulty turning into her driveway from Laclede Station Road.

Max Platzelman, a witness for plaintiffs, was the general contractor and builder of the two residences built on Lots A and B. He said he was engaged to build these houses by the St. Louis County Realty Company. In addition to building the two houses, he also built the driveway between the two houses. He thought that a black line, which he described as an expansion joint or bind joint, ran between the two buildings and separated the driveways. However, he admitted he could be mistaken about it. He denied building the driveway that extended to the rear of the two houses, but admitted he procured and had delivered the material for the extended driveways.

Calvin E. Causey, one of the plaintiffs, (who has died since the trial in the Circuit Court) testified that he and his wife bought the property at 1459 Laclede Station Road (Lot A) from Margaret M. Brown on April 27, 1960. Sylvester Burke, employed by P. C. Robinson Real Estate Company, acted as agent for the plaintiffs in the purchase of the property. Witness stated that before purchasing the property he looked at it and at that time was interested in finding a house with a garage. At the time of the purchase he had a 1956 Cadillac car. He observed the driveway connected to the house was, as he put it, a common use driveway built for both houses and saw no obstruction on the driveway at that time and no marks or lines indicating a division of the driveway. He observed Mr. Williams drive up the center of the driveway. After witness and his wife purchased the property Mrs. Williams visited them and stated that defendants and Mrs. Brown made an agreement to build an extension onto the original driveway and she stated that the original driveway was a common use driveway and was built for the use of both parties. A guest of witness, namely, Gus Tabor, was present on this occasion. Subsequently, Mr. Williams approached the witness with the suggestion that they build a joint carport. This idea was subsequently abandoned. However, the construction of the driveway to the rear of the houses was completed and witness said he paid his share of the cost of completing the extended driveway. He said that in using the driveway he “pulled right up the center” and both he and Mr. Williams followed that practice.

At the time witness testified he said he owned a 1961 Cadillac Coupe. At the time of his testimony there was introduced in evidence by plaintiffs literature from the Cadillac manufacturer which showed the overall width of the Cadillac car to be 79.7 inches. Witness further testified he had “great difficulty” getting into the rear portion of his lot. On one occasion he damaged his automobile. On other occasions both he and his guests have hit the curb erected by defendants and complained that he had additional trouble when snow and ice were on the ground. He said that his wife is unable to drive the car between the fence and the house. Witness admitted that the fence and curb were placed on the side of the driveway owned by the defendants and that the driveway remaining on his side was 8 feet in width. He further admitted that he read the warranty deed by which he acquired title and had read the provision that said the property was “subject to restrictions, conditions, easements, reservations, etc. now of record, if any.” He had never met the defendants before he and his wife purchased the property and said the deal was closed at the real estate office. Mrs. Brown was not present at the time and he made inquiry of the real estate agent, Sylvester Burke, about the driveway. He testified that Mr. Williams came to his house one day and suggested that both tell their guests in the future to park on the street and not to use the driveway. Plaintiff said he did not agree to that suggestion and that Mr. Williams thereafter stormed out of the house. Following this, the fence and dividing curb were built. He said before the curb and fence were built he did not restrict Mr. Williams to the use of the one foot easement of the driveway and Mr. Williams did not restrict him to the one foot easement.

Augustus Tabor, a witness called by plaintiffs, said he was present when Mrs. Williams came over to talk to Mr. and Mrs. Causey. He said Mrs. Williams told the Causeys “the driveway was for both houses” and said “they were going to extend the driveway” and asked them to join in the extension.

The last witness called by plaintiffs was Sylvester Burke, who represented the plaintiffs in the purchase of their property. He told plaintiffs the driveway was a connected drive between the two houses and “in order to get into the back one had to go a little on the other side and the other had to go a little on the other side.”

Alvertis Williams, one of the defendants, testified in his behalf that he could not get in or out of the driveway because plaintiffs’ visitors parked in the middle of the driveway. He said this happened repeatedly and he asked plaintiff to have his visitors park on the street. Mr. Causey refused to accede to this request. He said he never made a statement to Mr. Causey that the driveway was a common use driveway. He said that the concrete curb he built is one foot and one inch south of the center of the concrete drive, which means it was one foot one inch south of the north line of his property. He said that the curbing and the fence he built is entirely on his land. He further testified that he was in the process of extending the driveway to the rear of his house when plaintiffs purchased their property.

Henrietta Williams, one of the defendants, testified she made no statement to the Causeys that the driveway was a common use driveway.

The trial court in its decree found, inter alia, that plaintiffs did not have an. easement by implication over the portion of defendants’ driveway located on the north 7.01 feet of their Lot B. The court further found that the “defendants were chargeable with only one (1) foot of their driveway for the use and benefit of the property owners adjoining on the north” and that “the plaintiffs were also chargeable with only one (1) foot of their driveway for the use and benefit of the property owners adjoining on the south.” The court further found “that neither the plaintiffs nor the defendants are entitled to any greater rights to the property owned by them respectively than one (1) foot on each others driveway for driveway purposes, as provided in the deeds duly recorded in the Office of the Recorder of Deeds in the County of St. Louis, Missouri.” The court further found that the plaintiffs were chargeable with knowledge of the reservation “with respect to the use by them of the one (1) foot limitation of the driveway reservation running over Lot ‘B,’ the property of the defendants,” and the court further found “the same limitation of one (1) foot over the driveway running over Lot ‘A’ belonging to the plaintiffs.”

Plaintiffs in their brief have asserted numerous points. However, all of them may be summarized in the one contention that “the court below erred in finding that defendants’ Lot B was ‘not imposed with a 7.01 foot wide implied driveway easement running over said Lot “B,” nor is said Lot “B” charged with any imposition as alleged by plaintiffs.’ ” Plaintiffs gave as their reason for their contention that “upon the partitioning of the two lots an implied common use driveway easement 14.01 feet wide between the two houses was created by operation of law, 7 feet of which was on plaintiffs’ Lot A and 7.01 feet of which was on defendants’ Lot B, ⅜ Plaintiffs assert the further ground that “The 7.01 feet accorded plaintiffs’ predecessor in title by operation of law superseded the one foot ineffectually reserved for Lot A by Realty Co. in its deed of Lot B to defendants.”

For the moment we will omit comment on the effect of the reservation contained in the warranty deeds conveying the respective lots to defendants and to Margaret M. Brown and will direct our remarks initially to the question of whether or not plaintiffs have shown that they are entitled to an easement by implication.

It should he observed at the beginning that the law does not favor the implication of easements and the courts are reluctant to infringe upon the rights normally incident to the absolute ownership of land. Henderson v. La Capra, Mo.App., 307 S.W.2d 59, 63, 64; 28 C.J.S. Easements § 30, p. 686; 17A Am.Jur., Easements, § 41, p. 653.

In the instant case the burden rests upon the plaintiffs, who assert their right to an easement by implication, to prove all of the elements necessary to create such an easement. As said in the case of Schnider v. M. E. H. Realty Inv. Co., 239 Mo.App. 546, 193 S.W.2d 69, 1. c. 73:

“The burden was upon the defendant to show, as against the terms of its predecessor’s deed, that it is the owner of the easement in question; and its proof must be sufficient to establish all the elements necessary to create an easement by implication, the effect of which is to modify or change the plain terms and provisions of warranty deeds. For that reason, the proof should be clear and cogent.”

The law with reference to the establishment of an easement by implication, which arises out of the severance of two adjoining properties, is well settled. The elements necessary to establish such an easement, as set out in the cases, may be found in the following statement from 17A Am.Jur., Easements, § 41, pp. 652 and 653:

“It is a well-settled rule that where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude at the time of the severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law. This doctrine is usually called the rule of visible easements.” (Emphasis ours.)

Bussmeyer v. Jablonsky, 241 Mo. 681, 145 S.W. 772, 39 L.R.A.,N.S., 549; Di Pasco v. Prosser, 364 Mo. 1193, 274 S.W.2d 279; Schnider v. M. E. H. Realty Inv. Co., supra.

It is said that this rule of implied easements from pre-existing use upon severance of title is based upon public policy, which is favorable to the full utilization of land and the presumption that parties do not intend to render land unfit for occupancy. As a further basis, a presumption frequently invoked is that the parties contracted with a view to the condition of the property as it actually was at the time of the transaction and that after sale neither party has a right, without the consent of the other, to change to the detriment of the other, a condition which openly and visibly exists. 17A Am. Jur., Easements, § 42, p. 655; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978.

It is also held (17A Am.Jur., Easements, § 52, pp. 660 and 661) that to create an easement by implication from pre-existing use there must be (1) unity and subsequent separation of title; (2) obvious benefit to the dominant estate and burden to the servient portion of the premises existing at the time of the conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance and under such circumstances as to show that the change was intended to be permanent; and (4) reasonable necessity for the easement.

The significant factor in determining whether such an easement by implication exists is to ascertain the intention of the parties as shown by the deeds of conveyance and the general circumstances and situation with reference to the acquisition of the properties from the owner of the unity of title. The idea underlying the creation of such an easement is that the parties are presumed to have intended the grant of an easement by implication. Such a presumption can only be based on facts and this requires a resort to the record evidence. This intention to create an easement by implication must clearly appear in the evidence. Henderson v. La Capra, supra. In order to sustain such an easement, it has been held that no grant of an easement by implication can arise where there is an express contract relating to the matter. A conveyance expressly providing for certain easements warrants an inference that no other easements are intended; but such inference will not override a clearly apparent intent to include other easements and it has been held that an express provision for an easement is immaterial on the question of implied easements. 28 C.J.S. Easements § 30, p. 687. This is particularly true where there is an implication of an easement by necessity. Where there is the need of an easement because of necessity, it may be established, even though there is an express provision for an easement which proves to be inadequate. 28 C.J.S. Easements § 34, pp. 694, 695.

In ascertaining the intention of the parties with reference to the establishment of an easement by implication the important element to be looked for is that referred to in the Greisinger case, supra, wherein the court said, “ * * * that the easement charged upon the servient estate must be ‘openly and visibly attached at the time of the conveyance of the portion first granted.’ ” (9 S.W.2d 1. c. 980.) The following cases hold that this is a necessary element to be found: Foxx v. Thompson, 358 Mo. 610, 216 S.W.2d 87; Bussmeyer v. Jablonsky, supra; Schnider v. M. E. H. Realty Inv. Co., supra.

When the principles of law stated above are applied to the pertinent evi-dentiary facts found in the record in the instant case it becomes clear that the trial court was correct in its ruling that plaintiffs did not have an easement by implication. There is not a single bit of evidence showing a condition or circumstances prior to the time of the conveyances or at the time of the conveyances of the two lots by the St. Louis County Realty Company to the defendants and Margaret M. Brown that would suggest that an easement openly and visibly existed and attached. Nor is there a scintilla of evidence to show that at the time of the conveyances of Lots B and A to the defendants and Margaret M. Brown, respectively, there was an intention to create an easement by implication over what was to become that part of defendants’ driveway located on the north 7.01 feet of their property.

Alvertis Williams, one of the defendants, testified, in plaintiffs’ case, he did not use that part of the driveway north of his property line and on the property owned by Mrs. Brown. He said he had no conversation with the plaintiffs wherein he said the driveway was a common use driveway. Allan R. Hoffman, President of the St. Louis County Realty Co., testified that there were two separate and distinct driveways and that his company, through a contractor, had built the two driveways and that the only easement discussed, which was later put in the warranty deeds, was the one foot easement that was agreed upon between his company and the respective purchasers. Margaret M. Brown who purchased Lot A from the St. Louis County Realty Co. said there never was any understanding regarding a mutual use of the driveway and indicated that she only used the one half of the driveway owned by her and the one foot strip down the middle in connection with the operation of her automobile.

The testimony of these witnesses belies any intention to create an easement by implication over the north 7.01 feet of the defendants’ property which is the part occupied by their driveway at the time of the severance of Lot 67. The evidence in this case clearly indicates that the only easement intended was that mentioned in the respective warranty deeds from the St. Louis County Realty Co. conveying Lots A and B to Margaret M. Brown and the defendants. The trial court was correct in finding that plaintiffs did not have an easement by implication over any part of defendants’ driveway.

Plaintiffs introduced in evidence two survey drawings (dated October 1, 1959) which show the location of the improvements on each lot in question. Both drawings show that the brick residence of plaintiffs is 7 feet north of the south line of Lot A and that the brick residence of defendants is 7.01 feet south of the north line of Lot B. Both drawings show that the south 7 feet of Lot A owned by the plaintiffs is a concrete drive. Neither of the drawings attempts to describe the 7.01 foot space north of defendants’ brick residence. Plaintiffs in their brief, in describing these two survey drawings, state that they show a common use driveway between the two houses. We find nothing in these two drawings that show or infer the existence of a common use driveway and we are at a loss to understand the statements to that effect that appear in the brief of plaintiffs.

Plaintiffs also contend that the building of the driveway extension to the rear of the two residences, which they claim was done jointly, confirms the existence of the 14.01 foot wide common use driveway as shown by the two survey drawings. This contention must fail for two reasons: (1) that the two survey drawings, as we have pointed out, do not show a common use driveway; (2) there is nothing in the evidence to show that the extension of the driveway to the rear was for the common use of plaintiffs and defendants. The trial court found, and so do we, that plaintiffs merely paid their portion of the cost of extending the driveway to the rear, with no agreement that the extendéd driveway would be jointly used by the respective owners of the lots.

The remaining question to be answered is whether there is an easement by necessity. As we pointed out, heretofore, where there is the need of an easement because of necessity, the easement may be established, even though there is an express provision for such an easement which may prove to be inadequate and even though there is no showing of a pre-existing use of a driveway which is a necessary element to be proved in establishing an easement by implication.

A way of necessity is sometimes confused with an easement arising, on severance of title, from a pre-existing use. There is a definite distinction between them, mainly because the way of necessity does not rest on a pre-existing use but on the need for a way across the granted or reserved premises. 17 Am.Jur., Easements, § 58, p. 668; 28 C.J.S. Easements § 35, p. 697. The foundation of such a way rests in necessity and not in convenience. Schnider v. M. E. H. Realty Inv. Co., supra. A mere convenience is not sufficient to create an easement by necessity.

In the instant case it is natural that the width of the driveway should be such as is reasonably necessary to accomplish its purposes. Plaintiffs say they need at least 9 feet in order to conveniently use the driveway. As we have pointed out, convenience is not a controlling factor. The sole question is whether or not the driveway they now have, namely, one eight feet in width, is reasonably adequate for its purposes.

Plaintiffs’ evidence shows that their car at the time of the trial was 79 inches in width, namely 6 feet 7 inches. We think the driveway 8 feet in width, which comprises 7 feet south of plaintiffs’ residence and one foot reserved to them in the warranty deed conveying Lot B to defendants, is a sufficient width to meet plaintiffs’ reasonable needs in the use of this driveway. In the case of Henderson v. La Capra, supra, an architect testified that all building codes require a minimum width of 8 feet in the building of a driveway. We think the minimum requirement is adequate in the instant case and provides a reasonably adequate driveway for the plaintiffs.

In conclusion, we find that the trial court was correct in finding that the defendants were chargeable with only one foot of their driveway for the use and benefit of the property owned by the plaintiffs and when it further found that neither the plaintiffs nor the defendants are entitled to any greater rights to the property owned by them respectively than one foot on each other’s driveway for driveway purposes as provided in the deeds duly recorded in the Office of the Recorder of Deeds in the County of St. Louis, Missouri.

Plaintiffs in their brief complain that the trial court ignored the fact that the St. Louis County Realty Co.’s deed of Lot B to defendants was filed for record two minutes after its deed of Lot A to Mrs. Brown was filed for record. The basis of their complaint is that the trial court treated the deeds as having been simultaneously filed for record. The advantage they claim from this situation is that there could be no reservation by the St. Louis County Realty Co. of a one foot easement over Lot B in favor of the owners of Lot A if the deed conveying Lot A was recorded prior to that conveying Lot B. We are unable to follow the reasoning of plaintiffs in this connection. We think the trial court was right in considering the deeds as having been filed simultaneously. The evidence shows that one deed was filed only two minutes after the other deed. A difference which can be accounted for in the time taken to endorse the filing. Hudson Bros. Commission Co. v. Glencoe Sand & Gravel Co., 140 Mo. 103, 41 S.W. 450.

The decree and judgment of the trial court should be affirmed. It is so ordered.

WOLFE, P. J., and WILLIAM E. BUD-ER, Special Judge, concur.