author: WILLIAMS, Justice. BATEMAN, Justice.

text:
    Virginia R. SMITH et al., Appellants, v. Marshall CHASE, Appellee.
    No. 16725.
    Court of Civil Appeals of Texas. Dallas.
    June 17, 1966.
    Dissenting Opinion June 21, 1966.
    Rehearing Denied July 15, 1966.

      John D. Griggs, Dallas, for appellant.
    Strasburger, Price, Kelton, Miller & Martin and J. Mike Joplin, Dallas, for appellee.
   WILLIAMS, Justice.

This is an action for personal injuries and property damage brought by Virginia R. Smith and husband, Willie A. Smith, against Marshall Chase growing out of an automobile collision which occurred on May 27, 1964 at an intersection of two streets in the City of Dallas, Texas. Mrs. Smith alleged, and the evidence supported such allegation, that she brought her automobile to a stop at a stop sign before entering Lemmon Avenue and then proceeded across said street and had almost accomplished said crossing when her automobile was struck in the right rear portion by the automobile being driven on Lemmon Avenue by Mr. Chase. The trial pleadings of the parties contained numerous allegations of both primary and contributory negligence.

The case proceeded to trial before a court and a jury which rendered findings to the special issues submitted to it by the court substantially as follows: (1) that the defendant Chase did not fail to keep a proper lookout; (3) that Chase did not fail to make a proper application of the brakes on his automobile; (5) that Chase was not driving his automobile at an excessive speed; (7) that Chase’s failure to turn his automobile to the left immediately before the collision was not negligence ; (9) that Chase’s actions in changing from the inside to the outside lane of Lemmon Avenue was not negligence; (12) that Virginia Smith had the right of way on the occasion in question (“right of way” being defined as the privilege of the immediate use of the highway); (13) that Chase failed to yield the right of way to Virginia Smith; (14) that such failure on Chase’s part was negligence; (14-A) that such negligence and failure was a proximate cause of the occurrence in question; (17) that Virginia Smith did not fail to keep a proper lookout on the occasion in question; (19) that Virginia Smith failed to apply her brakes on the occasion in question; (20) that such failure on her part was not negligence nor a proximate cause of the occurrence in question; (22) that Virginia Smith was negligent in attempting to cross Lemmon Avenue under the traffic conditions then existing, and (23) that such negligence was a proximate cause of the occurrence in question; (24) that the occurrence was not the result of an unavoidable accident. The remaining issues had to do with the amount of damages, which the jury found to be $1,344.87. Motions were duly and timely made by plaintiffs to set aside and disregard the jury findings of Special Issues 22 and 23 and to render judgment for plaintiffs upon the verdict hut same were overruled. Judgment was rendered denying plaintiffs any recovery and this appeal follows.

Inasmuch as Special Issues 22 and 23 as submitted to the jury in this case form the focal point of each of appellants’ points on appeal we deem it desirable to quote both issues, as follows:

“SPECIAL ISSUE NO. 22
“Do you find from a preponderance of the evidence that Virginia Smith was negligent in attempting to cross Lemmon Avenue under the traffic conditions then existing ?
“Answer Yes or No.
“Answer: Yes.
“If you have answered Special Issue No. 22 ‘Yes’, then you will answer Special Issue No. 23; otherwise you will not answer same.
“SPECIAL ISSUE NO. 23
“Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the occurrence in question?
“Answer Yes or No.
“Answer: Yes.”

Appellants’ first point of error complains of the - submission of Special Issue No. 22, and its ancillary Issue No. 23, because they contend, having been found to have the right of way, there was no legal duty upon Mrs. Smith not to cross the intersection under the circumstances existing. We cannot agree with appellants and overrule their first point.

It is well established in the law of this state that the rule relating to right of way is not considered absolute but relative. Our Supreme Court, as well as numerous Courts of Civil Appeals, has held that a motorist who claims the statutory right of way is legally obligated to exercise such right with proper regard for his own safety and the safety of others. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643; Lewis v. Martin, Civ.App., 120 S.W.2d 910 (Wr. ref.); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Babb v. Young, Civ.App., 348 S.W.2d 660; Bailey v. Tishlias, Civ.App., 348 S.W.2d 220 (wr. ref., n. r. e.).

In their second group of points, two through five inclusive, appellants complain of the submission of Special Issues Nos. 22 and 23 because the same are general and global and therefore violate the rule requiring the submission of specific questions of fact. Appropriate objections were level-led against the submission of these issues in advance of submitting the case to the jury-

Having carefully considered the pleadings of the parties as well as the charge of the court in its entirety, all in the light of the evidence adduced, we are in accord with appellants’ contention that Special Issue No. 22 constitutes a general or global issue, encompassing various elements of specific fact, and therefore was improperly given to the jury.

The basic rule relating to the submission of special issues is Rule 279, Vernon’s Texas Rules of Civil Procedure, which is a mandate to trial judges to submit only the controlling issues made by the written pleadings and the evidence. Much has been said and written on the subject of broad, general or “global” issues as opposed to narrow and specific issues. Our Supreme Court in the recent case of Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644, in striking down the practice of submitting the general issue of proper control in a negligence case, reviewed the quéstion here presented in detail and announced the present law, as follows:

“When a case is submitted on special issues, the court is required to give ‘the controlling issues made by the written pleadings and the evidence.’ Rule 279, Texas Rules of Civil Procedure. As pointed out in the article cited above, this Rule has been given one meaning in negligence actions and a somewhat different meaning in other types of cases. Reasonably broad issues embracing several distinct and essential, elements of a cause of action or defense have been upheld in a number of non-negligence suits. Even in negligence cases there are a few more or less general inquiries which may be submitted without fragmentation into their factual components. Examples are proper lookout, Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, Traywick v. Goodrich, Tex.Sup., 364 S.W.2d 190; attractive nuisance, Eaton v. R. B. George Investments, Inc., 152 Tex. 523, 260 S.W.2d 587; and discovered peril, Turner v. Texas Co., 138 Tex. 380, 159 S.W.2d 112. It is nevertheless well settled that a general rule and when the question is properly raised, special issues relating to either primary or contributory negligence should be restricted to specific acts and omissions which have been raised by the pleadings and evidence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Kainer v. Walker, Tex.Sup., 377 S.W.2d 613.”

Justice Norvell, in a concurring opinion, while differing basically with the majority opinion condemning the general issue of “proper control” yet agrees that where- specific issues, making up the issue of proper control, have been given that the general issue should not be given. Thus, he said:

“So far as the judgment in- this particular case is.concerned I concur in the Court’s action in affirming the judgment of the Court of Civil Appeals which reverses the judgment of the trial court. This, for the reason that at least two important elements of the ‘lack of proper control’ issue wqre specifically submitted, namely, driving the truck with improper brakes and a failure to properly steer such truck when collision was imminent. While, in my opinion, a party should be allowed to submit the broad ‘lack of proper control’ issue, he should not also be permitted to submit specific issues inquiring as to the various elements encompassed within the concept of proper control. This would be obviously unfair. A party would have an opportunity to prevail upon the answers to specific issues and failing in this, contend that nevertheless he was entitled to prevail upon an unsubmitted element of lack of proper control should he receive a favorable answer to such broader issue. A litigant must either go global or specific. He cannot go both ways.”

It is significant that in the case under consideration specific acts which went to make up the question of “traffic conditions then existing” were submitted to the jury and, incidentally, found in favor of appellants. The question of the court to the jury inquiring whether Mrs. Smith was negligent in crossing the street at the time and on the occasion in question and under the circumstances then existing was undoubtedly a broad and global submission which permitted the jury to take into consideration any fact or circumstance which they might consider to be pertinent or material to the issue. Such question encompasses the elements of speed, brakes, lookout and other specific matters which go to constitute the “condition then existing.” As stated by Justice Norvell in Barclay a litigant should be allowed to go either global or specific but he cannot go both ways. The court in this instance permitted appellee Chase to have two bites ■at the apple, one general and several specific. He failed in his effort to secure a jury finding of specific acts of negligence on the part of Mrs. Smith but obtained, a favorable finding on the general or global issue. This, we believe, illustrates the vice of the submission of the general issue to the jury.

Many cases could be quoted from as being illustrative of the vice of the global submission complained of in this instance but we believe that the Supreme Court’s recent pronouncement in Barclay v. C. C. Pitts Sand & Gravel Co., supra, together with the cases discussed therein, is conclusive of the question presented. We therefore sustain appellants’ points two through five inclusive.

Appellants’ point six contends that there was an irreconciliable conflict between the jury’s answers to Special Issues Nos. 22 and 23 and their answers to the issue which found that appellant Mrs. Smith had the right of way on the occasion in question. We cannot agree with this contention. While we have held that Special Issue No. 22 was a general and global submission we do not believe that the jury’s answer thereto in itself constituted an irreconciliable conflict with the issue on right of way. As we said in connection with our discussion of appellants’ point one the issue of right of way is not absolute but relative and one claiming the use of the highway is obligated to exercise ordinary care for his own safety and that of others.

. In their seventh and final point appellants contend that the trial court erred in failing to grant their motion to disregard the jury’s answers to Special Issues Nos. 22 and 23 and to render judgment in their favor based upon the specific findings of the jury. Appellants’ appeal to us to apply basic and well defined rules of law is, we think, justified.

It is an elementary rule, now well established in our jurisprudence, that specific findings are always controlling as opposed to general findings. As said by the Supreme Court in Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644:

“When all acts and omissions raised by the evidence which affect control of the vehicle are specifically submitted, the more general issue on proper control need not be given. [Citing authorities.] If it is given in that situation, moreover, the specific findings will control what would otherwise be a conflicting answer to the proper control issue. See Cunningham v. Suggs, Tex.Civ.App., 340 S.W.2d 369 (writ ref. n. r. e.).”

Our court, speaking through Chief Justice Dixon, in Vouras v. 3525 Turtle Creek, Inc., Civ.App., 369 S.W.2d 819 (wr. ref. n. r. e.), applied the well recognized rule of superiority of specific findings as opposed to general findings even in a non-negligence action.

It is the duty of a court to reconcile the entire verdict of the jury in an effort to make it speak the truth. The court should set aside and disregard general findings when the jury has answered specific findings that control the disposition of the case. The court, in proper cases, may disregard issues as being surplusage, immaterial or evidentiary. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; Mathis v. State, Civ.App., 258 S.W.2d 200; Bueche v. Eikenroht, Civ.App., 220 S.W.2d 911; Alvey v. Goforth, Civ.App., 263 S.W.2d 313, reversed on other grounds, 153 Tex. 449, 271 S.W.2d 404.

It is apparent to us, based upon the entire verdict in this case, as well as a review of the evidence, that the trial court should not have submitted Special Issues Nos. 22 and 23 to the jury and, having done so, should have responded to appellants’ motion and disregarded the answers of the jury to such special issues and rendered judgment for appellants on the jury verdict.

The judgment of the trial court is therefore reversed and here rendered that appellants Virginia Smith and Willie Smith do have and recover of and from Marshall Chase the sum of $1,344.87 with interest at the rate of six percent per annum from September 13, 1965 and that all costs be assessed against Marshall Chase.

Reversed and rendered.

BATEMAN, Justice.

I respectfully dissent because I do not believe Special Issue No. 22 was so general or global as to warrant our disregarding the jury’s answers to it and to Special Issue No. 23. I may set forth my views on this point more fully in a supplemental opinion.

DISSENTING OPINION

I respectfully dissent. I do not believe we are authorized to disregard or set aside the findings of contributory negligence.

Appellee had alleged that Mrs. Smith was negligent in attempting to go across Lemmon Avenue at a time when there was a very large amount of traffic thereon, and in failing to turn to the right and go with the traffic. It was undisputed that this collision occurred on a busy thoroughfare shortly after five o’clock in the afternoon; that Lemmon Avenue consisted of four traffic lanes, two for eastbound and two for westbound traffic, and that all four lanes were crowded with very heavy traffic. There were no signal lights or stop signs or other device to control that traffic at that place, but the vehicles attempting to cross Lemmon Avenue there faced a stop sign. Mrs. Smith testified that when she stopped at this stop sign she waited there from five to seven minutes for an opportunity to cross; during which time the traffic light at the next corner (the intersection of Lemmon Avenue and Turtle Creek Boulevard) changed about three times; that it was at the busiest time of the day, and that the opening she attempted to go through “was just enough for me to go through,” and that just before ap-pellee’s car collided with her car she, thinking she was out of the intersection, turned to her companion and stated that they had “made it.” Both Mrs. Smith and appellee testified that at times the lanes were completely blocked with traffic and that there was a truck coming toward Mrs. Smith which was trying to make a left turn, but which obstructed the traffic in the inside lane of the traffic going in the same direction in which appellee was traveling.

It was appellee’s theory that at that particular time of day the rush-hour traffic on Lemmon Avenue created a condition so hazardous that a person of ordinary prudence, in the exercise of ordinary care, would not have ’ attempted to cross it at right angles, even though that person obeyed the stop sign, had the right of way and a legal right to cross the street. The trial court submitted this theory to the jury and the jury’s answers to the issues were favorable to appellee. I do not know of any other way it could have been submitted.

In the majority opinion it is said that the specific acts “which went to make up the question of ‘traffic conditions then existing’ were submitted to the jury”, but those specific acts so submitted were only the alleged acts of negligence of appellee and Mrs. Smith. Under appellee’s theory, Mrs. Smith could have been entirely blameless in all of those particulars and still be negligent in propelling her automobile into the seething maelstrom of fast-moving vehicles that constituted the rush-hour traffic of Lemmon Avenue. The majority opinion, it seems to me, ignores this contention and merely says that only specific acts should be submitted. I know of no way that this inquiry could be fragmentized into more specific acts.

The only elements of Mrs. Smith’s conduct submitted to the jury and the findings thereon were: (17) she did not fail to keep a proper lookout; (19) she failed to apply her brakes but (20) this was not negligence. My view as to her proper lookout is expressed by Justice Calvert in Traywick v. Goodrich, Tex.Sup.1963, 364 S.W.2d 190, 191, as follows: “Certainly one is negligent who looks both ways while stopped before entering the intersection and then proceeds blindly ahead.”

The finding that she was not negligent in failing to apply her brakes, in my opinion, relates to the time of, or immediately prior to, the collision itself, and not to the time she began her crossing of Lemmon Avenue. She undoubtedly applied her brakes when she stopped in obedience to the stop sign; so the answers to Special Issues Nos. 19 and 20 could not relate to that time or situation.

Chief Justice Hickman, in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, a wrongful death case, said, in approving a special issue which inquired simply whether the killing of plaintiff’s son was wrongful, “The method employed by the trial court of grouping several elements of an ultimate issue into one special issue is to be commended.”

In Plains Drilling Co. v. Christy, Tex.Civ.App., 25 S.W.2d 276, no wr. hist., which involved a claim and counterclaim for damages because of a collision between plaintiff’s house, which was being moved at 3:00 a. m. on a public highway, and defendant’s truck, the Amarillo Court of Civil Appeals said the trial court erred in refusing to submit this issue: “Was the plaintiff negligent in moving the house along the public road in question at the time of the collision?” It was the defendant’s contention in that case that, aside from specific acts of plaintiff’s negligence with regard to lights on the house, speed, lookout, etc., the very act of moving the house on a public highway was in itself negligence, and the appellate , court agreed.

See also Serna v. Cochrum, Tex.Civ.App., 290 S.W.2d 383, wr. ref. n. r. e.; Flowers v. Wilson, Tex.Civ.App., 319 S.W.2d 199, no wr. hist.; and Manley v. Wilson, Tex.Civ. App., 313 S.W.2d 339, wr. ref. n. r. e.

In Texas & Pacific Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280, the inquiry as to whether the plaintiff had failed to keep a proper lookout was broken up into five separate issues, and this was criticized by the Supreme Court, speaking through Justice Calvert, as follows:

“We can perceive of no sound reason why one special issue on failure of Snider to keep a proper lookout for his own safety as he approached the crossing, related to the facts and circumstances in evidence, would not have been adequate to cover all of the issues mentioned. This matter has not been preserved on appeal, however, and we mention it only in the hope that it may serve to induce trial judges to simplify special issue submission as much as the facts of the case will permit.”

It is also stated in the majority opinion that the issue as submitted improperly permits the jury to take into consideration any fact or circumstance which they might consider to be pertinent or material to the issue. I do not think this is a valid criticism. The phrase “under the traffic conditions then existing” did not give the jury in this case any greater latitude or permit any wider consideration by the jury than the time-honored phrase “at the time and on the occasion in question.” I think a phrase, “under the conditions then prevailing” or some similar phrase, might be said to be implied in practically every special issue submitted in a negligence case. A special issue as to whether the failure of a motorist to apply his brakes was negligence necessarily includes the consideration of the conditions prevailing at the time and place of the occurrence, and the jury must necessarily in such a case take those conditions, such as weather, width and condition of the road, traffic controls, speed, and many others, into consideration in passing on whether the motorist was or was not negligent in failing to apply his brakes. Only by way of illustration, Special Issue No. 9 in the case at bar was: “Do you find from a preponderance of the evidence that, the action of Marshall Chase in changing from the inside to the outside lane of Lemmon Avenue was negligence?” The issue does not contain the phrase “under the traffic conditions then existing,” but I submit that the substance thereof is necessarily implied in the issue, and would be so understood by the trial court, the jury and the attorneys for both parties. Why, then, did the inclusion of the phrase in Special Issue No. 22 make it so global as to render the answer thereto utterly worthless?

I would affirm the judgment because of the finding of contributory negligence; but if found to be in error in that, I would remand the cause in order that the defensive issue in question could be submitted in proper form.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    SOUTHERN BROKERAGE COMPANY, Appellant, v. David CANNARSA, Appellee.
    No. 7707.
    Court of Civil Appeals of Texas. Texarkana.
    June 14, 1966.
    Rehearing Denied July 12, 1966.

      R. Kelley Pierce, Dallas, for appellant.
    H. Sam Davis, Jr., Burford, Ryburn & Ford, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a suit to recover damages for a breach of contract. Judgment entered at the conclusion of a jury trial awarded the appellee here, the plaintiff in the trial court, $7600.00 damages, attorney fees, interest, etc. The defendant below, appellant here, has perfected an appeal. The judgment of the trial court is affirmed.

David Cannarsa, a resident of Muskogee, Oklahoma, as plaintiff, instituted this suit in a District Court of Dallas County, against the defendant, Southern Brokerage Company, a corporation. Both parties are brokers and dealers in stocks and securities. Cannarsa deals principally in mutual funds, while Southern Brokerage Company’s main business is in over-the-counter stocks. Both parties do some trading in securities registered (listed) on the New York and other national stock exchanges. Trading at the New York Stock Exchange is an exclusive privilege of membership. Members alone may execute orders on listed stock. Commissions for execution of orders are paid only to members. As a consequence, if a customer of Cannarsa or of Southern Brokerage Company desired to buy or sell a listed stock either broker would send the order to a member of the Exchange for execution and the Exchange member would receive the entire commission. To promote their securities business these two brokers separately and independently entered into an arrangement with Kamen & Company, a member of the New York Stock Exchange, to channel orders for listed stock to Kamen & Company. In turn, that brokerage house referred deals involving unlisted stock to each of the brokers as opportunity arose. In each instance the broker executing the order received full commission on the deal.

“During the year, 1963, certain employees of Kamen & Company, a member of the New York Stock Exchange, conceived and put into operation a scheme for ‘rigging’ or ‘kiting’ the stock of Jerome Richards & Co. Inc. by using unsuspecting independent brokers around the country to buy and sell said stock in accordance with specific instructions issued from Kamen & Company. On or about the 10th day of July, 1963, Plaintiff-Appellee, David Cannarsa, received instructions from Kamen & Company to buy 700 shares of Jerome Richards & Co. Inc. stock, as principal, from Frederick Cirlin Associates of New York City at $18,875 per share, a total cost of $13,-212.50; simultaneously, Cannarsa was instructed by Kamen & Company to sell 300 of such shares to Gerald Young & Company of Springfield, Massachusetts, and the remaining 400 shares to Southern Brokerage Company at a price of $19.00 per share for a total sales price of $13,300. Cannarsa was to receive no commission for the sales but was to retain the difference between his cost and the sales price, $87.50, for services rendered. The value of the stock to be sold to Appellant, by Cannarsa under instructions received from Kamen & Com-any, was $7,600.
“On the same day, July 10, 1963, Defendant-Appellant received instructions from Kamen & Company to buy 400 shares of Jerome Richards & Co. Inc. Stock from Plaintiff-Appellee Cannarsa, at $19.00 per share, and to sell the same to Rybyl & Company Incorporated of Cheyenne, Wyoming, at $19,125 a share, retaining the difference between cost and sales price, $50.00, for services rendered.
“On July 10, 1963, Appellant, acting on Kamen & Company’s instructions, sent to Appellee, Cannarsa a written confirmation of the purchase of 400 shares of Jerome Richards & Co. Inc. stock at $19.00 per share, the settlement date being stipulated therein as July 16, 1963. Cannarsa failed to confirm the sale until some time after the 10th of July when he sent Appellant a confirmation fixing the settlement date as of July 17, 1963.
“On July 22nd or 23rd, 1963, the parties hereto learned from Representatives of the Securities Exchange Commission that an investigation was being conducted as to transactions in Jerome Richards & Co. Inc. stock, to determine if the stock was being ‘rigged’. With this knowledge Appellee, Cannarsa, on July 26, 1963 consummated his purchase of 400 shares of Jerome Richards & Co. Inc. stock,
from Frederick Cirlin Associates of New York City, pursuant to Kamen & Company’s instructions of July 10, 1963.
“After Appellant learned from SEC representatives, that transactions in Jerome Richards & Co. Inc. stock were under investigation, it made inquiry concerning Rybyl & Company Incorporated of Cheyenne, Wyoming, to which it was to sell the stock to be delivered to Appellant by Appellee.
“On July 29,1963, prior to any attempted delivery of stock to Appellant by Ap-pellee, Appellant called Appellee, telling him that the deal was crooked and that he would not accept delivery of the stock contracted for, or honor a draft for the purchase price thereof. * * * Appel-lee drafted Appellant for $7,600 on at least three occasions, all of which drafts were refused by Appellant. Appellant by his investigation had discovered that his supposed buyer of the Jerome Richards & Co. Inc. stock, Rybyl Incorporated, of Cheyenne, Wyoming, did not exist, prior to his alerting the Appellee * * *.
“That, on August 5, 1963, with the knowledge of both parties hereto, the Securities Exchange Commission filed an action'in the United States District Court, Southern District of New York, seeking an injunction against, among others, Kamen & Company, * * *.
“That to the knowledge of the parties hereto the United States District Court on September 11, 1963, issued an injunction * *

Excepting the author’s conclusions about Kamen & Company “rigging” and “kiting” Jerome, Richard & Company stock, which has no support in the evidence, the foregoing slightly edited statement abstracted from appellant’s brief expresses from the appellant’s viewpoint the essential facts and is adopted as an accurate statement of the facts recited. Other facts will be stated when necessary. The central redout of the appellant’s defense in the trial court and its position here is that the uncontradicted evidence proves as a matter of law the transaction between Southern Brokerage Company and Cannarsa is an illegal contract made as a part of and in furtherance of a scheme by Kamen & Company to rig the price of Jerome, Richard & Co. stock in violation of the Securities and Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., and Rule 10b-5 of the Rules and Regulations of the Securities and Exchange Commission, 17 CFR § 240.10b-5, and as such is invalidated by subsection (b) of 15 U.S.C.A. § 78cc.

For appellant’s contention to prevail the evidence must be such that reasonable minds can reach no other conclusion. 1 Tex.Law of Evidence (McCormick & Ray) p. 8 § 4. And conversely if a different conclusion might be reached by reasonable minds appellant’s defensive position fails as the jury answered all submitted special issues favorably to the judgment rendered and the .trial judge presumptively did the same on any submissible issue of fact that the parties allowed to be decided without submission to the jury.

The appellant’s brief asserts that Kamen & Company’s instructions of July 10, 1963, to Cannarsa to buy and sell 700 shares of Jerome, Richard & Company stock and Cannarsa’s execution of the instructions constituted a “matched order” manipulation of security prices prohibited by the following provision of subsection (a) (1) of 15 U.S.C.A. § 78i, to-wit:

“78i. Manipulation of security prices
(a) It shall be unlawful for any person, directly or indirectly, by the use of the mails or any means or instrumentality of interstate commerce, or of any facility of any national securities exchange, or for any member of a national securities exchange—
(1) For the purpose of creating a false or misleading appearance of active trading in any security registered on a national securities exchange, or a false or misleading appearance with respect to the market for any such security, (A) to effect any transaction in such security which involves no change in the beneficial ownership thereof, or (B) to enter an order or orders for the purchase of such security with the knowledge that an order or orders of substantially the same size, at substantially the same time, and at substantially the same price, for the sale of any such security, has been or will be entered by or for the same or different parties, or (C) to enter any order or orders for the sale of any such security with the knowledge that an order or orders of substantially the same size, at substantially the same time, and at substantially the same price, for the purchase of such security, has been or will be entered by or for the same or different parties.
* * "

And that the July 10 transaction in Jerome, Richard & Co. stock was a manipulative and deceptive device condemned by subsection (b) of 15 U.S.C.A. § 78j, and prohibited by Commission Rule 10b — 5, both as follows, to-wit:

“78j. Manipulative and deceptive devices
“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—
“(a) * * *
“(b) To use or employ, in connection with the purchase or sale of apy security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”
17 CFR § 240:10b-5.
“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,
“(a) To employ any device, scheme, or artifice to defraud.
“(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security.”

Securities registered or listed on a national securities exchange are the subject of 15 U.S.C.A. § 78i. See United States v. Morgan (DC NY 1953) 118 F. Supp. 621 at 695-696. The manipulations prohibited in this section are with respect to registered stock. The record presented to this court does not show Jerome, Richard & Co. stock to be registered or listed on a national exchange. The transaction of July 10, 1963, in the unlisted Jerome, Richard & Co. stock is not shown to be in violation of the provisions of 15 U.S.C.A. § 78i previously quoted.

Both registered and unregistered securities are the subject of 15 U.S.C.A. § 78j. See United States v. Morgan (DC NY 1953) 118 F.Supp. 621 at 695-696. This section is applicable to the July 10, 1963, Jerome, Richard & Co. stock transaction previously described. The execution of “matched orders” prohibited by the provisions of 15 U.S.C.A. § 78i quoted above, if done for the purpose of creating a false and misleading appearance of active trading or a false and misleading appearance with respect to the market for Jerome, Richard & Co. stock or for any fraudulent purpose would constitute a manipulative and deceptive device prohibited by 15 U.S. C.A. § 78j and Commission Rule 10b-5. The evidence introduced has been examined carefully, and no proof can be found that the transaction in Jerome, Richard & Co. stock of July 10, 1963, directed by Kamen & Company and executed by Cannarsa was fraudulent or for the purpose of creating a false arid misleading appearance of active trading in the stock or a false or misleading appearance with respect to the market for such securities; nor, as later to be discussed, was it a component of a larger scheme for that purpose.

The only evidence in the record bearing upon the purposes of the brokers involved is that Kamen & Company referred the July 10, 1963, trade to Cannarsa pursuant to the business promotion plan mentioned earlier, and Cannarsa, in good faith, bought and sold the Jerome, Richard & Co. stock for his own account in order to make a quick profit. The buy-and-sell order placed with Cannarsa and executed by him has the appearance of a “matched order” prohibited by 15 U.S.C.A. § 78i, if given or executed for the purposes prohibited by the statute. The record contains no evidence of a purpose, motive or desire on the part of Kamen & Company or Cannarsa to accomplish the prohibited result. It is of some relevance to point out that “matched orders”, that is, buy-and-sell orders of substantially the same size and at substantially the same time and price are not absolutely prohibited by the statute or Commission rule. See United States v. Morgan (DC NY 1953), 118 F.Supp. 621 at 696. The prohibition is against such action when its purpose is to create a false or misleading appearance of active trading or a false or misleading appearance with respect to the market for a security, or has a fraudulent effect in some other respect.

Beginning in January, 1963, and prior to the July 10, 1963, transaction, Kamen & Company referred eight or nine buy-and-sell deals in Jerome, Richard & Co. stock to Southern Brokerage Company, which were in due course executed by the latter. Kamen & Company guaranteed payment to Southern Brokerage Company in each instance. A fewer number of buy-and-sell orders, in which he bought and sold for his own account, were referred by Kamen & Company to Cannarsa but no payment guaranty given. This activity indicates Kamen & Company had an active interest in the distribution of Jerome, Richard & Co. stock, but in the absence of evidence Kamen & Company intended and purposed to manipulate the market in a prohibited way, this proof of that • brokerage house’s enterprise, standing alone or in connection with any other facts developed in the record, does not lead to the single conclusion that Kamen & Company and the brokers it used singly or collectively engaged in a prohibited or fraudulent market activity. In this connection the following sentence from appellee’s brief is emphasized, to-wit:

“There may have been rigging, but the record in this case does not disclose it.”

There is evidence that both Can-narsa and Southern Brokerage Company were aware of a suit instituted against Kamen & Company by the Security and Exchange Commission in August, 1965, and that an injunction was thereafter granted prohibiting further trading in Jerome, Richard & Co. shares. Neither the record of Commission suit nor the decree entered was introduced in evidence. This court has nothing before it from which it may determine that this breach of contract action by Cannarsa is a proceeding in violation of an injunction that the witnesses mention in the course of their testimony. The contract between Cannarsa and Southern Brokerage Company antedated the filing of the injunction proceedings by several weeks.

The appellant’s points of error and all argument and propositions set out under each of them have been studied carefully, as has the entire record. Nothing presented is found to require a reversal of the trial court’s judgment; the points of error are therefore overruled and the judgment affirmed.


author: McDONALD, Chief Justice.

text:
    HAGGAR COMPANY, Appellant, v. C. G. RUTKIEWICZ, Appellee.
    No. 4515.
    Court of Civil Appeals of Texas. Waco.
    July 21, 1966.
    Rehearing Denied Aug. 11, 1966.

      Thompson, Knight, Simmons & Bullion, Jerry L. Buchmeyer, Dallas, for appellant.
    Lane, Savage, Counts & Winn, William V. Counts, Dallas, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendant Haggar Company from a judgment against it in favor of plaintiff Rutkiewicz for $5,975.40 for services performed, plus attorneys’ fees.

Plaintiff Rutkiewicz sued his former employer, defendant Haggar, alleging he was employed by defendant as a Vice-President with responsibilities relating to quality control in the manufacture of pants and slacks; that plaintiff and defendant agreed that plaintiff was to receive (in addition to his salary) approximately 2.5% of the net profits of the manufacturing plants; that such was due to be paid on December 31st of each year; that plaintiff worked from October 1, 1961 to March 11, 1962 and became entitled to an amount not less than $6000 for such 5 months period; that plaintiff prays for an accounting and for such amounts as due, plus attorneys’ fees, “and for such all and further relief as plaintiff shall show himself to be justly entitled.”

Defendant answered by general denial.

Trial was to a jury, which found:

Issue 1: “Do you find, from a preponderance of the evidence, that between October 1, 1957, and March 1, 1962, the officers of Haggar Company entered into an agreement with C. G. Rutkiewicz to pay, in addition to salary, to C. G. Rut-kiewicz for his services, for any time less than a year, any form of bonus under the terms of the Managers’ Incentive Plan in question ?
“Answer ‘Yes’ or ‘No.’
“Answer: ‘Yes.’”

If you have answered the preceding issue “Yes” then answer the following issue; otherwise, do not answer it.

Issue 2: “From a preponderance of the evidence what do you find C. G. Rutkiewicz is entitled to receive from Haggar Company under the terms of such agreement, if you have found in answer to Special Issue No. 1, for services, if any, performed by C. G. Rutkiewicz for Haggar Company from October 1, 1961, to March 1, 1962?
“Answer in dollars, if any, and cents,. if any, or ‘None.’
“Answer: $5,975.40.”

The trial court found that $1200 was a reasonable attorneys’ fee and entered judgment for plaintiff for $7175.40; and denied plaintiff’s contention for interest on his claim from January 1, 1963 to date of judgment.

Defendant appeals on 6 points, contending:

1) Plaintiff is not entitled to participate on a pro rata basis for the time he worked, in the proceeds of defendant’s year-end incentive bonus plan when admittedly he voluntarily terminated his employment 7 months before the end of the year.
2) There is no evidence, or insufficient evidence, to establish that defendant agreed to pay plaintiff a pro rata share of the year-end incentive bonus if the plaintiff voluntarily terminated his employment before the end of the year.
3) There was no evidence, insufficient evidence, and no proper pleading to support submission of Issues 1 and 2.

Plaintiff complains by cross point of the refusal of the trial court to allow him interest on the $5,975.40 from January 1, 1963 to date of judgment.

It was stipulated that under defendant’s Manager’s Incentive Plan, plaintiff was to be paid compensation in addition to salary, to be computed in a specified manner from “Employer’s Bonus Base”, which defendant set for plaintiff at $12,500; that computations made in accordance with the plan, in the case of plaintiff, reflect amounts for the period October 1, 1961 to January 31, 1962 of $4929.82; and for the month of February, 1962 of $1045.58. (Total $5975.-40). Monthly statements furnished by defendant to plaintiff show plaintiff’s “Net Bonus” from October 1,1961 to January 31, 1962 to be $4929.82 under' the Manager’s Incentive Plan.

Defendant’s Vice-President Haggar testified the monthly statements were furnished plaintiff “to show him what he was making”; and that defendant had every intention of paying plaintiff his bonus “at the end of the fiscal year.”

Plaintiff testified that at no time was there any discussion to the effect that the payment of amounts of bonus furnished him on the monthly statements was to be purely discretionary with the Haggar Company; that the payments were to be made to him if he performed; that nothing was ever said by anyone connected with Haggar Company that it was a condition of his receiving the bonus that he remain with the company for the entire year.

The record reflects no other employee was paid for the amounts of profits attributable to plaintiff’s services for the 5 months period in issue; it is stipulated that “revisions” were only made to increase the amount of bonus; and that substantial profits were made in the last 7 months of the year in issue. Thus the amount of plaintiff’s bonus for the past 5 months, had he not terminated his employment, could not have been reduced for such 5 months below the $5975.40 amount.

We think under the record the jury authorized to believe defendant agreed to pay plaintiff for his services for time less than a year, a form of bonus under the terms of the Manager’s Incentive Plan.

Moreover, ordinarily an employee entitled to a percent of the profits may on termination of his employment within a compensation period recover his share of the profits earned up to the date of termination. 56 C.J.S. Master and Servant p. 554; Montgomery Ward & Co. v. Reich, 131 Colo. 407, 282 P.2d 1091.

Plaintiff was entitled to the $5975.40 on January 1, 1963. Judgment was entered on December 16, 1965. Being entitled to such money on January 1, 1963, he is entitled to interest on same from such date to date of judgment. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83, 92. Plaintiff prayed for an amount “in excess of $6,000; attorney’s fees; for an accounting; for such amounts as a proper accounting will show him to be entitled; in a second count plaintiff prayed for $6346.56, plus attorney’s fees “and for all and such other relief as plaintiff may upon trial hereof show himself justly to be entitled.”

Defendant did not except to plaintiff’s pleadings. Defendant had the use of the $5975.40 owed plaintiff since January 1, 1963. We think plaintiff entitled to interest, and plaintiff’s pleading and prayer, in the absence of Special Exception, sufficient to require the trial court to award same. Buckner v. Ark. Fuel Oil Corp., Tex.Civ.App., (n.r.e.), 319 S.W.2d 204; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 141 A.L.R. 50.

Defendant’s points and contentions are overruled; plaintiff’s cross point is sustained.

Judgment is reformed awarding plaintiff interest at 6% on $5975.40 from January 1, 1963 to date of judgment; and as reformed is affirmed.

Reformed and affirmed.


author: WOLFE, Presiding Judge.

text:
    John I. NEWTON, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Respondent.
    No. 31860.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied June 14, 1966.
    Application to Transfer Denied Sept. 12, 1966.
    George R. Gerhard, Theodore D. Ponfil, St. Louis, for plaintiff-appellant.
    Ernest D. Grinnell, Jr., W. W. Dalton, Paul R. Moody, St. Louis, for defendant-respondent.
   WOLFE, Presiding Judge.

This is an action brought under the Federal Employers’ Liability Act for damages arising out of personal injuries. The injuries were alleged to have occurred during the course of plaintiff’s employment as a locomotive fireman when he fell while descending some stairs from the cab of a diesel locomotive. There was a verdict and judgment for the plaintiff in the sum of $15,000. The defendant moved to set aside the verdict and judgment in accordance with its motion for a directed verdict requested at the close of all of the evidence. The court sustained the motion and set aside the verdict and judgment and entered a judgment in favor of the defendant. The plaintiff duly perfected this appeal.

The plaintiff-appellant, who is forty-four years of age and had been employed by the defendant company for fifteen years and was still in their employ, worked as a member of the crew on diesel locomotives. On July 21, 1962, the crew of which the plaintiff was a member boarded a train in Oklahoma City to take it to Quanah, Texas. When the train arrived in Oklahoma City the crew that brought it in got off and the crew of which the plaintiff was a member took over.

The train consisted of sixty or seventy cars. It was powered by four diesel locomotive units. The leading locomotive was classified as an “A” unit and it was the control unit from which all four units were operated. The controls were in the cab in the front of the unit where the engineer, brakeman, and fireman sat. The diesel engine runs lengthwise of the remaining part of the locomotive with the walkway about twenty-four inches wide on either side of it. It is lower than the cab and the walkways are reached from the cab by two sets of stairs, one from the fireman’s side and one from the engineer’s side. Behind the lead locomotive were two “B” units. These have diesel motors running lengthwise of the cars with a walkway on either side but they have no cab or control section. The last unit of locomotion was another “A” unit attached backwards with the cab to the rear.

When the plaintiff boarded the train he checked the flagging equipment in the cab of the leading locomotive. After they had traveled about nine miles westwardly he left the cab to make his tour of inspection. This consisted of first going down to the engine part of the locomotive in which he was riding and checking various gauges on the engine. He then proceeded through the engine components of the other units making the same check. The engineer sat on the right side of the lead cab and the plaintiff and brakeman on the left. It was plaintiff’s custom to go down the steps from the right side of the cab to start his inspection tour and to follow the walks through the various units on the right side until he had gone through the trailing “A” unit and then he would return by the fireman’s side which was on the left side of the lead engine.

Following this procedure on July 21, 1962, he had gone one way through all of the four units. On his way back while descending the stairs from the cab of the trailing unit his foot slipped and he fell to a sitting position. He sat for a while and then continued on his inspection until he arrived back at the cab of the lead unit. He saw no oil upon the floor of the walks over which he had gone but when he got back to the cab he found oil on his shoes and some dirty oil on the back of his pants. He said upon cross examination that it was possible that his fall was caused by a mis-step. The plaintiff started experiencing pain from his waist downward to the end of his spine and when the train reached Quanah, Texas, he went to a doctor who hospitalized him. He was given medication for pain and X-rays were taken.

Testifying by deposition, the brakeman of the crew said that about four hours after the plaintiff fell and just before the train reached Quanah, Texas, he, the brakeman, took a camera which he had with him and went back to the trailing “A” unit. He there took a picture of some oil that he saw on one of the walkways of the trailing “A” unit and an oil smudge on one of the steps. He saw no footprints leading from the oil.

The plaintiff remained in the hospital in Quanah, Texas, for two days and was advised upon his departure to see a doctor at the Employees Hospital Association in Oklahoma City. He did this, as he was still bothered by his back. There he received diathermy treatment and remained for thirty days at which time he was released to return to work. He was told that he had been suffering from bruises and pulled muscles. After his release from the hospital the plaintiff took two weeks vacation before returning to work.

The claim agent of the defendant told the plaintiff to come and see him when he felt like returning to work. Around the first of August he went to see the claim agent and they discussed the settlement of any claim the plaintiff might have against the defendant. Both the claim agent and the defendant were under the impression that the plaintiff had suffered nothing more than pulled back muscles. The claim agent made an offer of less than $500 and the plaintiff asked for $1,250. Over a period of a week or ten days they intermittently discussed the matter: the agent raised his offer to $800 and the plaintiff lowered his request to $1,000. They finally compromised on the sum of $900 for which sum the plaintiff fully released the defendant.

The plaintiff returned to work and experienced no difficulty with his back until the latter part of October when he started having pains that worked down from his back to his leg. By December the pains had become continuous. He was hospitalized on January 7, 1963, and after a myelogram taken on February 18 it. was found that he had a ruptured intervertebral disc and an operation was performed on February 15. After he was released from the hospital he stayed home until May 27 when he returned to work as a fireman for the defendant. He has some limitation in movement but is able to perform the same work.

The plaintiff brought this suit on March 22, 1963, and the defendant set up as an affirmative defense the release signed by the plaintiff. The plaintiff in answer to the defense raised asserted that the release arose out of a mutual mistake of fact. Neither party knew of any injury to the intervertebral disc at the time the release was signed. It is conceded, however, that at no time did the plaintiff tender or offer back to the defendant the $900 received at the time the release was signed.

The defendant’s motion for judgment in accordance with his motion for a directed verdict set forth two basic grounds. One was that the evidence failed to present any facts or valid inferences from which the defendant could be found negligent. The other ground for the motion was that before the plaintiff could maintain an action to set aside the release which he had signed he was obliged to have tendered back the consideration he received for the release, and this he had not done. As stated, the trial court sustained the motion and entered judgment for the defendant. The plaintiff-appellant here contends that the evidence was sufficient to take the case to the jury. He also contends that no tender of the consideration for a release is necessary to set aside a release entered into by reason of a mutual mistake of fact.

Considering the matter of the release, it appears from the evidence that neither party knew, at the time that the release was signed, that the plaintiff had a ruptured intervertebral disc. Both the plaintiff and the defendant’s claim agent had been informed by the examining doctors that the plaintiff’s ailment was a pulled back muscle. This was sufficient evidence to warrant submitting the issue of mutual mistake to the jury (Goodman v. Missouri Pacific Railroad Company, Mo., 312 S.W.2d 42, 1. c. 47) if plaintiff could submit the issue without a tender back of the consideration which he had received.

Plaintiff asserts that the release was in violation of the Federal Employers’ Liability Act, Title 45 U.S.C.A. § 55, and consequently is void. That section relates to contracts, the purpose of which is to exempt the carrier from liability under the chapter and it declares such contracts void. The same contention which the plaintiff raises here was raised in Callen v. Pennsylvania Railroad Co., 332 U.S. 625, at 1. c. 631, 68 S.Ct. 296, at 1. c. 298 wherein the court held:

“ * * * It is obvious that a release is not a device to exempt from liability but is a means of compromising a claimed liability and to that extent recognizing its possibility. Where controversies exist as to whether there is a liability, and if so for how much, Congress has not said that parties may not settle their claims without litigation.” We therefore rule that release was permissible under Title 45 U.S. C.A. § 55.

As to the plaintiff-appellant’s contention that he was not obliged to make a tender or offer to pay the sum he had received in settlement, the rule as stated in 76 C.J.S. Release § 37, p. 663, is: “Generally a releasor who seeks to avoid the effect of his release must restore the status quo by restoring or tendering the consideration received by him, if it is of value.”

The question, however, is one to be decided by federal rather than state law. Cleghorn v. Terminal Railroad Ass’n of St. Louis, Mo., 289 S.W.2d 13. We are cited by the plaintiff to Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575, but the court in that case stated that the agreement it was considering was not a compromise and settlement of plaintiff’s claim. Another case cited by the plaintiff is Irish v. Central Vermont Railway, Inc., 2 Cir., 164 F.2d 837. In that case the court held that the release signed related to and only discharged the carrier for the employee’s wages up to the date of its signing.

There is no doubt that both parties sought to and did in the instant case execute a full release of any right of action the plaintiff had by reason of his fall. The law as it relates to recission of such a release is set out in Graham v. Atchison, T. & S. F. Ry. Co., 176 F.2d 819, 1. c. 826 wherein the court stated:

“Except where fraud enters into the execution of a release, recission must be timely and a tender of the consideration received for the release must be made. * * * ” The reason for such a rule is apparent for one should not be allowed to keep the fruits of his agreement while attempting to repudiate it. We hold therefore that the defendant was fully released by the plaintiff and that the release could not be set aside since plaintiff failed to return or tender back consideration he had received.

The conclusion we have reached is determinative of the case. Therefore we need not consider whether or not the evidence relating to plaintiff’s fall was sufficient to make a case of negligence submissible to the jury.

The judgment is affirmed.

ANDERSON and RUDDY, JJ., concur.


author: CLEMENS, Commissioner.

text:
    John Lee WASEM, D.D.S., Plaintiff-Respondent, v. MISSOURI DENTAL BOARD, Defendant-Appellant.
    No. 32086.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.

      Joseph L. Walsh, St. Louis, for plaintiff-respondent.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Edgar M. Eagan, Cullen Coil, Jefferson City, for Missouri Dental Bd.
   CLEMENS, Commissioner.

Dr. John Lee Wasem is a 47-year-old dentist, practicing at Aurora, in Lawrence County. On November 6, 1963, in the Circuit Court of Greene County, he pleaded guilty to a charge of feloniously abetting an abortion. The appeal now before us grows out of proceedings by which the Missouri Dental Board revoked Dr. Wasem’s license to practice dentistry. He appealed to the circuit court, and when that court set aside the revocation, the Board appealed to this court. We must decide whether disciplinary action is warranted and, if so, what discipline is proper.

Chapter 332, V.A.M.S., regulates the practice of dentistry and creates the five-member Missouri Dental Board. Our prime concern is with § 332.160. It provides that a dentist’s license may be revoked or suspended for conviction of a felony involving moral turpitude. The section sets up the procedure for hearings before the Board. And, by paragraphs 6, 7 and 8, it charts this course for appeals from the Board’s orders: When an appeal is taken, the Board certifies its records to the circuit court. That court tries the case de novo as a suit in equity, and renders such decision as the Board should have rendered. Either party may appeal from the circuit court, in the same manner as in other civil actions.

This mode of appeal is unique. Ap-peáls from other regulatory agencies are by statutory administrative review or by certiorari, testing only the sufficiency of the record to support the action taken below. By stark contrast, appeals taken from hearings under § 332.160 impose the novel responsibility, first on the circuit court and then on this court, to decide the case de novo and to render the decision which the Board should have rendered. Thus, it is for us now to determine whether Dr. Wasem should be disciplined and, if so, what that discipline should be.

The case has traveled this course: When the Attorney General notified the Missouri Dental Board of Dr. Wasem’s conviction, the Board gave notice of a hearing, to be held in St. Louis. At that hearing both the State and Dr. Wasem were represented by counsel. The State put in evidence of the information and the judgment against Dr. Wasem. He put in evidence of his good character and conduct as a citizen and as a dentist.

The Board took the case under advisement. Later it issued its order, revoking Dr. Wasem’s certificate of registration and license to practice dentistry. Dr. Wasem posted bond and appealed to the Circuit Court of the City of St. Louis, which ordered a temporary stay of the Board’s order of revocation and set the cause down for trial.

The Board then certified its record to the circuit court. Although § 332.160 requires thaj; the circuit court shall hear such a case de áovo as a suit in equity, no further evidence was adduced. Instead, the parties stipulated that the cause be submitted upon the record of proceedings previously held before the Board, and this was done. After oral argument and memoranda, the circuit court entered a decree “that the Order of the Missouri Dental Board revoking the certificate of registration and revoking the license of John Lee Wasem to practice dentistry in the State of Missouri is hereby set aside and for naught held and the case is remanded to the said Board for further proceedings.” (Our emphasis.) The trial judge filed a memorandum. It showed that the circuit court’s decree was based upon a review of the Board’s action, rather than upon an independent consideration of the law and the evidence, as required in trials de novo. The circuit court refused to rule upon the Board’s after-trial motion, and it has appealed. The parties have presented excellent briefs.

As said, § 332.160 requires the circuit court to take the case on appeal from the Board and try it de novo as a suit in equity. Hence, the Board’s revocation of Dr. Wasem’s license was not binding on the circuit court. That statute also says that the appeal to this court is taken as in other suits in equity. Our first task, therefore, is to consider the law and the evidence; and our final duty is to reach our own conclusions, and to enter or direct such decree as we believe the circuit court should have rendered. Long v. Willey, Mo., 391 S.W.2d 301 [9]; Anderson v. Curls, Mo.App., 309 S.W.2d 692 [2]. And, since the circuit court tried the case on the transcript and heard no live witnesses, the usual rule of deference to credibility is without force. Schwartz v. Shelby Construction Co., Mo., 338 S.W.2d 781 [6]. So much for the scope of our consideration of the case.

The record clearly shows that Dr. Wasem was convicted of a felony involving moral turpitude. Since the case had come before the circuit court for a trial de novo, and since revocation or suspension of Dr. Wasem’s license was permissible, the trial court should have rendered a decree discharging Dr. Wasem or a decree revoking or suspending his license. It did neither. It “set aside” the Board’s order and remanded the case to the Board “for further proceedings.” Such a decree was neither supported by the record nor authorized by § 332.160. We must therefore reach our own conclusion as to the proper decree. Before doing this, we take up three procedural points raised by Dr. Wasem’s brief. They stress adverse rulings made by the Board and by the circuit court.

First, Dr. Wasem argues that the Board was prejudiced against him by an error in the Attorney General’s affidavit whereby the State gave notice to the Board of Dr. Wasem’s conviction. The conviction was for advising and giving an instrument to a woman to produce an abortion. The affidavit stated that Dr. Wasem had been convicted “of the felony of abortion committed upon the person” of a woman. Dr. Wasem unsuccessfully moved the Board to make the affidavit more definite and to dismiss the accusation, contending that he was thereby accused of a more grievous offense than his conviction. The Board had before it the Prosecuting Attorney’s information against Dr. Wasem and the court’s judgment of his conviction. That was the basis of the disciplinary action. The Board could hardly be prejudiced by the Attorney General’s affidavit framed in different language. But even if the Board was prejudiced, that condition evaporated when the case went to trial de novo in the circuit court. Stutz v. Cameron, 254 Mo. 340, 162 S.W.221 [4].

Next, Dr. Wasem urges error in the circuit court’s denial of his motion to vacate the Board’s order. He based this motion on the ground that the Board certified its transcript on the thirteenth day after his appeal, instead of within the ten-day period specified by paragraph 5 of § 332.160, V.A.M.S. Dr. Wasem contends that the statute is penal and should be strictly construed against the Board, and that therefore the Board’s order of revocation was nullified by its failure to send up its certificate three days sooner. The contention is without merit. First, the record does not clearly demonstrate the Board’s tardiness. Second, no prejudice to Dr. Wasem is demonstrated, or conceivable.

Last, Dr. Wasem says that at the hearing in the circuit court he was prejudiced by the Attorney General’s comment that he had not testified at the hearing before the Board. He now contends that he could not have testified in explanation of his offense or his conviction, citing In re Lurkins, Mo., 374 S.W.2d 67 [2, 3]. Dr. Wasem gives no page reference to the transcript to support this contention. The only thing we find is the Attorney General’s explanation of the testimony before the Board, in which he casually mentioned the obvious fact that Dr. Wasem had not testified. We deny the point on three grounds: There was no objection to the comment. The Lurkins case fails to support Dr. Wasem’s contention. Having prevailed in the trial court, Dr. Wasem was unharmed by the comment, and we give it no weight.

We move now to the merits. As said, the parties chose to submit the case to the trial court upon the evidence adduced before the Board. It is now before us on the same evidence.

The State’s evidence was limited to the information and the judgment of Dr. Wa-sem’s conviction. The information charged “ * * * that John Lee Wasem on or about July 18 and July 25th and August 1st, 1962, at the said County of Greene, State of Missouri, did then and there wilfully, unlawfully and feloniously, with intent to produce or promote an abortion, did advise and give to a woman [naming her] an instrument to produce an abortion * * This followed the language of § 559.Í00, V.A.M.S. The judgment recited that Dr. Wasem “is adjudged guilty on his confession on November 6, 1963 of the crime of Felony of Abortion as charged in the information returned against him by said Prosecuting Attorney.” After showing allocution, the judgment recited that the court sentenced Dr. Wasem to three years’ imprisonment, and temporarily stayed execution. This was the State’s evidence.

Dr. Wasem then presented evidence to the Board. First, he introduced the court record showing he had been granted a judicial parole. He then put in evidence showing that he was of good character, personally and professionally; that he had been married for twenty years and was the father of two daughters. His evidence showed he had fourteen years of distinguished military service, first as a soldier and later as a dental officer in the Navy; that he was on active duty at sea during both World War II and the Korean conflict; and that he arose to the rank of Lieutenant Commander in the Naval Reserve by the time of his discharge in 1957. Dr. Wasem’s evidence showed he had practiced dentistry in St. Louis before he moved to Aurora. He introduced letters and affidavits from five prominent citizens of the Aurora community attesting his reputation as a moral, law-abiding citizen and a competent dentist, both before and after his conviction. An affidavit from an Aurora dentist concurred, pointing to Dr. Wasem’s skill in treating children and recommending that he be permitted to continue in practice. The manager of a home for aged persons testified to Dr. Wasem’s custom of doing charitable dental work for indigent patients. Three St. Louis dentists (one of them a past president of the Missouri Dental Board) testified they knew Dr. Wasem while he practiced in St. Louis. They, too, told of his professional competence and his previous good reputation. Each recommended that he be permitted to continue his dental practice.

To this evidence we must apply the law concerning disciplinary actions. Certain fundamental principles guide us in exercising this power of the State to regulate or prohibit the practice of a profession That right is not absolute: it is held in trust for the benefit of the public. The public should be protected from the taint of felonious conduct by those to whom the State has entrusted the care and welfare of their physical and material well-being. In re Downs, Mo., 363 S.W.2d 679, 1. c. 691. As said there, the thread of logic running through disciplinary cases reveals that their purpose is to protect the public from the practice of professions by persons unfit or unworthy to serve, to uphold the ethics and dignity of the profession, and to maintain the public’s confidence therein. In re Ellis (banc), 359 Mo. 231, 221 S.W.2d 139 [2]; In re Canzoneri, Mo., 334 S.W.2d 30 [2]. By licensing a person to practice the healing arts, the State bestows its seal of approval upon that person and certifies him to be not only a competent practitioner but a person of good moral character who will be honorable and reputable in his professional conduct. State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, 1. c. 950. Revocation or suspension of a professional license for just cause is a valid exercise of the State’s police power to protect the public health. Lentine case, supra, n. 4.

But, there is still another set of pertinent principles, adopted to restrain the State’s intemperate exercise of this power. Punishment of the offender-is not the purpose of a disciplinary action. Instead, we should weigh all the circumstances, including the previous and subsequent conduct of the offender; we should impose a penalty that will serve “as a deterrent to others, and as an indication to laymen that the court will maintain the ethics of the profession”; and we should resort to revocation only when no other action will suffice. In re Moon, Mo., 310 S.W.2d 935 [3, 4]; In re Landon, Mo., 319 S.W.2d 553 [2]; In re Gardner, 232 Mo.App. 502, 119 S.W.2d 50 [3, 4].

There are factors here that warrant the penalty of revocation: Dr. Wasem was convicted upon his plea of guilty to felo-niously advising and furnishing a woman with an instrument to produce an abortion. This criminal conduct did not occur on the spur of the moment, but on three separate days, one week apart. This revealed a deep fault in Dr. Wasem’s moral structure. The conviction, of necessity, cast a pall on the dental profession. Its natural tendency was to diminish the public’s confidence in that profession. These factors, however, do not stand alone.

We consider others: There is no doubt of Dr. Wasem’s high professional competence. Before his conviction he deserved and enjoyed a reputation for good character among his acquaintances, his patients, and his fellow dentists. That reputation has not been shattered by his conviction. His criminal conduct was an isolated incident in an otherwise unblemished career. In granting Dr. Wasem a parole from the sentence of imprisonment, the Circuit Court of Greene County voiced its belief that Dr. Wasem would not again violate the law.

These factors, pro and con, now rest in the balance. We have weighed them, deliberately. We have compared them with the factors in other disciplinary cases, in Missouri and other states. (See cases collected in Missouri Digest and West’s Decennial Digests, Physicians and Surgeons,; and Missouri Digest, Attorney and Client,.)

We have determined that permanent revocation of Dr. Wasem’s license would be an excessive penalty, unnecessary to serve the remedial purpose of the statute, § 332.160. We have determined, however, that the gravity of Dr. Wasem’s crime is too great to be condoned. It is our considered opinion that the interest of the public, and of the dental profession, will best be served by suspending Dr. Wasem from the practice of dentistry for a period of two years. The case will be remanded to the circuit court for entry of such a decree.

PER CURIAM.

The foregoing opinion of CLEMENS, C, is adopted as the opinion of this court. Accordingly, it is ordered that the cause be remanded to the Circuit Court of the City of St. Louis, and that Court is ordered to enter a decree suspending Dr. John Lee Wasem’s certificate of registration and his license to practice dentistry for a period of two years from the date of entry of such decree, taxing the costs against said Dr. Wasem, and making such further incidental orders as may be consistent with this opinion.

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


text:
    Anne CARLSON (now Armstrong), Plaintiff Respondent, v. Robert D. CARLSON, Defendant Appellant.
    No. 32282.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Marshall & Littmann, Richard M. Marshall, St. Louis, for defendant appellant.
    Walter J. Kramer, St. Louis, for plaintiff respondent.
   WOLFE, Presiding Judge.

This is an appeal from an order denying a motion to modify a divorce decree. The appealing defendant sought to have the decree modified as it related to the custody ■of two sons bom of the marriage. The plaintiff, who was remarried and had custody of the sons under the decree, also •sought to have the decree modified as it related to the temporary custody awarded to the defendant. The order from which the appeal is taken, in addition to denying the defendant’s motion, sustained plaintiff’s motion by setting the defendant’s right of temporary custody at fixed periods of time.

The sole ground upon which the defendant sought to have the decree modified was that the two children were living in an immoral atmosphere because of the character of the stepfather they acquired by their mother’s remarriage. She had married a man named Harry Armstrong. The defendant contended that the children’s best interest would be served by taking custody from their mother and awarding it to him. The facts upon which he asserts his claim are in substance as follows:

The defendant and the plaintiff in 1958 moved into a house in Florissant near a family named Armstrong. Defendant and Mr. Armstrong were engineers and both worked for the same company. Armstrong boasted about his many extra-marital activities to the defendant Carlson. Carlson testified that he discovered in May of 1961 that Armstrong and the plaintiff were having an “affair” and stated that the plaintiff admitted that she had had sexual intercourse with Armstrong on numerous occasions. This was denied by the plaintiff.

In the same month defendant moved from his home and he said that he did so at his wife’s request. Shortly after that the first Mrs. Armstrong, who was then the wife of Harry Armstrong, asked Carlson if he could do something about breaking up the affair between her husband and Mrs. Carlson. The first Mrs. Armstrong was called as a witness for the defendant and testified that she was divorced from Armstrong in 1962 for non-support. She said that Armstrong admitted to her that he had made a mistake. She testified that he said that did not mean to get involved with Mrs. Carlson but it kept on going and there was no end to it. Counsel for plaintiff offered to prove by her that at the time of the hearing here under consideration Armstrong was in arrears in his support payments awarded her at the time of the divorce for the children of their marriage. An objection to the offered proof was sustained by the court. After the separation of the plaintiff and the defendant, in the case here under consideration in May of 1961, the defendant met a divorced woman whose first name was Judith. She had one child by her former marriage. He started going out with Judith. On September 28, 1961 Carlson and his wife were divorced and on that same day the defendant gave plaintiff airplane tickets so that she could return to her family which lived in North Carolina. She lived with them until August 23, 1963, which was the date of her marriage to Armstrong. She stated that she left St. Louis on the day of her divorce because Carlson “had already told me that he loved Judy, wanted to marry her and there was no sense in my staying around.”

After plaintiff departed from the state the defendant from time to time indicated that he would like to effect a reconciliation with her. He testified that it was his intention from the time of the divorce up to spring of 1963 to become reconciled with plaintiff. With the prospect of such a reconciliation and remarriage in mind, plaintiff came to St. Louis on February 18, 1963 to see the defendant. At that time the defendant was living in a trailer with his brother in St. Charles. She went there by cab from the airport and found the defendant, his brother and Judith. This was her first encounter with Judith and the two of them talked together. When Judith discovered the purpose of plaintiff’s visit and that she was there at the defendant’s request, Judith left and returned shortly. Upon her return she came into the trailer and told the defendant that she would soon be out of the way. She took a bottle of pills from her purse and swallowed them.

They took Judith to a hospital in St. Charles where they pumped her stomach and released her. She denied that she attempted suicide but a physician who had treated Judith was called as a witness by the defendant and he testified that she admitted she had contemplated suicide and had taken compazine.

After this episode the plaintiff returned to North Carolina and the day following the defendant wrote her a letter. It was in the nature of an apology for the events that had occurred, but he again suggested a reconciliation and stated, “I know what I want but I’m still searching for a way to accomplish it. I think as a result of your trip you can understand a little better what I am going thru.” Again, in May 1963, he wrote to the plaintiff stating, “First of all I am not going to hold you to anything you agreed to. To be specific, reconciliation. I think I forced you into that decision by threatening to take the kids away from you.”

On December 27, 1963, the defendant married Judith. They lived in St. Charles and had a suitable home there. Judith, the present Mrs. Carlson, is employed and works from 8 A.M. to 5 P.M. Living with them is her 4½ year old son by her former marriage. She hires a baby sitter to take care of her son while she works. She said that she would not quit work if her husband was awarded custody of his sons. She stated that she would work for another year as they had some lawyers’ fees and furniture payments to make. Her husband’s salary was $12,000 a year and he had an income of $1,600 a year from the house he owned and formerly occupied in Florissant. Witnesses were called who testified that the present wife of the defendant bore a good reputation. One witness was the pastor of the Florissant church of which the defendant was a member, and this witness also testified that Armstrong’s reputation had been bad. He did not know what Armstrong's present reputation was and had not seen him since 1961.

The plaintiff denied that her relations with Armstrong had been improper. She stated that she had never had sexual relations with him prior to her marriage. She stated that she sued to divorce the defendant because he came home intoxicated and set a bed on fire with a lighted cigarette. She said that she saw Armstrong in California while visiting a friend there in February of 1962. Around Christmas of 1962 he visited her at her parents’ home in North Carolina and stayed there two days. He again visited her at her parents’ home in 1963 during his summer vacation and stayed for four weeks. As stated above, they were married in August of that year.

This hearing took place over a year after the marriage of the plaintiff and Mr. Armstrong. The plaintiff testified that she now has a son by her present marriage. They live in Smithfield, Texas. Their home is a commodious brick house suitable for the family. It is on an acre and a half of land and there is a pasture in the back where the boys have their own ponies. Mr. Armstrong is employed as a design engineer by a company near by. The older son is in school and is a straight “A” student. The younger son of the former marriage is not old enough to start school. They are active members of the local Methodist Church which the children attend with them. Their father takes an interest in the boys and has been a good stepfather to them according to the plaintiff. The plaintiff is not employed and devotes her full time to her family.

Upon the foregoing evidence, as we have stated, the court denied the defendant’s motion to modify the decree. The original decree did not set a time certain for the children to be in the temporary custody of their father. The plaintiff sought to have the time set out so that there would be no future disagreement in regard to it. This the court did by granting the defendant temporary custody each year during the month of August. No point is raised about the modification made regarding temporary custody but the defendant here contends that the court erred in denying defendant’s motion to take the general custody from the plaintiff and award it to him.

While the review of such matters on appeal is a trial de novo on the record, this court will not lightly disturb the judgment of the trial court but, on the contrary, such judgment will be upheld unless it is apparently in conflict with the clear preponderance of the evidence. Copenhaver v. Copenhaver, Mo.App., 402 S.W.2d 612; McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588; Benjamin v. Benjamin, Mo.App., 370 S.W.2d 639.

In passing upon such matters all presumption favors the plaintiff on defendant’s motion to modify because we start with the fact that the children are where the court placed them. Yount v. Yount, Mo.App., 366 S.W.2d 744; Hurley v. Hurley, Mo.App., 284 S.W.2d 72. The presumption may be overcome by showing of a change of condition that has taken place since the decree but in addition to this the mov-ant must show that the change of condition indicates that a change of custody will best serve the welfare of the child. Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364.

Viewing the bizarre facts presented it would be easy to reach the conclusion that during the marriage of the parties neither of them were constrained in their conduct by any idea of conjugal fidelity. But the defendant rests his case solely on the premise that the children’s association with their stepfather will be harmful to them. Regardless of what the stepfather’s conduct may have been prior to his present marriage, our concern is his present conduct as it may affect the children. Fortunately one cannot be barred by his past from reformation and it would seem that Armstrong’s conduct has been good since his marriage to the plaintiff. The appellant contends that he was prevented from showing the present character of Armstrong by the action of the court in refusing proof that Armstrong was in arrears in child support for the children of his former marriage. This alone would not make him an unfit stepfather and defendant was therefore not prejudiced by the rejection of the proof offered.

It appears from the evidence that the children are well cared for in all respects by their mother and that their stepfather is considerate and helpful. There is also an absence of proof that they would have such complete care in the defendant’s home.

For the reasons stated the judgment is affirmed.

ANDERSON and RUDDY, JJ., concur, cur.


author: CLEMENS, Commissioner. PER CURIAM.

text:
    STATE of Missouri at the relation of H. K. PORTER COMPANY, Inc., a Corporation, Relator, v. The Honorable James F. NANGLE, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.
    No. 32113.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.

      Coburn, Croft & Kohn, Alan C. Kohn and Alan E. Popkin, St. Louis, for relator.
    John A. Joyce, Sullivan & Joyce, St. Louis, for respondent.
   CLEMENS, Commissioner.

This is an original proceeding in prohibition. It presents two issues: Did the respondent judge exceed his jurisdiction by permitting the plaintiff-employees to proceed with their suit to recover vacation pay when they based their claims on the relator-employer’s alleged custom or usage in giving paid vacations to employees ? And, did the respondent exceed his jurisdiction by requiring the relator-employer to answer interrogatories about the history and structure of relator’s affiliated corporations?

Nineteen plaintiffs, who were discharged employees of the relator, had sued the relator for $4,805.54 in vacation pay. The trial court denied the relator’s motion to dismiss the petition for failure to state a claim. Our preliminary writ was then issued on the ground that the petition did not state a cause of action and could not be amended to do so, and that the circuit court was therefore exceeding its jurisdiction by proceeding with the cause. This is a proper ground for prohibition. State ex rel. Henderson v. Cook, 353 Mo. 272 (banc), 182 S.W.2d 292 [3-5]; State ex rel. Johnson v. Sevier, 339 Mo. 483 (banc), 98 S.W.2d 677 [8, 9].

The challenged part of the petition states:

“3. That consistent with the long and well known practice and custom, defendant gave plaintiff, and other employees in plaintiffs’ employment status class, annual paid vacations. Such vacations were deemed earned by employees at the close of each year and were, for services performed for the defendant by those employees during the year, then closing. The actual vacations so earned were given, or taken by said employees in the subsequent year immediately following the year in which they were earned.” (Our emphasis.)

The company argues that the petition pleads no agreement to give plaintiffs paid vacations, and that its alleged custom and practice of doing so does not create any right in favor of the plaintiffs. In testing the sufficiency of the petition, we must construe it liberally. Mathews v. Pratt, Mo., 367 S.W.2d 632 [1-3]; § 509. 250, V.A.M.S. And, as said, the test is not whether the petition does state a cause of action, but whether it can be amended to do so without a departure from plaintiffs’ theory. (State ex rel. Henderson v. Cook and State ex rel. Johnson v. Sevier, supra.)

The company relies on this court’s opinion in Burns v. Lewis-Howe Co., Mo.App., 266 S.W.2d 14. The issue there was not one of pleading, but of the sufficiency of evidence. Although there was evidence in that case about a company policy to pay employees an annual bonus, the plaintiff did not rely on that policy: she relied on an express promise to pay her a bonus. We held that the evidence did not show that promise. The Burns case does not control the issue of pleading now before us.

The company seeks to require plaintiffs to rely on an express agreement; it ignores the plaintiffs’ theory that they are relying on an implied agreement to grant paid vacations, the implication arising from custom or usage. This requires us to note the basic principles of the law of implied contracts.

A contract between two persons is an abstract thing: written instruments and oral statements are but evidence of what the parties intended. At times, customs and usages may be considered as further evidence of the parties’ intention. Liberty Storage Co. v. Kansas City Terminal Ware. Co., Mo.App., 340 S.W.2d 189 [3], “Usage” is a practice or course of habitual conduct among a certain group or class of people. See 21 Am Jur 2d, Customs and Usages § 2; 5 Williston on Contracts, Third Edition § 649, p. 9; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79 [7] ; Hartman v. Union Electric Light & Power Co., 331 Mo. 230, 53 S.W. 2d 241 [4, 5]. As said in Restatement of the Law of Contracts:

“§ 246. EFFECT OF OPERATIVE USAGES.
Operative usages have the effect of
(a) * * *
(b) adding to the agreement or manifestations of intention provisions in accordance with the usage, and not inconsistent with the agreement or manifestations of intention.”

The illustration given there:

“8. A and B enter into a contract for a year’s employment of B by A. By an operative usage such a contract may be terminated by a month’s notice. That provision is part of the contract.”

Missouri cases hold that customs and usages may, by implication, become part of the parties’ contract. Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389 [1, 2], 77 A.L.R. 1237; Sherrill-Russell Lumber Co. v. Krug Lumber Co., 216 Mo.App. 1, 267 S.W. 14 [3-5]; Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 138 S.W. 36 [1, 2], These cases link up with the early case of Southwestern Freight 6 Cotton Press Co. v. Stanard, 44 Mo. 71, 1. c. 82-83, where the plaintiff relied on a custom among St. Louis flcur merchants that title to flour passed at the moment the buyer gave his order to the seller. The court said: “Where a contract is made as to a matter about which there is a custom well established, such custom is to be understood as forming a part of the contract, and may always be referred to for the purpose of showing the intention of the parties in all those particulars which are not expressed in the contract.” Quoting further from Restatement of the Law of Contracts:

“§ 247. WHEN USAGE IS OPERATIVE UPON PARTIES.
A usage is operative upon parties to a transaction where and only where
(a) they manifest to each other an assent that the usage shall be operative, or
(b) either party intends the effect of his words or other acts to be governed by the usage, and the other party knows or has reason to know this intention, or
(c) the usage exists in such transactions and each party knows of the usage or it is generally known by persons under similar circumstances, unless either party knows or has reason to know that the other party has an intention inconsistent with the usage.”

These principles have been acknowledged in cases of employment contracts. Leach v. Hannibal & St. Joe Ry. Co., 86 Mo. 27, 1. c. 31-32; Gutweiler v. Lundquist, 200 Mo. App. 526, 207 S.W. 838 [1]. The existence of the usage, and the parties’ knowledge of and reliance thereon, must be specifically pleaded. Farm & Home Savings & Loan Ass’n of Mo. v. Stubbs, 231 Mo.App. 87, 98 S.W.2d 320 [29]; Staroske v. Pulitzer Pub. Co., supra, n. 3. And, whether each of those elements exists is a question of fact to be determined by the jury. Restatement of the Law of Contracts, § 247, comment “c”; Baker v. J. W. McMurry Contracting Co., 282 Mo. 685, 223 S.W. 45 [15]; Noyes-Norman Shoe Co. v. Cooper, Mo.App., 4 S.W.2d 486 [6]; Beaty v. Cruce, 200 Mo.App. 199, 204 S.W. 553 [1].

Considering these principles of implied contracts, considering the liberality with which we must judge plaintiffs’ petition, and considering plaintiffs’ right to amend, we cannot say that the petition cannot be amended to state a claim without a departure from plaintiffs’ theory. So, the writ of prohibition will not lie on this ground.

Another ground for issuing our preliminary writ arose from the plaintiffs’ third set of interrogatories to the relator-company. In its answers to plaintiffs’ original and amended petitions, the company had admitted its ownership and operation of the factory where plaintiffs were employed from 1953 to 1962. Then, by its amended answer, the company alleged that other named corporations had owned and operated the factory during these years. The plaintiffs then filed their third set of interrogatories, asking for details about the history and structure of each of these corporations. The relator-company claimed the interrogatories were irrelevant arid burdensome; they countered with objections to the interrogatories and a motion for a protective order. These were denied by the trial court.

We need not rule on the propriety of those interrogatories because the issue has become moot. Plaintiffs sought the information only to establish the relator’s “ownership and management of the subject facilities during the period in question.” Relator now admits its responsibility and control, saying in its brief:

“* * * Mr. Joyce [plaintiffs’ counsel] stated that the only information he was seeking in his interrogatories was whether H. K. Porter Company or subsidiaries controlled by it were responsible for and in control of the Leschen Wire Rope Division of the Relator. Relator agreed to admit that that was true and still admits the truth of that statement.” (Our emphasis.)

This is a judicial admission and it makes the issue moot. Politte v. Wall, Mo.App., 256 S.W.2d 283 [1] ; Harvey v. Peoples Bank, Mo., 136 S.W.2d 273 [3]. Plaintiffs now have no need for the information sought by their interrogatories, and we will not decide the abstract question of whether they were entitled to have it. State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697 [24]; State ex rel. McFaddin v. Green, Mo.App., 138 S.W.2d 4.

This brings us to the question of how we should dispose of our preliminary writ.

As the case now stands below, the relator is obliged to answer the plaintiffs’ interrogatories. If we quash the writ, that obligation will stand. In view of relator’s judicial admissions, there is now no need to answer the interrogatories, and relator should not be compelled to do so. So, our writ will issue only for the purpose of relieving the relator from its obligation to answer plaintiffs’ third set of interrogatories. The writ is being issued not because the trial court was in error, but because relator’s belated admission in its brief has now made it unnecessary to do what the trial court ordered it to do.

Therefore, our preliminary writ will be made absolute only insofar as it prohibits the respondent judge from compelling relator to answer plaintiffs’ third set of interrogatories, and the preliminary writ will be quashed as to all other matters. Costs are to be taxed against the relator.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, our preliminary writ is ordered to be absolute only insofar as it prohibits the respondent from compelling the relator to answer plaintiffs’ third set of interrogatories; and the preliminary writ is ordered quashed as to all other matters. Costs are ordered taxed against the relator.

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