author: HOUSER, Commissioner.

text:
    Mary G. RAY, and Mary G. Ray, Administratrix of the Estate of Lewis C. Ray, Deceased, Respondents, v. Marilyn BARTOLOTTA, Appellant.
    No. 51850.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Lillie Knight, Kansas City, for plaintiffs-respondents.
    E. E. Thompson, Kansas City, for appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   HOUSER, Commissioner.

This is an appeal by defendant Marilyn Bartolotta from an order of the circuit court granting plaintiff Mary G. Ray a new trial on the issue of damages only on Count I of her petition for personal injuries, property damages and loss of earnings and earning capacity, and granting her, as administra-trix of her husband’s estate, a new trial on the issue of damages only on Count II of the petition originally filed by Lewis C. Ray for loss of her services and for the cost of medical services, medicines and hospital care for her.

Mary G. Ray was injured while driving an automobile on the approach to the 6th Street Trafficway in Kansas City. While stopped for the main flow of traffic, awaiting an opportunity to enter the trafficway, her automobile was struck from the rear by an automobile driven by defendant. Jury verdicts for $200 for Mary Ray and $300 for Lewis Ray were returned.

Mary Ray and Lewis Ray each filed a separate motion praying the court to grant a new trial “on the issue of damages only,” based on identical reasons: “1. Because said verdict as to the amount of damages is against the weight of the evidence” and “2. Because the amount of damages awarded by said verdict is grossly inadequate.” Nine days after judgment the court entered the following order: “Plaintiff, Mary G. Ray’s Motion for a New Trial on the issues of damages only is sustained. Plaintiff Louis G. Ray’s Motion for a New Trial on the issues of damages only is sustained.”

Lewis C. Ray died after the appeal was taken and as administratrix Mary G. Ray was substituted as party plaintiff in Count II.

This Court has jurisdiction because the action of the trial court reinstated Mary G. Ray’s claim under Count I, which is for an amount in excess of the jurisdictional limit of the courts of appeals, § 477.040, RSMo 1959, V.A.M.S., to wit: the $15,000 for which she originally prayed plus $150 for damage to her automobile which by leave of court she added to her claim at the time the trial commenced. Wessels v. Smith, Mo.Sup., 362 S.W.2d 577.

We begin by reversing the order on Count II and dismissing Count II with prejudice. Count II is based upon Lewis C. Ray’s right to recover for loss of the comfort, companionship, consortium and aid of his wife and for the cost of hospital and medical services rendered and to be rendered to her. Such an action, founded on tort, does not survive the death of the husband, and § 537.020, V.A.M.S., providing for the survival of causes of action for personal injuries, does not apply to this type of action. State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418.

Attending now to the order entered on Count I, appellant contends that the court did not specify of record any ground on which the motion was sustained, as required by Civil Rules 75.01 and 78.01, and therefore a presumption of error arises and the burden of supporting the action of the court is placed on respondent under Civil Rule 83.06(b). No presumption that the trial court erroneously granted the motion for new trial arises in this case, however, for the reason that under this record the ground on which the new trial was granted sufficiently appears of record.

The motion for new trial, while apparently setting forth two reasons, in legal intendment and effect asserted only one reason why the court should grant a new trial, namely, that the verdict as to amount of damages was against the weight of the evidence. Paragraph 1 so alleged in terms. Paragraph 2 so alleged by the use of equivalent words. An allegation that the amount of damages awarded by a verdict is inadequate is the equivalent of an allegation that the verdict as to damages is against the weight of the evidence. We reach the conclusion on analogy to the rule that the action of a court in granting a new trial on the ground of inadequacy of the verdict is the equivalent of granting a new trial on the ground that the verdict is against the weight of the evidence.

The court took up this motion for new trial on the issue of damages only, based on one and only one ground, considered and sustained it on the issue of damages only. The court could have granted a new trial on its own motion and for its own reasons within 30 days after judgment, notwithstanding this motion with stated grounds was pending, 66 C.J.S. New Trial § 115, p. 329, but it did not do so. Instead, it sustained this limited motion based on one and only one ground. By its very act of sustention the court specified the ground on which it acted.

When a trial court sustains a motion for new trial on the ground that the verdict is against the weight of the evidence an appellate court as a matter of policy will not interfere if there is any substantial evidence to support the trial court’s action, unless the court has exercised its discretion arbitrarily or abusively. The question therefore is whether, considering the evidence from the standpoint favorable to movant, it can reasonably be said that the jury’s award on Count I was inadequate. Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698, 699, 700 [1, 2]; Bierman v. Langston, Mo.Sup., 304 S.W.2d 865, 868.

Plaintiff’s evidence indicated the following : She had turned her body to look back to the trafficway at the time of the impact. The force of the impact knocked Mary Ray’s car 8 to 10 feet, from the northernmost portion of the 2-lane approach to the southernmost portion, towards the guard railing, bending the trunk lid, bumper, bumper guards and trailer hitch and breaking the taillight. There was a crashing sound of metal on metal and the force of the impact knocked Mrs. Ray’s body forward and then jerked her back against the seat. At the time of the collision and immediately following she felt pain in her back and shoulders, upper shoulders, neck and head. After exchanging names with defendant Mrs. Ray drove home. On the way home she was nauseated. She put a heat pad on her neck and took two aspirins and went to bed. This was on Friday. On Saturday she stayed in bed most of the day and continued the heat applications but did not get any better. She kept on applying heat and taking aspirins on Sunday. On Monday she went back to work, got sick, left her work and went to her family doctor’s office, about noon. After examining her the doctor gave her prescriptions to relieve the pain and relax the muscles. She had the prescriptions filled, went home, took the medicines and went to bed. That evening she and her husband went out to eat but she got sick at the restaurant. After they got her home she “passed out” and was taken to the hospital in an ambulance. She was nauseated and her back hurt badly. Medicine for nausea helped but the nausea persisted for a week. Her doctor saw her every day. After 10 days in the hospital she went home and there spent another 10 days before going back to work. She rested, spent time in bed. She became an outpatient at the hospital, taking physiotherapy (heat and massage) three days a week for two weeks, followed by exercises taken at home for her arm. Two months later she went back to the hospital for two weeks of additional therapy, 5 days a week. For weeks after her release from the hospital she continued to make visits to her doctor, and she was still seeing the doctor 2 weeks before the trial, for relief of pain in her back, and pressure. Her total loss of salary was $256. At trial time, approximately one year after the accident, she was continuing to suffer pain in her back and left arm. The use of her left arm was limited. She was taking medication for pain four times a day and doing exercises twice a day as prescribed by the doctor. She was able to do her work but it caused her pain if she had to use her left arm, and she experienced more severe pain following a day’s work, and when the weather was cold. The doctor testified that following the collision he found neck muscle spasm, tenderness, pain on movement of the neck, upper-back pain with radiation around to the left chest wall, and tenderness over both shoulder areas. X rays indicated loss of curvature of the neck due to muscle spasm. He felt the pain in the upper dorsal region of her back was due to neuritis; that neuritis can be caused by trauma; that the pain in her shoulder and arm was due to the injury in her neck region; that she had 20 physiotherapy treatments. At one time she was given traction to try to relieve the pressure on pinched nerves and relax the ligaments. When he last saw her a few weeks before trial she had substantially the same complaints she had in the hospital, back pain radiating around the ribs, and pain on left arm movement. In his opinion the symptoms found on his examination following the collision were due to trauma experienced in the collision and her injuries were of a permanent nature. There was testimony that plaintiff’s automobile was damaged to the extent of $150.

Defendant emphasizes evidence showing that plaintiff experienced a num-her of previous operations and afflictions (fracture of a collarbone, removal of a breast tumor, gall bladder surgery, additional surgery for repair of a rupture of the incision made during the gall bladder surgery, palpitation of the heart, chest pains, symptoms of ulcer, female complaints) ; that she had been hospitalized a number of times prior to the incident in question; that the impact between the two automobiles in this case was very slight; that the force of the collision was so small that plaintiff’s body did not come in contact with any part of the interior of the car except the seat; that her clothes were not disarranged and her glasses not disturbed; that the doctor’s examination of plaintiff at the hospital revealed no bruises or reddening of the skin on any portion of her body; that defendant’s examining doctor’s findings were all negative for any evidence to substantiate plaintiff’s symptomatic complaints. Defendant concludes that plaintiff’s injuries were trivial and minimal, and that her complaints can be accounted for as having had their origin in many of the ailments and conditions which plaintiff experienced in her past medical history. These facts, however, are not for our consideration for the reason that on this appeal we are obliged to consider the record from the standpoint most favorable to plaintiff. Underwood v. Brockmeyer, Mo.Sup., 318 S.W.2d 192 [5].

Viewed in this light and from this vantage point it is clear that there was evidence from which the trial court reasonably could have found that the $200 verdict on Count I was grossly inadequate and that the trial court did not abuse its discretion in sustaining the motion for new trial for inadequacy of the verdict. Wessels v. Smith, supra; Underwood v. Brockmeyer, supra. The effect of this verdict is to allow plaintiff only $200 of her undisputed loss of wages of $256 and nothing for pain and suffering, permanent injury to her arm and damage to her automobile. On the question of inadequacy see English v-Thrower, Mo.App., 146 S.W.2d 667 and Ulrich v. Kiefer, Mo.App., 90 S.W.2d 140.

Defendant contends that if a new trial is to be granted it should be granted as to all issues and not restricted to the issue of damages only; that to justify this action it must have been clearly established that a new trial thus limited would not result in prejudice or injustice to defendant, and that the court abused its discretion in so limiting it. Section S10.330, RSMo 1959, V.A.M.S. provides that a new trial may be granted on all or part of the issues after trial by jury. “When a trial court has acted under that authority, it is deemed to have considered whether injustice to defendant would result and we may not properly hold that the court has abused its discretion by granting a new trial on the issue of damages only unless it is made to appear upon the record that the damages issue may not be tried alone without injustice to the defendant.” Underwood v. Brockmeyer, supra, 318 S.W.2d, 1. c. 195 [11]. The record does not demonstrate that any such injustice would result. “ * * * [T]he evidence as to the manner in which the accident occurred and the violence of the collision is relevant at a trial of the issue of damages only ***." Underwood v. Brockmeyer, supra, 318 S.W.2d, 1. c. 195 [10]. On retrial, therefore, defendant may offer the evidence previously introduced tending to show that the impact between the cars was not great; that plaintiff’s car was pushed forward no more than a foot or a foot and a half; that plaintiff immediately alighted from her automobile; that her clothes and glasses were not in disarray, etc. Defendant may also offer whatever evidence she may have showing that plaintiff’s complaints arise out of her previous medical history and do not have their origin in this collision.

The order of the circuit court on Count I is affirmed and the cause remanded for a new trial of Count I on the issue of damages only; the order on Count II is reversed and Count II is dismissed with prejudice.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . “The courts have repeatedly stated that the effect of allowing a new trial ‘ “on the ground of the inadequacy of the damages” ’ is ‘ “to grant a new trial on the ground that the verdict was against the weight of the evidence,” ’ * * Wessels v. Smith, supra, citing eleven cases, 362 S.W.2d, 1. c. 579 [4]. “When a trial court specifies as a ground for su staining a motion for a new trial that the award of the jury is inadequate, it is equivalent to saying that, in the mind of the trial judge, the verdict (amount of the award) is contrary to the weight of the evidence.” Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698, 699 [1].


source: Caselaw Access Project

license: Public Domain

text:
    L. William MURRELL, et al. (Plaintiffs) Appellants and Respondents, v. Emmert WOLFF, Building Commissioner of The City of Ballwin, a Municipal Corporation, James Lantz, Successor Building Commissioner of The City of Ballwin, the City of Ballwin, a Municipal Corporation, (Defendants) Respondents, and Mayer Land Company, a Corporation, (Defendant) Appellant and Respondent.
    No. 52128.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 12, 1966.

      Hyman G. Stein, St. Louis, John J. Mc-Atee, Clayton, Charles Alan Seigel, St. Louis, for plaintiffs-respondents.
    Israel Treiman, Shifrin, Treiman, Scher-mer & Susman, St. Louis, for Mayer Land Co.
   HOUSER, Commissioner.

Twelve individuals, owners of single-family dwellings, and the trustees of a subdivision in the City of Ballwin sued the city, its building commissioner and Mayer Land Company to' invalidate Zoning Ordinance No. 250, nullify a building permit for the construction by Mayer of a multiple dwelling on a certain tract of land, enjoin the city and building commissioner from issuing building permits for the construction of buildings on the land in question not permitted in an “A” Residential District, enjoin Mayer from erecting any four-family multiple dwellings thereon and to require Mayer to remove therefrom one four-family multiple dwelling already built. Mayer sought to invalidate as to Mayer Ordinance No. 496 prohibiting multiple dwellings in “C” Commercial Districts. The final judgment of the trial court in effect sustained the validity of both ordinances and the building permit. Plaintiffs appealed and Mayer appealed. The loss to Mayer in the event plaintiffs succeed in obtaining the relief demanded would be in excess of $15,000 and therefore this Court has jurisdiction.

The City of Ballwin adopted its first zoning ordinance in 1957. Preliminarily the board of aldermen by ordinance created and appointed a zoning commission pursuant to § 89.070 and thereafter passed Zoning Ordinance No. 175, establishing four districts: “A” Residential; “B” Residential; “C” Commercial and “D” Light Industrial. The regulations for “A” Residential District authorized the use of buildings, among others, for the purpose of “Dwellings,” which term was defined elsewhere as “Any building, or portion thereof, which is designed or used exclusively for residential purposes.” The use regulations for “C” Commercial Districts provided for any use of buildings permitted in an “A” Residential District. No provision was made for multiple dwellings in Ordinance No. 175, other than the recognition given multiple dwelllings in the section on “C” Commercial District Regulations, which provided that “When a lot is improved with a single family dwelling, two family dwelling or a multiple dwelling, * * * the intensity of use regulations shall be the same as those required in ‘B’ Residential District.”

Mayer Land Company develops and builds subdivisions and shopping centers. In the fall of 1959 Mayer, through real estate agents and acting through a separate corporation, assembled and took options on approximately 600 acres of land mostly within the city limits of Ballwin for the purpose of developing a total community to consist of two subdivisions for private, single-family dwellings, a group of apartment buildings and a shopping center, with a reservation of space for schools and churches. It was to be centered around the intersection of Clayton Road and Kehrs Mill Road. The subdivision to be named Claymont was to lie southeast and that to be named Mayfair was to lie northwest of the intersection. The shopping center was to occupy approximately 11 acres and was proposed to lie in the northwest quarter of the intersection, facing both roads. Just north of the shopping center the county water tower property was located, and north of the water tower and west of the shopping center, with Kehrs Mill Road as its eastern boundary, another 11-acre tract was to be set aside for approximately 35 garden-type four-family luxury apartment houses, as a buffer zone between the commercial and residential areas. The 11-acre tract was suitable for apartments but not for single-family residences because of the large water tank nearby and was not good for commercial purposes because the water company property divided it from the shopping center. To build the type of home on the size of lot contemplated it was necessary to rezone the subdivision land from “A” Residential to “B” Residential and to rezone the shopping center land and the 11-acre tract for apartments from “A” Residential to “C” Commercial. Maps were prepared illustrating and demonstrating this project on the total community approach. The various portions of the proposal were laid out geographically. Before filing an application for rezoning Mayer had two or three conferences with the mayor, board of aldermen and city attorney at which the city officials were given to understand that “the entire project was one project, that it was indivisible”; that Mayer had to have a lot production of three to an acre; that a shopping center was necessary for convenience, and an apartment complex was necessary to create a buffer zone between the shopping center and the residential areas. It was explained that it was necessary to rezone the 22 acres commercial, 11 acres of which would be for the shopping center and the other 11 acres for luxury apartments. At the time Mayer approached the city officials his purchasing company did not own but had options to purchase the 600 acres. After the matter was fully explained to the officials Mayer made application for rezoning. As an inducement to the city Mayer by letter agreed that if the rezoning ordinances were passed the city would be paid $100 for each acre of land contained in any approved subdivision plat offered for record, the money to be used for public park purposes. On February 8, 1960 the board of aldermen passed Ordinance No. 249 ~hanging the classification of part of the land from “A” to “B” Residential and Ordinance No. 250 changing the classification of the 22 acres from “A” Residential to “C” Commercial. Both ordinances recited that due notice of public hearing on the application for change of zoning had been given according to law and ordinance and that a public hearing had been held before the board of aldermen. The petition for change of zoning was not referred to a zoning commission before the passage of these rezoning ordinances. No hearings were held by a zoning commission and no zoning commission made any report to the board, for the reason that there was no active zoning commission in existence on February 8, 1960. Ordinances passed in 1952 and 1957 had created temporary zoning commissions but apparently they ceased to function after the commissioners appointed on those occasions made their reports. In reliance on the rezoning Mayer purchased the lands for “about a million and a half dollars.” The 11-acre tract for the apartment house complex was part of a larger tract of 134 acres which cost $345,000. Mayer would not have purchased these lands if the ordinances had failed of passage. After acquiring the acreage Mayer proceeded to build “Clay-mont” subdivision and the shopping center. The next phase of the plan, before building the “Mayfair” subdivision, called for the commencement of the apartment project on 11 of the 22 acres rezoned “C” Commercial. This envisioned approximately thirty-five apartment houses, each two stories in height, accommodating four families, to be rented at from $175 to $225 per month for each apartment. In the latter part of 1963, when Mayer was preparing to apply for a building permit for the first of the apartment buildings, the mayor informed Herman Mayer that the city during the past year had passed an amendatory zoning ordinance which for the first time established a separate category for multiple dwellings, and advised Mayer to obtain a rezoning of the 11 acres from “C” Commercial to Multiple Dwelling before applying for the building permit. The mayor referred to Ordinance No. 356, passed December 27, 1962, which provided that in Multiple Dwelling Districts a building could be used for any use permitted in any of the Residential District Regulations. The mayor indicated to Mayer that it would probably be best to obtain this rezoning “to be certain that there would be only apartments built on there”; that it would be just a formality, with probably no opposition. Also on December 27, 1962 Ordinance No. 358 had been enacted, deleting a subsection of Ordinance No. 175 authorizing the use of buildings in “A” Residential Districts for the purpose of “dwellings” and enacting in lieu thereof a new paragraph using the language “Single Family Dwellings.” Mayer was further informed that the city had passed another ordinance, amending the comprehensive zoning ordinance, establishing a zoning commission and requiring all applications for rezoning in the future to be referred to the zoning commission for investigation, study and recommendation before action thereon by the board of aldermen. This is Ordinance No. 369, passed May 13, 1963.

In December, 1963 Mayer, acting on the Mayor’s suggestion, caused a bill to be introduced to change the zoning of the 11 acres from “C” Commercial to Multiple Dwelling. It was referred to the zoning commission, which held a public hearing. Forty citizens appeared and opposed the plan to change the zoning. The zoning commission recommended to the board of aldermen that the proposal be denied. Its minutes recite that it lacked information as to specific plans and data to substantiate the rezoning and that the proposed rezoning did not “fit into Ballwin’s master zoning plan and represents spot zoning.” The board of aldermen conducted a public hearing on February 10, 1964. A large number of persons appeared in opposition to the rezoning. Petitions in opposition were presented. Attorneys and others appeared and spoke for and against the proposal. The bill providing for the rezoning failed of passage by a vote of 4 to 2 and the proposal to change the zoning classification of the 11 acres from “C” Commercial to Multiple Dwelling was denied. Shortly thereafter Mayer filed with the city an application for a permit to build a four-family, two-story dwelling on the 11 acres. The application was referred to the city counselor who rendered a written opinion advising the building commissioner that multiple dwellings legally could be erected on the land in question under the city’s zoning ordinances. The permit was issued on March 5, 1964. Mayer began immediately to build, in reliance upon the permit. Within thirty days the 11-acre tract was graded suitably to accommodate the entire complex of apartment buildings, at a cost of $8,000, the foundation was laid, sewage facilities were brought up to the area for service to all of the buildings, the engineering and planning was accomplished and utilities were provided for. This suit was filed April 10, 1964. Service of process was obtained on Mayer shortly thereafter. Mayer continued and completed the construction of the apartment building in December, 1964.

On October 11, 1965 Ordinance No. 496 was enacted, amending the subsection of Ordinance No. 175 dealing with “C” Commercial District Regulations by deleting the provision for any use of buildings permitted in “A” Residential District and enacting a new subsection limiting the uses permitted in commercial districts to certain specified uses which did not include multiple dwelling use. The only type of residence permitted in a “C” Commercial District under the amending ordinance was “Single family dwelling.” The amending ordinance also repealed the intensity of use subparagraph in the “C” Commercial provisions of Ordinance No. 175, with its reference to multiple dwellings, and limited it to single family dwellings.

On plaintiffs’ appeal the first question is whether Ordinance No. 250 is null and void because enacted without first having been submitted to a zoning commission for study, public hearing and report pursuant to the requirements of § 89.070, which provides as follows:

“In order to avail itself of the powers conferred by sections 89.010 to 89.140, such legislative body shall appoint a commission, to be known at ‘The Zoning Commission,’ to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. Where a city plan commission already exists, it may be appointed as the zoning commission.”

Prior submission of the proposed ordinance to a zoning commission was not a condition to the validity of Ordinance No. 250. Section 89.070 prescribes the procedure to be followed by the legislative body in availing itself in the first instance of the zoning powers granted to all cities, towns, and villages; in first establishing zoning in a municipality. It relates only to the original zoning ordinance fixing the boundaries of the original districts and prescribing the regulations to be followed therein. Logically the term “original districts” as used in § 89.070 refers to the establishment of zoning districts in areas not previously zoned. State ex rel. Sims v. Eckhardt, Mo.Sup., 322 S.W.2d 903, 907. The language following the words “the various original districts” logically refers to regulations to be recommended for the original districts. Before the original zoning ordinance is enacted § 89.070 requires that the legislative body have the benefit of the zoning commission’s final report, which is preceded by a preliminary report and public hearings. It contemplates a subsequent hearing or hearings before the legislative body before the latter acts. This provides the property owner, the public and the municipality a double protection against hasty and ill-conceived action in the establishment of zoning in a municipality. State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63, 67 [2],

Ordinance No. 250 is not an ordinance prescribing regulations to be enforced in the various original districts, but is a measure designed to change and modify original regulations. Ordinance No. 250 amended a previously enacted general, comprehensive zoning ordinance. Section 89.-070 is not concerned with amendments.

Recognizing that times and conditions change, and that provision must be made for change, the General Assembly provided in §§ 89.050 and 89.060 for amending, supplementing, changing, modifying and repealing zoning regulations, restrictions and boundaries. These sections govern the procedure in the case of amendments. They require “a public hearing” and official notice. The hearing contemplated for amendments, modifications and changes is a hearing before the legislative body; not the two-phase hearing procedure required in the enactment of original zoning ordinances. After due notice a public hearing was conducted by the legislative body prior to the enactment of amendatory Ordinance No. 250, as required by § 89.050. That was sufficient compliance with state law.

A municipality may create a zoning commission, and may go further than the requirements of the statutes and by ordinance provide that all applications for rezoning or for special permits be referred by its legislative body to its zoning commission for investigation, study and report of its findings and recommendations to the legislative body. There was no zoning commission in existence in 1960, to which the bill which finally became Ordinance No. 250 could have been submitted. Nor was there any ordinance requiring prior submission to a zoning commission. For a period of time, Including the year 1960 in which Ordinance No. 250 was passed, all zoning amendments went directly to the board of aider-men for public hearing. On February 8, 1960 there was neither state statute nor city ordinance requiring a zoning commission to take action prior to the time the board of aldermen acted. Ordinance No. 369 was subsequently enacted for that purpose.

Plaintiffs cite three cases in support of their argument that a public hearing before the zoning commission was an indispensable condition to the validity of Ordinance No. 250: State ex rel. Sims v. Eckhardt, Mo.Sup., 322 S.W.2d 903; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, and State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63. These cases, however, actually support the conclusions we have reached. In Eckhardt the Court recognized that § 89.070 relates to original districts; that the term “original districts” as used in § 89.070 “logically refers to the establishment of districts for zoning purposes in any area not previously zoned”; that by the other provisions of § 89.070 definite limitations were placed on cities “for the exercise of the delegated powers to establish original zoning districts and restrictions * * and that the provisions in §§ 89.050 and 89.060 for amendments and changes relate to amendment and changes of existing regulations or restrictions. It is obvious in Schwartz that the Court, in stating that a municipal legislative body cannot pass a valid zoning ordinance as authorized by Enabling Act of 1925 until it has received the final report of the zoning commission, was speaking of the permanent, original, comprehensive zoning ordinance, and not of an amendment thereto. It is equally obvious in Wippler that the Court, in stating that “the requirements of notice and a hearing are mandatory and necessary to the. validity of an amending ordinance,” was speaking of the notice and hearing by the legislative body as required by then §§ 7262 and 7263, RSMo 1929 (now §§ 89.050 and 89.060) and was not speaking of the hearing required of the zoning commission by then § 7264, RSMo 1929 (now § 89.070).

Ordinance No. 250 is valid. Under its terms the land in question has been in a “C” Commercial District since February 8, 1960.

The next question is whether under the zoning ordinances in effect in the City of Ballwin on March 5, 1964 (the date the building permit was issued) multiple dwellings could lawfully be constructed in “C” Commercial Districts. As we have seen, the use regulations for “C” Commercial Districts as set forth in the original enactment of Ordinance No. 175 provided for any use of buildings permitted in an “A” Residential District. The use regulations for “A” Residential Districts as contained in Ordinance No. 175 as originally enacted provided that buildings therein might be used for the purpose of “Dwellings,” which in turn were defined as any building designed or used exclusively for residential purposes. Multiple dwellings are dwellings designed and used exclusively for residential purposes and as such clearly fall within the classifications of buildings permitted in “C” Commercial Districts. That multiple dwellings were within the contemplation of the framers of the ordinance when they wrote the “C” Commercial District Regulations further appears from the fact that multiple family dwellings are specifically mentioned by name in the Intensity of Use provisions of such regulations.

Plaintiffs argue against this conclusion on the basis that when Ordinance No. 358 was passed on December 27, 1962 amending the use regulations of Ordinance No. 175 for “A” and “B” Residential Districts by limiting buildings used for residential purposes in such districts to single-family dwellings, the use regulations of Ordinance No. 175 for “C” Commercial Districts were likewise and thereby thus limited. Ordinance No. 358 did not in terms amend the use regulations of Ordinance No. 175 relating to “C” Commercial Districts. Whether the amendment of the “A” and “B” regulations carried with it an automatic amendment of the “C” regulations is a matter of ascertaining the legislative intent. We have determined from a consideration of the ordinance as a whole, both before and after the amendment, and from pertinent legislative history, that it was not the intention of the board of aldermen, by passing Ordinance No. 358, to limit residential use in “C” Commercial Districts to single-family dwellings.

Section V of Ordinance No. 175, which regulates “B” Residential Districts, provides in subsection 2 as follows: “The use regulations are the same as those in the ‘A’ Residential District.” (Our emphasis.) Section VI, regulating “C” Commercial Districts, contains the following language which it will be observed is different from § V subsection 2: “A building or premises shall be used only for the following purposes: 1. Any use permitted in the ‘A’ Residential District. * * * [then follows twenty-five named uses, such as Banks, Hotels, Restaurants, etc.].” Ordinance No. 175 does not make “C” Commercial use regulations the same as “A” Residential use regulations. Of signal importance is the fact that the language of § VI par. 2 is permissive but not restrictive as to the type of residential uses allowed in “C” Commercial Districts.

Next, an examination of the title to Ordinance No. 358 discloses that it is an ordinance amending Ordinance No. 175 “by limiting the use for dwellings in the ‘A’ and ‘B’ residential districts to single family dwellings.” It does not purport to limit the use for dwellings in “C” Commercial Districts. The initial and introductory language of the ordinance provides that “WHEREAS, the matter of the change of use of dwellings in the ‘A’ and ‘B’ Residential Districts to Single Family Dwellings was referred to the Planning Commission by the Board of Aldermen,” but does not recite that the matter of a change of use of dwellings in “C” Commercial Districts was so referred. Section 1 of the ordinance amends Ordinance No. 175 by deleting all of subsection 2 of § IV (the use regulations affecting “A” Residential Districts). The provisions of § VI (the use regulations affecting “C” Commercial Districts) are not mentioned anywhere in the ordinance. They are left unamended and unchanged.

One of the canons of construction appropriately to be employed is that referred to in State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990, 1002: “* * * [W]here a statute is amended only in part, or as respects only certain isolated and integral sections thereof, and the remaining sections or parts of the statute are allowed and left to stand unamended, unchanged, and apparently unaffected, by the amenda-tory act or acts, it is presumed that the Legislature intended the unamended and unchanged sections or parts of the original statute to remain operative and effective, as before the enactment of the amendatory act * * Before the enactment of Ordinance No. 358, § VI subsection 2 authorized “dwellings” to be constructed in “C” Commercial Districts, under a broad definition which included multiple dwellings. It appears that the board of aldermen intended § VI subsection 2 of Ordinance No. 175 to remain in full force and effect, unchanged by Ordinance No. 358, and that “Dwellings,” including multiple dwellings, continued to be authorized uses of land in “C” Commercial Districts.

If in passing Ordinance No. 358 the board of aldermen had intended to prohibit multiple dwellings in “C” Commercial Districts, provision would surely have been made therein for the elimination from Ordinance No. 175 of the reference in subparagraph (d) of subsection 5 of said § VI to multiple dwellings, in the “Intensity of Use” provisions relating to “C” Commercial Districts. Its failure to do so indicates a legislative intention to permit the construction of multiple dwellings in “C” Commercial Districts.

Another accepted canon of statutory construction is that permitting an examination of the historical development of the legislation, including changes therein and related statutes (or ordinances). State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877[3]. This inquiry may extend to a consideration of subsequent legislation on the subject. Donnelly Garment Co. v. Keitel, 354 Mo. 1138, 193 S.W.2d 577[3]; State ex rel. Armontrout v. Smith, 353 Mo. 486, 182 S.W.2d 571; 82 C.J.S. Statutes § 366, fn. 71, p. 810. That the board of aldermen in enacting Ordinance No. 358 did not intend to affect uses permitted in “C” Commercial Districts appears by inference from the fact that the board later enacted an ordinance (No. 496) which specifically deleted the provision in § VI, subsection 2 of Ordinance No-. 175 authorizing “Any use permitted in the ‘A’ Residential District” and limited residential use in commercial districts to “Single family dwelling.” Another indication that the board did not earlier intend otherwise also appears by inference from the fact that in subsequently enacted Ordinance No. 496 the words “multiple dwellings” were stricken from said subparagraph (d).

It thus appears that the intention of the board of aldermen in passing Ordinance No. 358 was to amend the use regulations affecting “A” Residential Districts expressly; to amend those affecting “B” Residential Districts by reference, and to leave those affecting “C” Commercial Districts untouched.

We conclude that the permit issued by the building commissioner to Mayer Land Company on March 5, 1964, authorizing the building of a multiple dwelling on the land in question, was valid.

The next question is whether Ordinance No. 496 is valid and enforceable as to Mayer. Passed and approved on October 11, 1965, it banned multiple dwellings in “C” Commercial Districts.

Mayer pleaded the elements of estoppel and on this appeal counts on ■ estoppel. Mayer also contends for a vested right to use the 11-acre tract for the construction of multiple dwellings; challenges the ordinance as unreasonable, arbitrary and confiscatory, if applied to the land in question, and claims that the ordinance is an exercise of legislative power in violation of the zoning statutes and of federal and state constitutional provisions prohibiting the taking of property without due process of law. We rest our decision on the basis of estoppel, and do not reach the constitutional question or whether the ordinance is unreasonable, arbitrary and confiscatory or the question of vested rights.

Although equitable estoppel ordinarily is not applicable and as a usual thing cannot be invoked against a city in matters pertaining to the exercise of governmental functions, State ex inf. Shortel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394; State ex rel. Dalton ex rel. Stonum v. Reorganized District No. 11, Mo.Sup., 307 S.W.2d 501[6], including matters relating to the enforcement of a change in zoning regulations, 101 C.J.S. Zoning § 89, nevertheless the courts may apply the doctrine in exceptional cases where required by right and justice, City of Sikeston, supra, or to prevent manifest injustice. Fleshner v. Kansas City, 348 Mo. 978, 156 S.W.2d 706; City of Dallas v. Rosenthal, Tex.Civ.App., 239 S.W.2d 636[8]; Texas Co. v. Town of Miami Springs, Fla.Sup., 44 So.2d 808; 101 C.J.S. Zoning § 89. “[Ejstoppel against a municipality may be rightly and successfully pleaded under some circumstances, such as reliance upon an honestly-obtained permit, coupled with substantial work or expenditures or irrevocable commitments.” Metzenbaum on Zoning, Vol. 1, pp. 172-173.

This is an exceptional case in which honesty and fair dealing require that the doctrine of equitable estoppel be applied, in order to prevent manifest injustice. All of the elements of estoppel are present. The board of aldermen was fully informed as to the size, dimension and characteristics of this project; that it was conceived and was to be developed on the total community approach, as an integrated whole, as a single project, and that the construction of 35 multiple dwellings on the 11-acre tract was part and parcel of the unified project. The board had every reason to believe that if it granted the requested rezoning Mayer would act upon the approval of the plans implicit in the passage of the ordinances and change position at great cost. Mayer relied upon the tacit approval of the proposed project given by the board in passing the ordinances making this project possible. Mayer undertook a project which would require considerable time to complete and laid out $1,500,000 for the land. A financial benefit accrued to the city in that Mayer paid a substantial sum to the city on the basis of $100 per acre when the subdivision plats were offered for record. Although the transcript does not show how much Mayer spent in constructing Claymont subdivision and the shopping center these phases of the project necessarily involved expending very large sums of money or incurring very substantial liabilities. After Claymont and the shopping center were substantially completed Mayer commenced the third phase, the building of the apartment house complex. Multiple dwellings were then legally permissible on this 11-acre tract by virtue of the zoning amendment specifically passed for this particular project. Mayer applied for a permit to build the first apartment house and the city building inspector, acting on the advice of the city attorney, issued a permit which, as we have seen, was valid. Acting under the authority of a valid permit Mayer spent $8,000 grading the 11-acre tract, installed a sewer main and by the time this lawsuit was filed substantial construction had taken place and substantial expenditures had been made, including the installation of the foundation, utilities, etc., on the first of the 35 apartment houses. More than $71,000 was spent in completing the first building. There is no question that Mayer intended to complete the construction of the entire apartment complex. It is clear that a serious loss would be imposed on Mayer if required to remove the completed apartment building, and if Ordinance No. 496 is enforced so as to prevent the contemplated use of the 11-acre tract as a part of the unified plan. The evidence shows this land to be unsuitable for any use other than apartments; that the adjacent water tanks are unsightly and that it would be “practically impossible” to sell single-family dwellings anywhere near the water tank area; that the land is not suitable for commercial uses because isolated and divided from the commercial center. There is no evidence that the 11-acre tract is suitable for any other use of a commercial nature permitted by “C” Commercial regulations, unless perhaps for a gasoline filling station. Ordinance No. 496 was passed six months after this lawsuit was filed and more than five years after Mayer paid $1,500,000 for the land for this integrated project.

Persons purchasing property in an area classified for certain land uses under a zoning ordinance have a right to rely on the rule that a general classification will not be changed unless required for the public good. 101 C.J.S. Zoning § 89. There is nothing to show that conditions affecting the public welfare changed in any manner between the enactment of Ordinance No. 250 and the passage of Ordinance No. 496.

Under these facts an equitable estoppel arises whereby the city is denied the right to enforce belatedly enacted Ordinance No. 496 against Mayer so as to interfere with the completion of the project as planned and approved.

The claim that the one apartment building already built should be removed is disallowed. This building was completed and was lawfully in use in a “C” Commercial District at the time Ordinance No. 496 was enacted. It is a nonconforming use which under § II par. 27 and § VIII par. 2 of Ordinance No. 175 can be continued although such use does not conform to the provisions of amending Ordinance No. 496.

Accordingly, that part of the judgment upholding the validity of Ordinance No. 250 and the building permit is affirmed; that part of the judgment holding Ordinance No. 496 valid and enforceable as to the 11-acre tract in question is reversed, and the cause is remanded for the entry of a new judgment consistent with the views expressed in this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S., unless otherwise noted.


author: HENLEY, Judge. FINCH, Judge

text:
    Robert E. DRESSLER, Jr., Plaintiff-Respondent, v. Earl L. LOUVIER, Defendant-Appellant.
    No. 52207.
    Supreme Court of Missouri, En Banc.
    Dec. 12, 1966.

      Henry G. Eager, Donald H. Loudon, I. I. Ozar, Kansas City, William E. Turn-age, Liberty, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondent.
    William J. Peters, Fred J. Freel, Sheridan, Sanders, Peters & Carr, Kansas City, for appellant.
   HENLEY, Judge.

This is an action for damages for personal injuries growing out of the collision of two automobiles. Judgment was for plaintiff for $6,000. Defendant appealed to the Kansas City Court of Appeals. That court reversed and remanded for a new trial because of error in the giving of an instruction on humanitarian negligence. On application of plaintiff, we ordered the case transferred to this court. It is to be determined here “ * * * the same as on original appeal.” Article V, § 10, Constitution of Missouri, V.A.M.S.; Civil Rule 84.05(h) V.A.M.R.

At the close of plaintiff’s case and again at the close of all the evidence defendant moved for a directed verdict. Both motions were overruled.

The case was submitted to the jury October 7, 1964 (prior to the effective date of MAI) on both primary and humanitarian negligence.

Defendant briefs five points, only three of which we need mention and consider, viz., that the court erred: (1) in overruling his motions for directed verdict, because plaintiff was guilty of contributory negligence as a matter of law and because plaintiff failed to make a submissible humanitarian case; (2) in permitting an amendment of the petition after the close of all the evidence to add an allegation of humanitarian negligence; (3) in giving an erroneous instruction on humanitarian negligence.

Because of defendant’s claim of error in overruling his motions for directed verdict, it is necessary that we make a full statement of the facts. We review the evidence in a light most favorable to plaintiff, giving him the benefit of all favorable inferences arising therefrom and disregard defendant’s evidence unless it aids plaintiff’s case. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 312 [1],

The collision occurred shortly before the noon hour Saturday, March 14, 1964, on Maple Boulevard in Kansas City, Missouri. It was a bright, clear day; the surface of the street was dry.

Maple Boulevard runs in a north-south direction. It has a blacktop surface with a white line designating its center and is forty feet wide from curb to curb in the 400 block where the collision occurred. Missouri Avenue intersects Maple 200 to 250 feet north of the scene of the collision and Maple becomes Lexington Avenue 400 to 450 feet north of Missouri Avenue.

Immediately prior to the collision, plaintiff’s 1961 model Chevrolet four-door sedan was parked parallel to the curb on the west side of Maple headed south, approximately in front of 418 Maple. Two other automobiles were similarly parked, one in front of and one behind plaintiff’s automobile. Automobiles were also parked at the curb on the east side of Maple, but opposite the point of the collision there was a vacant space of approximately 45 feet along the east curb.

Plaintiff lived on the east side of the street, at 419 Maple. Leaving his residence, he walked across the street and stopped for a few minutes to talk with a friend washing his automobile in the driveway between the curb and sidewalk a few feet south of the automobile parked in front of plaintiff. From there he walked back into the street and north to the driver’s side of his automobile. Standing in the street beside his car he could and did see north up Maple 600 to 700 feet. He saw no automobiles approaching from the north, or from the south. He then got in his automobile from its left side and started the motor. His car was equipped with a special inside rearview mirror, about 15 inches long. Looking in this mirror he could and did see back north beyond Missouri Avenue, a total distance of approximately 250 feet, but could not see back to Lexington. He testified that no traffic was approaching from the north. Putting his car in reverse gear, he backed up, looked through the raised windows to his left, could see as far back as Missouri Avenue, and saw no vehicle approaching from the north. At a speed he estimated at one to two mph he pulled out from the curb headed in a southeasterly direction onto the traveled portion of Maple and stopped to look again. At this point a portion of the rear of his car was still in the parking space and its left front corner was, according to his estimate, three or four feet from or west of the centerline. Stopped in this position, he looked again and saw defendant’s 1964 Chevrolet about 90 feet away headed toward him in the southbound lane traveling at a speed he estimated at 45 to 50 mph. He said he “froze” and “ * * * couldn’t do anything else.” Plaintiff said he “ * * was stopped a full two seconds” in this position before defendant struck him; another witness estimated that plaintiff “ * * * was at a complete standstill * * * four seconds.” The defendant applied his brakes and skidded or slid into plaintiff’s automobile. Pictures of the two vehicles indicate, and testimony of the witnesses is, that the right front corner of defendant’s automobile struck the plaintiff’s automobile at about the forward edge or hinge end of its left front door.

Plaintiff further testified that the elapsed time between his getting in his parked car and the collision was eight or nine seconds, but that this was “ * * * an approximate guess * * He testified that when he saw defendant’s automobile 90 feet north of him its left side was two feet west of the centerline; that it did not change its course; that it slid straight into him, its speed being reduced to about 30 or 35 mph at the moment of impact; that upon impact defendant’s car veered off to its left and came to a stop with most of its body on the east side of the white line; that his car was knocked sideways to the west three or four feet; that no other vehicles were traveling Maple at the time in either direction; that had defendant swerved his automobile to its left one and one-half or two feet the collision could have been avoided; that defendant could have swerved his car sufficiently to its left in the time and distance he had available from the instant plaintiff saw him and could have gone around plaintiff’s car in what plaintiff described as 25 feet of unobstructed street east of him.

According to measurements made shortly after noon that day, defendant’s automobile laid down solid uninterrupted skid marks for a total distance of 40½ feet, the first 31Y2 feet of which were straight to what one witness said was the point of impact; the last nine feet veered off to the southeast across the centerline. North of the solid skid marks there were other broken skid marks two or two and one-half feet in length, and then a skip of undisclosed distance to the point where the solid skid marks began. Other skid marks measuring one foot by three and one-half feet, obviously from plaintiff’s car, were found leading off southwest from what was indicated as the point of impact.

Defendant testified that on the morning of the collision he drove onto Maple from Lexington Avenue and was headed south; that Missouri Avenue intersects Maple 200 to 300 feet north of the point of collision; that Maple is “fairly level,” and there was nothing to obstruct visibility in either direction; that visibility is good from Missouri Avenue to the point of collision; that his speed when he first saw plaintiff’s automobile pulling out from the curb was 20-25 mph; that immediately upon seeing plaintiff’s automobile he “ * * * went for the brakes and tried to steer out of his way;” that when he first saw plaintiff’s car it was pulling out from the curb and was “ * * * right on top of me;” that plaintiff’s car was pulling out at average speed, about “ * * * five miles an hour, or two miles, or three miles,” and did not stop prior to impact; that when he first saw plaintiff’s car it was five to ten feet from him, or “ * * * perhaps a car length;” that he applied his brakes and “ * * * steered to the left as hard as I could;” that he skidded into plaintiff’s car with his brakes still applied and at impact his speed had reduced to 10-15 mph; that at impact the plaintiff’s car was about half out of the parking space and about two or three feet from the centerline; that there was no other moving traffic in the area.

We conclude that plaintiff made a submissible humanitarian case; therefore, we need not consider whether plaintiff was guilty of contributory negligence as a matter of law. The court did not err in overruling defendant’s motions for directed verdict.

As stated the collision occurred while plaintiff’s automobile was blocking all but three or four feet of the southbound traffic lane. Plaintiff says he was stopped in that position a full two seconds; another witness said four seconds. Defendant says plaintiff was not stopped; that he was moving. Defendant had the same unobstructed view to the south that plaintiff had to the north once plaintiff moved out to the alleged stopped position. Plaintiff could, of course, be in a position of imminent peril in the described stopped position and a jury could find that he was in that position for four seconds prior to the collision. Plaintiff estimated that defendant was 90 feet north of him when he first saw defendant’s vehicle with its left side two feet west of the centerline traveling 45-50 mph. Defendant’s testimony was that he was traveling 20-25 mph when plaintiff pulled out in front of him not more than a car length away. It is undisputed that no traffic was approaching from the south and that 25 feet of the width of Maple was available to the east of plaintiff for defendant’s use in passing, a part of which was used by defendant in veering off to the southeast after impact. At 50 mph defendant would have been traveling 73.4 feet per second; at 25 mph, 36.7 feet. Plaintiff testified that defendant could have swerved, in the time and distance available, to his left two feet and thereby have avoided the collision. We find that under all the circumstances a jury reasonably could have found that defendant saw, or could have seen, plaintiff in a position of peril in time thereafter to have swerved to the left and avoided the collision. We, therefore, hold that plaintiff made a submissible humanitarian case on defendant’s alleged failure to swerve to his left. Perry v. Dever, Mo., 303 S.W.2d 1; Stradford v. Bluefeather, Mo., 384 S.W.2d 541, 543-544 [2, 4].

Did the court err in permitting plaintiff to amend his petition to allege humanitarian negligence after the close of all the evidence ? Plaintiff went to trial on his first amended petition alleging primary negligence only. At the close of the evidence he asked leave to amend to allege humanitarian negligence. Leave was granted over defendant’s objection. Defendant seems to complain that he was surprised by plaintiff’s request to amend. He asserts that he was not prepared to meet this new allegation coming at the close of all the evidence rather than at the close of plaintiff’s case; that he would have been entitled to a continuance to meet this issue had plaintiff sought so to amend earlier in the trial. The record discloses that defendant was notified at least a week before trial that plaintiff would add an allegation of humanitarian negligence to his petition and submit on that issue. Counsel for plaintiff so stated and counsel for defendant did not deny it. The court remarked that apparently the request was no surprise to defendant; defendant made no claim of surprise; defendant made no request for a continuance.

We hold that under these circumstances the court did not abuse its discretion in permitting plaintiff to amend his petition to conform to the proof. Civil Rule 55.54, V.A.M.R.

Defendant contends that the court erred in giving instruction No. 3 on humanitarian negligence, because: (1) there was no evidence to support a finding that defendant could have avoided the collision by swerving, and (2) the instruction is contradictory, inconsistent and self-destructive in that it permitted a recovery if the jury found that plaintiff was in a position of imminent peril immediately prior to the collision.

We have already ruled defendant’s first objection to the instruction. Defendant contends that the instruction is prejudicially erroneous, because it is inconsistent and self-contradictory in that it permits the jury to find that plaintiff’s peril arose when it would have been impossible thereafter, in point of time, to have avoided the collision. He argues: (1) that one of the essential elements of a humanitarian case is that the peril must arise and be discoverable in time for defendant thereafter to avoid the collision, (2) that “immediately prior to the collision” refers to time, (3) that “immediately” means without interval of time; therefore, to authorize the jury to find that plaintiff was in peril immediately prior to the collision in effect eliminates or destroys the essential time element afforded defendant within which to act to avoid the collision. He contends that in this respect the instruction is inconsistent and self-destructive, citing White v. Kansas City Public Service Co., 239 Mo.App. 571, 193 S.W.2d 60. Plaintiff contends that this court “ * * * distinguished and implicitly overruled or at least limited * * * ” the White case in Villines v. Vaughn, Mo., 330 S.W.2d 782. This court did not in Villines implicitly overrule or limit White, but it did, at 1. c. 786, distinguish White from Vil-lines in these words: “The instruction in the present case is not in the same category with those found erroneous in the cases cited.”

The parties agree that the phrase immediately prior to the collision,” as used in this instruction, refers to time rather than space or distance. Webster’s Third New International Dictionary defines “immediately,” when referring to time, as meaning “without interval of time.” In 42 C.J.S., p. 391, it is said that “The word ‘immediately,’ in strictness, excludes all mesne time, is generally used to indicate the absence of time between two events * * These words of the Court of Appeals in White, supra, are particularly appropriate and applicable in the instant case: “ * * * plaintiff’s instruction is erroneous when it fixes the time of his peril immediately before he is struck, because it would put an impossible burden on a defendant and violate one of the fundamentals of the humanitarian rule, i. e., that the defendant must have sufficient time, * * *, to prevent the collision after he discovers or should have discovered plaintiff in a position of peril.”

The court erred in giving instruction No. 3. We note again that this case was tried before the effective date of MAI. It is ruled under the authorities applicable at the time of trial and is not to be considered as affecting, in any manner, instructions prescribed for use by MAI.

The judgment is reversed and the cause remanded.

STORCKMAN, C. J., DONNELLY, HOLMAN, and HYDE, JJ., and WOLFE, Special Judge, concur.

FINCH, J., dissents in separate dissenting opinion filed.

EAGER, J., not sitting.

FINCH, Judge

(dissenting).

I respectfully dissent from the majority opinion herein. In my judgment, Instruction No. 3 was not prejudicially erroneous.

It will serve no useful purpose to analyze and discuss the instruction in detail because cases now are tried under instructions prescribed by MAI. Consequently, I observe simply that the term “immediately” was used in connection with the question of whether plaintiff was in a position of imminent peril. The instruction commences, “The Court further instructs you that if you find and believe from all the evidence that immediately prior to the collision, Dr. Dressier was in a position of imminent peril * * If the term “immediately” has the effect of limiting, it limits the zone of peril, which would be to the detriment of the plaintiff, not defendant.

MAI Instruction 17.15 requires the jury to find, “First, plaintiff was in a position of immediate danger of being injured * * if the term “immediate” is not misleading and is not erroneous in MAI 17.15, it is not misleading or prejudicially erroneous in Instruction No. 3.

I would affirm the judgment.


author: WESTHUES, Special Commissioner.

text:
    Ruby Jewell MOTSINGER, Plaintiff-Appellant, v. QUEEN CITY CASKET COMPANY and Elmer Grant Brown, Defendants-Respondents.
    No. 51647.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.

      John B. Ewing, Jr., John Gibson, Marvin Brenner, Kansas City, Brenner, Ewing, Lockwood & O’Neal, Kansas City, of counsel, for appellant.
    William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, Caldwell Blackwell Sanders & Matheny, Kansas City, of counsel, for respondents.
   WESTHUES, Special Commissioner.

Plaintiff Ruby Jewell Motsinger filed a petition seeking damages in the Circuit Court of Jackson County, Missouri, against Queen City Casket Company and Elmer Grant Brown. In the first count of the petition, she asked $20,000 as damages for personal injuries and in a second count, she prayed for $550 as damages to her car. Plaintiff stated that the damages were the result of a collision of a truck driven by defendant Brown and owned by defendant Casket Company with plaintiff’s car which she was driving. A trial resulted in a jury verdict for the defendants. Plaintiff appealed from the judgment entered on the verdict by the trial court.

Plaintiff briefed six points, all pertaining to Instruction No. 3, given by the trial court at defendants’ request.

Plaintiff’s case was submitted to the jury on the theory of defendants’ failure “to keep a careful lookout, or drove at an excessive speed, or violated the traffic signal, ⅜ ifC ft

Defendants’ defense was submitted by Instruction No. 3, the correctness of which is before this Court for decision on this appeal. We deem it best to quote it in full, as follows:

“Your verdict must be for the defendants, whether or not defendants were negligent, if you believe:

“First, plaintiff either:
failed to keep a careful lookout, or violated the traffic signal, or failed to make her left turn in the manner specified under the ordinance as to left turns which has been read in evidence, or

“Plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have applied his brakes but plaintiff failed to do so.

“Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and

“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

In the first four points briefed, plaintiff contends that there was insufficient evidence to sustain the charge of negligence relied on by the defendants and submitted by Instruction No. 3 in the disjunctive. In the last two points briefed, plaintiff says that Instruction No. 3 is erroneous for the reason that it violated S.Ct. Rule 70.01, V.A. M.R. We have concluded that plaintiff’s last two points must be sustained. In view of the fact that the case must be remanded, it would serve no useful purpose to rule on the first four points. We cannot say that the parties on a retrial will submit the case on the same issues as they did on the first trial.

The record disclosed that the collision occurred on November 29, 1962, at about 11:45 a. m., at the intersection of Noland Road and Highway 50 in Jackson County, Missouri. Plaintiff was driving her car south on Noland Road, intending to turn left and to the east on Highway 50. Defendant Brown was driving a truck west on Highway 50, intending to go to Kansas City, Missouri. At the time, there was an electric signal device at the intersection. Mr. Brown, the driver of the truck, and plaintiff each testified that the green light was in his or her favor as they neared the intersection; further, each claimed that the speed of his or her vehicle was about 35 miles per hour immediately before they reached the intersection.

Plaintiff testified that as she was approaching the intersection she reduced the speed of her car by taking her foot off the accelerator intending to make a left turn onto Highway 50; that as she entered the intersection, the electric signal was green in favor of southbound traffic; that just as she was beginning the left turn, the impact took place; that when she first saw defendants’ truck, “He was coming so fast I didn’t have time to do anything.” She admitted that she did not apply the brakes, stating that she had no time to do that. Defendants’ truck struck plaintiff’s car broadside at the left front door. Plaintiff sustained serious injuries and her car was damaged.

Brown testified that as he approached the intersection, and when about 400 feet east of the light, the light turned green for westbound traffic; that he saw plaintiff’s car when he was about 250 feet from the intersection; that he applied the brakes but could not stop in time to avoid the collision. He admitted that he did not give any warning nor did he swerve. There was a dispute as to the distance skid marks were visible on the pavement of Highway 50. A police officer measured skid marks in the presence of Brown. The officer testified that the marks extended from the truck back for a distance of 241 feet. Brown claimed the skid marks made by his truck were not more than 50 to 100 feet in length.

Rule 70.01, supra, provides, in substance, that a failure to follow the Missouri Approved Instructions forms shall be deemed error and that the question of whether the error constitutes prejudicial error shall be judicially determined.

In preparing Instruction No. 3, defendants evidently followed forms found in No. 28.01 and No. 17.04 of the Missouri Approved Jury Instructions.

Plaintiff says that in the last paragraph of the part of the instruction marked “First,” as above set forth, the defendants used the words “ * * * in time thereafter to have applied his [her] brakes * * * ” in lieu of the words “slackened her speed” as prescribed in MAI No. 17.04; further, that the word “and” was omitted between the paragraph “First” and paragraph marked “Second.” Plaintiff states that the deviation from the approved forms rendered the instruction erroneous.

In answer to plaintiff’s contention, defendants stated in their brief that “The trial court properly gave to the jury Instruction No. 3 which used the term ‘applied her brakes’ rather than ‘slackened her speed,’ because that modification of the approved instruction was required in order for the instruction to conform to the evidence.” Defendants further stated that “There was no prejudicial error in the failure of Instruction No. 3 to include the word ‘and’ between Paragraph First and Paragraph Second.” Defendants also called our attention to Rule 70.01 and contend that the instruction is not prejudicially erroneous.

We cannot agree with defendants that the substitution of the words “applied her brakes” for the phrase “slackened her speed” was required in order for the instruction to conform to the evidence. For example, defendant Brown admitted that he did not sound the horn of the truck at any time while approaching the intersection. If plaintiff had wished to submit her case on failure to warn, she would have been required to use the words prescribed in MAI No. 17.04, “sounded a warning” and not the words "sounded the horn.” The speed of the car may be slackened by other means than by applying the brakes. So, a warning may be given by other means than sounding a horn. It is obvious that the instruction, as given, was more favorable to the defendants than it would have been if the instruction had conformed to the prescribed form. The omission of the word “and” after the first portion of the instruction made the instruction erroneous.

Counsel for the defendants took advantage of the language in his argument to the jury. Note what he said: “ * * * But, gentlemen there just can’t be any dispute about this because this lady said not over an hour ago, T failed to apply my brakes,’ and here’s the Judge saying to you that the law is if you believe that she failed to use the highest degree of care in not applying her brakes, and that helped cause the collision, then she can’t recover. Well, gentlemen, if this lady had just looked before she did and put on her brakes she could have stopped, but instead we see a path that she just kept on coming until she hit Elmer Brown’s truck.”

The members of the jury may have concluded (nine signed the verdict) that the court was advising them that a failure on plaintiff’s part to apply the brakes justified a verdict for the defendants even if, as plaintiff testified, the traffic signal was green in her favor and she did not have time to apply the brakes because defendants’ truck was coming on with great speed.

This Court was asked by The Missouri Bar to provide forms of instructions to be used in jury trials. Outstanding members of the Bar were appointed to perform the task of making recommendations. Their work was approved by this Court en Banc. To accomplish the purpose for which the forms were prepared, the courts must insist that they be utilized. If we permit unnecessary deviations, no useful purpose will have been accomplished. The committee appointed by the Court gave the following warning when it submitted its report to the Supreme Court (MAI,XXI): “There are hundreds of currently acceptable instructions which use language more favorable to one side or the other than the proposed instructions. If counsel are permitted to ‘improve’ the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such ‘improvement’ by one counsel will prompt an offsetting ‘improvement’ by his opponent and after a while the court will not be able to find the original with a divining rod.”

The above-quoted warning, taken from MAI, was quoted in an opinion of this Court, prepared by the Honorable John J. Wolfe, Special Judge, in the case of Lea-thern v. Longenecker, 405 S.W.2d 873. What the Court said in that opinion supports our conclusion.

The judgment of the trial court is reversed and the cause is remanded for retrial. It is so ordered.

PER CURIAM:

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author:
WALKER, Justice.
      SMITH, Justice

text:
    CAPITOL AGGREGATES, INC., Petitioner, v. GREAT AMERICAN INSURANCE COMPANY, Respondent.
    No. A-11192.
    Supreme Court of Texas.
    Nov. 23, 1966.
    Rehearing Denied Dec. 21, 1966.
    Groce, Hebdon, Fahey & Smith, San Antonio, Clark, Thomas, Harris, Denius & Winters, John Coates and Mary Joe Carroll, Austin, for petitioner.
    Brown, Sparks & Erwin, Will Barber, Austin, for respondent.
   WALKER, Justice.

On the single question presented by this appeal, we hold that a compensation carrier is entitled, in the exercise of its subrogation rights and for the purpose of reimbursing itself as provided in Section 6a of Article 8307, to recover from a third party tort-feasor the damages assessed by the jury against the latter and also recover from the employee any money paid him by the tort-feasor in settlement of potential excess liability.

There is no dispute as to any of the material facts. On October 6, 1962, Costilla W. Franks suffered accidental injuries in the course of his employment as an employee of W. R. Morgan Construction Company. He recovered judgment against his employer’s compensation carrier, Great American Insurance Company, for compensation benefits in the amount of $12,146.65, and this judgment was paid. Great American then instituted the present suit in the name of Franks and against Capitol Aggregates, Inc. as a third party tort-feasor to recover damages for the injuries sustained by Franks. On the morning the case went to trial and prior to the selection of a jury, Franks and Capitol entered into a settlement and indemnity agreement. Under and in accordance with its terms, Capitol paid Franks $3,500.00 in full settlement of his individual interest in the claim and agreed to indemnify him against any liability to Great American for the amount so paid. The agreement further recognized that by making the settlement Capitol had obligated itself to Great American for at least $3,500.00.

The settlement was made without the consent or approval of Great American, which first learned of the same when it was announced in open court. Great American proceeded with the suit against Capitol, and Franks cooperated fully with Great American. The jury returned a verdict against Capitol for damages in the amount of $6,547.25. After the verdict and before judgment, Great American asserted its right to an additional recovery against Franks and Capitol by virtue of the $3,500.00 settlement. The trial court rendered judgment: (1) that Great American recover $6,547.25 from Capitol upon the jury verdict; (2) that Great American recover $3,500.00 from Franks by reason of its subrogation right to the proceeds of the settlement; (3) that Franks recover $3,500.00 from Capitol by reason only of the indemnity agreement between them; and (4) that Great American take nothing on the claim that it should recover an additional $3,500.00 from Capitol by reason of the settlement.

Franks did not appeal, but Capitol did and the judgment of the trial court was affirmed by the Court of Civil Appeals. 396 S.W.2d 419. Great American contended there that it should have been awarded an additional $3,500.00 to be paid directly by Capitol, but that contention was not brought forward by application for writ of error. The only question here is whether the trial court erred in awarding Great American a recovery against Capitol on the jury verdict and against Franks for the proceeds of the settlement. If the judgment against Franks is proper, Capitol is clearly responsible therefor under the terms of their indemnity agreement.

The $6,547.25 damages awarded by the jury and the $3,500.00 settlement aggregate less than the compensation benefits paid by Great American to Franks. Capitol recognizes that under such circumstances the compensation carrier is entitled to recover either the amount of the damages or the amount of the settlement. It argues, however, that these are inconsisent remedies or theories of recovery, and that the carrier may not enforce both. In support of that position, Capitol relies primarily upon our decision in Pan American Insurance Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644. We held there that the partially reimbursed compensation carrier might recover from the third party tort-feasor either the amount of damages as determined by the trier of fact or the amount of the settlement paid to the workman, whichever is greater, but not both. The rights of the carrier against the workman were not considered or decided.

Section 6a of Article 8307 provides that when compensation benefits are claimed by an injured employee, the carrier shall be subrogated to his rights against a third party tort-feasor “in so far as may be necessary and may enforce in the name of the injured employé * * * or in its own name and for the joint use and benefit of said employé * * * and the association the liability of said other person.” Under the terms of this statute, the compensation carrier is entitled to the first money paid to or recovered by the employee, or his representatives, by reason of the asserted liability of a third person for his injuries, and the employee or his representatives have no right to any of such funds until the carrier is paid in full. See Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865; Traders & General Ins. Co. v. West Texas Utilities Co., 140 Tex. 57, 165 S.W.2d 713.

In each of the two cases last cited the compensation carrier urged its statutory right to the proceeds of the settlement but made no attempt to establish the third party’s tort liability for the injury suffered by the employee. The carrier was held entitled to recover from the third party and the workman, jointly and severally, the amount of the settlement to the extent necessary to reimburse itself as provided in Section 6a. In reaching this conclusion, the court reasoned that the transaction between the employee and the third party contravened the legislative purpose in enacting the statute and was unlawful. It then applied the rule that when, in a single three-party transaction, money belonging to one of the parties is wrongfully paid by the second to the third, the latter two are jointly and severally liable for the funds so diverted. See Traders & General Ins. Co. v. West Texas Utilities Co., supra; Shell Petroleum Corp v. Tippett, Tex.Civ.App., 103 S.W.2d 448 (wr. ref.).

The insurance company sought to carry these decisions to their logical extreme in Hi-Plains, but we concluded that it is not essential to the statutory scheme that a settlement with the workman should subject the third party tort-feasor to liability to the carrier for the amount of the settlement plus the damages awarded by the jury. It was accordingly held that as against such third party, the carrier might recover either the damages assessed or the amount of the settlement but not both. The basis of this holding is stated in the opinion as follows:

“The limit of Hi-Plains’ liability, had there been no settlement, was the amount of damages occasioned by its negligence and no more. On the face of things Hi-Plains made a rather unfavorable settlement, but it is not to be punished or penalized for that by having to suffer what would in effect be a double recovery or to have its liability increased by more than the sum paid to it in settlement.”

The considerations which were determinative in Hi-Plains lead to a somewhat different conclusion when the carrier asserts a right to the proceeds of the settlement against the workman. In that situation the party entitled to the money is attempting to recover from one who wrongfully received the same, and the latter will not be subjected to double liability. Section 6a was adopted to prevent overcompensation to the employee and to reduce the burden of insurance to the employer and to the public. See Consolidated Underwriters v. Kirby Lumber Co., Tex.Com.App., 267 S.W. 703. These purposes will not be accomplished if the employee is allowed to retain the proceeds of the settlement in addition to his compensation benefits while the carrier is only partially reimbursed for what it has paid. Capitol says that the practical effect of the decision of the Court of Civil Appeals in this case is to prevent a settlement by the injured employee for less than the amount required to reimburse the compensation carrier. It seems to us that this is an additional reason for upholding the judgments of the courts below. As pointed out in West Texas Utilities, “[t]he right of the association to reimbursement out of the first money paid is statutory; and in event the employee is permitted, without the consent of the association, to settle his claim against the alleged third person tort feasor, thus eliminating his further interest in the suit, the provision of the statute authorizing the insurance association to enforce for the joint use and benefit of said employee and the association the liability of such tort feasor, is thereby nullified.”

We hold that the trial court properly rendered judgment in favor of Great American against Capitol on the jury verdict, in favor of Great American against Franks by reason of the settlement, and in favor of Franks against Capitol by reason of their indemnity agreement. The judgment of the Court of Civil Appeals is accordingly affirmed.

SMITH, Justice

(concurring).

The result reached in this case is correct. The Court, however, declines to overrule Pan American Insurance Co. v. Hi-Plains Haulers, Inc., 163 Tex. 1, 350 S.W.2d 644 (1961). The Court seems to distinguish the present case from Hi-Plains solely upon the basis of parties and the amount of recovery in the suit against the tortfeasor. In Hi-Plains, the settlement between the employee and tortfeasor Hi-Plains was for the sum of $1,750.00. Pan American, the compensation carrier, continued the suit after settlement against the tortfeasor, Hi-Plains. This resulted in a judgment for $1,500.00, a sum less than the amount of the settlement. The carrier had paid compensation in the sum of $3,908.05. In the present case, the settlement between the employee and the tort-feasor was for the sum of $3,500.00. Great American, the compensation carrier, recovered a judgment from Capitol Aggregates, the tortfeasor, in the sum of $6,547.25. Judgment is being upheld for Great American merely because of difference in parties and because the judgment obtained by Great American against the tortfeasor is more than the amount of the settlement. The aggregate of the two sums is less than the sum of $12,146.65, which was the amount of compensation paid by Great American to the employee, Franks.

In both cases, the subrogation rights of the carrier are definitely fixed by Section 6a of Article 8307, Vernon’s Annotated Civil Statutes of Texas. This statute does not provide for separate causes of action. The carrier’s rights should not be made to turn upon the result of a jury trial after settlement. Whatever the recovery in damages plus the amount of settlement might be, the carrier paying compensation should be entitled to the total sum so long as such sum does not exceed the amount of compensation paid. There is no real distinction between Hi-Plains and the present case. The Court should so hold and expressly overrule Hi-Plains. The statute does not limit the carrier to the first money paid to or recovered by an employee. The pertinent part of Section 6a, supra, reads:

“If compensation be claimed under this law by the injured employé or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employé in so far as may be necessary and may enforce in the name of the injured employé or of his legal beneficiaries or in its own name and for the joint use and benefit of said employé or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employé or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured employé or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without notice to the injured employé or his beneficiaries and the approval of the board, upon a hearing thereof.”

The applicable portions of Section 6a were adopted primarily to protect the compensation carrier. In every instance where the carrier pays compensation, it is entitled to full recoupment out of all moneys paid to the employee by way of settlement plus all sums recovered by way of damages from the tortfeasor. This should have been the holding in Hi-Plains. In Hi-Plains, four Justices dissented. Therefore, I have no hesitancy in suggesting that the principles of law announced in that case be overruled. See Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993 (1936).

      . Here Pranks will retain the proceeds of the settlement and Capitol will, in effect, pay a like amount to Great American in addition to the damages, but this results from the contract of indemnity which capitol made with Franks.


author: PER CURIAM.

text:
    HEMPHILL COUNTY, Texas, Petitioner, v. Walter ADAMS and Harry Rathjen et al., Respondents.
    No. A-11722.
    Supreme Court of Texas.
    Dec. 7, 1966.
    J. D. Crow, County Atty., Canadian, for petitioner.
    Allen, Allen & Reavis, Perryton, Lane & Douglass, Pampa, for respondents.
   PER CURIAM.

The court of civil appeals has held that Hemphill County’s cause of action for damages for conversion of county property, asserted in a suit against the sheriff and a former sheriff of the county and their bondsman, can be barred by a statute of limitation and is barred by the two-year statute. 406 S.W.2d 267. The primary holding is in conflict with our opinions in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961) and City of Port Arthur v. Tillman, Tex.Civ.App., 398 S.W.2d 750 (1965) in which we held that by virtue of the provisions of Article 5517, Vernon’s Texas Civil Statutes, rights of action held by the governmental entities there named, which includes counties, cannot be barred by any statute of limitation.

Exercising the authority granted by Rule 483, Texas Rules of Civil Procedure, we reverse the judgment of the court of civil appeals without granting writ of error and remand the cause to that court for consideration of the other points of error properly before it.


author: WOODLEY, Judge.

text:
    Ex parte David MENDOZA.
    No. 39916.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.

      No attorney on appeal for appellant.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of California.

The Executive Warrant of the Governor of Texas, regular on its face, was introduced in evidence as were the Requisition of the Governor of California, the Complaint and supporting papers.

No brief has been filed in appellant’s behalf.

The Complaint pending in California charges that appellant, David Mendoza, “committed the crime of violation of Section 270 of the California Penal Code in that since on or about July 1, 1964, being in the State of Texas, he did commit acts in Texas intentionally resulting in a crime in the County of Ventura, State of California, in that DAVID MENDOZA, being the father of Rita Mendoza, born March 8, 1949, and Jose Andres Mendoza, born December 14, 1952, he did wilfully and without lawful excuse omit to furnish said minor children with necessary food, clothing, shelter, medical attendance and other remedial care, from on or about July 1, 1964 to June 17, 1956, during which time he remained out of the State of California for more than thirty (30) days.”

The California Statute referred to in the Complaint, is set out in the application for Requisition and reads:

“A father of either a legitimate or illegitimate minor child who wilfully omits without lawful excuse to furnish necessary clothing, food, shelter or medical attendance or other remedial care for his child is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.
“If the father, during such violation, remains out of the State for thirty days, or if he fails or refuses to comply with the order of a court of competent jurisdiction requiring him to make any provisions for the maintenance, support, medical treatment or other remedial care of such min- or child and remains out of the State for ten days without doing so, he is guilty of a felony. * * * ”

The Uniform Criminal Extradition Act, Art. 51.13 Vernon’s Ann.C.C.P., Section 6, is authority for the surrender of appellant upon the demand of the Governor of California.

The validity or the applicability of that portion of the California Statute under which the failure to provide for the support of a minor child becomes a felony rather than a misdemeanor, because the father remains out of the State of California for 30 days without providing such support, is not for this Court to decide.

The Uniform Criminal Extradition Act (Art. 51.13 C.C.P., formerly Art. 1008a C.C.P.) applies to misdemeanor as well as felony offenses.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Charles Harlan YOUNG et al., Appellants, v. The STATE of Texas, Appellee.
    No. 39868.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.
    Richard Thornton, Galveston, for appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

This is an appeal by the sureties from a judgment in a bond forfeiture case.

Rule 414, Texas Rules of Civil Procedure, requires that appellant’s brief be filed in the appellate court within 30 days after the filing of the transcript. This procedure is applicable in bond forfeiture cases. Art. 44.44, Vernon’s Ann.C.C.P. No brief was filed in this cause within the time required.

The record as presented authorizes a dismissal of the appeal. Rule 415, R.C.P.; Newton v. State, Tex.Cr.App., 382 S.W.2d 926; Aguirre v. State, Tex.Cr.App., 399 S.W.2d 804.

The appeal is dismissed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Robert Carl SHORT, Appellant, v. The STATE of Texas, Appellee.
    No. 39947.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.

      J. Preston Brashear, III, Law & Brash-ear, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harryette Ber-cu, Curtis Glover and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is assault to commit murder with malice; the punishment, 10 years confinement in the Texas Department of Corrections.

Trial was had and judgment rendered in December of 1965. Notice of appeal was given on January 28, 1966. Appellant did not comply with Sec. 9 of Art. 40.09, Vernon’s Ann.C.C.P. which requires that a brief must be filed in the trial court pointing out the grounds of error to be complained of on appeal.

Appellant’s brief filed in this court urges three grounds of error committed in the trial below. An examination of the record leads us to conclude that they are not of constitutional dimension and do not require discussion in this opinion under Sec. 13 of Art. 40.09, V.A.C.C.P. as unassigned error. See Hill v. State, Tex.Cr.App., 403 S.W.2d 797.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Jimmie Curtis ROPER.
    No. 39929.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1966.
    J. O. Duncan, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to the custody of Dr. George Beto, Director of the State Department of Corrections at Huntsville.

In the year 1963 appellant was convicted in the 114th Judicial District Court of Smith County of the offense of rape and assessed punishment at confinement in the penitentiary for seventy-five years.

In an appeal to this court, the judgment of conviction was affirmed in an opinion delivered January 8, 1964. Roper v. State, Tex.Cr.App., 375 S.W.2d 454, rehearing denied February 19, 1964.

On January 18, 1965, an application for writ of habeas corpus was filed on behalf of appellant with the Honorable Connally McKay, Judge of the 114th District Court of Smith County, which alleged that appellant was being illegally .restrained of his liberty by virtue of the 1963 judgment of conviction. In the application it was insisted that the judgment was void because it was based in part upon a confession made by appellant after his request to see an attorney had been denied and that he was deprived of his constitutional rights to counsel and due process of law.

Judge McKay granted the writ and on May 17, 1966, conducted a hearing upon the application, appellant being present at the hearing and represented by counsel by virtue of a bench warrant issued by the judge.

At the hearing it was shown that appellant’s confession introduced in evidence at the 1963 trial was made to assistant district attorney R. S. Burruss. Appellant signed the confession in the district attorney’s office on the morning of October 30, 1962.

Appellant testified that before making the statement he asked if he could call his folks or an attorney and that Attorney Burruss told him after they got the matter cleared up he could call anyone he wished to. Appellant stated that he first saw an attorney in late December, 1962, or January, 1963.

R. S. Burruss, the first assistant district attorney to whom appellant made the confession and who at the time of the hearing was serving as county judge of Smith County, testified that he first gave appellant the statutory warning and that there was no mention of an attorney. The witness swore that appellant did not ask to see a lawyer and, being before the “Escobedo case,” he did not advise appellant that he had the right to have a lawyer present.

Lt. Joe Elliott of the Tyler police department testified that he took appellant from jail to the district attorney’s office and was present when he made the confession to assistant district attorney Burruss. Lt. Elliott swore that at no time, either before or after making the statement, did appellant make any request of him or Judge Burruss to see an attorney. He further testified that there was a telephone available and appellant did not ask permission to use one.

At the conclusion of the hearing, the court found that appellant did not request and was not denied counsel prior to making the confession and entered his order denying appellant’s application for writ of ha-beas corpus and remanding him into the custody of the respondent, Dr. George Beto.

In the entry of such order we find no error.

Under the evidence, the court was warranted in finding that appellant did not request to see an attorney prior to making the confession.

The fact that appellant was not advised that he had the right to consult with counsel did not render his confession inadmissible in his trial, which began February 21, 1963.

The cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, have been held not to be retroactive.

In Johnson and Cassidy v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882, the Supreme Court held that Es-cobedo affected only those cases in which the trial began after June 22, 1964, and the Miranda decision applied only to cases tried after June 13, 1966.

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, relied upon by appellant in his brief, has no application to the instant case, as no issue was raised by appellant with respect to the voluntary nature of his confession introduced in evidence at the original trial. Appellant’s only objection to the confession was that he “was not properly warned.”

The judgment is affirmed.

Opinion approved by the court.