text:
    Mary L. BUREN, Administratrix of the Estate of Joseph K. Buren, Deceased, et al., Appellants, v. MIDWEST INDUSTRIES, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 7, 1964.
    Rehearing Denied June 26, 1964.

      Raymond C. Stephenson, Ephriam K. Lawrence, Jr., Louisville, for appellants.
    Norman A. Curtis, Robert L. Sloss, Louisville, for appellees.
   WADDILL, Commissioner.

The central question in this case is whether failure of the owners of a building to comply with applicable fire safety ordinances (for example, ordinances requiring sprinkler systems, fire walls and stops, etc.) results in liability for the deaths of firemen killed while fighting a fire. It may be assumed for purposes of analysis that there was sufficient evidence for the jury to find that the deaths were proximately caused by the deceptive speed with which the fire suddenly enveloped the premises and that this would not have occurred if the building had been constructed and maintained in strict accordance with the law.

The various decisions on the subject are collected and discussed in 13 A.L.R. 584-595 and 86 A.L.R.2d 1205-1221. See also the analysis in 2 Harper & James, The Law of Torts, § 27.14, pp. 1503-1505. Thus we need not attempt an exhaustive survey of our own. Suffice it to say that as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman’s presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations “creating undue risks of injury beyond those inevitably involved in fire fighting.” (Quotation taken from Krauth v. Geller, 31 N.J. 270, 157 A.2d 129, 131).

Non-liability of the owner or occupant frequently has been placed on the theory that the fireman is but a licensee, whether or not the fire department has been summoned. In this respect, however, we concur in the observation of the New Jersey Supreme Court that “justice is not aided by appending an inappropriate label and then visiting consequences which flow from a status artifically imputed,” and are inclined to agree that he is neither a licensee nor invitee, but occupies a status sui generis. Krauth v. Geller, 31 N.J. 270, 157 A.2d 129. A better basis of non-liability is that “it is the fireman’s business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain . of negligence in the creation of the very occasion for his engagement,” the precise risk which the public pays him to undertake. Id. But whatever may be the technical theory in which the underlying -policy is clothed, this is the prevailing result at common law, and it is not challenged in this case.

The first premise on which appellants rest their claim is that the intended benefits of the applicable fire safety ordinances of the City of Louisville extend to and include firemen who enter the premises in response to their duties. In other jurisdictions there is a difference of opinion on this question, depending sometimes on the terminology of the particular ordinances or statutes. The ordinances involved here do not specify for whose protection or benefit they are intended. It is our opinion that such laws are for the protection of the lives and property of all persons who in their rightful pursuits may be affected involuntarily by a 'fire in or spreading from the premises to which the laws apply. That compliance with fire safety ordinances will necessarily have the effect of reducing the hazards of fire-fighting, however, is no more than incidental to the primary objective of fire prevention and control. The fact is that in the performance of his official function the fireman is a part rather than an object of fire prevention and control.

It may be conceded that “the hazard of fire, and loss of life fighting it,” are reasonably foreseeable consequences of a failure to exercise ordinary care in keeping the premises in a safe condition. See Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, 1194. The same is true with respect to the negligent creation of the fire in the first place, yet there is no liability to the fireman for that. We see no reasonable basis for a distinction unless, as appellants have argued, it is demanded by public policy. And even there we encounter the identical difficulty. Could it really be said that public policy is less solicitous toward the initial prevention of fire than it is toward the control of fire after it has begun? Surely not. We should expect public policy to be the same in each respect.

It has been said in some cases that a fireman entering the premises has the right to assume compliance with applicable safety ordinances. See Maloney v. Hearst Hotels Corp., 274 N.Y. 106, 8 N.E.2d 296, 297, in which a fireman was killed by an explosion of volatile substances illegally kept on the premises. See also cases cited in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, 1195. Insofar as these decisions reflect the principle that a fireman is entitled to assume compliance with respect to unguarded elevator shafts, open stair wells, exposed wires, and similar hazards to a reasonably safe access to and use of the premises in the manner in which they are ordinarily expected to be used, we have no quarrel with them. (See discussion of New York rule, 86 A.L.R.2d 1216.) And the presence of explosives may predicate liability on the basis either of an unusual hidden hazard or of continuing “active” negligence, as the particular facts warrant. (See 13 A.L.R. 644.) We do not believe, however, that a law violation which has no direct effect except to permit the more rapid spread of a fire than would otherwise have been the case is analogous. Hence we cannot follow Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184.

It was brought out in the evidence that many more of the buildings in Louisville were constructed before the advent of the fire safety ordinances than since. From the terminology of § 1301.14, General Ordinances, City of Louisville, it would appear that buildings erected prior to its enactment are not necessarily and in all respects subject to the requirements of the Fire Prevention Code. If a fireman entering a burning building does not know when it was constructed and what, if any, safety ordinances were in effect at that time, how could he know what to assume with respect to its construction ? The answer is that he cannot and does not make any such assumptions. As several of the officers testified, fires are unpredictable, and every one is different from the others. The fireman is trained to expect the unexpected. We think it would be highly unrealistic for the law to pretend otherwise.

It is our opinion that the principle of assumed risk is applicable, at least in spirit if the label be considered in some respects inappropriate. That the fireman is duty bound to assume the risk because he is being paid to do so does not make it any the less voluntary. Except for unusual hazards known to the property owner or occupant but unknown to him, the trained fire fighter is equally cognizant of and better able to evaluate the unpredictable dangers involved. When he arrives on the scene the field is his. The owner has no power to direct or control his actions. He may not order him to stay outside, or to stay off the roof, or to wear a gas mask, or to limit his actions to shooting water into the building from a safe position outside. To hold the owner responsible while denying him any right or discretion to say what the fireman shall or shall not do would not consist with what this court believes to he the fundamental law- of liability by reason of negligence. Having bound his hands, the law cannot justly inflict upon him the consequences of what he might otherwise have been able to prevent. See Suttie v. Sun Oil Co., 15 Pa. Dist. & Co. R. 3. Nor can a jury be permitted to do so. It is not fairly a question of fact, and this is true whether the claim is based on common law or statutory negligence.

There were certain other circumstances in this case which appellants contend were sufficient to authorize a verdict in their fa.-vor aside from the principal theory of liability hereinbefore discussed. In these particulars our opinions are as follows:

(1) The fire started on a “charbroil” grill where steaks which had been dipped in butter were being cooked. Apparently the steaks caught fire and the flames ignited grease that had accumulated and adhered to the inside of a vent over the grill. Mr. Harris, the person in charge of the premises, did not at once telephone the fire department, but attempted to put the fire out with a hand extinguisher until its contents were emptied. According to the testimony and estimates of time most favorable to the plaintiffs’ case, this delay may have been unreasonable and negligent. Nevertheless, on the ultimate question of liability there is no logical basis for distinguishing between negligence in this respect and negligence in creating the fire or in maintaining the premises in a fire-safe condition.

(2) The second fire fighting unit to arrive was Quad 8, in command of Capt. Wright. Mr. Harris met Capt. Wright, accompanied by fireman Thompson, at the door and is alleged to have said, “Captain, it’s nothing but a grill fire, come on and I’ll show you.” There was evidence that at this time Mr. Harris already knew or at least had been told that the fire had advanced through the vent and spread onto the second floor. Assuming the worst in this respect, and without considering the possible excusability of Mr. Harris’ actions by reason of the emergency in which he was acting, we do not believe this occurrence could have had any significant bearing on the deaths of Capt. Burén, Sgt. Wilson and Pvt. Pryor.

The first unit on the scene was Engine Company 18, in command of Capt. Johnson. He testified that as he arrived “I could see fire coming up out of the roof or out of the vent pipe at the back part of this building,” and that he immediately raised a ladder and sent one man to the roof with a line and another into the kitchen. His man in the kitchen promptly discovered, and so advised Capt. Johnson, that “the fire is up in the ceiling.” All this took place just before Quad 8 arrived at the burning building. Under such circumstances it is hardly possible that the commander and members of Quad 8 or any other unit subsequently arriving could have been misled. (Pvt. Pryor was a member of Quad 8. Capt. Burén was battalion commander and arrived after Quad 8. Sgt. Wilson accompanied Capt. Burén as his aide.)

Assuming that Capt. Wright and fireman Thompson did receive erroneous information from Mr. Harris, there was no evidence that it was communicated to or acted on by any other members of the fire department. In fact, Capt. Johnson actually heard Sgt. Wilson say to Capt. Burén, “Captain the fire is in the second floor too.” Thus it was positively established by the plaintiffs’ evidence that Capt. Burén and Sgt. Wilson could not have been under any misapprehension, and there was no evidence that any misinformation was given to or acted upon by Pvt. Pryor.

(3) The structure in which the fire took place was a bowling alley, restaurant and recreation center. A highly inflammable lacquer used in cleaning and polishing the alleys was kept in a 50-gallon drum or drums. Although it was supposed to be (and, according to the defense testimony, was) stored in a specially partitioned room to the south of the building at the other end of the bowling alleys from where the restaurant facilities were situated, appellants contend that there was evidence to support a finding that some of it was in the latter portion of the building. In the main, this evidence boils down to three items, (a) there was definite proof that there was on hand at least one 50-gallon drum with about 5 gallons of unused lacquer left in it (the whereabouts of this container being in issue), (b) photographs taken the day after the fire show what appears to be just such a container standing in the ruins in the east part of the building where the fire first spread with such ferocity and near where the decedents lost their lives, and (c) one of the patrons of the bowling alley, very shortly after leaving the building via the east door, heard a crash and saw a stream of fire “like a blow torch” shoot out the door a distance of 30 feet or so.

We recognize the possibilities suggested by this chain of circumstantial evidence, but believe that to add one inference to another, by concluding first that the can visible in the photographs actually was the specific drum identified in the evidence as containing lacquer, and secondly that it exploded and in so doing proximately contributed to the deaths of any one or more of the firemen, would amount to no more than surmise and speculation. Therefore, we do not consider this particular phase of the evidence sufficient to justify a verdict on any of the theories of liability mentioned earlier in this opinion.

On the whole case it is our conclusion that the defendants were entitled to a directed verdict and that the trial court did not err in granting a judgment n. o. v.

The judgment is affirmed.


source: Caselaw Access Project

author: NORVELL, Justice. GREENHILL, Justice

license: Public Domain

text:
    AETNA LIFE INSURANCE COMPANY, Petitioner, v. Winifred H. McLAUGHLIN, Respondent.
    No. A-9838.
    Supreme Court of Texas.
    June 3, 1964.
    Rehearing Denied July 8, 1964.
    Fouts, Moore, Williams & Caldwell, T. J. Caldwell, Jr., Houston, for petitioner.
    Bracewell, Reynolds & Patterson, William H. White, Houston, for respondent.
   NORVELL, Justice.

This is a suit upon an accident insurance contract which contained a clause excluding any loss caused by “suicide, sane or insane.” The controlling issue is whether Texas does or should follow the majority rule as to the construction of the suicide clause of the policy as opposed to the Kentucky or minority rule.

The older forms of insurance contracts contained exclusions as to death by suicide and it was generally held that an act of self destruction committed by an insane person did not come within the exclusion. As a result of such holdings, the suicide exclusion was expanded so as to include the words “suicide, sane or insane,” or words having substantially the same meaning.

The majority view is that for an act to be “suicide, sane or insane,” it is not necessary for the decedent to have realized the physical nature or consequences of his act, nor that he have had a conscious purpose to take his life. If the act be one which would be regarded as suicide in a sane person, the loss occasioned thereby would come within the exclusion, regardless of whether the insured decedent realized or was capable of realizing that such act would cause his death, and regardless of whether he was capable of entertaining an intention to kill himself. Annotation, Insurance — Suicide, “Sane or Insane” 35 A.L.R. 160, 1. c. 166.

The Kentucky rule is that consciousness of the physical nature and consequences of the act and an intention to kill oneself are essential to invoke the “suicide, sane or insane” exclusion. 35 A.L.R. 160, 1. c. 174.

The difference between the two doctrines stems from divergent concepts of the word, “suicide.” The majority view accepts a broad popular definition of the term as covering any act of self destruction. The minority view is essentially a criminal law or technical concept in that understanding and intent are deemed essential elements of a suicide.

The Court of Civil Appeals was of the opinion that the parties tried the case in the District Court “on the theory of the minority rule.” This matter is controlled by the legal sufficiency of an objection to the special issue submitted by the trial court. While the objection is not as clearly and concisely worded as might be desired, we regard it as being sufficient to raise the contention that the majority rule relating to the construction of the exclusion is in force in Texas and that the issue submitted, together with its accompanying definition did not properly submit such rule.

The District Court’s judgment awarding the plaintiff-respondent, Winifred H. McLaughlin, the widow of Washington L. McLaughlin, a recovery upon the insurance policy was based upon the jury’s answer to one special issue which, with its accompanying definition, read as follows:

“Do you find from a preponderance of the evidence that the death of W. L. McLaughlin was not the result of suicide?
“You are instructed that by suicide is meant intentional self destruction and that one may commit suicide although insane or intoxicated so long as the act is the result of the exercise of his own will in any degree, and he understands the nature and probable consequences of his act.”

(The jury answered, “It was not the result of suicide.”)

The objection made to the Court’s definition of suicide was as follows:

“Each and all of the defendants (there were other defendant insurers under other policies who have not appealed) object to the Court’s definition of the term suicide for the reason that it fails to advise the jury that in order for an act to be suicide it is not necessary that the person so committing suicide have a rational understanding of the nature and probable consequences of his act, and for the further reason that the phrase contained in such definition reading ‘and he understands the nature and probable consequences of his act’ is unnecessary and constitutes a comment on the evidence and should be stricken from such definition, and the defendants move that such phrase be stricken from the definition.”

The definition as given requires that one must understand the nature and probable consequences of his act before the jury can find that death resulted from suicide. The objection asserts that it is not necessary that the person committing suicide have a rational understanding of the nature and probable consequences of the act which results in death. We think the objection was sufficient to direct the trial judge’s attention to the concept of suicide embodied in the majority rule heretofore mentioned. The term “suicide” as used in the charge necessarily has reference to the provisions of the policy and therefore the question was raised as to whether or not it is essential under the law of this State that a person understand the nature and probable consequences of his act before his beneficiary may be barred under the “suicide, sane or insane” exclusion of an accident insurance policy.

The opinion of the Court of Civil Appeals contains a complete statement of the evidence, 370 S.W.2d 229, and we need not repeat the same here. The insured, Washington L. McLaughlin, was undoubtedly an unhappy and deeply troubled man immediately prior to his death. He was killed upon a highway near Houston, Texas, in the nighttime, when he lunged in front of a moving school bus or fell in front of the same. He had been drinking heavily and was undoubtedly intoxicated at the time of his death, but still retained the power of movement and was walking along and on the highway.

The evidence as we view it and as it was considered by the Court of Civil Appeals is sufficient to support the theory that McLaughlin met his death by accident. On the other hand, the evidence is sufficient to support the theory that McLaughlin threw himself directly in the path of an oncoming bus, — an act which, if done by a sane man, would be considered suicide. And, there was sufficient evidence, as stated by the Court of Civil Appeals, to “raise the issue of temporary insanity produced by the drinking of intoxicants.” 370 S.W.2d 229, 235.

We are here concerned with the insanity issue. The only exception to the coverage of the accident policy effectively invoked by the insurance company was the contention that McLaughlin’s death was “caused by suicide.” 370 S.W.2d 229, 231. The jury could have believed that McLaughlin’s reason was so affected by temporary insanity that he possessed no appreciation of the consequences of his deliberately lunging or throwing himself in front of an oncoming bus. Under the definition of “suicide” given by the trial court such act would not be suicide within the meaning of the insurance policy.

Under the rule obtaining in the majority of the American jurisdictions, such act would be suicide within the meaning of the “suicide, sane or insane” exclusion clause.

It is our considered opinion that the majority rule should be followed. Those cases which have mentioned or discussed the problem in this State tend to support the majority rule, Illinois Bankers’ Life Ass’n. v. Floyd, Tex.Com.App., 222 S.W. 967 (1920), Mutual Reserve Fund Life Ass’n. v. Payne, Tex.Civ.App., 32 S.W. 1063, no wr. (1895), Parish v. Mutual Benefit Life Ins. Co., 19 Tex.Civ.App. 457, 49 S.W. 153, wr. ref. (1898) and Brown v. United Moderns, 39 Tex.Civ.App. 343, 87 S.W. 357, no wr. (1905), which seems to be based upon the better reasoning. In the early case of De Gogorza v. Knickerbocker Life Ins. Co., 65 N.Y. 232 (1875), it was stated in the opinion that:

“We do not, however, place reliance upon them further than they appear to be fortified by reason. We prefer to place our decision upon the ground that the words of the proviso in the policy before us, by plain rules of interpretation, exempts the defendant from liability. That this language, (sane or insane) in view of previous decisions, was inserted for such a purpose, cannot be doubted, and that it was agreed to by both the insured and the insurer is not questioned, and that it is a provision allowed by law, no one denies. We are to say from these words what the parties must have intended, and we cannot properly say that additional words having no meaning were inserted in the contract, and if they mean any thing it is just what the words commonly import, and that is, if death ensues from any physical movement of the hand or body of the assured proceeding from a partial or total eclipse of the mind, the insurer may go free. We are not altogether unmindful of the force of the proposition that a man does not die by his own hand who has not sufficient mind to will his own death, and it is not, perhaps, entirely easy to see in what precise words in our language the idea may be accurately and artistically expressed that a totally insane man may take his own life. But the question seems to involve more — the refinement of language — • than the application of practical sense, and we are of the opinion that, in the common judgment of mankind, it will be considered that when a totally insane man blows his brains out with a pistol that he will be said to have died by his own hand within the meaning of a policy such as we have now under consideration.”

In Clarke v. Equitable Life Assurance Society of the United States, Fourth Circuit, 118 F. 374 (1902), the Court said:

“It will be observed that the proviso under consideration contains no words limiting its operation to intentional suicide. The company contracted that it would not assume the risk of self-destruction, sane or insane. The contention of the appellant is that self-destruction avoids the policy if the insured lacked intelligence to know that his act was wrong, but that it is not avoided if he did not understand the physical nature of his act. To sustain such contention would require us to believe that the deceased shot himself through the head because he did not know that it would kill him. Instead of giving to the words of the proviso the plain meaning for which they were manifestly intended, — that the insurer intended to guard itself from liability if the insured came to his death from any physical movement of his own, whether sane or insane, — we would lose ourselves in consideration of the different phases of insanity, be compelled to split it into degrees, and to hold that, if he was so entirely insane as not to understand the physical consequences of his act, the proviso would be avoided, while a lesser degree of insanity would make the company liable.”

In United States Fidelity & Guaranty Co. v. Blum, Ninth Circuit, 258 F. 897 (1919), the Court considered a case similar to that before us in which the issue was accident or suicide. It was said that:

“If the insured fell out of the window by accident or in a faint, and was killed by the fall, of course there could be a recovery. But if he, of his own physical motion, went through the window and so destroyed himself, then under the contract the insurer can avoid liability, and it would matter not what the mental condition of the insured was. The effect of the qualification to the instruction quoted was a direction that, although death may have resulted from the physical act of going through the window, suicide could not he found unless deceased intended to kill himself, and knew that his act would probably result in death. And this we hold was a material error.”

Similarly the true issue in this case was whether McLaughlin met his death by lunging or throwing himself in front of the bus or by accidently stumbling and falling in front of the vehicle. If he committed the act, — placing himself in front of the bus, — his beneficiary cannot recover, regardless of whether he appreciated the physical consequences of his act or not. The definition of the trial court was erroneous and in the light of the objection the judgments of the courts below must be reversed. See, Billings v. Accident Insurance Co., 64 Vt. 78, 24 A. 656, 17 L.R.A. 89, 33 Am.St.Rep. 913 (1892); Scarth v. Security Mutual Life Society, 75 Iowa 346, 39 N.W. 658 (1888); Scherar v. Prudential Insurance Company of America, 63 Neb. 530, 88 N.W. 687, 56 L.R.A. 611 (1902); Seitzinger v. Modern Woodmen of America, 204 Ill. 58, 68 N.E. 478 (1903) ; Moore v. Northwestern Mutual Life Ins. Co, 192 Mass. 468, 78 N.E. 488 (1906) ; Couch on Insurance (2d) § 40:42; Vance on Insurance § 95, p. 569.

The minority rule as stated in Inter-Southern Life Ins. Co. v. Boyd, Ky. Ct. of App, 124 S.W. 333 (1910) is that notwithstanding a “suicide, sane or insane” exclusionary clause in an insurance policy, a beneficiary may recover “where insured at the time he killed himself was so insane that he did not know that he was taking his life, or that the act he was committing would probably result in death.” Among the cases supporting the minority rule are National Life Insurance Co. of Montpelier v. Watson, 194 Ky. 355, 239 S.W. 35, 35 A.L.R. 156 (1922); Muzenich v. Grand Carniolian Slovenian Catholic Union, 154 Kan. 537, 119 P.2d 504, 138 A.L.R. 818 (1944) and Christensen v. New England Mutual Life Insurance Company, 197 Ga. 807, 30 S.W.2d 471, 153 A.L.R. 794 (1944). Annotations covering the “suicide, sane or insane” exclusionary clause are set forth following the reports of the three cases mentioned in the American Law Reports. See also, 24 Notre Dame Lawyer 92.

The opinion in the Christensen case, supra, following the dissent in De Gogorza v. Knickerbocker Life Insurance Co., 65 N.Y. 232, contains a good statement of the minority view. However, a concise and effective dissent was filed in Christensen. A portion of it may be quoted here:

“Therefore, the question is, where one laboring under an hallucination and in order to escape an imaginary peril commits an act which to a sane person would naturally result in his death, but which to the insane mind ' would not and did not suggest the natural consequences but did in fact result as a natural consequence in his death, does the contract provide that he, as an insane person, is to be held accountable for the natural consequences of his act just as though he were 'sane? We think that it does, else the provision of the policy as to insanity is without effect, and the floodgates are left wide open for fraud. Under the question propounded, the insured did not fall from the sixth story window, but purposely jumped in order to escape the consequences of an imaginary peril. Thus, whether sane or insane, the act was still the exercise of volition, and under the terms of the policy he is held accountable for his voluntary act just as though he were sane.”

In our opinion, the minority rule would lead to confusion and attempts by courts to define varying degrees or aspects of insanity. The facts of Christensen suggest these hypotheses: A jumps out of the window of a room on the tenth story of a building because he is suffering from an insane delusion that he is being persecuted and he chooses death as an alternative to imagined future tortures. He knows, however, that his act will result in death. B, on the other hand, jumps out of a tenth story window because of an insane delusion that he possesses the power of flight. He does not realize or anticipate that his act will result in death. It is difficult to say that the contracting parties by adopting an exclusion of loss by “suicide, sane or insane” intended that B’s beneficiary should recover, but that A’s beneficiary should not. The broader exclusion afforded to the exclusionary clause by the majority rule is in no way obnoxious to public policy. The states which have adopted it have not changed therefrom. The cases which adopt the broader exclusion were decided many years ago and we must therefore assume that the rule has proved satisfactory and workable. The experience of the American jurisdictions is not to be lightly disregarded. And, further, and of most importance, we think the majority construction gives to the clause, in the light of its history, the plain common sense meaning of the words employed.

Other matters discussed in the briefs need not arise upon another trial. In view of the discussion with reference to expert testimony introduced upon the trial, we call attention to the theory of the opinion evidence rule as stated in McCormick and Ray:

“The modern and indeed the true theory of the Opinion rule is that of the exclusion of superfluous evidence. The witness may be competent and the sources of his information sufficient but his testimony is not needed. The principle rests entirely upon policy. It may be broadly states thus: Whenever the tribunal is in possession of the same information as the witness and the latter can add nothing to that information his further testimony is unnecessary and in fact merely cumbers the proceedings.” McCormick and Ray, Texas Law of Evidence, § 1393.

Furthermore, an objection that proffered expert testimony “invades the province of the jury” gives the trial judge very little information as to the basis of the objection. McCormick and Ray, 2d Ed. § 1395.

For the reasons above stated, the judgments of the courts below are reversed and the cause remanded to the District Court for another trial.

GREENHILL, J., dissenting.

GREENHILL, Justice

(dissenting).

I dissent. I agree substantially with the opinion of the Court of Civil Appeals. 370 S.W.2d 229.

      . The applicable exclusion read as follows:
      “Insurance under this policy shall not cover any loss caused directly or indirectly; wholly or partly, or contributed to substantially, by bodily or mental infirmity; or ptomaines; or bacterial infections (except pyogenic infections which shall occur through an accidental cut or wound); or any other kind of disease; or medical or surgical treatment (except such as may result directly from surgical operations made necessary solely by injuries covered by this policy); or war, or any act of war; or suicide, sane or insane.”

      . In Mutual Life Insurance Co. v. Terry, 15 Wall. 580, 21 L.Ed. 236 (1872) the insured took poison and there was evidence that at the time he took poison he was insane. The policy provided against recovery if the insured should “die of his own hand.” The Court said:
      “We hold the rule on the question before us to be this: If the assured being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences, and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.”
      See also, Mutual Life Ins. Co. of New York v. Walden, Tex.Civ.App., 26 S.W. 1012, no wr. (1894).

      . As to the trial of a cause upon incorrect issues in the absence of proper objection, see, Allen v. American National Insurance Co., Tex.Sup., 380 S.W.2d 604, which quotes with approval the following from Panhandle & Santa Fe Ry. Co. v. Friend, Tex.Civ.App., 91 S.W.2d 922, no wr.:
      “Where, however, the ground (of recovery or defense) is submitted, however erroneously or incompletely, the parties are thereby put upon notice that the jury’s answers to the issues actually submitted will form the basis of the court’s judgment thereafter to be rendered thereon. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them.”

      . The Court of Civil Appeals affirmed the judgment of the District Court. Its opinion is reported in Volume 370 at page 229 of the Southwestern Reporter, Second Series.

      . “The jury could have reasonably concluded that deceased did not deliberately lunge in front of the bus in order to kill Mmself, but ratlier was attempting to cross the highway and on seeing the oncoming bus became confused and at the last moment lunged to get across the road ahead of the bus.” Opinion, Court of Civvil Appeals, 370 S.W.2d 229, 235.


author:
CALVERT, Chief Justice.
      SMITH, Justice

text:
    The STATE of Texas, Petitioner, v. SHOPPERS WORLD, INC., Respondent.
    No. A-9930.
    Supreme Court of Texas.
    May 27, 1964.
    Rehearing Denied July 8, 1964.

      Sam L. Jones, Jr., Dist. Atty., Corpus Christi, James M. Williamson, Asst. Dist. Atty., Dallas, for petitioner.
    Oscar Spitz, Corpus Christi, for respondent.
   CALVERT, Chief Justice.

The State of Texas filed this suit to obtain a permanent injunction restraining Shoppers World, Inc., from violating Article 286a, Vernon’s Ann.Penal Code, by selling or offering for sale certain merchandise on the consecutive days of Saturday and Sunday. Shoppers World defended on the ground that the sales and offers for sale strictly complied with the emergency purchase exemption contained in Section 4a of that article. The trial court granted the injunction, but its judgment was reversed and the injunction was dissolved by the Court of Civil Appeals, 373 S.W.2d 374.

We affirm the judgment of the Court of Civil Appeals.

The applicable sections of Art. 286a, Vernon’s Ann.Penal Code provide:

“Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footwear; headwear; home, business, office or outdoor furniture; kitchenware; kitchen utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding non-power driven hand tools; jewelry; precious or semi-precious stones; silverware; watches; clocks; luggage; motor vehicles; musical instruments ; recordings; toys, excluding items customarily sold as novelties and souvenirs; mattresses; bed coverings; household linens; floor coverings; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.
«5{C * *
“Sec. 4a. When a purchaser will certify in writing that a purchase of an item of personal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life, then this Act shall not apply; provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.”

An agreed statement of facts was submitted to the trial court in accordance with Rule 263, Texas Rules of Civil Procedure. Only those facts material to our decision will be noted. Respondent’s store, located in Corpus Christi, is open for business on both Saturday and Sunday. The store sells and offers for sale one or more of the items enumerated in Art. 286a on the consecutive days of Saturday and Sunday, but on Sunday these items are sold and offered for sale only to those purchasers who will sign a form labeled “Certificate of Necessity.” The certificate is prepared in the language of Sec. 4a:

“I hereby certify that the following item(s) of personal property are needed by me as an emergency for the welfare (-) of human (-) . life;
[here follows a space for listing the items purchased] and that the purchase of each such item is an emergency purchase to protect the welfare (-) of human (-) life, and I have so advised Shoppers World, from whom I have purchased such item(s).
Signature”

At the check-out stand the purchaser lists the items on the certificate, and the cashier employee of the respondent reads this statement to the purchaser:

“If this purchase is an emergency purchase for the health, welfare or safety of human or animal life, please sign this certificate.”

If the purchaser signs the certificate without hesitancy, the sale is made without further explanation or inquiry. If the purchaser refuses to sign, the sale is not made. If the customer is hesitant about signing, the store manager explains that the store is prohibited by law from selling particular items on the consecutive days of Saturday and Sunday unless the purchaser certifies in writing that the item is needed by the purchaser as an emergency for the welfare, health or safety of human or animal life and the purchase is an emergency purchase to protect the health, welfare or safety of human or animal life. The store manager then questions the purchaser about the existence and nature of the emergency. If after the explanation and inquiry the purchaser remains uncertain about signing the certificate, the item or items are not sold but are returned to the store shelves. These certificates are retained at the respondent’s store for inspection.

No evidence other than the agreed statement of facts was heard or introduced in the trial court, yet the trial judge found additional facts which, presumably, entered into the judgment. In brief, he found that the certificates of necessity were used as a device for evading the prohibitions of Art. 286a, and that respondent acted in bad faith in having the purchasers sign the certificates. Based upon such findings, the trial court entered judgment permanently enjoining Shoppers World from selling or offering for sale the items enumerated in Art. 286a on the consecutive days of Saturday and Sunday, but the injunction further provided:

“This injunction does not prevent a sale of any of such enumerated items on the second of two consecutive days of Saturday and Sunday when the purchaser initiates the sale by offering to purchase without a prior offer on the part of the Defendant, Shoppers World, Inc., to sell and the purchaser will certify in writing that a purchase of such items of personal property is needed as an emergency for the welfare, health or safety of human or animal life, which said certification signed by the purchaser is retained by Defendant Shoppers World, Inc., for proper inspection for a period of one year, and such purchase is, in fact, an emergency purchase to protect the health, welfare or safety of human or animal life believed by Defendant Shoppers World, Inc., after inquiry, on reasonable grounds, in the exercise of good faith, to be such emergency purchase.”

The Court of Civil Appeals dissolved the injunction on the ground that by including the emphasized portion in the judgment the trial court had added more onerous conditions to the exemption of Sec. 4a than those imposed by the Legislature.

The disposition of this case turns on the proper interpretation of the provision in Sec. ,4a which we repeat:

“When a purchaser will certify in writing that a purchase of an item of per- ' sonal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect the' health, welfare or safety of ■ human or animal life, then this Act shall not apply; * * *.”

In Crouch v. Craik, Tex., 369 S.W.2d 311, 315, we stated: “The power and authority to interpret Articles 286, 286a and 287 [Vernon’s Penal Code] rests solely, with the courts of this state exercising criminal jurisdiction.” We must confess that the statement is much too broad. It is to be related to the context in which we were writing. The. statement was intended to explain our adherence to the rule that courts of equity will take jurisdiction to enjoin enforcement of penal laws only in exceptional situations, thus leaving those laws to be interpreted through the criminal trial process whenever possible. The procedure by which this case reaches us does not permit us to relegate the parties to the criminal trial process for interpretation of Art. 286a. Sec. 4 of the Article declares a business operating contrary to its provisions to be a public nuisance, and provides that “any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act.” That legislative direction requires the civil courts to interpret Art. 286a.

The position of the State is that this provision requires that two conditions exist before the sale of 'an item listed in Sec. 1 will be exempted from the general prohibition of Art. 286a. First, the purchaser must certify in writing that the item is needed as an emergency for the welfare, health or safety of human or animal life. Second, the purchase must in fact be an emergency purchase to protect the health, welfare or safety of human or animal life. The basis of this argument is that by using the conjunction “and” between the two clauses of the provision the Legislature intended to create not only the certification requirement but also the requirement that the emergency exist in fact.

The respondent contends that the provision in clear and unambiguous terms imposes one requirement only — that the purchaser certify in writing (1) that the item is needed as an emergency, and (2) that the purchase is an emergency purchase. The position of respondent thus is that once the purchaser has certified that both conditions exist, the seller is free to complete the sale without regard to the existence of an actual emergency. The premise of this argument is that both clauses of the provision follow the words “certify in writing that,” and nothing indicates that the clauses should be considered to be making separate, distinct requirements. Alternatively, the respondent argues that if the clause is regarded as ambiguous, the State’s interpretation cannot be accepted because that interpretation would render the section unconstitutional.

We hold that the quoted provision is ambiguous and that it must be given the interpretation placed on it by respondent.

The guiding rule of statutory interpretation is to ascertain legislative intent. 53 Tex.Jur.2d 180, Statutes, § 125. When the intent is clear it will be given effect by the courts even to the extent of adding words to the language used by the Legislature. See Sweeny Hospital District v. Carr, Tex.Sup., 378 S.W.2d 40. Sometimes, however, legislative intent is elusive and unclear; and in such instances the courts must resort to rules of construction to give meaning to legislative enactments. That is the situation here.

If we could say that the interpretation placed on the quoted language of Sec. 4a by either of the parties was the only reasonable interpretation, we would regard our judicial obligation as at an end and would give the language that meaning. By interpolating the word “that” between the words “and” and “such purchase” in the second clause, the provision could be made to say clearly what respondent contends it now says. By interpolating the word “when” between the words “and” and “such purchase” the provision could he made to say clearly what petitioner contends it now says. Moreover, either revision would make the provision meaningful. Considered either as standing alone or in context with the remainder of the statute, or in pari ma-teria with Articles 286 and 287, we find no clue to legislative intent in the enactment of Sec. 4a which authorizes us to say that the one or the other revision is the only reasonable one. Neither do we find a clue to legislative intent in the legislative history of the enactment.

The statute had its origin in Senate Bill No. 35, passed by the First Called Session of the 57th Legislature. See Acts 57th Leg., 1st C.S., ch. 15, p. 38. Sec. 4a was not in the bill when it was introduced in the Senate; it w.as incorporated in the bill by amendment on third reading in the House of Representatives, and the amendment was adopted by unanimous consent. The language and punctuation of Sec. 4a is exactly as it appeared in the amendment. See House Journal, First' Called Session, page 843. Being thus unable to resolve the ambiguity in the section from the only sources available, we turn to rules of construction to resolve it. The controlling rule of construction here is that which requires that a statute not be giveii the one of 'two reasonable interpretations which will render it unconstitutional and void. See McKinney v. Blankenship, 54 Tex. 632, 282 S.W.2d 691, 697 ; 53 Tex.Jur.2d 225, Statutes, § 158.

If Sec. 4a is interpreted as respondent interprets it, the obligations imposed on the seller of items of personal property are clear and definite and the section is constitutional and valid. Under that interpretation, the right to sell or to offer to sell without incurring penal sanctions is conditioned alone and altogether on certification by buyers that items are needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life. The right to sell or the duty not to sell are thus made to rest on a subjective determination by the purchaser of the emergency nature of the purchase and that it is to protect the welfare, health or safety of human or animal life. If the certificate is made, a sale may be made without fear of criminal punishment. If the certificate is not made, a sale may not be made without risk of criminal punishment.

The situation is quite different if Sec. 4a is interpreted as petitioner interprets it. Under that interpretation the seller must, with respect to every sale, make an objective determination as to whether the purchase is an emergency purchase and whether the items are needed to protect the health, welfare or safety of human or animal life. A sale can never be made without risk of incurring criminal penalties since the statute provides no guides or criteria for making the determination.

It is well settled that a penal statute may be so vague and indefinite that it violates the right guaranteed to an accused by Sec. 10, Art. 1, Texas Constitution, Vernon’s Ann.St., to “demand the nature and cause of the accusation against him.” Griffin v. State, 86 Cr.Rep. 498, 218 S.W. 494; Ex parte Slaughter, 92 Cr.Rep. 212, 243 S.W. 478, 26 A.L.R. 891. And even if we should accept Bradford v. State, 78 Cr.Rep. 285, 180 S.W. 702, and Baltimore & O. Ry. Co. v. Interstate Commerce Commission, 221 U.S. 612, 31 S.Ct. 621, 55 L.Ed. 878, as authority for saying that Sec. 4a is not void because of the indefinite character of the phrase “emergency purchase,” we must nevertheless hold the section void for indefiniteness of the phrase “to protect the * * * welfare * * * of human or animal life.”

How can a seller determine whether a purchase is an emergency purchase for the “welfare” of human or animal life? The word “welfare” has a variety of meanings, as respondent points out. Webster’s Third New International Dictionary defines “welfare” as “the state of faring or doing well: thriving or successful progress in life: a state characterized esp. by good fortune, happiness, well-being, or prosperity. * * one’s condition in regard to health, happiness, or prosperity.” It would seem obvious on the face of it that whether any particular purchase is an emergency purchase to protect the happiness or well-being of human life can be determined only subjectively by the purchaser; and that if the section be construed as imposing a duty on the seller to make an objective determination of the matter, he will be subjected to criminal penalties for failing to discharge an impossible obligation. Cases such as Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, which uphold the validity of statutes as prescribing rules of civil conduct though they may be too indefinite to predicate criminal proscriptions, are not applicable here. Art. 286a is strictly a penal statute, not a statute prescribing a rule of civil conduct. And even though this is a civil proceeding, penal sanctions would be imposed if respondent should violate the injunction and thus be in contempt.

Our holding of indefiniteness is a narrow one. It has been made narrow deliberately. We are not to be understood, however, as holding or inferring that we would uphold the validity of Sec. 4a if it required only that a seller make an objective determination as to whether a purchase is an emergency purchase. The reasoning in the decisions of the Supreme Court of Kansas in State of Kansas v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750, and the Supreme Court of Missouri in Harvey v. Priest, Mo., 366 S.W.2d 324, would be strongly persuasive against validity. In those cases it was held that Sunday closing laws which excepted sales of articles “of immediate necessity” were invalid for indefiniteness.

It is difficult to conceive of any set of circumstances under which a purchase of most of the articles listed in Section 1 of Art. 286a could be an “emergency purchase” as one would normally interpret that phrase; but by the provisions of Sec. 4a the Legislature has expressly said that a purchase of any of them may be, and it is not in our province to decree otherwise.

In order to uphold the constitutionality of Sec. 4a, we construe the section as requiring as a condition of the right to sell the listed articles on both Saturday and Sunday only a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life. The certificate required by respondent is in strict compliance with the section. The duty is not imposed on respondent to determine whether the certificate is signed in good faith. The agreed facts do not show that respondent has been selling the listed items on both Saturday and Sunday without obtaining the certificate; and there is, therefore, no basis for the injunction granted by the trial court.

The judgment of the Court of Civil Appeals reversing the judgment of the trial court and dissolving the injunction is affirmed.

SMITH, Justice

(concurring).

I agree with the judgment, but disagree with the reasons advanced in support thereof. In its effort to uphold the constitutionality of Article 286a, this Court admits that the Act can be held constitutional only by holding that Section 4a of the Act requires a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life.

The Court also admits that its holding of “indefiniteness is a narrow one.” The Court then protects itself by candidly stating that “[We] are not to be understood, however, as holding or inferring that we would uphold the validity of Sec. 4a if it required only that a seller make an objective determination as to whether a purchase is an emergency purchase.”

It seems to me that the true question should be faced. The paramount question is whether we are going to hold Article 286a valid, as the Court has here, and thereby legalize a pure subterfuge designed to permit the violation of Articles 286 and 287 of Vernon’s Annotated Penal Code.

To hold that Section 4a of Article 286a is valid is to destroy the effectiveness of Article 286. The holding by this Court renders inoperative Article 286, and renders futile any attempt to prosecute violations of Article 286, supra. There can be nothing but chaos and confusion as long as Article 286a is a part of the statutory law. Apparently the Legislature needs to face the issue as well as the Courts. Does Texas really want a “Sunday Closing Law”? Is Texas ready to recognize the reasons as to why some merchants do not recognize Sunday as a holiday? Are we to continue Article 286, supra, and enforce it as it is written? Texas should make up its mind and determine the basic question: Are we going to have a Sunday Closing Law which can be enforced, if we hold Article 286a unconstitutional ?

It is argued that whether or not Texas should have a “Sunday Closing Law” is not before this Court and that, therefore, we are not concerned with the validity of Article 286, supra. I recognize that to enact a “Sunday Closing Law” is solely within the prerogative of the Legislature, but I contend that the argument the respondent has advanced to demonstrate the unconstitutionality of Article 286a is unanswerable.

The respondent in its answer, filed in this cause urged that Article 286a, supra, was unconstitutional and that the state’s suit for injunction should be abated and dismissed on the grounds that :

“(a) That said statute is illegal, un- . constitutional and void in that it purports to prohibit the conduct by Defendant of a lawful business, thereby depriving this Defendant of its property and privileges without due process of law, contrary to Article I, Section 19, Constitution of the State of Texas.
“(b) Said statute is illegal, unconstitutional and void in that it is unduly oppressive to the conduct of lawful business by this Defendant, thereby constituting a deprivation of this Defendant’s property, privileges and immunities without due process of law, contrary to Article 1, Section 19, Constitution of the State of Texas.
“(c) Said statute is illegal, unconstitutional and void in that it purports to declare as a public nuisance per se the conduct of a lawful business by this Defendant which is not a public nuisance per se, thereby depriving this Defendant of its property, privileges and immunities without due process of law, contrary to Article 1, Section 17, Constitution of the State of Texas.
“(d) Said statute is illegal, unconstitutional and void in that it purports under the guise of a police regulation to make an arbitrary discrimination against this Defendant in the pursuit of a lawful occupation and business, contrary to and in violation of Article 14, Section 1, Constitution of the United States, which provides that ‘no state shall deny to any person within its jurisdiction the equal protection of the law.’
“(e) That said statute is illegal, unconstitutional and void, in that it purports to abridge the privileges of this Defendant to conduct and operate a lawful business, in violation of and contrary to Article 14, Section 1 of the Constitution of the Ünited States, which provides that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’
“(f) Said statute is illegal, unconstitutional and void in that it purports to deprive this Defendant of its property without due process of law, contrary to Article 14, Section 1 of the Constitution of the United States, which provides that ‘nor shall any State deprive any person of life, liberty or property, without due process of law.’
“(g) That said Statute is illegal, unconstitutional and void in that it purports to take property belonging to this Defendant, without Defendant’s consent, and without adequate compensation being made, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(h) That said statute is illegal, unconstitutional and void in that it purports to authorize the damaging of this Defendant’s property without adequate compensation being made, and against this Defendant’s consent, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(i) That said statute is illegal, unconstitutional and void in that it purports to authorize the application of this Defendant’s property to public use without adequate compensation being made, and without the consent of Defendant, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(j) That said statute is illegal, unconstitutional and void in that it purports to prohibit the sale of certain specified listed items of goods, wares and merchandise usually carried by discount department stores which sell goods, wares and merchandise to the general public at discount prices substantially below the prices charged for similar merchandise by retail businesses generally which operate in the City of Corpus Christi, Texas, and in the State of Texas, and in so attempting to discriminate against such discount type of operations, said statute is vio-lative of due process of law and contrary to Article 14 of the Constitution of the United States and Sections 17 and 19 of Article 1 of the Constitution of the State of Texas.”

It is my position that Article 286a, supra, is an irredeemable violation of the Constitutions of the United States and the State of Texas. Of course Article 286 has been left as a part of the law for many years, but the enactment of Article 286a has pointed up the unconstitutionality of the entire statutory scheme of Sunday closing in Texas. Although Article 286 has been held constitutional, in a sense the Legislature has from time to time recognized that it was necessary to enact legislation either repealing or modifying Article 286. The Legislature has chosen the latter course only to bring about hopeless confusion. This Court by its decision has not resolved the question.

It is my view that Article 286a is unconstitutional and should be so held by this Court. The Respondent argues that:

“The Texas Legislature avoided the taint of unconstitutionality in Article 286a, Penal Code, by providing for a subjective test on the part of the purchaser, to be evidenced by a written certificate. Except for this escape valve of a subjective determination by the purchaser, Article 286a, Texas Penal Code, would be as wholly inoperative and void as being violative of due process as are the Missouri and Kansas Sunday Closing Laws as a result of the definite pronouncements of the highest judicial tribunals of those States. The Texas Legislature avoided the trap, and provided for the purchaser’s subjective determination test of Section 4a of Article 286a, Penal Code. Accordingly, this Texas Penal Statute is constitutional and valid.”

I cannot agree. The entire Act, let alone Section 4a, is so indefinitely framed and of such doubtful construction that its tests of enforcement are, of necessity, subjective rather than objective, thereby violating the fundamental guarantees of due process of law granted in the Texas and United States Constitutions. For example, the meaning of “any person” in Section 1 does not apply to corporations by virtue of provisions of our Penal Code and an opinion of the Attorney General of Texas. That opinion, Number WW-14S0, held:

“Section 1 of Article 286a * * * applies to any person, and provides that a violation thereof is a misdemeanor offense. This section cannot apply to corporations * * *.” (Emphasis added). Furthermore, Article 286a does not create a penal offense which can be committed by an employee of a natural person nor does it create an offense which can apply to a corporation or its employees.

It should be noted that no definitions are given of the words “certify,” “emergency,” “welfare,” “health,” “safety,” “human life” or “animal life,” contained in Section 4a. This section uses the term “emergency” but provides no standard by which the existence of an emergency may be gauged. “Emergency can mean different things to different people depending upon the manner of its use, whether it is being used in tort law or is used in a contract.” See In Re: Tschoepe et al., 13 F.Supp. 371, District Court Southern District, Corpus Christi, 1936.

I call your attention to the last sentence of Section 4a, which reads: “Provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.” Thus, depending on which way the Court holds, Section 4a either places the merchant in the unenviable position of being subject to criminal prosecution if his concept of ■emergency varies from that of local law ■enforcement officials, or the purchaser is subjected to the embarrassment of signing an untrue certificate. Neither result should obtain. This Court’s holding jeopardizes the freedom of the purchaser, but allows the merchant to go free, although his statement of policy in regard to Article 286a is clearly designed to mislead the purchaser into believing that he would be violating no law by signing the certificate. The entire statement of policy is calculated to lead the purchaser into a trap, and under this Court’s construction, the purchaser cannot be prosecuted nor can the merchant be reached by the enforcement officers. What is the average person, who desires to purchase a useful article on Sunday, going to do when he construes an advertisement to mean that he may purchase items covered by law if he signs a certificate of necessity that his purchase is needed as an emergency for his own welfare? Naturally, the purchaser, under such belief, will agree with the merchant that a law which requires the signing of a certificate is “unfair and contrary to the American way of life, =|s * *

It is true that the merchant in this case professed allegiance to the law until ‘‘you change it.” However, the record in this case shows that an average of approximately fifteen (IS), out of a total number of Sunday purchasers substantially in excess of 200, indicated hesitancy or doubt about signing the certificate. In view of the failure of the law to define welfare, emergency, etc., together with the statement of policy announced by the merchant, I am constrained to believe that those who signed were not intentionally signing untrue certificates, but were misled or trapped into aiding the merchant in making a sale. Granting that the merchant was acting within the law, it is unescapable that the law declared in 286a is shocking and should be stricken down. We have a situation where the law apparently attempts the imposition of an objective test on the merchant to make an objective determination as to whether any purchase is an emergency purchase, and where the law also provides that the test of the exemption shall be the subjective test of the purchaser’s determination of the existence of an emergency. However, it conclusively appears that the statute under consideration is so vague and indefinite that men of common intelligence must guess as to its meaning and differ as to its application. We have a difference of opinion as to the meaning and application of the Act. I would apply the rule announced in Ex parte Chernosky, Criminal Appeals, 1949, 217 S.W.2d 673:

“A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law. ^

Aside from the reasons advanced thus far as to why Article 286a is unconstitutional, I briefly add that Article 286a is unconstitutional because the caption of the Act is fundamentally defective for either or both of the following reasons:

(a) Although Article 286a presumes to be a penal statute, there is no mention of penalties in the caption.

(b) Although. Article 286a amends portions of Articles 286 and 287, Vernon’s Annotated Penal Code, there is no mention of its amendatory provisions in the caption.

In conclusion I adopt the summation contained in the brief of Amicus Curiae, Jay S. Fichtner, an attorney of Dallas, Texas:

“Vagueness, indefiniteness and ambiguity pervades the whole of Article 286a itself; Section 1 does not even begin to make clear as to whom the Act applies, though it seems on its face to apply only to natural persons who are employers; Section 4a refers to ‘emergency certificates’, yet no standards are given by which either “health”, ‘welfare’, ‘safety’ or ‘emergency’ are to be measured or judged. People must necessarily guess as to whether they are covered by the Act; further they are unconscionably forced to speculate as to whether the ‘emergency’ on any given ‘emergency certificate’ is enough of an ‘emergency’ to comply with the provisions of Section 4a. An ‘emergency’ to one may not be to another; and what is ‘healthy’, ‘safe’, or for the ‘welfare’ of one may not be for another. But Article 286a forces the seller in every case, (in the absence of omniscience) to guess at both the meaning of the terms of the ‘emergency certificate’ and their application to the immediate sale; and this on pain of fine and imprisonment if the guess of his peers at a later trial differs from his own. Such a statute does not begin to meet the requirements of due process of law under the Constitution of both the United States and the State of Texas.
“But the vagueness and ambiguity is not confined to Article 286a itself; it is inherent in the effect Article 286a has upon Articles 286 and 287. A person who does what is prohibited in Section 1 is subjected to criminal and civil sanctions under 286a; but if he accepts an ‘emergency certificate’, Article 286a does not apply to his conduct, with the unhappy result that if the transaction is on a Sunday he has violated Article 286. And since the amendatory effect of Article 286a upon Articles 286 and 287 is invalidated because not mentioned in the Caption, Articles 286 and 287 still apply to the sale at the same time Article 286a applies; this problem is not solved by any implied repeal, since the legislature in Section 5a of Article 286a expressly states its intent not to repeal Articles 286 and 287. Thus Article 286a not only fails to state what acts are permitted and what acts are interdicted, but also lures the unsuspecting merchant into the withering cross-fire of Articles 286 and 287. Such a capricious, equivocal and arbitrary statute must not be allowed to stand.”

For the reasons stated, I would strike down the statute, and dissolve the injunction granted by the trial court.

      . Emphasis supplied throughout unless otherwise indicated.

      . The Court of Criminal Appeals has held in Ex parte Wilson, 374 S.W.2d 229, that Sec. 5a does not render Art. 2SGn so indefinite as to invalidate it, but that court has not decided the question presented in this casé.

      . “Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employe of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission. Act. Dee. 2, 1871, Acts 1883, p. 66, Acts 1887, p. 108.”

      . “The preceding Article shall not apply to markets or dealers in provisions as to sales of provisions made by them before nine o’clock A.M., nor to the sales of burial or shrouding material, newspapers, ice, ice cream, milk, nor to any sending of telegraph or telephone messages at any hour of the day or night, nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bath houses, or ice dealers, nor to telegraph or telephone offices, nor to sales of gasoline, or other motor fuel, nor to vehicle lubricants, nor to motion picture shows, or theatres operated in any incorporated city or town, after one o’clock P.M.”

      .“When a purchaser will certify in writing that a purchase of an item of personal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life, then this Act shall not apply; provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.”

      . “YOU MAY PURCHASE ITEMS COVERED BYLAW:
      “If you sign a certificate of necessity that your purchase is needed, as an emergency for either the health, Welfare, or Safety of Human or Animal Life.
      * % ‡ >•:
      “WE ASK THAT YOU COOPERATE WITH US IN OUR COMPLIANCE WITH THE NEW SUNDAY BLUE LAW, WHICH IS ADMITTEDLY AND DELIBERATELY DESIGNED TO LESSEN YOUR OPPORTUNITY TO SAVE AT DISCOUNT STORES SUCH AS SHOPPERS WORLD, A LAW WHICH WE DISAPPROVE OE AS UNFAIR AND CONTRARY TO THE AMERICAN WAY OE LIFE, BUT NEVERTHELESS, A LAW WHICH WE MUST AND WILL OBEY UNTIL YOU CHANGE IT!”


author: BELCHER, Commissioner.

text:
    John D. PALMER, Appellant, v. The STATE of Texas, Appellee.
    No. 37070.
    Court of Criminal Appeals of Texas.
    June 24, 1964.

      No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Appellant waived his right of trial by jury, entered a plea of guilty before the court to the offense of burglary of a private residence at night, and the court assessed the punishment at 7 years.

• The record contains no informal or formal bills of exception. No brief has been filed in appellant’s behalf.

The indictment alleged the burglary of Edna Hitt’s private residence at night, with intent to steal.

Sufficient evidence was introduced to show that Edna Hitt’s private residence was unlawfully broken into on the night of May 17, 1963, entry into the house being made by pulling the screen off of a window and crawling through such window and a television set was removed therefrom. ,

Witness Edna Hitt testified that the entry of her private residence and the taking of the television set were without her consent.

Appellant’s voluntary written statement was introduced in evidence and it corroborates the other evidence of the state showing the commission of the offense as charged.

The appellant’s statement reads, in part: “At around 8 or 9 PM last Friday night, which would be the 17th of May, 1963, I (appellant) went into the house at 514 Overhill Drive in Arlington * * *. I got in by pulling the screen off the front window and then crawled through the open window. * * * I took a Firestone television set which was in' the front room of the house. * * * I took the set over to a friends house * *

The appellant did not testify or offer any evidence in his behalf.

Finding the evidence sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Jessie TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 35899.
    Court of Criminal Appeals of Texas.
    June 5, 1963.
    Rehearing Denied June 29, 1963.

      Reynold M. Gardner, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 90 years.

The undisputed evidence shows that in searching the residence of the appellant for stolen property, the officers found a glass jar containing a plant substance which upon analysis proved to be 8.05 grams of marihuana.

Appellant presents three grounds for reversal, the first two of which relate to the legality of the search.

The affidavit, upon information and belief, was to the effect that certain property therein described had been stolen from E. W. Daugherty by a person whose name and description was unknown and that the affiants had good reason to believe that said property was concealed by a person whose name and description was unknown on premises under his control located at 1208 East 11th Street in Plainview.

The affiants further swore in the affidavit: “Our belief of the foregoing is based upon the following facts: we have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizens of Hale County, Texas.”

The affidavit was made a part of the search warrant which recites: “ * * * and said complaint having stated facts and information in my opinion sufficient to establish probable cause for the issuance of this warrant * *

Hernandez v. State, 158 Tex.Cr.R. 296, 255 S.W.2d 219; Luera v. State, 124 Tex.Cr.R. 507, 63 S.W.2d 699; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873; and Giacona v. State, 169 Tex.Cr.R. 101, 335 S.W.2d 837, are authority for our holding that the affidavit was sufficient to show probable cause for the search and to sustain the magistrate’s finding.

Appellant next contends that the affidavit did not describe the property alleged to have been stolen and concealed with sufficient particularity to identify it.

The affidavit described the property as “watch, stock certificates, television set, 4 suits, 2 electric blankets, 5 blankets and several throw rugs, electric clippers of the value of $300.00.”

No authority is cited to support the appellant’s position that the description of said property was not sufficient to enable the executing officers to identify it.

Parrack v. State, 154 Tex.Cr.R. 532, 228 S.W.2d 859, is to the effect that a general description of the property searched for is all that is required.

See also Dupree et al. v. State, 102 Tex. 455, 119 S.W. 301.

The remaining complaint relates to the severity of the punishment assessed by the jury.

The punishment assessed, being within the limits authorized by the statute, was for the jury. Lambright v. State, 167 Tex.Cr.R. 96, 318 S.W.2d 653, and cases cited.

The judgment is affirmed.


author: McDonald, judge.

text:
    Surlester HEREFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 37002.
    Court of Criminal Appeals of Texas.
    June 24, 1964.
    Ivilmer B. Corbin, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., J. Monty Bray and George H. Nelson, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, ten (10) years confinement in the state penitentiary.

In view of our disposition of the case, a recitation of the facts is unnecessary.

Appellant contends that the trial court erred in interpreting the verdict of the jury which found appellant guilty “as charged in the indictment and assessed his punishment at confinement in the penitentiary for a period of ten (10)” to mean that the jury intended the punishment to be ten years in the penitentiary.

We had this identical question presented us in Slaughter v. State, 170 Tex.Cr.R. 16, 336 S.W.2d 944. In that case the verdict of the jury which the trial court received and upon which the judgment of conviction was based recites that the jury found appellant guilty and assessed his punishment “at confinement in the State Penitentiary for Five (5)”. Slaughter controls the disposition of this case.

The verdict assessed no definite punishment and for that reason is fatally defective. Cooper v. State, 136 Tex.Cr.R. 498, 126 S.W.2d 974; Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953; McCarty v. State, Tex.Cr.App., 317 S.W.2d 748.

The authorities cited are controlling and require that the conviction be set aside.

Accordingly, the judgment is reversed and the cause remanded.


text:
    Jerry Lynn COX, Appellant, v. The STATE of Texas, Appellee.
    No. 37067.
    Court of Criminal Appeals of Texas.
    June 17, 1964.
    Ben Henderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while license suspended; the punishment, a fine of $100 and 5 days in jail.

No statement of facts accompanies the record.

The appellant duly and timely filed and presented to the trial court a motion to quash the complaint and information on the ground they do not apprize the appellant of the reasons for the suspension of his operator’s license. The trial court overruled the motion and appellant reserved his exception thereto.

The complaint and information only charged that appellant drove a motor vehicle upon a public highway when his operator’s license was suspended.

In the recent case of Adams v. State, 376 S.W.2d 832, 833, this Court held that “a complaint and information charging the offense of driving while license suspended is subject to exception or motion to quash on the ground that it fails to recite under which Article (Art. 6687b, Vernon’s Ann. Civ.St. or Art. 6701h, Vernon’s Ann.Civ. St.) the license was suspended.”

There is no allegation in the present complaint or information reciting under which article appellant’s license was suspended.

The judgment is reversed and the prosecution under the present complaint and information is dismissed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge. McDonald, judge.

text:
    John Wesley DAVIS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36946.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    Rehearing Denied June 24, 1964.
    David Tate, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Charles D. Butts, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is swindling by worthless check in the sum of over $50; the punishment, enhanced by two prior convictions for like offenses, life.

The statement of facts is in narrative form as requested by the appellant in his affidavit of inability to pay. It shows that on July 22, 1963, the appellant, who had registered as a guest at a hotel in Wichita Falls, gave the desk clerk a check on the First National Bank of Pampa for $75 in payment of his hotel bill amounting to $40. - 92, and received' $34.08 in cash.

The check was introduced in evidence and was shown to have been presented and returned unpaid. An officer of the bank testified that the bank had never had an account for a John Wesley Davis, Jr.

Appellant’s confession to the giving of the check was introduced in evidence. Two previous convictions for like offenses alleged for enhancement of punishment purposes were proved by authenticated copies of the indictment, judgment and sentence, and the appellant was identified by fingerprint comparison testimony as the person so convicted.

We find the evidence sufficient to sustain the conviction.

Appellant’s court appointed counsel has been unable to point out any error which would call for reversal and we have found none.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

We have again carefully reviewed this case primarily because of the appellant’s personal appeal to this court and his complaint that he feels that his court-appointed attorney has not shown him the record in his case. It is appellant’s position that he could file a brief with this court reflecting reversible error, if he only had the record to look at. For that reason, the entire record has been re-examined, and we can find no possible error or contention that could be urged by appellant if he had the record before him. His court-appointed attorney did a creditable job representing him. The attorney cannot improve upon the record. He must only consider it as the facts were developed in the trial.

While we are sympathetic to one who is apparently afflicted with the “hot check disease” as appellant seems to be, we find no merit in his contention that would warrant a reversal of this cause. We remain convinced that we correctly disposed of this case in our original opinion.

Appellant’s motion for rehearing is overruled.


author: WERLEIN, Justice.

text:
    SOUTHERN PACIFIC TRANSPORT COMPANY, Appellant, v. The STATE of Texas, Appellee.
    No. 14384.
    Court of Civil Appeals of Texas. Houston.
    May 28, 1964.
    Rehearing Denied June 18, 1964.
    Ralph S. Carrigan, William B. Cassin, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.
    Waggoner Carr, Atty. Gen., W. O. Shultz, II, Lawrence Merriman, Asst. Attys. Gen., Austin, for appellee.
   WERLEIN, Justice.

This suit was brought by the State of Texas to escheat certain personal property held by appellant, Southern Pacific Transport Company consisting of unclaimed wages which it was alleged appellant owed to its former employees for the years of 1952, 1953 and 1954 in the sum of $3,008.24, and $25.98 in vouchers payable to other individuals or companies. Although the creditors in question had never asserted or sought to enforce such claims against appellant and the same were barred by the two and four year statutes of limitation, appellant, relying on the opinion of the Attorney General of Texas, reported such claims in 1962 to the State Treasurer of Texas as “Property Subject to Escheat” under the provisions of Article 3272a, Vernon’s Annotated Texas Statutes. In this report appellant asserted that the claims reported were barred; that when the right to plead the bar of limitations vests it cannot be constitutionally divested by the State; and that the report was filed under duress solely to avoid the severe penalties provided for failure to file such report. After receiving such report the State instituted this suit to escheat the claims in question and to force appellant to pay the State the aggregate amount thereof in the sum of $3,034.22. There being no disputed facts, both parties moved for summary judgment. Appellee’s motion was granted by the trial court and appellant’s motion was denied.

Appellant asserts that the trial court erred in holding that the two and four year statutes of limitation may not be pled in bar to the enforcement by the State of es-cheated claims which were barred before the claims escheated, and also erred in not granting appellant’s motion for summary judgment based upon appellant’s plea of limitations. Article 3272, V.A.T.S., provides in part:

“If any person die seized of any real estate or possessed of any personal estate, without any devise thereof, and having no heirs, or where the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, leaving no heirs, or devisee of his estate, such estate shall escheat to and vest in the State. Where no will is recorded or probated in the county where such property is situated within seven years after the death of the owner it shall be prima facie evidence that there was no will, and where no lawful claim is asserted to, or lawful acts of ownership exercised in, such property for the period of seven years, and this has been proved to the satisfaction of the court, it shall be prima facie evidence of the death of the owner without heirs.”

In 1961 the Legislature enacted Article 3272a, V.A.T.S., which provides, among other things, that every person holding personal property, subject to escheat under Article 3272, V.A.T.S., at the time of the effective date of the Act, shall within sixty days thereafter file a report thereof with the State Treasurer as specified in Sec. 2 of such Article, and also that every person who holds personal property which becomes subject to escheat under Article 3272 shall file a report with the State Treasurer. Article 3272a, V.A.T.S., provides that the term-“personal property” includes, but is not limited to, money, stocks, bonds and other securities, bills of exchange, claims for money or indebtedness and other written evidences of indebtedness, dividends, deposits, accrued interest, etc. Such Article-also provides:

Section 1(c) “The term 'subject to escheat’ shall include personal property presumed to he subject to escheat by the prima facie conclusions contained in Article 3272, including all personal property (1) of which the existence and whereabouts of the owner are unknown and have been unknown to the holder for more than seven (7) years- and (2) on which, from the knowledge and records of the holder it appears that no claim or act of ownership has been asserted or exercised during the past seven (7) years and (3) on which no will of the last known owner has been recorded or probated in the county where the property is situated within the past seven (7) years.”

The trial court, in its summary judgment in favor of appellee, recited that there was-no dispute as to the fact that the claims-against appellant which are the subject of the present suit, were actually abandoned and there is no person presently entitled thereto, and, therefore, said claims have, under the terms and provisions of Arts. 3272 and 3272a of Title 53 of the Revised Civil Statutes of Texas, escheated and title thereto is vested in the State of Texas. The court further recited “that the statutes of limitation may not he pled against the State of Texas so as to bar enforcement of escheated claims of the sort here in issue.” The court in its judgment ordered and decreed that appellant deliver the sum of $3,-034.22 in cash to the State Treasurer of Texas.

The sole question for consideration and decision by this Court is whether or not appellant can be forced to pay the amount of the alleged claims to the State of Texas, regardless of the fact that such claims were all barred by the two and four years statutes of limitation of this State prior to the enactment of Art. 3272a and prior to the time that such claims were escheated by the State.

The last known owners of the claims in question were the creditors of appellant whose claims for wages and other simple debts had not been pressed for more than seven years prior to the date of the report on which the suit is based. All such creditors, although duly cited, wholly made default and the claims were declared es-cheated to the State.

The relationship between appellant and such former creditors was solely one of debtor and creditor. No trust relationship existed between them. Appellant has not in the past nor does it now possess any money or other property belonging to such former creditors. Appellant does not deny the right of the State to escheat the abandoned claims of appellant’s former creditors, but it does deny the right of the State to enforce payment to the State of escheated claims which were barred by limitation prior to the time they escheated.

Although appellee alleges that the claims in question have escheated under both Articles 3272 and 3272a, V.A.T.S., it has apparently relied upon escheating such claims as abandoned property under Article 3272a. No effort was made by appellee to-prove when any of appellant’s creditors-died. Hence, appellant would have to rely upon a presumption of death in order to es-cheat the claims under Article 3272. The law is well settled in this State that the death of an absent person may not be inferred to have occurred at any particular time short of the seven year period prescribed in Article 5541, V.A.T.S. in the absence of evidence tending to show the actual time of death. Sovereign Camp W. O. W. v. Boden, 117 Tex. 229, 1 S.W.2d 256; 17 Tex.Jur.2d, p. 513, § 8. In the instant case there was no such evidence. Under the undisputed facts of this case the claims in question were all barred by limitation prior to. the escheat whether they were escheated under Article 3272 or 3272a, or both articles.

Appellee takes the position that appellant may not plead limitations against the State unless it can cite a statute which expressly provides for such plea. It relies upon such cases as Smith v. Power, 1859, 23 Tex. 30; Brown v. Sneed, 1890, 77 Tex. 471, 14 S.W. 248; Waters-Pierce Oil Co. v. State, 48 Tex.Civ.App. 162, 106 S.W. 918, error ref.; and State v. Stone, 1954, Tex.Civ.App., 271 S.W.2d 741. These cases merely hold that limitation does not run against the State unless provision is made therefor by statute. They do not hold that limitation cannot be pled in an action brought by the State upon claims acquired by the State after such claims and the cause of action based thereon have been barred by limitation and the right to plead limitation has-become vested in the defendant.

Appellee cites the case of Ellis v. State, 1893, 3 Tex.Civ.App. 170, 21 S.W. 66. This case is factually distinguishable from the instant suit. In the Ellis case it was shown that one Stephens who died in 1862 seized of certain land, left no will or heirs. Ellis took possession of the land in 1865 and improved the land from 1865 to 1890, when the State brought suit declaring that the land- escheated when Stephens died. The evidence showed the time when Stephens died intestate and without heirs. No mere presumption of death was relied upon by the State to establish the fact of death. Hence under the law the land escheated at the time it was shown Stephens died, and title became vested in the State at such time so that limitation did not run against the State’s claim.

Appellant does not contend that limitation has run against the right of the State to bring this suit to escheat the claims in question. It concedes that the State may bring a suit to escheat a claim after such claim is barred by limitation, but it insists that in such suit the State acquires only what the owners of the claim possessed at the time the property was escheated. In the instant case the State acquired the claims in question, but the right to enforce such claims was barred by limitation at the time the claims escheated. Prior to the acquisition of such claims by the State, appellant had a vested right to plead and rely upon limitation.

It is our view that the State in escheating such claims did not acquire any better or greater right to enforce the claims than was possessed by the former owners. The State cannot acquire by escheat property or rights which were not possessed at the time of escheat by the unknown or absentee owners of such property or rights. In Hall v. Claiborne, 1863, 27 Tex. 217, the court said: “The statute of escheats was intended simply to vest the property belonging to the decedent in the state; * * ”

This principle is based upon ancient common law precedents. In Viscount Downe v. Morris, 1844, 3 Hare 394, 67 Eng.Rep. 435, the court, after reviewing English authorities dating back to the 17th Century, stated: “But, as a general proposition, whatever estate or benefit the tenant retains, which •would have passed to his heirs, if he had any, * * * that the lord by escheat may claim.”

In State by Parsons v. United States Steel Corporation, 1956, 22 N.J. 341, 126 A.2d 168, the court said:

“Limitations operate not against the State per se, but against the basic claim of the unknown owner. If, by virtue of limitations, the owner can obtain nothing, the State is under like disability. State, by Parsons v. Standard Oil Co., supra [5 N.J. 281, 74 A.2d 565] ; State v. Western Union Telegraph, supra [17 N.J. 149, 110 A.2d 115]. This is the derivative consequence, long recognized in the law of escheat. Brown v. United States, 65 F.2d 65 (9th Cir.1933) ; Croner v. Cowdrey, 139 N.Y. 471, 34 N.E. 1061 (Ct.App.1893); Pawlett v. The Attorney General, Hardres, 145 Eng.Rep. 550 (Ex.1679); Viscount Downe v. Morris, 3 Hare 394, 67 Eng.Rep. 435 (V.C.1844); cf. Evans v. Brown, 5 Beav. 114, 49 Eng.Rep. 520 (R.C.1842). The right of action to escheat or to obtain custody of unclaimed property is not derivative; but what may be obtained by exercise of the right is dependent upon the integrity of the underlying obligation.”

Appellee asserts that judgment declaring that the statutes of limitation have barred the claims of appellant’s former creditors would be void and would “deprive such persons of valuable rights and property without due process of law.” We do not agree. The rights of appellant’s former creditors were escheated to the State by the trial court and the judgment of escheat has become final. Appellant’s former creditors have no longer any valuable rights to assert against appellant. Had appellant’s former creditors sued appellant on such claims prior to the escheat and appellant had pled limitation, the burden would have been on such creditors to both plead and prove coverture, minority or some other exception which would prevent the statutes of limitation from running. 37 Tex.Jur.2d, p. 396, § 205, and authorities cited. Upon escheat of the claims, such burden devolved upon appellee. Appellee did not attempt to establish any exception that would keep limitation from barring the claims in question.

There is no merit in appellee’s contention that a holding that appellant may plead the statute of limitations in an action brought by the State on claims barred by limitation at the time they were acquired by the State, would render Article 3272a a nullity and that the State would never be able to obtain any property in any action brought under such Article. There are numerous actions for personalty wherein limitations could not be pled, or could be pled only under such restrictions as would eliminate the plea as a defense in an escheat action. As an example, we refer to State of New Jersey v. Standard Oil Co., 1950, 5 N.J. 281, 74 A.2d 565, aff’d 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078, where the State of New Jersey sought to escheat (1) unpaid dividends on capital stock, (2) 12 shares of capital stock, (3) unpaid wages, (4) money withheld from wages for Liberty bonds, (5) unpresented Commercial Bank checks, and (6) interest due on corporate debentures. The court upheld the plea of limitations as to unpaid wages, unpresented bank checks, and interest on corporate debentures, but denied the plea on unpaid dividends and money withheld for Liberty bonds, since such items were held in trust and limitations did not begin to run until the holder had refused a demand for their payment.

We are of the opinion that when the claims in question became barred, the right to plead the statutes of limitation in the suit brought thereon became vested in appellant and that the State could not divest appellant of such right by escheating the claims in question, nor by its escheat laws lift the bar of limitation which had accrued in favor of appellant. Article 1, § 16, of the Texas Constitution provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” It is our view that the proper interpretation of such provision as it affects appellant’s vested right to plead the statutes of limitation was announced by our Supreme Court in Mellinger v. City of Houston, 1887, 68 Tex. 37, 3 S.W. 249, as follows: “ ‘ * * * or if an attempt were made by law, either by implication or expressly, to revive causes of action already barred, such legislation would be retrospective, within the intent of the prohibition, and would therefore be wholly inoperative.’ ”

In Wilson v. Work, 1933, 122 Tex. 545, 62 S.W.2d 490, the Court, in a per curiam opinion, stated:

“In this connection it is the settled law that, after a cause has become barred by the statute of limitation, the defendant has a vested right to rely on such statute as a defense. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; Grigsby v. Peak, 57 Tex. 142; 9 Tex. Jur. p. 534, § 100. We here refer to 9 Tex.Jur. pp. 527 to 535, and notes, for general discussion of vested rights and retroactive laws.”

There is no express provision in the laws of Texas which abrogates appellant’s right to plead limitation as against enforcement of claims which are barred before escheated, nor is there any implied exception of which we are aware. In the early case of Gautier v. Franklin, 1847, 1 Tex. 732, Judge Hemp-hill, in speaking for the Court, said:

“Prescription by which an end is put at some time to litigation is founded upon the highest considerations of public policy * * *
“Such laws should be regarded with favor by courts of justice, and receive such interpretation * * * as would defeat the mischief intended to be suppressed, * * * ”

In Continental Supply Co. v. Hutchings, Tex.Civ.App., 267 S.W.2d 914, error ref., the court said: “Statutes of limitation are now generally regarded with favor by the courts, are to be construed as other statutes, and their application is not to be evaded by implied exceptions. Davis v. Howe, Tex.Com.App.1919, 213 S.W. 609.” See also Robin v. Ely & Walker Dry Goods Co., Tex.Civ.App., 137 S.W.2d 164, error ref.; Mott v. Riddell, Tex.Com.Ct.1880, 2 Posey 107; Sherman v. Sipper, 1941, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263.

We are of the opinion that the part of the Trial Court’s judgment escheating the claims should be affirmed, and that the part of the judgment ordering appellant to pay the amount of the escheated claims to the State should be reversed and rendered.

Affirmed in part and in part reversed and rendered.