author: SHARPE, Justice.

text:
    Albert HOFFMAN, Appellant, v. FRENCH, LTD., a Corporation, et al., Appellees.
    No. 119.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 16, 1965.
    Rehearing Denied Oct. 14, 1965.

      Austin Y. Bryan, Jr., Houston, Moise H. Simon, Bay City, for appellant.
    Richard B. Miller, of Baker, Botts, Shepherd & Coates, Houston, W. Jack Salyer, of Harris & Salyer, Bay City, for appellee.
   SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered after jury trial in favor of James H. Edwards and French, Ltd., a corporation, appellees, defendants below, against Albert Hoffman, appellant, who as plaintiff below sued for actual and exemplary damages on account of personal injuries allegedly sustained as a result of an automobile collision which occurred on January 11, 1963, in Bay City, Texas. Appellant, a police officer of said city, was in a police car stopped at an intersection red traffic light when a vehicle driven by Billy Luter collided with it from the rear. That collision immediately followed another which was caused by appellee Edwards driving a car owned by appellee, French Ltd., into the rear of Luter’s vehicle.

Appellees stipulated that Edwards was guilty of conduct constituting ordinary negligence proximately causing the collisions mentioned; however, they denied any acts of gross negligence or that appellant received any injuries on such occasion.

The charge of the Court contained 19 special issues including those conditionally submitted. In response thereto the jury found there was no gross negligence on the part of appellees and that appellant had not suffered damages of any kind. Judgment was rendered on the verdict that appellant take nothing by his suit.

Appellant urges thirty-two points of error. His basic contentions are: (1) there is no evidence and the evidence is factually insufficient to support the answers of the jury, (2) that various acts of jury misconduct occurred, and (3) that an accumulation of errors is presented; all of which appellant says requires that the judgment be reversed and the cause remanded for new trial. Appellees assert five counter points in support of the judgment.

We have concluded that appellant’s points do not demonstrate reversible error and that the judgment should be affirmed.

The crucial issue in this case was whether appellant suffered any injuries on account of the collision in question. The court submitted four special issues (Numbers 13, 14, 15, and 16) in usual form, concerning actual damages claimed to have been suffered by appellant. Special issue 13 inquired as to what sum of money, if any, if paid now in cash, will fairly and reasonably compensate the plaintiff, Albert Hoffman, for such injuries and damages, if any, which have been suffered and sustained by him, and, in reasonable probability, will be sustained in the future, directly and proximately resulting from the collision in question, taking into consideration the elements of physical pain in the past and in the future, mental anguish in the past and future, loss of earnings to the date of trial, and the reasonable present cash value of diminished capacity to work and perform services. Special issue 14 inquired as to compensation for necessary medical expenses incurred by appellant to the date of trial as a result of the injuries, if any, sustained by him in the occurrence of January 11, 1963. Special issue 15 inquired if appellant, in reasonable probability, would require medical treatment in the future on account of injuries, if any, sustained by him in such collision. Special Issue 16 asked substantially the same question concerning compensation for medical expenses in the future as was inquired about in issue 14. The jury did not answer any of issues 13, 14, 15, and 16 favorably to appellant, thus finding, in effect, that he did not suffer any damages on account of the incident in question.

We cannot agree that there is no evidence or that the evidence is factually insufficient to support the answers of the jury concerning actual damages. Appellant’s case largely depended upon his own testimony and upon subjective complaints. There was substantial evidence tending to show that appellant had not suffered injuries in the collision and the jury accepted that view. There was evidence which would authorize the jury to find that the impact between appellant’s car and the one behind it was a slight one; that the damage to the police car was slight, and ordinarily would not be calculated to produce injury to its occupants; that appellant suffered no visible injuries after the accident, but walked around, talked to people and drove his car to the police station.

Appellant’s testimony left much to be desired. Appellees say that, at least, appellant was guilty of what Sir Winston Churchill once called “terminological inexactitude”, and, at most, “his testimony was a tissue of improper, inaccurate and slanted statements about which he could not have conceivably made so many honest mistakes”. Whether the jurors agreed to either of these positions or took an in-between view, it is apparent that they were not impressed by appellant’s testimony or other evidence to the effect that he was injured in the collision.

The jury could have believed that appellant was impeached on several significant and material points and that his testimony concerning injuries allegedly suffered in the collision could not be credited. When his deposition was taken appellant denied involvement in other automobile accidents, but the evidence at the trial established that he had been in two such accidents within recent years. Appellant testified he resigned from the police force because his physical condition would not allow him to work, but other evidence tended to show he was let out for reasons not related to his physical condition. Appellant testified he had no prior back trouble and told Dr. Bradford he had no prior back or neck disability, yet another of his own doctors testified he had hospitalized appellant for back trouble some years before the instant accident. Appellant also conceded that after the accident in question he was attended by a doctor as a result of being struck by a chair in a bar fight and shooting incident (in which appellant shot and killed one of the participants). Other evidence, including x-rays and opinions, tended to show that plaintiff’s condition immediately after the accident involved old conditions or injuries which were not due to the accident in question.

The doctors who examined appellant after the accident of January 11, 1963 agreed that their diagnosis depended upon their receiving an accurate history from appellant. The jury could have believed that appellant either inadvertently or intentionally had not furnished the same to his doctors and that their opinions, to the extent they were favorable to him, were misguided. The medical evidence offered by appellees strongly rebutted the contention that appellant had been injured in the instant accident, and indicated that appellant’s sojourn of two weeks in the hospital was of his own making and choice.

Appellant’s contentions concerning the jury answers to Special Issues 14 and 15, inquiring concerning medical expenses, are without merit for the additional reason that the evidence was factually insufficient to support a recovery for the items claimed. Three doctors who examined appellant in the earlier period after the accident testified on the trial but did not give evidence as to the necessity of his treatment in terms of injuries suffered in the instant accident or as to the reasonableness of the expenses involved. Another doctor who examined appellant a short time before the trial was asked questions concerning statements for expenses in the total amount of $1,568.95, all of which, except $145.00 for services of the last doctor, were incurred before he came into the ease. The last doctor testified over appellee’s objection that the question as to necessity of such treatment was not related to the injuries in this case, that “I think it is necessary for the treatment of the individual” and, generally, that the amount of $1,568.95, as shown by statements, represented the fair and reasonable value of services rendered to appellant. However, said witness did not relate the expenses to treatment for injuries received by appellant in the accident of January 11, 1963. The above-mentioned objection of counsel for appellees was well taken and should have been sustained. In the final analysis, the evidence as to medical expenses was factually insufficient to support a finding that the same were necessary or incurred on account of injuries sustained in the collision here in question. See Dalby v. Lyle, 105 S.W.2d 764 (Tex.Civ.App.1937, n. w. h.); Texas & N. O. R. Co. v. Barham, 204 S.W.2d 205 (Tex.Civ.App.1947 n. w. h.).

Appellant’s points relating to the alleged legal and factual insufficiency of the jury answers to the actual damage issues are overruled.

Appellant’s points concerning the alleged insufficiency of the evidence to support the jury answers to the issues which might furnish a basis for exemplary damages are in the same category as the issues on actual damages; there was some evidence and it was also factually sufficient to support such answers. The jury was authorized to answer as it did on the questions of gross negligence and exemplary damages. Appellees’ claimed liability on such basis was thus eliminated from the case. Furthermore, an award of exemplary damages would not have been proper in the absence of a finding of actual damages, which the jury refused to make. Ft. Worth Elevators Co. v. Russell et al., 123 Tex. 128, 70 S.W.2d 397, 409 (1934); 17 Tex.Jur.2d Damages, § 177, p. 243. Appellant’s points relating to the alleged legal and factual insufficiency of the jury answers to the issues involving liability for gross negligence and exemplary damages are overruled.

We pass now to a discussion of appellant’s points alleging misconduct of the jury. He relies upon seven acts of purported misconduct which he says were material and probably caused injury. These acts will be discussed in the order briefed by the parties. Findings of fact or conclusions of law in connection with the motion for new trial were not requested or made by the trial court.

In determining the contentions made by appellant concerning misconduct we must follow the rule recently re-iterated by our Supreme Court in the case of Brawley v. Bowen, 387 S.W.2d 383, 384 (Tex.1965), as follows:

“Where no express findings are filed, it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion and that no misconduct occurred. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932); Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App., 1960, writ refused, n. r. e.). If the evidence offered at the hearing on the motion for new trial is conflicting as to whether or not misconduct occurred, the decision of the trial court on the question is binding on appeal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961).”

Appellant claims misconduct on account of alleged improper statements made during the deliberations of the jury by jurors Mrs. Hyett and Mrs. Mielsch. Some of the jurors testified on the hearing of the motion for new trial that the juror Mrs. Hyett had related a personal experience concerning a back injury suffered by her from which she had recovered. Other jurors did not hear such statement in the jury room. The record reflects that Mrs. Hyett had disclosed such facts in answer to questions propounded on the voir dire examination and some jurors recalled that the statement was then made but did not recall that it was repeated later on. The Statement of Facts on the hearing of the motion for new trial further reflects the following:

JUROR JEANENNE HYETT
“Q Moving over to another phase during the course of the Jury deliberations, did you make a statement in the presence of one or more jurors that you had had a back injury but that you had gotten well and had not sued anybody?
A I was asked if I was the same that stated to the lawyers here in the Courtroom that I had had a back injury. I said Yes. And I was asked if I was sued, and I said No; and that was all.”

On cross-examination by Mr. Miller, attorney for appellees, Mrs. Hyett testified:

“Q * * * j)0 you recall that you told me you had a back injury fifteen years ago?
A Yes, sir.
Q Do you recall I asked you then whether or not you had recovered from the back injury or if it was still bothering you?
A Yes, sir.
Q Do you recall saying you had recovered, but had had trouble with it about five years?
A Yes, sir.”

One of the jurors testified Mrs. Hyett stated in the jury room that “I was hurt in a wreck, hurt my back, and I got over it, and I didn’t sue nobody and therefore we didn’t owe Mr. Hoffman anything.” Another juror testified that Mrs. Hyett told the jurors * * * “that this doctor * * I can’t remember either * * * that waited on her; that he cured her and she believed he knew what he was saying about Mr. Hoffman.” It appears that the testimony of the jurors conflicted concerning the making of the statement by Mrs. Hyett and varied as to the content of what she said. Although it would have been improper for the said juror to testify as to her own personal injury and relate it to appellant’s alleged injury, the evidence here is sufficient to support an implied finding of the trial judge that Mrs. Hyett did not disclose anything during the jury deliberations which had not been made known on the voir dire examination. Both parties accepted Mrs. Hyett knowing about her own injury and that she had disclosed it to the other jurors on the voir dire examination. This would not authorize her to repeat the same during the deliberations but, under the circumstances, and in view of the trial court ruling on the motion for new trial, the evidence is not sufficient to support a charge of misconduct or probable injury to appellant. This is not a case where the testimony is undisputed as to what took place in the jury room and we are not authorized to set aside the implied finding of the trial court favorable to its order overruling the motion for new trial. Cf. Garcia v. Phoenix Assurance Company of New York, 376 S.W.2d 77, (Tex.Civ.App.1964, wr. ref. n. r. e.).

The alleged misconduct of the juror Mrs. Mielsch is in the same category as that of Mrs. Hyett. The record shows that one juror said he heard a statement by Mrs. Mielsch to the effect that on an occasion in Houston, a pedestrian had “walked into her car and got hurt, and he sued her, but she didn’t pay him anything.” The alleged statement of Mrs. Mielsch, if actually made, was not sufficiently related to the votes or a change of votes by the jurors in answering the special issues so as to establish materiality or probable injury.

The next act of misconduct claimed by appellant is that during the deliberations one of the jurors stated in substance that appellant had been offered a fair settlement before the trial, had refused it, and should not be allowed to recover. Some of the jurors testified that no such statement was made in the jury room and others said they did not hear it. Other jurors said they heard a statement to such effect but could not remember who made it or when or where it was made. We are again bound by an implied finding of the trial court in support of its order in overruling the motion for new trial.

Appellant next claims misconduct in connection with the discussion of the issue as to whether appellee Edwards was intoxicated on the occasion in question, and particularly whether such fact would be shown on plaintiff’s exhibit 1, which was a certified report by the Texas Department of Public Safety concerning the operating record of Edwards. Such exhibit was apparently offered in connection with appellant’s claim for negligent entrustment and exemplary damages. Some of the jurors testified to the effect that one juror stated that if Edwards had been drunk such fact would have been shown on such record. The exhibit certified “that the following notices of convictions, motor vehicle accidents and/or actions taken by the Department of Public Safety appear in the operating record of James Hudson Edwards, Jr.” (followed by 16 entries from 1954 to 1963 concerning accidents, speeding, running red light, warning letter and re-examination) and that “no other violations, accidents or convictions have been reported to the Driver and Vehicle Records Division as of this date (December 16, 1963).” It therefore appears that the exhibit offered in evidence by appellant injected into the case the question of convictions on the part of Edward's for various driving violations. Although the record contains an entry “1-11-63 — Motor Vehicle Accident — Bay City, Texas” which apparently relates to the instant accident, there was no notation of a Driving While Intoxicated charge or conviction growing out of it. In this context it is not improbable that some of the jurors might have discussed the matter now complained of by appellant, and which was raised by his own exhibit. The proceedings in a criminal case arising out of the accident would ordinarily not be admissible or properly considered by jurors in a civil case unless the defendant had entered a plea of guilty which could be considered as an admission as to the conduct involved. Isaacs v. Plains Transport Co., 361 S.W.2d 919 (Tex.Civ.App., 1962, writ refused n. r. e., by the Supreme Court, with per curiam opinion; Sup., 367 S.W.2d 152). However, we find that reversible error is not presented by the present complaint. If the discussion was improper it was invited by appellant. Appellate procedure in Texas, § 17.5. Furthermore the evidence is conflicting as to what statements were made and some jurors did not remember any statement on the subject during the deliberations. The implied finding of the trial court on the issue, which is supported by evidence, precludes us from sustaining appellee’s present contention as to jury misconduct.

Appellant next claims misconduct because the jury allegedly discussed the fact that appellant’s medical expenses had been paid by insurance and decided that appellant should not recover the same for such reason. Appellant offered into evidence several statements for Medical, Hospital and Drug expenses. One hospital bill reflected that there was insurance. Some of the jurors testified that there was a discussion to the effect that appellant’s own insurance had covered his bills. One juror said that appellee French’s Insurance Company was mentioned. To the extent that appellant’s insurance was involved, his own evidence injected the matter into the case. Although the jury should not have denied an award for medical expenses for the reason that appellant had insurance, nevertheless, the error, if any, was invited. Insofar as other insurance is concerned, the evidence is not sufficiently definite and certain -for us to say that the implied finding of the trial court as to such alleged misconduct should be set aside. Special issue 14, inquiring about past medical expenses was expressly conditioned on the same having been incurred "as the direct and proximate result of the injuries, if any, sustained by him in the occurrence of January 11, 1963.” The jury answer to that issue was consistent with its answer to special issue 13, which inquired about damages for injuries sustained, if any, for various elements of physical and mental pain, loss of earnings and earning capacity; the jury answering issue 13, in effect, that appellant did not suffer injuries in the collision. We have heretofore pointed out that the evidence was, in any event, factually insufficient to support a recovery for medical and other expenses, and, under such conditions, the error, if any, presented by appellant’s present contention would be harmless. Rule 434, Texas Rules of Civil Procedure.

Appellant next claims misconduct because of unsworn communications and opinions of jurors respecting the integrity of his counsel and law suit which allegedly caused animus, prejudice and feeling so as to prevent a fair trial. Reliance is placed upon a statement allegedly made by one of the jurors which might have referred to trial counsel for appellant. On the hearing of the motion for new trial the juror Walker who allegedly made some such character of statement denied doing so and the juror Matthews who had at one place in his testimony attributed the statement to Walker, revised his testimony in such respect. Appellant’s attorneys then withdrew the contention now asserted. Other jurors testified either that the statement was not made or that they didn’t hear it. The juror Walker testified that outside the jury room, after the verdict was returned, he made a statement to the effect that he was going to stop “these people” from stealing from companies in these suits. As we have hereinbefore mentioned, the jury apparently did not have a high opinion of appellant and could have concluded because of his impeachment in several respects that he was not trustworthy and did not suffer injuries in the collision. We are again bound by the implied finding of the trial court that the misconduct now complained of did not occur; and even if it had, the showing as to materiality and probable injury is insufficient.

Appellant next complains of alleged misconduct because one of the jurors voted with the majority under the mistaken belief that a majority controlled and the minority had to go along. The juror Stewart testified on the hearing of the motion for new trial that if he had not believed that the majority ruled he would have voted on special issues 13 and 14 for appellant "to get the money”. There is no showing that the juror communicated his alleged belief to the other jurors. The charge of the court expressly instructed the jury that the verdict must be unanimous. Our Supreme Court has held that an express misconstruction of the court’s charge, which does not bring to the attention of the jury law or facts outside the record should not be regarded as jury misconduct within the meaning of Rule 327, T.R.C.P. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 (1956). The uncommunicated, subjective belief of the juror, if found to exist, would not constitute misconduct in this case. Appellant’s contention in such respect is overruled.

The final misconduct relied upon by appellant is that the jury allegedly undertook to agree that the first 12 issues would be answered one way and the 13th another, which agreement was later welched to appellant’s prejudice. One juror (Matthews) testified that such a deal was made and six others denied it. Matthews also testified he had not voted on issue 13, but two other jurors testified to the contrary. Under such record of conflicting testimony we are again bound by the implied finding of the trial court that the misconduct complained of did not occur.

In the light of our holdings concerning appellant’s specific points of error we do not believe that reversible error is shown on the basis of an accumulation of errors. As we have pointed out, the jury was authorized from the evidence to find, and did find, in effect, that appellant did not suffer injuries in the collision, even though appel-lees admitted liability' for ordinary negligence for damages actually suffered, if any. We cannot find on the record here presented that material misconduct occurred which probably caused injury to appellant.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Ethel T. DENT, Independent Executrix of the Estate of Jennette S. Radford, Deceased, Appellant, v. Milton PINES et al., Appellees.
    No. 14604.
    Court of Civil Appeals of Texas. Houston.
    Sept. 9, 1965.
    Rehearing Denied Oct. 7, 1965.

      Thos. H. Dent, Galveston, for appellant.
    Levy, Levy, Levy & Schwab, Ed Schwab, III, Galveston, for appellees.
   COLEMAN, Justice.

This is an appeal from the judgment of the District Court of Galveston County, Texas, permanently enjoining Ethel T. Dent, the successful plaintiff in a forcible entry and detainer suit, the County Clerk of Galveston County, and the Sheriff of Galveston County, from ordering, issuing, levying or executing a writ of execution, or a writ of restitution, in said cause, and from in any way interfering with appel-lees’ possession and enjoyment of the real property involved under color of any process, right, or remedy arising or existing by virtue of the judgment rendered in said cause, being Cause No. 19,320 in the County Court No. 2 of Galveston County, Texas.

Appellant urges that the judgment is erroneous in that the District Court lacked jurisdiction by reason of Article 4656, R.C.S., providing that writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending or judgment was rendered.

This point cannot be sustained if the judgment entered in Cause No. 19,320 by such County Court is void and thus subject to collateral attack, the basis on which this judgment was rendered by the District Court. Cotton v. Rea, 1914, 106 Tex. 220, 163 S.W. 2; Pullin v. Parrish, Tex.Civ.App.1957, 306 S.W.2d 241.

If the record in Cause No. 19,320 discloses that the court rendering such judgment was without jurisdiction of the subject matter of the suit, the judgment is void and may be impeached in a collateral proceeding. Ringgold v. Graham, Tex.Com.App.1929, 13 S.W.2d 355.

Neither the Justice of Peace Court, nor the County Court No. 2 on appeal, has jurisdiction to determine questions of title to real property in a forcible entry and de-tainer proceeding. Rule 746, Texas Rules of Civil Procedure.

The entire record of the trial in the County Court No. 2 in Cause No. 19,320, •including the statement of facts, was introduced into evidence. The record shows that the uncle of Milton Pines, one of the appellees, was lawfully in possession of the property in dispute until his death in 1963. A two-story- house divided into two apartments is on the premises. After the death of the uncle, appellee Milton Pines entered into Possession of the premises through tenants and -has maintained this possession to the present time.

Appellant Ethel Dent, is the independent executrix of -the estate of Jennette S. Rad-ford. Findings of fact filed in Cause No. 19,320, reflect: (1) a deed by which the property was conveyed to John Radford; (2)the marriage license, duly executed, of John Radford and Julia Johnson; (3) a deed by which Julia Radford adopted Jen-nette Radford; (4) instruments showing that John Radford died in 1926, and devised the land in question to his wife, Julia Radford, who married Milton Pines, the uncle of appellee, in 1930; that Julia Radford died intestate in 1951; that Milton Pines died in February, 1963, and Jennette Radford died in March, 1963, leaving a will which was probated; that Ethel Dent qualified under the will as independent executrix.

The findings of fact also show that Julia Radford lived on the premises until her death and thereafter Milton Pines continued to live there, while renting a portion of the premises. Jennette Radford lived on the premises during her childhood. Milton Pines, appellee, was living on the property prior to the death of his uncle and continued to live there after his death, asserting ownership of the property.

The record in Cause No. 19,320, therefore, affirmatively shows that the entry onto the property by Milton Pines, appellee, was lawful and not by force. Therefore, there can be no basis for an action of forcible entry and detainer. Articles 3973 and 3974, Vernon’s Ann.Tex. Civ.St.; Emerson v. Emerson, Tex.Civ.App., 1896, 35 S.W. 425; 25 Tex.Jur.2d 474; Forcible Entry and Detainer, Sec. 9.

Forcible entry and detainer is a special proceeding governed by the statutes and rules applicable thereto. Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368.

In Texas Land Company v. Turman, 53 Tex. 619, 624, the Court said:

“The summary proceeding of forcible entry and detainer is designed to afford a speedy remedy for the recovery of possession, not to every person legally entitled to possession, but to those only who have been deprived thereof, in one of the ways specified in the statute.”

A forcible detainer action is dependent on proof of a landlord-tenant relationship. The -record negatives the existence of such a relationship. The trial judge in Cause No. 19,320, did not find that such a relationship existed. In the absence of evidence of a tenancy agreement the action of forcible detainer will not lie. American Spiritualist Ass’n v. Ravkind, Tex.Civ.App., 313 S.W.2d 121, error ref., n. r. e.; Criswell v. Southwestern Fidelity Life Ins. Co., Tex.Civ.App., 373 S.W.2d 893.

It appears from the record that appellant has never been in actual possession of the property. The evidence of title introduced could show no more than constructive possession. “Constructive possession will not support an action of forcible detainer, for it necessarily involves an inquiry as to title.” American Spiritualist Ass’n v. Ravkind, Tex.Civ.App., 313 S.W.2d 121, error ref., n. r. e.

It clearly appears from the record of the proceedings in Cause No. 19,320 that the matter presented for adjudication and actually determined was that the title to the premises in controversy, under the evidence presented, was clearly in the appellant and that, therefore, appellee had no right to remain in possession. The County Court had no jurisdiction of the cause since title to real estate was necessarily involved and the judgment is void. The District Court in this cause correctly so determined and properly issued its injunction.

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    CARPETLAND, INCORPORATED, Appellant, v. John NIXON, Appellee.
    No. 6785.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 16, 1965.
    Rehearing Denied Oct. 6, 1965.
    Long & Parker, Port Arthur, for appellant.
    Jerry L. Zunker, Orange, for appellee.
   PARKER, Justice.

Carpetland, Inc., sued John Nixon on sworn account for the reasonable value of carpeting with matting installed in home of defendant, plus $375.00 attorney’s fee. Defendant Nixon under oath denied the account was just or true, and, by way of cross-action sued Carpetland to rescind the purchase, for damages caused by dirt and dust and to recover a $50.00 down payment. Nixon’s defensive pleadings are reflected in the jury findings. Both plaintiff and defendant moved for judgment upon the verdict of the jury. Judgment was entered for defendant, Nixon. The parties will be designated as in the trial court, or as appellant and appellee.

The jury found the carpet was a first line carpet as represented by plaintiff to defendant; that same would not have been purchased by defendant unless it had been a first line carpet; that plaintiff did not represent the carpet to be the best quality or of the same quality shown to defendant or that faults and flaws observed by defendant’s wife were only in the end and that these would be cut off prior to installation or that there were no other faults or flaws in the carpet; that the reasonable market value of the carpet and mat, in the condition it was then in, when installed in June, 1964, in defendant’s home was $950.00; that plaintiff failed to install the carpeting in the home of defendant in a workmanlike manner and in accordance with the best practice but it was not entirely unsuitable for the use for “which it was known by Carpetland, Inc., that John Nixon intended to make of it.”; that plaintiff was negligent in sanding the floors and by dust and dirt damaged defendant’s home in the amount of $25.00; that defendant did not rescind the purchase contract at any time; that the reasonable attorney’s fee due Carl A. Parker representing plaintiff amounted to $425.00.

The suit is filed in the nature of a sworn account, the justness and correctness of such account being challenged. No exceptions to the pleadings were filed by defendant. The issues as submitted indicate the court was attempting to discover the market value of the carpet as installed. Defendant made no objection to the charge. Even though the jury found the carpet was not installed in a good and workmanlike manner, the issue on damages, as submitted, established the value of such carpet when taken with the other jury findings. Under these circumstances, with the jury having found no fraud or misrepresentation, plaintiff was entitled to judgment on the issues.

No statement of facts is before this court. No motion was made by either party for judgment non obstante veredicto. Appellant’s point of error that the court below erred in denying its motion for judgment on the verdict of the jury is sustained. Appellant’s point of error that the trial court erred in granting the motion of ap-pellee for judgment on the verdict of the jury for $75.00 is overruled except that said amount should be credited on the indebtedness of defendant to plaintiff as hereinafter adjudged.

Since the pleading of plaintiff for $375.00 attorney’s fee was not amended, plaintiff is limited to such amount even though the jury found such services to be reasonably worth $425.00.

It appearing that this case was fully developed, leaving no matter of fact to be ascertained, the judgment of the court below is reversed in part and reformed in part, and as reversed and reformed, judgment is here rendered as follows:

Carpetland, Inc. is ordered, adjudged and decreed to recover of and from John Nixon the sum of $1,250.00, together with interest at the rate of six per cent per annum from January 1, 1965, on $875.00 thereof and from date of judgment on $375.00 thereof. Such $1,250.00 is composed of $950.00 value of carpeting, plus $375.00 attorney’s fee, less the total of the down payment of $50.00 and the $25.00 damages.

All costs are adjudged against John Nixon.


author: McDONALD, Chief Justice.

text:
    H. MOLSEN, Sr., et al., Appellants, v. COMPANIA INDUSTRIAL, etc., Appellee.
    No. 4411.
    Court of Civil Appeals of Texas. Waco.
    Sept. 9, 1965.
    Hardy, Galindo & Sharpe, Brownsville, for appellants.
    Barnes & Elick, McAllen, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment for plaintiff in a suit for money allegedly owed plaintiff by defendants on a written contract for the sale of cotton by plaintiff to defendants.

Plaintiff Compania Industrial Jose de Escondon, S. A. de C. V., a Mexican corporation, sued defendant H. Molsen and Company for $8368.51, allegedly due plaintiff on a written contract whereby plaintiff sold and delivered 309 bales of cotton to defendant at 27.40 per pound. Plaintiff alleged that under such contract defendants owed $42,750.13 (less compress charges of $954.81), and that defendant paid $33,426.-71, leaving a balance due of $8368.51, which defendant refuses to pay.

Defendant answered by general denial and alleged, among other things, that plaintiff Compañía Industrial Jose de Escondon, S. A. de C. V. (hereafter called plaintiff company) was one and the same with Union de Crédito Agrícola y Industrial Jose de Escondon S. A. de C. V., (hereinafter called the Union); and that the Union owed defendant $7500 by virtue of a prior breached cotton contract, and that since the Union and plaintiff company were one and the same, the obligation of the Union was the obligation of the plaintiff company, and defendant properly deducted the $7500 (plus interest and penalties) amounting to $8368.-51, from the amount owed plaintiff on the cotton contract plaintiff sued on. Defendant, by reason of the foregoing, contended it owed plaintiff nothing.

Plaintiff moved for summary judgment, asserting no genuine issue of fact under the pleadings, admissions and depositions, stipulations and affidavit attached to the motion.

The trial court granted plaintiff’s motion for summary judgment against defendant for $8368.51 plus interest and attorneys’ fees.

Defendant appeals, contending:

The trial court erred in granting plaintiff’s motion for summary judgment against defendant because defendant’s Third Amended Original Answer raises germane and material issues as to whether the plaintiff company and the Union are one and the same party.

The record on summary judgment contains the written contract to purchase cotton signed by defendant’s manager. Defendant’s manager admits the execution of the contract in his deposition. The contract provides that “it evidences the entire contract between the parties — and all terms, provisions and conditions relating thereto, and supersedes all prior negotiations, agreements and considerations.” Defendant admitted payment of $33,426.71 under the contract, but contends that it is legally entitled to deduct the $8368.51 owed it by the Union because the Union and the plaintiff company are one and the same.

The written contract, defendant’s admissions, and the deposition of defendant’s manager established that plaintiff was entitled to summary judgment, unless defendant countered with affidavits or depositions which raise an issue of material fact. Defendant filed opposition to plaintiff’s motion and defendant’s attorney verified the matters set forth as “true and correct from information and belief.” Such verification does not constitute the matters so verified on affidavit as required by Rule 166-A, and is ineffectual to oppose plaintiff’s motion for summary judgment. Spillyards and the Employer’s Liability Assur. Corp. v. Ferris Brick Co., Tex.Civ.App., (n. w. h.) 390 S.W.2d 837; Youngstown Sheet & Tube Co. v. Penn, Tex.Sup.Ct., 363 S.W.2d 230; Sparkman v. McWhirter, Tex.Civ.App., Er. Ref., 263 S.W.2d 832; Nagelson v. Fair Park Nat. Bank, Tex.Civ.App., (n. r. e.), 351 S.W.2d 925.

But defendants here contend the trial court erred in granting the summary judgment, because its Third Amended Original Answer raised fact issues as to whether plaintiff company and the Union which owed plaintiff, are one and the same party.

When facts entitling the moving party to summary judgment have been established, as here, the motion will not be denied, merely because the opposite party has alleged matters in pleadings, which if proved, would require that a different judgment be rendered. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948.

Defendant’s point and the contentions thereunder made are overruled.

Affirmed.


author: HOUSER, Commissioner.

text:
    The FIRST NATIONAL BANK OF KANSAS CITY, Successor Trustee Under the Last Will and Testament of Oliver H. Dean, Deceased, (Mason L. Dean and Alice Dean Swobe, Individually and as Trustees of the Trust Created by the Last Will and Testament of Oliver H. Dean, Deceased), Plaintiffs-Respondents, v. Helen Dean (Fennelly) SULLIVAN and John Joseph Fennelly, Defendants-Respondents, Deane Maitland (Green) Anderson, Defendant-Appellant, The First National Bank of Kansas City as Executor of the Estate of Mason L. Dean, Deceased, and the First National Bank of Kansas City and Barret S. Heddens, Jr., Cotrustees of a Trust Created by Mason L. Dean, Intervenors-Defendants-Appellants.
    No. 51116.
    Supreme Court of Missouri, Division No. 1.
    Sept. 13, 1965.
    Motions for Rehearing or to Transfer to Court En Banc Denied Oct. 11, 1965.

      Menefee D. Blackwell, Daniel C. Weary, William W. LaRue, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for appellants, First Nat. Bank et al.
    J. Robertson Clagett, Kemp, Koontz, Clagett & Norquist, Kansas City, for appellant Deane Green Anderson.
    John B. Gage, William H. Leedy, Kenneth V. Butler, Kansas City, Gage, Hodges, Park & Kreamer, Kansas City, of counsel, for respondents, Hielen Dean Sullivan and John Joseph Fennelly.
   HOUSER, Commissioner.

This is an action by First National Bank of Kansas City, as trustee of the trusts created by the last will and testament of Oliver H. Dean, deceased, to construe the will and for directions with respect to the distribution of the property in the portion of the trust estates which have terminated, and for incidental relief. Helen Dean Fennelly Sullivan, John Joseph Fennelly and Deane Maitland Green Anderson were named defendants. First National intervened as a party defendant in its capacity as Executor of the Estate of Mason L. Dean, deceased, and First National and Barret S. Heddens, Jr., intervened as co-trustees of a trust created by Mason L. Dean. The circuit court construed the will and, after unavailing motions for new trial, Deane Anderson, First National as executor, and First National and Heddens as cotrustees, appealed.

Title to several parcels of real estate is involved, and it affirmatively appears that the amount in dispute is in excess of $15,000, so we have jurisdiction. Constitution, Art. V, § 3; §§ 477.040, V.A.M.S.

Oliver H. Dean, born December 7, 1844, died testate on January 3, 1928. His will was dated December 26, 1923. He was married to Frances Mason. They were divorced in 1912. A practicing lawyer in Kansas City from prior to 1875 until his death, he was senior partner in the law firm of Warner, Dean, Langworthy & Thompson. He left surviving only two children, Mason L. Dean and Alice Dean Green Swobe, and no descendant of any deceased child.

Mason L. Dean, born in 1880, died in 1962, leaving surviving him his wife Flora, now deceased, and only one child, Helen Dean Fennelly Sullivan, and no descendant of any deceased child. Helen was born in 1907. John Joseph Fennelly, born in 1930, is the only child of Helen. There are no descendants of a deceased child of Helen.

Alice Dean Green Swobe, born in 1876, died October 29, 1963. Married twice, she had two sons by her first marriage, both of whom predeceased her, the sons leaving no descendants. She was divorced from her first husband. She had no children by her second husband, who predeceased her. She was not survived by any natural born child or descendants of a deceased child, but she was survived by Deane Green Anderson (the widow of Alice’s deceased second son), whom she adopted on July 30,1953 in the Circuit Court of Jackson County. The adoptee was born September 14, 1910.

The last will and testament of Oliver H. Dean consisted of 14 articles. In the first four articles he directed the payment of debts and funeral expenses, bequeathed his lawbooks to a law school, and made specific bequests of $5,000 and $3,000 to a housekeeper and a servant. Article VI bequeathed certain personal property such as furniture, automobiles, etc., to his daughter Alice. The will created two trusts. By Article V he placed his residence property in trust for the benefit of his daughter Alice, with power in the trustees to sell the property and a direction to invest the proceeds and pay the income to Alice during her life, “and upon her death, I give, bequeath and devise the principal of said trust fund or said real property, if not sold as aforesaid, to my beloved grandsons, Dean Green and Alvah Sherman Green, Jr., in equal parts, or to the survivor of them, if either be then dead without issue then living, their or said survivor’s heirs and assigns forever; if either or both of my said grandsons be dead, at the death of my said daughter, then to said surviving grandson and the issue of said grandson, then living, per stirpes and not per capita, or the issue of both,, then living, per stirpes and not per capita, as the case may be absolutely and in fee; if my said grandsons should both be dead at the death of my said daughter, without issue then living, then to my heirs at law, per stirpes and not per capita, their heirs and assigns forever.” At Alice’s death this trust was carried on the books of the trustee at approximately $4500. By Article VII he created a residual trust, with provisions for holding, investing and paying the net income from the remainder of his property, as. provided in the will, subject to the provision of Article XI. Article VIII provided $10,000 per year each for his son Mason and his daughter Alice for their lives, the balance of the net income to be added to the corpus of the trust fund. Article IX provided as follows: “Upon the death of my said daughter, Alice Dean Green, I give, bequeath and devise an undivided one-half of said trust fund or estate or the entire remainder thereof, if an undivided one-half thereof shall have already vested, absolutely, in my beneficiary or beneficiaries under the terms of this my last will, to the heirs of the body of my said daughter, per stirpes and not per capita, their heirs and assigns forever, or if my said daughter have no heirs of her body at her death, then to my heirs at law, per stirpes and not per capita, their heirs and assigns forever.” Article X directed the trustees at the death of Mason L. Dean to pay out of the net income of the trust estate to testator’s granddaughter Helen Dean, daughter of Mason, $10,000 per year for life, the balance of the net income to be added to the corpus of the trust fund. Article X further provided: “Upon the death of my said granddaughter, Helen Dean, I give, bequeath and devise an undivided one-half of said trust fund or estate or the entire remainder thereof, if an undivided one-half thereof shall have already vested, absolutely, by reason of the death of my said daughter, Alice Dean Green, under the terms of this my last will, to the heirs of the body of my said granddaughter, Helen Dean, per stirpes and not per capita, their heirs and assigns forever; if my said granddaughter have no heirs of her body at her death, then to my grandsons, Dean Green and Alvah Sherman Green, Jr., in equal parts, or to the survivor of my said grandsons should either be then dead without issue then living, their or said survivor’s heirs and assigns forever; if either or both of my said grandsons be dead at the death of my said granddaughter, then to said surviving grandson and the issue of said deceased grandson, then living, per stirpes and not per capita, or or the issue of both then living, per stirpes and not per capita, as the case may be, absolutely and in fee; but in ease my said granddaughter dies without issue living at her death and both of my said grandsons be then dead without issue then living, then to my heirs at law, per stirpes and not per capita, their heirs and assigns forever.” The one half of the corpus of the trust created by Articles VII, VIH, IX and X as to which the trust terminated upon the death of Alice on October 29, 1963 was carried on the books of the trustee at $263,772.39, as of that date, Including an undivided one-half interest in several tracts of real estate. Article XI directed the trustees to pay the amounts due under the will upon the personal receipt of the beneficiaries, or if any of them be minors, upon the personal receipts of their guardians or curators, “without any power whatever in any one of said beneficiaries to sell, transfer, assign, pledge, mortgage or create any lien or encumbrance on said net income or any part thereof or otherwise dispose of the same by way of anticipation prior to the actual payment or payments thereof to him or her nor shall any part of said net income be liable in any manner whatever for the present, past or future debts or liabilities of any one of said' beneficiaries prior to the actual payment of said net income to him or her nor shall any part of said trust fund or estate be liable in any manner whatever for the present, past or future debts or liabilities of any of the beneficiaries of this my last will until said part of said trust fund or estate shall go to and vest absolutely in said beneficiary or beneficiaries and said trust, as to said part of said trust fund or estate, terminates, as provided in this with The provisions of this Article shall also apply to any net income that may be paid to my said daughter, Alice Dean Green, from the proceeds of the sale of my home, as provided in Article Five of this my will.” Article XII provided that whenever any portion of the trust fund or estate shall absolutely vest in any of the beneficiaries, as provided for in the will, said trust shall terminate as to that portion and when the whole of the trust fund or estate shall absolutely vest in them or any of them, as provided in the will, the trust shall wholly cease and terminate. Article XIII provided for the appointment of a successor trustee or trustees in the event of failure, refusal or inability of the named individuals to act. Pursuant to this authority First National Bank of Kansas City was appointed successor trustee under the last will and testament of Oliver H. Dean, deceased.

The property in controversy to be distributed as a result of the death of Alice, which terminated the trusts created in her favor, is as follows: In the first trust, created by Article V, property having a total value of not less than $4500; in the second trust, created by Articles VII, VIII, IX and X, one half of the corpus of a trust estate having a total value of not less than $263,772.39 (only one half of the total value of all the property in the second trust is in controversy since the other half will remain in trust under the provisions of Article X until the death of Helen).

As to the first trust the court awarded appellant Deane Green Anderson, hereinafter “Deane,” one half and awarded Helen one half, on the theory that Deane and Helen are testator’s “heirs at law,” as that term is used in Article V. Deane did not appeal from this ruling. Mason L. Dean’s executer and trustees appealed from this ruling, claiming that testator’s heirs at law should have been ascertained at the death of testator, not at the death of the life tenant Alice, and therefore testator’s heirs at law were Alice and Mason, not Deane and Helen. The bank as executor, and the bank and Heddens as cotrustees, therefore, ask for one half of the property in the first trust, on this distribution.

As to the second trust, Deane was awarded one half and Helen was awarded one half, on the theory that Deane and Helen are testator’s “heirs at law,” and that Deane is not an “heir of the body” of Alice, as those terms are used in Article IX. Deane appealed from this ruling, claiming that although Deane is an adopted child of Alice she is an “heir of the body” of Alice under the law as it existed at the time of Alice’s death, and that as such she is entitled to all of the property to be distributed as a result of the termination of the second trust. Helen and her son John oppose Deane’s claim to all of the portion of the second trust to be distributed, asserting that the decree is correct and should be affirmed. The bank as executor and the bank and Heddens as cotrustees appealed from the decree awarding Deane one half and Helen one half, making claim to one half of the property in the second trust on the same basis that they claimed one half of the property in the first trust, supra.

The first question is whether the remainder to testator’s heirs at law vested at the time of testator’s death in 1928 or at the time of Alice’s death in 1963. (If it vested in 1928 his heirs at law were his daughter Alice and his son Mason, and Mason’s executor and trustees would at the termination of Alice’s life estate take a one half interest in the one half of the corpus of the trust estate to be distributed; if it vested in 1963 his heirs at law were Alice’s adopted daughter and testator’s granddaughter Helen, and Mason’s executor and trustees would take nothing.)

Mason’s executor and cotrustees contend that testator’s lawful heirs are to be ascertained as of the time of testator’s death, under the general rule that unless the testator has clearly manifested a contrary intention the persons who take under his will are to be determined as of the date of his death, and the remainder vests at that time. This is undoubtedly the rule ; but it is not a rule of substantive law. It is a rule of auxiliary construction, to be used only as an aid in determining the intent of the testator as expressed in his will, and where that intent may be clearly ascertained from the will itself, rules of construction are of little value, Commerce Trust Co. v. Weed, Mo.Sup., 318 S.W.2d 289, l. c. 296 [3] and “never should be used to defeat what, from the whole will, appears with reasonable certainty to have been his intention.” Heard v. Read, 169 Mass. 216, 47 N.E. 778.

Whether the members of the class “heirs at law” are to be ascertained as of the date of testator’s death or at the life tenant’s death depends upon the intention of the testator, which is to be determined by a consideration of the will as a whole, not giving undue preference to any particular clause, but read from its four corners. Commerce Trust Co. v. Weed, supra, 318 S.W.2d l. c. 294.

Testator, an experienced and successful lawyer, was 79 years old at the time he executed his will. At that time (1923) he had two living children and there were no issue of deceased children of testator. His daughter Alice, 47 years old, estranged from her husband, was living in testator’s home in Kansas City. Alice’s sons, 12 and IS years old, were then living. Testator’s son Mason had a wife, Flora, and a daughter, Helen, who was 16 years old. Testator had been divorced in 1912. In this situation testator’s heirs apparent were Alice and Mason, and they were his first concern. Two trusts were set up in his will. The first trust (Article V) was a comparatively small one. The corpus consisted of the family home. Alice was the named beneficiary for life, with remainders to testator’s grandsons by name, or -the survivor or their issue, but if his grandsons should both be dead at Alice’s death, without issue then living, -to testator’s heirs at .law. The corpus of his second trust was substantial, consisting of all of the residue of his property. From the net income annual payments of $10,000 were to be paid to Alice and to Mason for life. Upon the death of Alice the trust as to Alice was to terminate and one half of the trust estate was to be distributed under the terms of Article IX to the heirs of the body of Alice, in default of which then to testator’s heirs at law. Upon the death of Mason testator created a successive life estate in Helen, in a $10,-000 annuity. Upon the death of Helen the trust as to Helen was to terminate and one half of the trust estate was to be distributed under the terms of Article X, first to Helen’s bodily heirs, in default of which then to testator’s named grandsons .(the two sons of Alice) or the survivor, or their issue, but if Helen should die without issue living at her death and both the named grandsons should be dead without issue living then that portion of the trust estate was to go to testator’s heirs at law.

Reading and considering the will from its four corners, and obeying the mandate to “have due regard to the directions of the will, and the true intent and meaning of the testator,” § 474.430, V.A. M.S., we are of the opinion that the will clearly and without ambiguity discloses an intention that the remainder to testator’s heirs at law in default of bodily heirs of Alice vest at the time of Alice’s death, and that testator’s heirs at law who were to succeed to that portion of the trust estate be ascertained and determined (i. e., that the members of the class be identified) as of the date of Alice’s death and not as of the date of testator’s death.

At the time he made his will testator obviously had in mind all of the persons who would have taken his estate in case of intestacy. While each of these persons was specifically named he did not give to any of them immediate title to any part of his estate in present enjoyment. Instead, for the lives of his children and granddaughter Helen testator provided $10,000 annuities. This is persuasive of the conclusion that testator did not intend to leave his estate to the persons who would be his heirs at law at the time of his death. Hay v. Hay, 317 Mich. 370, 26 N.W.2d 908 [1], l. c. 911, item (1); [2].

The arrangements testator made for the disposition . of his property envisioned a time period which he might reasonably have expected to continue for many years. The identity of the ultimate beneficiaries was uncertain in the mind of testator, as indicated by the many contingencies for which he made provision. He could expect each generation to outlive the next preceding generation in the normal course of events. In naming his heirs at law as the final takers, in default of all other contingencies, testator was looking far into the future. At -the time he made his will in 1923 testator knew that the remainder to his heirs at law, if it ever vested, would likely vest “many years in the future and that marriages, deaths, births and perhaps adoptions would likely occur before the termination date [of the trusts], which events would change the personnel of the group that would eventually make up the class designated as [‘heirs at law’].” Commerce Trust Co. v. Weed, supra, 318 S.W.2d, l. c. 298. (Our brackets.) Testator’s apparent and understandable uncertainty as to the identity of the persons who would make up the class is hardly consistent with an intention on testator’s part to have the class “my heirs at law” determined at the very moment as of which a will speaks, namely, at the time of the death of the testator.

That testator did not intend that Alice be one of the heirs at law follows not only from the general plan of the will but also from specific provisions from which that intent may be gleaned. In providing the $10,000 annuity for Alice for life, plus the life estate in her favor created by Article V, testator apparently considered that he had made ample provision for her. “Where the will has provided for a person in his lifetime who would be an heir if the heirs should be determined as of the time of the death of the testator, and shows that no further provision was intended for that person, that has been held sufficient to indicate that the heirs were to be determined as of a later time when he would no longer be an heir [citing 6 Massachusetts cases].” Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 50 N.E.2d 778, 781 [9].

In 1923 when the will was made testator’s heirs apparent were Alice and Mason. If testator intended that the remainder in Alice vest at the time of his death, as Mason’s executor and cotrustees contend, then and in that event one half of the trust estate would have vested at testator’s death in a person [Alice] “who could never, by any possibility, live to enjoy [her] inheritance, since the death of [Alice] was a condition precedent to the distribution of the remainder.” Commerce Trust Co. v. Weed, supra, 318 S.W.2d, l.c. 295. As noted there, while not legally impossible such a disposition is rare, and it would be awkward and unreasonable to attribute to an astute, experienced and capable lawyer such as testator an intention to give to his daughter Alice and his son Mason residuary gifts which neither of them could enjoy personally. As indicated by certain provisions of his will to which we now allude we do not believe that it was so intended. By Article X, upon the death of Helen, testator disposed of an undivided one half of the trust estate “or the entire remainder thereof, if an undivided one-half thereof shall have already vested, absolutely, by reason of the death of my said daughter, Alice Dean Green, under the terms of this my last will, * * In Article IX, upon the death of Alice testator disposed of an undivided one half of the trust estate “or the entire remainder thereof, if an undivided one-half thereof shall have already vested, absolutely, in my beneficiary or beneficiaries under the terms of this my last will, * * (Our italics.) By Article XII testator provided that “Whenever any portion of said trust fund or estate shall absolutely vest in any of the beneficiaries of this my last will, as hereinabove provided, then said trust shall terminate as to said portion thereof and when the whole of said trust fund or estate shall absolutely vest in them or any of them, as hereinabove provided, the said trust shall wholly cease and terminate.” These provisions constitute a clear, unequivocal recognition and expression by testator that the remainder was to vest at the time of the death of the life tenant (at the termination of the trust) and not at the time of testator’s death.

As indicated in Commerce Trust Co. v. Weed, supra, 318 S.W.2d, l.c. 295, the only logical reason for testator to have the remainder vest at his death would have been to enable the life tenant to convey or devise her interest in it, but this would be inconsistent with testator’s denial to his beneficiaries, including Alice generally as to the second trust and specifically as to the first trust, of the power to sell, transfer, assign, pledge, mortgage or create any lien on the net income, or anticipate payments for debts, and providing that no part of the trust estate should be liable for the beneficiary’s debts “until said part of said trust fund or estate shall go to and vest absolutely in said beneficiary or beneficiaries and said trust, as to said part of said trust fund or estate, terminates, as provided in this wilh” Article XI. The fact that spendthrift provisions were attached to the annuities to both his children is significant and tends to show that testator did not intend that his children acquire at his death a vested remainder interest that they could alienate and that could be taken by their creditors. Hay v. Hay, 317 Mich. 370, 26 N.W.2d 908 [1], item (4); [2]; Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 50 N.E.2d 778; Taylor v. Albree, 317 Mass. 57, 56 N.E.2d 904 [7], l.c. 908.

Another circumstance which supports our conclusion is the fact that the will fully empowered the trustees “to pay taxes, lease for short or long terms, buy, sell and convey or exchange, borrow money, mortgage and do any and all things, necessary or proper in the management, control and preservation of said trust fund or estate, and any increase thereof, as to them shall from time to time seem best.” Hay v. Hay, supra, 26 N.W.2d [1], l. c. 911, item (5); [2].

All things considered, this will evidences an intention that -the remainder to testator’s heirs at law (in default of bodily heirs) vest at the time of the termination of the trust and that the class “my heirs at law” be ascertained and determined as of that date, and not at-the time of testator’s death. Accordingly, Mason’s executor and trustees have no interest in the current distribution.

In Thomas v. Higginbotham, Mo.Sup., 318 S.W.2d 234, relied upon by Deane, it was held that a devise to a person for life and that at his death the estate vest absolutely in his heirs at law, the latter term should be construed according to the statute of descent and distribution in effect when the devise became effective upon the death of the life tenant, and not that in effect at the date of the making of the will. It was argued but the court found against the contention that the plan of testator’s will demonstrated a desire that the land go to testator’s descendants when the life estate terminated. There was no intent expressed in the will bearing on the question except the words of the grant. There was no provision for a preceding remainder to heirs of the body of a child or testator. The court repeated that the question was “the testator’s intention with respect to those who are to share in his estate after the death of the second tenant for life,” 318 S.W.2d l. c. 239 [6]; that “ ‘each will construction case must of necessity be determined upon its own facts and the particular will construed so as to effectuate the testator’s intent.’ ” For the reasons given we have found in the case here for review a different intention on the part of testator from that found in Higginbotham.

The next question is whether Deane, the adopted child of Alice, is an “heir of the body” of Alice within the meaning of the language of Article X granting the remainder “to the heirs of the body of my said daughter, per stirpes and not per capital, their heirs and assigns forever.” Deane claims that because the remainder was contingent, not vested, at the time of testator’s death in 1928 it follows that the statute controlling her rights of inheritance as an adopted person must be the statute in force at the time of the vesting of the remainder in 1963. While the remainders provided for in Article IX were contingent and did not vest until October 29, 1963, the date of the death of the life tenant, Alice, it does not necessarily follow that the statute in force on that date, § 453.090, V.A.M.S., regulating inheritance rights of adopted persons as heirs of the body, governs Deane’s rights in this case. In. construing the rights of an adopted child to-take raider a will “ ‘ * * * it is not a question of the right of an adopted child to inherit, but simply a question of the testator’s intention with respect to those who are to share in his estate.”’ (Our emphasis.) Commerce Trust Co. v. Weed, supra, 318 S.W.2d, l. c. 298; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672, 674 [1]. A testator’s intention with respect to who shall be included or excluded from a designated class may be altogether different from that which the law provides. A different intention will be respected, as long as it does not violate public policy. It is fundamental that it is testator’s intention at the time of the execution of the instrument — as of the time of the creation of the trust — that we seek to determine.

While testator intended that his heirs at law be ascertained and determined, i. e., identified, as of the date of Alice’s death (when the trust terminated),, we do not find that testator intended that the qualifications of those who were to make up the class “heirs of the body of my said daughter” were to be judged according to the laws in effect at the time of Alice’s death. On the contrary, we believe that testator intended that their qualifications be judged according to the laws in effect at the time the will was executed; that testator used the terms “heirs of the body” and “heirs at law” in Article IX and elsewhere in the will according to the meaning and effect the law attached to them at the time he used them, and that he wanted them so interpreted at the time these classes were to be ascertained and determined. This is in accordance with the general rule that whether an adopted child is embraced within the meaning of a described class of beneficiaries in a wilt is governed by the law in force at the time the will or other instrument was executed. Hayes v. St. Louis Union Trust Co., Mo.Sup., 280 S.W. 2d 649, 655 [10]; Wyeth v. Merchant, D.C.Mo., 34 F.Supp. 785, aff. 8 Cir., 120 F.2d 242; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660 [1], 133 A.L.R. 586 (deed); 2 Am.Jur.2d Adoption § 92, p. 934, fn. 12. In the quest for testator’s intention we consider the surrounding circumstances.

When the will was drawn in 1923 testator had a living son, a living daughter, two living grandsons by his daughter, and one living granddaughter by his son. There were no adopted' persons in the family. Deane was then 13 years old, but there is nothing to indicate that testator knew her. She married into the family, becoming the wife of testator’s grandson Alvah Sherman Green, Jr., apparently after 1923, because in that year Alvah Sherman was 12 years of age. Testator’s daughter Alice was 47 years old, living apart from her husband. While unlikely, it was possible that she would bear more children. When testator undertook to write his will there were no adopted children before him to consider in disposing of his property. (Deane was adopted by Alice in 1953, 30 years after the will was executed, 25 years after testator’s death.) Testator, however, must be presumed to have been aware of the fact that there might be adoptions in his family in the future, before the remainders vested.

In this family situation testator understandably expressed a strong feeling for members of his bloodline. Except for comparatively small specific bequests to household servants all of the named beneficiaries were members of his bloodline. No "in-laws” were made beneficiaries, or even mentioned. There was no reference to the rights of children who might thereafter be adopted. While not specifically excluding adoptees from the class “heirs at law” he preferred, in fact provided only for, members of his bloodline, down to the last remainder, in default of all other preferred dispositions.

With the knowledge that children might be adopted by his children or grandchildren, and with the intention that the membership of the class “my heirs at law” be ascertained and identified at Alice’s death if she died without bodily heirs, testator chose language limiting the grant of the first remainder to the heirs of the body of Alice, in default of which he permitted the property to go to his heirs at law. In Article X the remainder after the termination of the life estate in Helen was likewise limited to the heirs of the body of Helen, but in the final catchall grant disposing of that portion of his estate in case all other preferred dispositions to those in his bloodline failed, testator gave his estate to his heirs at law. Under the statutes in force in 1923 a remainder to the heirs of the body of Alice would exclude, and a remainder to his heirs at law would include, adopted children.

It was not the intention of testator, in carving out the first remainder, to include adopted children. His use of the words “to the heirs of the body of my said daughter” underscores the implied exclusion. At the time this experienced lawyer wrote this will in 1923 the phrase “bodily heirs” was a well-established term which had acquired a peculiar and appropriate technical meaning in law. An heir of the body had a well-defined and fixed legal interpretation as an heir begotten of the body; a lineal descendant. It was not synonymous with the words “children,” “issue” or “heirs.” Prior to 1917, in the absence of any statute on the subject, it had been held that an adoptive child was not entitled, on the death of the adoptive parent, to take property limited to the “bodily heirs” of the adoptive parent. Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761, 39 L.R.A. 748. This is the general rule. 2 Am.Jur.2d Adoption § 92, p. 934, fn. 10. “An adopted child of the designated ancestor is not an heir of his body. Thus, unless a contrary intent of the conveyor is found from additional language or circumstances, an adopted child is not included in a limitation to the ‘heirs of the body’ of a designated person.” Restatement of the Law of Property § 306, par. g. “A foster child, being a stranger to the blood, is the antithesis of an heir of the body.” Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739, 740. In 1917 the General Assembly enacted a law specifically declaring that “neither said adopted child nor said parents by adoption shall be capable of inheriting from or taking through each other property expressly limited to heirs of the body of such child or parent by adoption.” Laws 1917, p. 194. When testator wrote his will in 1923 this law had been on the books six years. We presume that he used the limited wording “heirs of the body of my said daughter” with this statute in mind, knowing that the term “heirs of the body” was much more limited in scope than “heirs at law” and under then-existing law was limited to blood relationship. In limiting his property as he did testator prophetically anticipated and acted upon the admonition of the court en banc in St. Louis Union Trust Co. v. Hill (1934), 336 Mo. 17, 76 S.W.2d 685, l. c. 689 [7]: “If he did not want an adopted child to have any of his property he could have easily provided for such a contingency in his will by expressly limiting his property to go to the bodily heirs of his son, but he did not do so.” And see St. Louis Union Trust Co. v. Greenough, Mo.Sup., 282 S.W.2d 474, 482. We presume that he knew in 1923 that “heirs at law” included adopted children. St. Louis Union Trust Co. v. Hill, supra. RSMo 1919 § 1101 provided that an adopted child “shall be capable of inheriting from, and as the child of said [adoptive] parents as fully as though born to them in lawful wedlock.” In selecting the terminology employed in his last will and testament we will assume that testator chose words with discrimination and care. By making the broad class “my heirs at law” the final takers we will not attribute to him an intent to discriminate against adopted children. If he had wished to exclude adopted children entirely from his bounty it would have been a simple thing to insert a declaration to that effect.

Our conclusion is that the will bespeaks an intention and preference, following termination of the trust, to distribute the portion of the trust estate in question to his descendants in the family blood stream, to the exclusion of adopted persons, if Alice left heirs of her body; but if Alice died without bodily heirs, it was his intention to open up the distribution to the broader and more inclusive class “heirs at law” and to permit all of his heirs at law qualifying as such at the termination of the trust to participate, including adopted children of Alice. Deane is not an heir of the body of Alice and therefore is not entitled to the entire corpus of the trust estate to be distributed. Deane and Helen, however, as the heirs at law of testator, are each entitled to one half.

Finally, First National Bank of Kansas City as Executor of the Estate of Mason L. Dean, Deceased, and the bank and Heddens, as cotrustees of a trust created by Mason L. Dean, have raised the question whether they are entitled to an allowance of attorneys' fees for their efforts in effecting a proper construction of the will. Their point is not resisted by any party on this appeal. On the authority of Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745, O’Reilly v. Jackson, Mo.Sup., 269 S.W.2d 631, Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104, and City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425, we are of the opinion that these applicants, in these capacities, are entitled to a reasonable allowance of attorneys’ fees, and that the court erred in overruling their application therefor.

The judgment of September 24, 1964 on the merits of the claims of Deane Green Anderson, Helen Dean Sullivan and the bank as executor and the bank and Heddens as cotrustees, is affirmed. The order of the same date overruling the application for attorneys’ fees is reversed. The cause is remanded for a hearing on the application for attorneys’ fees, and for any further exercise of the court’s continuing jurisdiction reserved by the provisions of paragraphs 8 and 9 of the judgment. Costs of this appeal are adjudged against plaintiff as trustee, to be paid from the principal of the trust estate. O’Reilly v. Jackson, supra, 269 S.W.2d, l.c. 639.

WELBORN and HIGGINS, CC, concur.

PER CURIAM.

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DONNELLY, J., not participating because not a member of the Court when the cause was submitted.

      . “ * * * if my said daughter have no heirs of her body at her death, then to my heirs at law, per stirpes and not per capita, their heirs and assigns forever.” (Article IX.)

      . St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Walters v. Sisler, Mo.Sup., 371 S.W.2d 187; 57 Am.Jur. Wills § 1279.

      . Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644.

      . In 1963 § 453.090, V.A.M.S., unchanged since its first enactment, Laws 1947, Vol. II, p. 213, provided that an adopted person is capable of inheriting from and taking through his parent by adoption property expressly limited to heirs of the body of such parent by adoption. In 1923, when the will was made, and in 1928, when testator died, RSMo 1919, § 1101, unchanged since its first enactment, Laws 1917, p. 194, provided the opposite, namely, that an adopted person was not capable of inheriting from and taking through his parent by adoption property expressly limited to the heirs of the body of such parent by adoption. Both in 1923 and 1928 an adopted person was capable of inheriting as an “heir.”

      . This is the principal differentiating feature between this case and Commerce Trust Co. v. Weed, supra. In Weed testator intended that the qualifications of those who were to make up the class “lineal descendants” were to be judged according to the laws in effect on the date of the termination of the trust. 318 S.W.2d, l.c. 298. The court found highly significant the will provision giving a remainder, in default of all other provisions, to testator’s heirs at law “whoever they may be at the time of such termination, according to the laws of the State of Missouri then in force” (our emphasis). Other distinguishing factors present in Weed but absent here: (1) The adoption occurred a few days after the birth of the child, who grew up in the family and was well known, to testator, who regarded her as his grandchild and had the same affection and regard for her that he had for his other grandchildren. (2) In making the primary dispositions of his property testator did not favor bloodline descendants exclusively, but included his daughter-in-law on an equal basis with his natural daughters.


author: PER CURIAM.

text:
    Henry F. GADDY, Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS of Missouri, Respondent.
    No. 50997.
    Supreme Court of Missouri. Division No. 1.
    April 26, 1965.
    William C. Myers, Jr., and Garold L. Morían, Webb City, for appellant.
    Thomas F. Eagleton, Atty. Gen., of Missouri, by Albert J. Stephan, Jr., St. Louis, for respondent.
   PER CURIAM.

This appeal from a judgment of the Circuit Court of Jasper County affirming an order of the State Board of Registration for the Healing Arts of Missouri revoking appellant’s license was sent here on the theory that the state is a party within the meaning of Sec. 3, Art. V of the Constitution, V.A.M.S. This is incorrect and respondent’s motion to transfer to the Court of Appeals must be sustained. The party involved is the Board which is an artificial legal entity in the nature of a quasi public corporation. See State ex rel. State Highway Commission v. Day, 327 Mo. 122, 35 S.W.2d 37; State ex rel. Gehrs v. Public Service Commission, 338 Mo. 177, 90 S.W.2d 390; State ex rel. Goldman v. Missouri Workmen’s Compensation Commission, 325 Mo. 153, 27 S.W.2d 1026; establishing this principle for these older commissions established under our 1875 Constitution. Appellant cites State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, which however did not involve such a legal entity. See Secs. 9013-9023, RS 1929. Since the reorganization of the executive department of our state government under Sec. 12, Art. IV of the 1945 Constitution much of the important work of the executive branch has been carried on by boards and commissions which act in corporate capacities. See Vol. 1964, No. 4, Washington University Law Quarterly, Sec. 6.051, p. 595 et seq..; see also Parker v. Unemployment Compensation Commission, 358 Mo. 365, 214 S.W.2d 529 (Division of Employment Security); Dunnegan v. Gallop, Mo.Sup., 369 S.W.2d 206 (Department of Public Health and Welfare); State ex rel. and to Use of Gibson v. Board of Chiropractic Examiners, Mo.App., 365 S.W.2d 773; State ex inf. Wallach ex rel. Missouri Optometric Association v. Schneider’s Credit Jewelers, Inc., Mo.App., 243 S.W.2d 125. The applicable statutes in the last two cases creating the Optometry Board (Sec. 336.-130) and the Chiropractic Examiners (Secs. 331.090, 331.100) are substantially the same as those (Secs. 334.120, 334.123, 334.125) establishing the Board herein involved.

It is ordered that this case be transferred to the Springfield Court of Appeals.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Freddie Lee GRANT, alias Freddie Lee King, Appellant.
    No. 51097.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Oct. 11, 1965.

      Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    Merle L. Silverstein, Rosenblum & Gold-enhersh, Clayton, for appellant.
   STORCKMAN, Judge.

The defendant was convicted of the offense of forcible rape on June 13, 1962. The court found the defendant had been convicted of four prior felonies pursuant to the Habitual Criminal Act and assessed the punishment at 99 years in the custody of the Department of Corrections. A timely motion for new trial was overruled by operation of law. No appeal was taken but a motion under S.Ct. Rule 27.26, V.A. M.R., to vacate the sentence and judgment was filed on August 27, 1963. This motion was heard, submitted, and overruled by the trial court on September 10, 1963, from which action the defendant in due course appealed to this court. The opinion of this court on the previous appeal is State v. Grant, Mo., 380 S.W.2d 799, to which reference is made for the grounds of the decision. For present purposes it is sufficient to say that the judgment and order overruling the motion to vacate was reversed and the cause remanded with directions to set aside that portion of the record purporting to show the imposition of sentence and rendition of judgment on June 13, 1962, and to grant the defendant allocution and, if no legal cause be shown, to sentence him and render final judgment.

Pursuant to the mandate of this court, the previous entry was set aside on September 22, 1964, the defendant was granted allocution and was sentenced to a term of 99 years in the custody of the Department of Corrections with credit for the time spent in prison since June 13, 1962. From this sentence and judgment the defendant has appealed. The case is before us on the original transcript of the record and the record of the supplemental proceedings on September 22, 1964.

The assignments of error on this appeal relate to the interrogation of the defendant by the trial court, a statement by the court alleged to constitute an improper oral instruction to the jury, the court’s refusal to sustain a challenge to a prospective juror, and the court’s failure to instruct the jury on the lesser offense of attempt to rape. In view of the questions presented, the facts need not be restated in their entirety. We adopt by reference the statement of facts made from the same transcript on the previous appeal. 380 S.W.2d at 800-801. Other pertinent facts will be mentioned in connection with the consideration of the issues presented.

The defendant’s first contention is that the trial court erred in taking over the cross-examination of the defendant, in covering matters outside the scope of direet examination, and exhibiting a hostile attitude toward the defendant and an abiding belief in his guilt. On direct examination the defendant denied that he went to Mrs. Burton’s house and assaulted her but did testify that he was in the neighborhood at the time, that he “passed through there”, and referred to his arrest. On cross-examination Mr. Hunter, the prosecuting attorney, interrogated the defendant without objection regarding his activities on the day in question and the following sequence occurred which includes the matters of which the defendant now complains:

“Q. [By Mr. Hunter] But you were in that vicinity at the time of this crime? A. They say I was.
Q. What do you say? A. I passed through there.
Q. You were found there. A. Wherever they found me.
Q. You were arrested there? A. I was arrested.
The Court: Were you running up a ditch bank there when you were arrested?
A. I wasn’t running. I was shot at on the ditch dump.
The Court: What ?
A. I was shot at on the ditch dump. The Court: Who shot at you?
A. I don’t know the officer but a police officer.
The Court: Why did he do that ?
A. I don’t know.
The Court: Did he tell you to stop?
A. He hasn’t told me anything, or didn’t tell me anything at that time.
The Court: But you were not running?
A. No, sir. I wasn’t running. I was walking.
The Court: Did that officer tell to stop and to come to him?
A. Well, one made me cross the ditch and come to him.
The Court: Did he have a gun on you?
A. Yes, sir.
The Court: Is he the one that shot?
A. I don’t know which one shot.
The Court: Were you hiding in that ditch when the Patrol car got — went by?
A. Was I hiding in the ditch?
The Court: Yes.
A. I wasn’t hiding.
* * * * * *
The Court: Had you ever seen that woman before?
A. Which one?
The Court: Mrs. Burton?
A. No sir. I haven’t — not until that — they arrested me and taken me to a house and carried me to Sikeston to the City Jail for a line-up.
The Court: That’s all.”

One of the well-recognized powers of the judicial function is the right and duty of the trial judge to propound additional questions to witnesses in order to develop the truth more fully and to clarify the testimony given. State v. James, Mo., 321 S.W.2d 698, 704 [2]; City of St. Louis v. Hellscher, 295 Mo. 293, 242 S.W. 652, 653 [4]. In the absence of a showing that the trial judge’s interrogation constituted an abuse of discretion and thereby deprived the defendant of a fair trial, prejudicial error has not been demonstrated. State v. Ross, Mo., 371 S.W.2d 224, 228 [6]; State v. Brotherton, Mo., 266 S.W.2d 712, 716— 717 [7]; Woodring v. United States, 8 Cir., 311 F.2d 417, 420 [1-2], cert. den. 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414. The defendant cites and relies on State v. Jones, Mo., 197 S.W. 156, and State v. James, Mo., 321 S.W.2d 698. The rules in these cases are in harmony with those above stated, but they were aggravated cases and are not controlling on the facts of the case before us.

The defendant contends the conduct and attitude of the trial court was hostile and that the interrogation went beyond the scope of the direct examination in that it injected the subject of an officer pointing his gun and firing a shot and whether the defendant was hiding in the drainage ditch and walking or running. The interrogation set out above shows that the defendant voluntarily and not in response to any question stated that he “was shot at on the ditch dump.” He doubtlessly sought an advantage in doing so and cannot complain that his uncalled-for statement provoked further questions on that subject. Defendant is mistaken in saying that there is no evidence that he was hiding in the ditch. The very fact that he was in the ditch rather than traveling in the open fields or on a highway justifies an inference that he was trying to conceal himself. Norman Copeland, a member of the State Highway Patrol, testified that he went to the area of the alleged crime about four miles southwest of Sikeston in New Madrid County and “spotted the subject going up the ditch”, then lost sight of him so he went farther up the ditch to prevent the defend-from getting into the woods; when he started back he saw a deputy sheriff bringing the defendant out of the ditch. Deputy Sheriff O. E. Stinnett testified that when he arrived he saw the defendant “running up the ditch”. The deputy drove across the field toward the defendant and found that he had “gotten back in the ditch, and some weeds, and after I located him and I had him come across the ditch to me.” The evidence was clearly sufficient to justify the inference that the defendant was running and hiding. In his direct examination he referred to the time of his arrest and also testified that he did not go to the Burton home and assault Mrs. Burton. In these circumstances we cannot say that the cross-examination was outside the scope of the direct examination. Before the trial court began its interrogation, the defendant had given some evasive and provocative answers and the court was justified in taking up the examination in order to get more direct and responsive answers. The record considered as a whole does not bespeak hostility or unfairness on the part of the court and we find that the court did not exceed permissible bounds in cross-examining the defendant and did not deny him the right to a fair and impartial trial. See State v. Brotherton, Mo., 266 S.W.2d 712, 716-717 [7]; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 769 [9]; and State v. Tally, Mo., 22 S.W.2d 787, 789 [7-8]. The assignment of error is denied.

Following the reading of the instructions and prior to argument by counsel, the court stated: “Gentlemen of the Jury, this being a criminal case your verdict will have to be [unanimous] — a [unanimous] verdict. In a civil case nine, ten or eleven men may reach a verdict but in a criminal case it must be [unanimous]. You elect one of your number as foreman and when you have reached a verdict only the foreman need sign it. This is brought under the Section of Law that if you find the defendant guilty, I will — the Court will assess the defendant’s punishment, and all your decision is this afternoon, is whether the defendant is guilty. Mr. Hunter you may proceed with your closing argument.” Following the closing argument and before the jury retired to deliberate, the court further stated: “Gentlemen of the Jury, may I repeat, your verdict must be [unanimous], and the only thing for your decision here is whether the defendant is guilty. Mr. Sheriff will you take the jury to the jury room.”

The defendant now urges that the italicized portions of these two statements constitute prohibited oral instructions to the jury. He cites Supreme Court Rules 26.02 (6), 26.09 and 27.20(c), and § 546.380, RSMo 1959, V.A.M.S. A direction by the court that a verdict must be unanimous -in a criminal case is -ordinarily and more properly given in written form, but an oral direction is not erroneous since it is not a part of the law of the case required to be in writing and it does not constitute an improper comment on the evidence or a charge as to a matter of fact. State v. Hale, Mo., 371 S.W.2d 249, 257-258 [22, 23].

The written instructions were adequate. In substance they informed the jury that if they believed beyond a reasonable doubt that the rape had been committed they would find the defendant guilty, and unless they found the -facts so to be beyond a reasonable doubt they would find the defendant not guilty and so state in their verdict. The jury was also instructed on presumption of innocence and burden of proof. The remarks of the court were largely precautionary and literally true; that is, whether the defendant had been proved guilty beyond a reasonable doubt. The jury must have understood that their sole function was to determine whether the defendant was guilty or innocent. The statements complained of are not oral instructions within the meaning of the supreme court rules and the state statute and could not have misled or improperly influenced the jury. State v. Thost, Mo., 328 S.W.2d 36, 40 [13]; State v. Moore, Mo., 303 S.W.2d 60, 68 [9, 10]; State v. Baker, Mo., 293 S.W.2d 900, 905 [4]; State v. Stidham, Mo., 258 S.W.2d 620, 623 [11]. Since prejudicial error has not been shown the contention is denied.

The defendant’s next contention is that the trial court erred in failing to sustain his challenge of a prospective juror. The prospective juror had known the prosecuting attorney all his life and the prosecutor represented the prospective juror “in any legal matters [he] might have”. In response to further interrogation, the prospective juror stated that his relationship with the prosecutor would not affect his decision in the case and that he would not be embarrassed to sit as a juror if he felt under the law and the evidence the defendant was entitled to a verdict. The prospective juror was not one of those selected for the jury, but the record does not show by whom he was stricken. This fact might be sufficient to dispose of the point but we will not put it on that ground. The defendant concedes that the ruling was discretionary but contends that the trial court manifestly and flagrantly abused its discretion.

In the absence of a statute specifically so providing, a venireman is not absolutely disqualified because he is a client of the attorney for one of the parties. Johnson v. Missouri-Kansas-Texas R. Co., Mo., 374 S.W.2d 1, 2-3 [5], The effect of the attorney-client relationship upon the prospective juror was fully developed and satisfactorily determined. The trial court did not abuse its discretion in denying the challenge for cause. State v. Camper, Mo., 353 S.W.2d 676, 678 [4]; Johnson v. Missouri-Kansas-Texas R. Co., Mo., 374 S.W.2d 1, 3 [5]; Paige v. Missouri Pacific R. Co., Mo., 323 S.W.2d 753, 765 [16, 17].

The defendant’s final assignment is that the trial court erred in failing to instruct the jury as to the lesser offense of assault with intent to rape. Mrs. Burton, the -prosecuting' witness, testified unequivocally that the defendant invaded her home while she was alone with a small child and forcibly and without her consent had sexual intercourse with her. All elements of the offense including penetration were proved. The defendant denied the assault in its entirety and testified that he had never seen Mrs. Burton until he was taken before her for identification after his arrest. The defendant was either guilty of forcible rape or nothing. Since there was substantial evidence that the offense of forcible rape had been committed, the court was not authorized to instruct on assault with intent to commit rape. Section 556.-160, RSMo 1959, V.A.M.S., State v. King, 342 Mo. 975, 119 S.W.2d 277, 284 [13]; State v. Adams, Mo., 380 S.W.2d 362, 370 [18].

We have considered all assignments of error and find them to be without merit. The defendant was present and represented by counsel of his own choice throughout the trial including his allocution and sentencing. We have also examined the parts of the record and the entries designated in Criminal Rules 28.02 and 28.08, V.A.M.R., and find them to be proper in form and free from error.

The judgment is affirmed.

All of the Judges concur.