author: HOGAN, Judge.

text:
    Billy Max EDIE, Plaintiff-Appellant, v. Roy J. CARLIN, Defendant-Respondent.
    No. 8184.
    Springfield Court of Appeals. Missouri.
    July 17, 1963.

      Ellis & Ellis, Cassville, R. A. Ellis, Jr., and B. H. Clampett, of Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for plaintiff appellant.
    Harold J. Fisher and Russell G. Clark, of Allen, Woolsey & Fisher, Springfield, for defendant respondent.
   HOGAN, Judge.

In this automobile accident case, Billy Max Edie had judgment against Roy Carlin on a nine-man jury verdict, and the trial court granted a new trial on the ground that Instruction No. 2, given at plaintiff’s request, was confusing and misleading. Plaintiff has appealed. No question is made here of the submissibility of plaintiff’s case and a brief statement of the facts will be sufficient.

The accident occurred on March 28, 1961, about 3:00 P.M., on Highway 86 near Wheaton, Missouri. At this point, about one-half mile north of Wheaton, Highway 86 is a two-lane bituminous or blacktop highway running north and south. The traveled portion of the road is 22 feet wide and is divided into east and west (northbound and southbound) lanes by a broken white line. The road is straight, but there is a 12 to 15 foot rise in the road where the highway crosses an abandoned railroad roadbed running (approximately) perpendicular to the highway, just north of the point where the parties’ vehicles collided and about one-fourth mile north of Wheaton. This rise obstructs the view of oncoming traffic for both northbound and southbound vehicles for a considerable distance. At the time of the accident, the weather was clear and sunny and the pavement was dry. The plaintiff was driving north and the defendant was driving south. Each was alone in his car. Briefly stated, it was the position of each party that the other was driving in the wrong lane, and as a result they collided head on.

The plaintiff testified, and his evidence tended to show, that immediately before the collision he was driving north, about 40 miles per hour, entirely in the east, or northbound, lane, with the left side of his car about a foot east of the center line. As he approached the crest of the rise ahead, the plaintiff “saw a car coming over the roadbed right in the middle of the road,” “coming right towards me.” Plaintiff estimated the speed of the oncoming (Carlin) vehicle to be about 60 miles per hour. Plaintiff applied his brakes and turned his vehicle sharply to the right. The Carlin vehicle continued to approach the plaintiff, “coming right straight to my side of the road,” without slackening its speed; and, although the plaintiff had turned as sharply as he could and had applied his brakes so that he was traveling northeasterly attempting to avoid the defendant, and his right front wheel was off the pavement on the shoulder at the time of impact, the two automobiles collided head on in the east lane. Other evidence offered by the plaintiff tended to show that the actual point of impact was in the east lane, about 200 feet south of the crest of the rise, where, at the time of collision, the left front part of plaintiff’s automobile had fallen onto the pavement, gouging out a lateral groove. Dirt and other debris on the highway also indicated that this had been the point of collision, and plaintiff’s witnesses testified that after the áccident, and before the vehicles had been moved, traffic continued to move northward in the west lane. Mr. Edie sustained personal injuries.

The defendant’s evidence, on the other hand, indicated that just prior to the accident he was traveling south in his own lane, going about 60 miles per hour; and, as he came over the crest of the rise, he was confronted by the Edie vehicle immediately ahead “plumb to the west side,” “right in my path.” Mr. Carlin then looked to the right, saw that the road slanted away rather sharply for 12 to 15 feet to his right, and, in defendant’s words, “it looked like it’d been suicide to cut my car in there, and there was an opening to the left and I took it.” Mr. Carlin therefore “made one quick decision” and, since the left (east) lane was clear and the Edie automobile was “facing” defendant, “coming straight at me,” the defendant turned sharply to the east trying to avoid the plaintiff. Mr. Carlin recalled turning to his left “as sharp as he could cut it,” but, after the impact occurred, he recalled nothing. The defendant estimated that the Edie automobile had been 120 to 150 feet away when he first saw it and that he had been “practically on top” of the old railroad roadbed before he saw the plaintiff. The defendant also adduced evidence which tended to prove that there was another, and parallel, groove, or “gouge mark,” a short distance to the north of the groove identified by the plaintiff; and defendant’s evidence indicated that the second or northernmost groove, rather than the one pointed out by the plaintiff, marked the actual point of impact. By means of a series of photograhic exhibits and the testimony of two witnesses who had inspected the scene shortly after the accident, the defendant undertook to show, and his evidence did tend to prove, that there were skidmarks originating in the southbound (west) lane and extending some 47 feet northeasterly (that is, in Mr. Edie’s general direction of travel) up to the point where the plaintiff’s vehicle left the highway. The estimates made by defendant’s witnesses as to the length of the northbound skidmarks and their point of origin varied, but the general effect of defendant’s evidence was to show that part of the plaintiff’s northbound vehicle had been in the southbound lane and had skidded from the center of the road to the point of impact.

Plaintiff submitted his case to the jury solely upon the defendant’s negligence in failing to drive his vehicle upon the right half of the roadway, as required by Section 304.015, subpara. 2. The plaintiff’s hypothesis was, very succinctly, that as the plaintiff was driving north in his proper lane, the defendant drove into the northbound lane and collided with him. To counter this submission, the defendant offered, and the trial court gave, Instruction 6, an emergency instruction which, after abstractly advising the jury that it is the duty of a driver of an automobile approaching another to turn to the right, but that in some circumstances a driver approaching an oncoming vehicle may turn to the left to avoid a collision, was as follows:

“ * * * In this connection you are further instructed that if you find and believe from the evidence that on the 28th day of March, 1961, on Highway 86 just north of Wheaton, Missouri, the defendant Roy Carlin, was operating his automobile in a southerly direction and on his right hand side of the highway, if you so find, and that as the defendant, Roy Carlin’s, automobile came over the crest of the hill or the railroad bed as referred to in the evidence and immediately before the collision between the automobiles operated by the plaintiff and defendant herein, that the defendant, Roy Carlin, saw the automobile being operated by the plaintiff, Billy Edie, in a northerly direction over and along Highway 86 on the west side or the left hand side of the highway for the plaintiff, Billy Edie, if you so find, and if you further find and believe that it reasonably appeared to the defendant, Roy Carlin, that he could not, with safety to himself and others, turn his vehicle to the right off of said Highway 86 because of the narrowness of the shoulder and the deep drop-off to his right on said Highway 86, if you so find, and if you further find that it reasonably appeared to the defendant, Roy Carlin, that there would be a collision unless he turned to the left, and acting upon such appearance, he swerved his automobile in that direction, and in doing so did what a person exercising the highest degree of care would have done under similar circumstances, then the defendant, Roy Carlin, was not guilty of negligence and your verdict must be against the plaintiff, Billy Eide, on his petition and in favor of the defendant, Roy Carlin, on the plaintiff’s petition.”

The plaintiff in turn offered, and the trial court gave, Instruction No. 2, which is as follows:

“The Court instructs the jury that if you find and believe from the evidence that immediately prior to the time and place of the collision described in evidence that the defendant failed to drive his automobile on the right or west half of the highway, if so, and that by so failing to drive his automobile on the west half of the highway, if so, the defendant directly and proximately created an emergency and danger of colliding with the automobile driven by the plaintiff, if so, and if you further find and believe from the evidence that the defendant turned his automobile onto his left hand or left half of the highway and into the line of travel of the plaintiff after the emergency and danger of collision arose, if so, then the court instructs you that the defendant is not relieved from his duty under the law to operate his automobile on his right hand side of the highway and is not entitled to rely upon the defense stated in Instruction. No. 6.”

The jury, as we have noted, found for the plaintiff by a nine-man verdict, and, subsequently the trial court granted a new trial on the ground that Instruction 2 was confusing and misleading.

On this appeal the plaintiff contends: (1) That because the defendant put the existence of a sudden emergency affirmatively in issue, the plaintiff had a right to instruct the jury that Carlin could not justify his conduct as an act in an emergency if, in fact, he had negligently created the emergency; and (2) that since Instruction 2 merely negatived the application of the emergency doctrine, if the jury found the facts to be as hypothesized in Instruction 2, the trial court erred in granting a new trial. The defendant, on the other hand, seeks to justify the trial court’s ruling by maintaining that: a) Instruction 2 erroneously directs the jury not to consider the hypothesized emergency in any event; b) Instruction 2 improperly advises the jury to disregard Instruction 6, citing Morris v. Baggett Transportation Co., Mo., 306 S.W.2d 445, 461; and c) Instruction 2 is misleading and confusing because it requires the jury to find simultaneously that the defendant turned into the oncoming lane both before and after the emergency arose.

The sole matter before us for review is the trial court’s order granting a new trial. Since the trial court specified that the new trial was being granted because Instruction 2 was confusing and misleading, and this is a discretionary ground, Trump v. Ballinger, Mo., 317 S.W.2d 355, 357 [2], we do not determine whether the giving of Instruction 2 would have been reversible error had the motion for new trial been denied. The trial judge who took part in the trial, had the best opportunity to determine the effect of - any error; and, if there are reasonable grounds to hold the instruction misleading, we ordinarily defer to the trial court’s ruling in such cases, unless its discretion has been clearly abused or its order is clearly erroneous.

As to plaintiff’s first line of argument — that he was entitled to negative or counter the existence of an emergency since the defendant had put that matter in issue— we are inclined to agree. It is not necessary for us to go again into the technical aspects of emergency instructions, or the circumstances in which they are properly given; those subjects have already been extensively discussed. Neither the form of Instruction 6 nor its evidentiary basis is directly in question on this appeal. We simply assume that it is sufficient in form and that the evidence justified giving it. 'However, it is apparent that Instruction 6 is a verdict-directing converse instruction. It does not merely advise the jury that the occurrence of a sudden emergency is a factor to be considered in determining whether the defendant’s conduct was negligent toward the plaintiff, as did Instruction 3 in Boatright v. Bruening, 363 Mo. 494, 251 S.W.2d 709, 711, and Instruction 4 in Keely v. Arkansas Motor Freight Lines, Mo., 278 S.W.2d 765, 769-770. Instruction 6, in the present case, undertakes to submit a state of fact the existence of which would wholly exonerate the defendant. In other words, Instruction 6 purports to submit facts shown by the defendant’s evidence which would disprove one or more (actually several) of the basic factual elements of the plaintiff’s case, and, assuming the evidence supported it, the defendant was entitled to such a submission.

The question then arises whether plaintiff was in turn entitled to counter or converse the existence of a sudden emergency as a defensive factor by submitting that Carlin negligently created the emergency. Certainly “ * * * [a]n integral part of the doctrine is that the emergency shall not have been caused or contributed to by the one who asserts the emergency. * * * ” Scott v. Nash, supra, 355 S.W.2d at 630. While we find no case which holds in direct, precise and unequivocal terms that a plaintiff is always entitled to a counter or converse instruction hypothesizing facts which would negative an essential factual element of the defendant’s verdict-directing converse, some cases strongly suggest it. We do not mean to announce any broad general rule; but because the authorities do suggest such a view, and because of the many cases which hold, in one form or another, that a litigant is entitled to have his theory of the, case affirmatively submitted by proper in-, struction within the pleadings and evidence, we conclude that in this case the plaintiff was entitled to a proper counter or converse to Instruction 6, hypothesizing that the defendant, Carlin, in fact negligently created the emergency submitted by Instruction 6.

Granting plaintiff’s basic premise in giving Instruction 2, we cannot agree with his further argument that Instruction 2 was in no way misleading or confusing because it merely negatived the applicability of the emergency doctrine. The charge should be considered as a whole, and instructions should not be read hypercritically, as plaintiff’s cited cases say, but these general considerations do not, in our view, govern this case. We have pointed out at some length that where a litigant seeks to submit his theory affirmatively, he must formulate an instruction which is substantially correct in both substance^ and form. Anderson v. Welty, supra, n. 6, 334 S.W.2d at 140. Possibly the defendant’s first two criticisms of Instruction 2 are hypercritical. We do not consider it probable that a jury would read Instruction 2 to mean that the defendant was not entitled to have the hypothesized emergency considered if they found that he turned left after the emergency arose, for the instruction is conjunctively stated. However, so construed, Instruction 2 does ignore the emergency as a defensive factor, as set out in Instruction 6. Nor do we consider that Instruction 2 has the defect found in Instruction B in Morris v. Baggett Transportation Co., supra, 306 S.W. 2d at 451. Instruction 2 in this case does not tell the jury that they cannot consider Instruction 6 in arriving at their verdict; it merely undertakes to tell them the circumstances ■ in which Instruction 6 would, apply.

On the other hand, we consider defendant’s final suggestion- — that Instruction 2 contains inconsistent hypotheses — to be well taken. Essentially, the jury is required to find:

“ * * that the defendant failed to drive his automobile on the right or west half of the highway * * * and that by so failing * * * the defendant directly and proximately created an emergency and danger of colliding * * * and * * * that defendant turned his automobile onto his left hand or left half of the highway and into the line of travel of the plaintiff after the emergency and danger of collision arose. * * * ”

The instruction thus requires the jury to find affirmatively that the defendant was in the east lane a' sufficient distance to create an emergency, and simultaneously requires the jury to find affirmatively that he turned left into the east lane after the emergency arose; in this respect it requires simultaneous affirmative findings of fact which could not, in point of time, co-exist.

Instruction 2 has the same vice as Instruction 8 in Pigg v. Bridges, Mo., (banc) 352 S.W.2d 28, 31 [1], which required the jury to find simultaneously that the plaintiff could have discovered the stairway, and that he could not have discovered the stairway; Instruction 7 in Sanders v. Carl Berry Oil Company, Mo., 359 S.W.2d 769, 771-72, which hypothesized that the alleyway was completely dark, but further hypothesized that plaintiff should have seen the oil and ice in the alley; and Instruction 5 in Thomas v. Kimsey, Mo., 322 S.W.2d 754, 758 [4], which required the jury to find both that the plaintiff was in a position of safety, and that she had left that position before the bus started and slid. In Pigg v. Bridges, supra, 352 S.W.2d at 31, it was pointed out that the conjunctive submission of inconsistent hypotheses, requiring the jury to find two facts which cannot coexist, is prejudicial misdirection under which a jury cannot properly perform its function. We are aware, as plaintiff contends, that Instruction 2 was not a verdict-directing instruction, but, at the same time, the relative position of the two automobiles on the highway at the time each saw the other was one of the principal matters in issue, and not a mere collateral matter. We cannot confidently say that the error in giving Instruction 2 was so insubstantial that the losing party was in no way deprived of a fair tidal. In our view, the trial court was justified in ordering a new trial, and the judgment is therefore affirmed. ,

RUARK, P. J., and STONE, J., concur.

      . All references to statutes and rules, except as otherwise noted, are to R.S.Mo. (1959), Y.A.M.S. and Y.A.M.R.

      . Stone v. Engler, Mo., 349 S.W.2d 38, 41 [2]; Gaston v. Wabash Railroad Co., Mo., 322 S.W.2d 865, 869-70; Trump v. Ballinger, supra, 317 S.W.2d at 357-58; Jones v. Kansas City, Mo., 243 S.W.2d 318, 321; Venditti v. St. Louis Public Service Co., 360 Mo. 42, 49, 226 S.W.2d 599, 604; Teague v. Plaza Express Co., 356 Mo. 1186, 1192-93, 205 S.W.2d 563, 566; Hensley v. Dorr, Mo., 191 S.W.2d 663, 665. This rule of deference does not apply where the record shows that the instruction was not misleading or fairly demonstrates that the losing party was not deprived of a fair trial. See McCormack v. St. Louis Public Service Co., Mo., 337 S.W.2d 918, 921; Warren v. Kansas City, Mo., 258 S.W.2d 681, 683.

      . See West v. St. Louis Public Service Co., Mo., 357 S.W.2d 69, 72 [4-6]; Scott v. Nash, Mo.App., 355 S.W.2d 626, 630-631; Anno., 80 A.L.R.2d 5, §§ 4, 5 [a], 7, 14, 15 [a], 16, 17, 21, 22, 34, 36, 38, 40 (analyzing Missouri decisions); Anno., 47 A. L.R.2d 6, §§ 3, 17.

      . Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479, 480-81 [1, 2]; Liebow v. Jones Store Co., Mo., 303 S.W.2d 660, 662-63; Dill v. Dallas County Farmers’ Exchange No. 177, Mo., 267 S.W.2d 677, 680 [4, 5]; Rose v. St. Louis Public Service Co., Mo., 205 S.W.2d 559, 562; Hermann v. St. Louis Public Service Co., Mo.App., 345 S.W.2d 399, 403 [4, 5] ; 1 Raymond, Missouri Instructions, § 40 (Supp.1963, at 22).

      . Jones v. Illinois Terminal R. Co., Mo., 260 S.W.2d 487, 491; Hampton v. Wabash R. Co., 356 Mo. 999, 1009-10, 204 S.W.2d 708, 713; See 1 Raymond, op. cit. § 40 (Supp.1963 at 23); Richardson, Rules Relating to Instructions, 4 Mo.Bar. C.L.E. Series, § 2.2, pp. 22-23.

      . Kimbrough v. Chervitz, 353 Mo. 1154, 1162-63, 186 S.W.2d 461, 466; Anderson v. Welty, Mo.App., 334 S.W.2d 132, 139 [14, 15]; Jackson v. Farmers Union Livestock Commission, 238 Mo.App. 449, 465, 181 S.W.2d 211, 219 [8, 9]; Broderick v. Brennan, Mo.App., 170 S.W.2d 686, 688 [4-6]; Collins v. Rankin Farms, Mo.App., 180 S.W. 1053, 1054; 88 C.J.S. Trial § 303, p. 819.


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    In re Richard Lee RENFRO et al., Appellants, v. JACKSON COUNTY JUVENILE COURT, Respondent.
    Nos. 23571-23573.
    Kansas City Court of Appeals. Missouri.
    June 28, 1963.

      James C. Morris, Morris, Lay & Tarver, Kansas City, for appellants.
    No appearance for respondent.
   HUNTER, Judge.

On this appeal we are reviewing judgments and rulings by the Juvenile Division of the Circuit Court of Jackson County in consolidated cases involving three minor children. These children, two brothers and their sister, are Richard Lee Renfro, born January 31, 1960; Donald Eugene Renfro, born November 6, 1947; and Delores Elaine Renfro, born November 26, 1955.

On December 5, 1960, a petition to terminate parental rights was filed by the juvenile officer of Jackson County in the interest of Delores. The petition alleged it was filed pursuant to Sections 211.441 and 211.-451, RSMo. 1959, and stated, “said parents habitually use intoxicating liquor, the use of which is detrimental to the well being of aforesaid Delores Elaine Renfro.”

On July 10, 1961, the juvenile officer of Jackson County in the interest of Richard Lee Renfro seeking to place him under the jurisdiction of the court, filed a petition alleging his parents neglect to provide him with the proper support and other care necessary for his well being and that he is in need of the care, treatment and services of the court; and on July 31, 1961, filed a petition seeking to terminate the parental rights to Richard. This latter petition contained the same allegation of grounds for termination as those contained in the petition concerning Delores.

About this same time a petition to terminate the present confinement of Donald was filed. Earlier and on May 12, 1958, a petition had been filed alleging Donald’s home environment “is injurious to his welfare because both parents drink alcoholic beverages to excess and frequently fight with each other.” Apparently a similar petition had been filed concerning Delores.

On September 11, 1959, the Juvenile Court, after a hearing, had taken jurisdiction of both Donald and Delores and had placed them in a foster home located in Henry County. In June, 1960, these two children had been returned to the actual custody of their parents on a trial basis. In November 1960, after a further hearing, Delores was again placed in a foster home and Donald was committed to McCune Home for Boys in Jackson County. Baby Richard had been with his parents all along, until just before July 1, 1961.

The parents of the three children, Dorothy Marie Renfro, born May 27, 1920, and Joseph Renfro, born June 19, 1914, filed answers in the various cases to the general effect that they were able to, had been and were willing to provide good, sufficient and proper care, support and maintenance for each of the children. They prayed that the petitions for termination of their parental rights be denied, and that the children be remanded to their pare, custody and control.

All the mentioned matters came up for hearing on August 4, 1961, before the juvenile court judge. Each child was personally present, and both parents were in attendance with their attorney. Mr. William J. Koenigsdorf, who earlier had been appointed guardian ad litem by the court for all three children, appeared in that capacity. All of the actions were consolidated for the purpose of the hearing.

Thirteen witnesses testified at the August 4, 1961 hearing. We refer only to the substance of such of their testimony as is necessary to a proper disposition of the contentions made on this appeal.

About July 1, 1961, Pamela Phinney and Carol Casey, neither of whom knew the Renfros, just before dark were proceeding in their car on Highway 71 at Bannister Road in Jackson County. They noticed a car parked alongside the street and a baby out almost to the road playing in the gravel. Two and a half hours later they again drove by and seeing the baby still there rolling and crawling about 10 feet from the highway, they stopped to see if they could be of any assistance. The baby was crying and dirty. The parents, who were in the car drunk and very dirty, refused any help. The two women left and contacted a policeman. On their return with the policeman they noticed the mother’s clothes were very dirty and unbuttoned down the front. She was staggering. The police officers gave similar testimony, stating both Renfros were extremely intoxicated and covered with filth. They stated Mrs. Renfro’s clothes were partly torn off and that the baby was filthy.

Mrs. Edith Marriott lived in the same apartment building with the Renfros for three months of the winter in 1960-61. She testified: “They were pretty well drunk most of the time. They had loud arguments, foul language. They would turn the baby loose in the hall, which was unheated, where the baby would be undressed. Mrs. Renfro would be passed out in the bathroom, which we had to share with them, partly dressed — sometimes she was completely undressed. And the baby was turned loose in the hall unsupervised when she would go downstairs to the phone or across the street, which it could have fallen down three flights of stairs.” Mrs. Marriott told of other instances of neglect of the child. On one occasion when the Ren-fros were in a hot argument and using vile language, Mrs. Renfro told her husband to get out. As he reached the hallway she said, “Here, take your damned little bastard with you”, and threw the baby toward him. Fortunately he caught it. The police were called.

Mrs. Lula Morris lived on the same floor in an apartment building on Tracy where the Renfros and the baby remained a short time. She related: “When they moved in, every night for a week or two, nearly every night, you would try to sleep and you couldn’t sleep for her hollering and cussing him. * * * She used awful language, language we don’t even say, let alone around children. And she was always drunk.” She related instances when the child was neglected and left in unsafe places.

Mary Cohen who owned an apartment building on Jefferson Street rented an apartment to the Renfros. She had considerable difficulty with them: “ — first time I came in her place was one evening, and she told me she had a toothache and she was very drunk and the baby was, was 'in the little bed * * *. The second time when I (was there) she brought the baby’s bed, she put it against the wall and kicked and broke the plaster and threw the bed outside and the baby slept on a little mattress on the floor. And she used to lay down quite a bit on that mattress, several times I saw her on the same mattress, and she was drunk and the baby was out on the floor and the refrigerator was open and the house was dirty, the chairs was broke — . * * * The baby was about, between six, six and seven months old. It looked to me like it. was kinda small and it cried most of the time.”

Mrs. Cohen described other instances where both Renfros were very drunk. “The baby was crying most of the time. I asked her once, was the baby sick, or was it hungry, * * * and she just cussed it out and called it some names, and that is all.”

Other testimony disclosed that from November 30, 1960, to the date of the trial, August 4, 1961, the Renfros had resided at six different addresses. Mr. Renfro testified he and Mrs. Renfro had lived in at least 17 different places in the past three years. Mrs. Renfro acknowledged some 10 different additional addresses they had occupied prior to the past three years.

Miss Gertrude Fling, child welfare worker, stated she visited weekly with the parents from November, 1960, until April, 1961. She was trying to rehabilitate the home so Delores might return and Richard remain there. She frequently observed the baby with scanty clothing and no diaper. The Renfros moved six times during this five month period.

The police court records showing numerous convictions of both Mr. and Mrs. Ren-fro for drunkenness, disturbance of the peace and destruction of private property were received in evidence.

■ A neighbor since March 1, 1961, testified she never saw Mrs. Renfro intoxicated or heard any loud arguments, and that in so far as she had observed Mrs. Renfro took, good care of the child and kept it clean». Another acquaintance, Mrs. Esther McNamara gave brief and somewhat similar testimony, as did Mrs. Renfro’s father.

Both Mr. and Mrs. Renfro testified as to their care and .affection for their children and of the adequacy of their present home, a four room residence which they moved into about March 21, 1961.

Mr. Renfro stated he was employed by Owens-Corning Fiberglas in Fairfax, had worked there for fifteen years and had a present gross earnings of about $450.00 a month. He asserted he was financially able to care for his children properly although he was in arrears about $50.00 in the $10.00 a week payments to a Mr. Antwiler of Clin-' ton, Missouri, for the care of Delores and Donald who lived in the Antwiler’s farm home from late 1959 until June 1960.

Mrs. Renfro testified of her affection for her children. She admitted having upon some occasions been arrested and convicted' of being drunk, and of their frequent changes of address.

Donald, who was fourteen years old at the time of the hearing, testified briefly. He was in the eighth grade, and while at the McCune Home ran away twice, each time to go home. Three letters he wrote to his parents while he was at the McCune Home were introduced in evidence by appellants.

At the close of the hearing the court made and entered its orders and judgments as to each of the three minors, as follows:

(1) The order of November 7, 1960, committing Donald to McCune Home was continued in full force and effect. The petition of the parents to terminate such commitment was denied. (While appellants appealed from this order and judgment we were advised when the cause was argued that appellant no longer desires to pursue this portion of the appeal.)

(2) Regarding Delores, live years old, the court continued in full force and effect that part of its order of November 29, 1960, committing her to the care and custody of the Division of Welfare and terminated the rights of Joseph and Dorothy Renfro as parents, stating: “(I) believe that a preponderance of credible evidence sustains the petition, and, therefore, serious as it may be, (I am) impelled to hold that the petition should also be sustained. I might say that this decision is not reached lightly, but the opportunity the court has had today to hear and observe the witnesses, their demeanor on the stand, the sharp conflict in evidence, while it does not make it easy, leads (me) to believe that the preponderance of the credible evidence shows that these parents have been habitual users of intoxicating liquor and that the use of that liquor has been injurious to the care of Delores Elaine.” The judgment read in part: “The court after hearing the evidence thereon (petition) and pursuant to the terms of Sections 211.441 and 211.451, Missouri Revised Statutes, 1949, V.A.M.S., finds that the parents of said minor child should have their rights as parents terminated, because said parents habitually use intoxicating liquor, the use of which is detrimental to the well being of said child, Delores Elaine Renfro.”

(3) The court also entered judgment terminating the rights of Joseph and Dorothy Renfro as parents of Richard, stating in the order: “In Case No. 34549, the petition alleging that Richard is in need of the services of the court because his parents have neglected to provide him with the proper support and other care necessary for his well being, is by the evidence sustained. In the case 34549B, being a termination of parental rights petition, identical in nature with that involving Delores, (I) believe that the petition should be sustained. The disposition in case 34549 (I) feel should be the same as that which is presently in force so far as Delores is concerned, to wit, that Richard’s care and custody should be -and it is hereby committed to the care and custody of the Division of Welfare in the State of Missouri until further order of the Court.” The judgment, after mentioning the pertinent statute, read in part: “ * * * finds that the parents of said minor child should have their rights as parents terminated, because said parents habitually use intoxicating liquor, the use of which is detrimental to the well being of said Richard Lee Renfro.” The court also terminated an earlier order requiring Mr. Renfro to pay $20.00 per month support for Delores.

Following their unsuccessful motion for new trial in each case, appellants have taken this consolidated appeal. There has been some delay in the presentation of the appeal because of the juvenile court’s delay in providing an accurate transcript. We have not been favored with a brief by respondent.

In 1959 for the first time our legislature enacted laws specifically providing for the termination of parental rights by juvenile courts upon certain cause shown. Section 211.441 RSMo 1959, V.A.M.S., reads in part: “1. The juvenile court may, upon petition filed as provided in other cases of children coming under the jurisdiction of the court, terminate all rights of parents to a child when it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist: * * * (d) The parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well being of the child.”

With the above evidence and statute in mind we consider appellants’ charge that the trial court erred because “the weight of the evidence of appellants and the juvenile officer was that the parents had a good reputation in the neighborhood, had not been drinking except for one incident in July, and that they loved their children and wanted them back in the home.”

It is apparent that much of what appellant contends above as reason for alleged error literally could be true and still not amount to error. It is possible, although not likely, for the parents to possess a good reputation in the neighborhood and to love their children and want them back and still be guilty of such conduct as to support a judgment for termination of parental rights. In the interest of justice and out of our determination to safeguard the welfare of the minor children we consider appellants’ first contention of error as also including the charge that the weight of the evidence does not support any one or more of the conditions and findings required by Section 211.441, authorizing termination of parental rights; and, thus, that the evidence was insufficient to authorize and justify the termination of parental rights and the taking away of the custody of the children.

Both by law and by nature parents have the primary right as against the world to their children. In its wisdom our legislature enacted this termination of parental status statute. It is axiomatic that under it parents are not to be deprived of their children and have their parental rights terminated except upon clear proof of one or more of the grave reasons specified by the legislative act. Whoever seeks to invoke the statute carries the full burden of proof. We recognize our legislature did not intend by the statute under consideration to provide that the relationship of parent and child might be lightly cast aside for any paternalistic sociological theory. Rather, the statute sets out only gráve and compelling grounds for the action, essential to the welfare and protection of the child, and it should be so viewed and carefully applied.

We interpret the rather lengthy juvenile court finding and judgment entered in both Delores and Richard’s cases to be the equivalent of a finding by the court in each case that the termination of all rights of the parents to each child is in the best interest of the child and that the parents are unfit by reason of habitual use of intoxicating liquor, which conduct is seriously detrimental to the health, morals or well being of the child.

This being a nonjury case it is our duty to review it upon both the law and the evidence as in suits of an equitable nature. We must give due regard to the opportunity of the trial judge who saw the witnesses first hand to judge the credibility of their testimony. The judgment is not to be set aside unless clearly erroneous. Supreme Court Rule 73.01(d), V.A.M.R. The question for our determination is not merely one of whether the trial court’s findings were supported by substantial evidence, but rather it is our duty to make our own independent findings of fact and reach our own conclusions as to where the weight of the competent evidence lies. As so viewed we believe that such judgments are fully supported by the evidence and are in accordance with the weight of the competent and credible evidence.

As shown by the evidence the long and continuous record of both parents, and especially that of the mother, is one of chronic alcoholism over a period of years to such an extent as (1) to make the parents unfit thereby, and (2) to be seriously detrimental to the health and well being of these two children. The evidence also supports the conclusion that termination of parental rights as concerns Delores and Richard is in the best interest of these two children.

Appellants contend the orders of the court were based on past incidents and conditions rather than on present conditions. The language of the statute requires the court to find ,the enumerated condition or conditions “exist”. The evidence supports a finding the parents are unfit by reason of habitual use of intoxicating liquor and that this condition as of the date of the trial exists. We find no merit in appellants’ contentions to the contrary.

Appellants charge the Kansas City, Missouri police records relating to the parents, showing past convictions (the court made it clear mere arrests were not to be considered) were improperly admitted in evidence over objection. It is the law that a violation of a city ordinance is not a criminal offense and that such a conviction may not be shown to affect the witnesses’ credibility under Section 491.050 RSMo 1959, V.A.M.S. Willis v. Wabash Railroad Company, Mo.Sup., 284 S.W.2d 503, 512, and cases cited. However, in a juvenile court hearing for termination of parental rights where one of the charged reasons for parental unfitness includes habitual use of intoxicating liquor evidence of convictions for drunkenness should be and in our opinion is admissible. Such convictions, being from a municipal court and involving city ordinances, are not admitted in evidence to generally impeach credibility but rather as evidence of use of intoxicating liquor to excess.

While the police records introduced in evidence also contained several convictions of disturbance of the peace and destruction of private property the trial judge made it clear he was considering only the relevant portions of the police records. Further, in addition to the actions to terminate parental rights the trial court had before it the actions and issues which we have mentioned earlier and we are not willing to say these convictions for disturbance of the peace and for destruction of property were of no relevancy to such actions. We find no merit in appellants’ contention that it was reversible error to admit these records in evidence. See, Section 211.491 RSMo 1959, V.A.M.S.; 67 C.J.S. Parent and Child § 13(f), p. 673 ff.

Appellants also contend the witnesses were not properly sworn. In this contention they are not supported by the transcript and rely on statements of counsel, outside the record, to the general effect that it seems to be the practice of the juvenile judge to swear witnesses for one or more cases at one time as a group, and that possibly several witnesses in the cases before us were not present at the “mass” swearing. We do not approve of a group swearing of witnesses, and the proper practice is to swear each witness individually as he takes the witness stand. The dignity and solemnity of the oath should not be eroded or jeopardized by loose trial methods. And the transcript should reveal that each witness has been individually sworn. As so well stated in State v. Jackson, 318 Mo. 1149, 2 S.W.2d 758, “A judgment cannot be based upon testimony produced by a witness who is not put under the pains and penalties of perjury. The party affected by the testimony has a right to that assurance that his rights are not jeopardized by reckless statements.”

However, we are not convinced that any witness was not sworn. At no time during the trial was any such suggestion made. Appellants’ counsel concedes a number of witnesses were sworn as a group, but relies upon his memory as stated in his brief for his contention that the boy, “Donald was not sworn because he was upstairs during most of the proceedings and perhaps Mr. Pierce and Miss Fling were upstairs most of the time, too.” This is not a sufficient showing that these witnesses were not sworn. Additionally, there was no action to terminate the rights of the parents as to Donald, and appellants have abandoned on appeal any contentions relating to Donald’s confinement. Nor did Donald’s testimony bear on the issues concerning the other two children.

Appellants’ last two contentions are that Donald was not represented by a guardian ad litem and that no proper consideration was given to the offer of a friend to take the children into his home so they would not be put out for adoption. However, the record does show that William Koenigs-dorf, a practicing attorney, was appointed as guardian ad litem for Donald and served in that capacity. Nor is there basis in the record for the claim that the court did not give proper consideration to all the relevant testimony, including that of the mentioned friend.

As a part of the after trial motions the parents filed separate motions in the juvenile court to stay proceedings, to obtain right of visitation, and for recent pictures of the children. These motions were overruled by the juvenile court. Under the related circumstances we find no abuse of discretion or error by the circuit judge in overruling them.

Each of the judgments of the juvenile court on appeal before us is affirmed. It is so ordered.

All concur.


author: McDonald, Chief Justice.

text:
    Alton P. BUICE, Appellant, v. HICKS BUILDING & EQUIPMENT COMPANY, Inc., et al., Appellees.
    No. 4146.
    Court of Civil Appeals of Texas. Waco.
    June 27, 1963.
    Rehearing Denied July 18, 1963.
    Edwards & Faulkner, Waco, for appellant.
    Ñaman, Howell, Smith & Chase, Waco, for appellees.
    Jones, Boyd, Westbrook & Lovelace, Waco, for Intervenor.
   McDonald, Chief Justice.

This is an intersection collision case in which a take-nothing judgment was rendered against plaintiff on a jury verdict.

Plaintiff Buice was driving east on Speight Avenue in Waco, Texas. Defendant Fritzie was driving south on 26th Street. There was a stop sign for traffic travelling south on 26th Street. The collision occurred in daytime on a rainy day.

Plaintiff alleged that various acts of negligence of defendant caused the collision. Defendant answered by general denial and alleged contributory negligence on the part of plaintiff. Trial was to a jury which, in answer to issues submitted, found:

1A) Plaintiff received injuries to his body as a result of the accident.
1) Defendant did not fail to keep a proper lookout.
3) Defendant did not fail to stop at a stop sign facing his line of traffic, prior to entering the intersection.
6) Defendant did not enter the intersection at a time when a person of ordinary prudence would not have done so.
8) The damage issue: NONE.
9, 11, 13, 16) acquit plaintiff of contributory negligence proximately causing the .collision.
19) The collision was the result of ' an unavoidable accident.

On the foregoing, the Trial Court entered judgment for defendant. Plaintiff appeals, contending among other things:

1) There is no evidence, or insufficient evidence, to sustain the jury’s findings on Issues 1, 3, 6, 8 and 19.
2) There are 3 instances of jury misconduct which, individually and collectively, require a reversal.

The jury in answer to Issue 3 found that defendant Fritzie did not fail to stop at the stop sign facing his line of traffic, prior to entering the intersection.

Plaintiff contends there is no evidence to support such finding; insufficient evidence to support such finding; and that such finding is against the great weight and preponderance of the evidence.

Only 3 witnesses testified as to whether defendant Fritzie stopped at the stop sign; officer Lothlin, plaintiff Buice, and defendant Fritzie.

Officer Lothlin, who did not see the accident, and who did not see whether defendant stopped or did not stop, testified that after the accident defendant Fritzie told him that he stopped at the stop sign. Plaintiff Buice testified: “Q. Then on page 19 of the deposition, line 2, I asked you: ‘About how far was the pickup back from the intersection when you first saw it’ and you said ‘when I first saw it?’ Q. Uh huh, A. Well, He was right close to it, he was pulling up there stopping. Q. OK. He was in the process of pulling up to a stop then when you first saw him, and you said ‘Yes, sir.’ Q. Then my next question was: ‘Did he stop his car immediately even with the north curb line or back from it, or where. In other words, the north curb line of Speight, if it had been extended across there’, and your answer was T would say he stopped about like all the rest of them, I guess about 2 feet behind it there.’ Is that correct? A. That’s where I said it was, when I saw him pull up for a stop.” Plaintiff Buice then testified that he “did not know whether defendant Fritzie stopped, or just threw it in 2nd gear and come on.” Defendant Fritzie testified that he “substantially stopped”; that he was just “barely moving,” that he slowed his car down to a “walking speed”; that he slowed down and “shifted into low”; and further: “Q. And you never did bring it to what you’d say a dead stop there at that stop sign? A. No sir.”

Officer Lothlin testified to hearsay only, and did not see the occurrence; plaintiff Buice said he did not know whether defendant stopped or not; and defendant Fritzie, who should know, or who knows if anyone does, positively and unequivocally testified that he did not come to a complete stop.

We think the answer to Issue 3 is against the great weight and preponder-anee of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The jury found that plaintiff received injuries to his body as a result of the accident, hut answered the damage issue “NONE”. The record reflects that plaintiff incurred several hundred dollars in medical bills and lost time as a result of the accident. We think the jury’s answer to Issue 8 is against the great weight and preponderance of the evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795; Smith v. Bullock, Tex.Civ. App, (n. w. h.), 317 S.W.2d 232; Carter v. Skelly Oil Co., Tex.Civ.App., (n. w. h.), 317 S.W.2d 227.

It follows that the cause is reversed and remanded. In view of another trial, we omit discussion of plaintiff’s other contentions. Reversed and remanded.


author: BARROW, Justice. MURRAY, Chief Justice

text:
    Herbert M. SCHENKER et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 14047.
    Court of Civil Appeals of Texas. San Antonio.
    May 15, 1963.
    Rehearing Denied June 26, 1963.

      Herbert M. Schenker, Jack Davis, Mau-ry Maverick, Jr., Arthur M. Gochman, San Antonio, for appellants.
    Carlos C. Cadena, Crawford B. Reeder, City Atty., Matthews, Nowlin, Macfar-lane & Barrett, Louis T. Tarver, Jr., True-heart, McMillan, Russell & Westbrook, San Antonio, Chapman & Cutler, Chicago, Ill., for appellees.
   BARROW, Justice.

This suit was instituted in a District Court of Bexar County by Herbert M. Schenker, Marvin C. Beck and John J. Mullen, allegedly as a class action under Rule 42, Texas Rules of Civil Procedure, on behalf of themselves, and for and on behalf of 187,249 consumers of electricity and 161,011 consumers of gas, furnished by the gas and electricity systems owned by the City of San Antonio and operated by the Public Service Board of the City under authority of Arts. 1111-1118, Vernon’s Ann. Civ.Stats. Defendants are the City of San Antonio, a Home Rule City, the Public Service Board and the individual members thereof, and the indenture trustees under the indenture agreements by which the system was purchased by the City from the San Antonio Public Service Company in 1942, and refinanced on three subsequent occasions.

The trial court, after a hearing on defendants’ plea to the jurisdiction and plea in abatement, entered a final judgment providing in part as follows:

“All parties, Plaintiffs and Defendants, having announced ready on the said pleas to the jurisdiction and in abatement and the Court having considered the pleadings and heard the evidence and arguments of counsel for both Plaintiffs and Defendants and having taken the case under advisement after submission of written briefs, is of the opinion and finds that the relief sought by Plaintiffs as electric and gas consumers relate to the reasonableness of electric and gas rates heretofore charged and to be charged by the City of San Antonio, which are legislative and municipal matters over which the courts have no jurisdiction; and that the record in this case shows that the Defendants, under Article 1113, Revised Civil Statutes [Vernon’s Ann.Civ. St. art. 1113], as amended, are authorized to fix the rates charged to these Plaintiffs and that the Defendants have exercised this authority, and therefore Paragraph I of Plaintiffs’ First Amended Original Answer and the corresponding plea in the Answer of Defendants Harris Trust and Savings Bank and F. O. Mann, as Trustees, are sustained and this cause should be dismissed with prejudice.”

The suit was accordingly dismissed with prejudice.

The various ordinances enacted to authorize purchase in 1942 and setting rates at that time, were introduced in evidence, as were the trust indentures and the City Charter. Plaintiffs alleged substantially that: the City acquired the gas and electricity systems on October 25, 1942, for the sum of $33,950,000.00, which sum was provided by issuance of bonds payable solely out of revenues; an indenture agreement was entered into with the bond holders which provided that the Board of Trustees should have complete authority, power, management and control of the Utility, including setting rates (it is seen that the indentures do not authorize the Board to set rates) ; that since purchase the City has never fixed, adjusted, or changed any rates; that the City Charter adopted in 1951, calls for the appointment of a “Supervisor of Public Utilities” to furnish information to the City Council, but no supervisor has been appointed and the information has not been furnished; that the City Charter has been violated in the purchase of material without calling for bids; that since October, 1942 (when the ordinance was passed authorizing purchase and setting the rates), no public hearing has ever been held by the City Council to enable the public to analyze the operation, rate structure, rates and charges of the system; that plaintiffs have been required to pay excessive, exorbitant and unreasonable rates, which have substantially increased the value of the utility system to where it is now worth $152,000,000.00; that this surplus is the result of the inequitable and confiscatory policies and actions in not setting fair and reasonable rates as required by law; that said surplus is held in implied and constructive trust for the benefit of plaintiffs, and they ask for refund of the excess accumulated in the four years prior -to the filing of suit; that the unreasonable, extortionate and discriminatory rates charged plaintiffs by defendants deprived them of their property without due process of law and are confiscatory and discriminatory; that City has refused to perform its mandatory legislative duty to fix and adjust utility rates; that the rates and charges yielded a net return on fair value of approximately 18% the last four years, and such rates of return were unreasonable, excessive, extortionate, discriminatory and constituted a direct taking of plaintiffs’ property without due process of law in violation of United States and Texas Constitutions; furthermore, these excessive rates are a discrimination against consumers in favor of other classes of citizens; that Art. 1113, R.C.S., Vernon’s Ann.Civ.St. art. 1113, provides for setting of rates, but in setting rates defendants have included expense items which do not constitute legitimate and legal operating expenses, by transferring excessive sums to the City in lieu of taxes and furnishing free services to City; plaintiffs pray that upon hearing the court set a reasonable and fair maximum net rate of return upon actual fair value of the properties of the system, and prohibit defendants from making illegal payments to the City and from improperly furnishing services to the City, or, in the alternative, that City be required to hold a public hearing for the purpose of establishing reasonable and fair rates.

We will not set forth the reasons asserted by defendants that the court lacked jurisdiction, as the rule is clear that where the cause is dismissed it is our duty to search the record and see if there is sufficient reason to sustain such a dismissal. Glen Oaks Utilities, Inc. v. City of Houston, 161 Tex. 417, 340 S.W.2d 783.

It is important to recognize at the outset that this is not a case wherein a consumer complains of discrimination in the charge made against him as compared to the charges made other consumers, Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283; it is a complaint, purportedly on behalf of all classes of consumers, that the entire rate structure is improper in that excessive rates are ■charged.

It is fundamental that the fixing ■of rates is a legislative and not a judicial function, and that the only power of the ■court is to enjoin the enforcement of an illegal rate. It cannot set a rate either for past or future operations. Railroad Commission v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681; Kousal v. Texas Power & Light Co., supra. This legislative function of rate making has been delegated by the Legislature to the City. Art. 1113 and Art. 1175, § 12, Vernon’s Ann.Civ.Stats.

The rule is now equally well established that where a city has refused to perform its statutory duty to fix reasonable rates which will yield a fair return upon the fair value of the property owned by the franchise holder, the Texas Courts will exercise their equity powers to enjoin the enforcement of confiscatory rates. Glen Oaks Utilities, Inc. v. City of Houston, supra; General Telephone Co. v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385; City of Houston v. Southwestern Bell Tel. Co., Tex.Civ.App., 263 S.W.2d 169.

The application of this rule has been limited in Texas to suits on behalf of the franchise holder. City of El Paso v. El Paso City Lines, Tex.Civ.App., 227 S.W.2d 278. Plaintiffs have cited us to cases from other jurisdictions which have given a consumer the right to seek relief from the courts for excessive utility rates. Among these are: Griffin v. Goldsboro Water Co., 122 N.C. 206, 30 S.E. 319, 41 L.R.A. 240; Washington Water & Electric Co. v. Pope Mfg. Co., 176 Ga. 155, 167 S.E. 286; Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81; Holton Creamery Co. v. Brown, 137 Kan. 418, 20 P.2d. 503; Hicks v. City of Monroe Utility Co., 237 La. 848, 112 So.2d 635; Twitchell v. City of Spokane, 55 Wash. 86, 104 P. 150, 24 L.R.A.,N.S., 290.

We expressly do not determine this issue, as in our opinion the trial court did not err in dismissing the suit for want of jurisdiction. It is fundamental that courts have no initiative in the matter and that administrative remedies must be exhausted before the courts will intervene. Glen Oaks Utilities, Inc. v. City of Houston, supra. Sec. 135 of the San Antonio City Charter provides in part that: “The council shall have the power to call a public hearing, giving reasonable notice to the holder of a franchise, to determine whether or not an application to increase rates shall be granted or to determine whether or not the rates currently charged by any holder of a franchise for the service rendered are excessive.” By this provision, the council may be called upon to determine whether rates are excessive, and it does so by calling a public hearing. Since it is the council and not the court which must make this initial determination, one must first take his complaint there. There is no allegation or contention that plaintiffs had ever sought any relief from the City before filing this suit.

In San Antonio Transit Co. v. City of San Antonio, Tex.Civ.App., 323 S.W.2d 272, Chief Justice Murray, speaking for this Court, said:

“A transit company desiring to increase its rates must apply to the City Council for a new rate and must invoke the rate fixing powers of the City before it may resort to the courts. (Citing authorities.) * * *
“It is quite possible that with the inflationary period we have been having for some time, that a rate that was proper yesterday may be insufficient today, but before a company can refuse to continue to apply the existing rate it must go before the City Council and seek a new rate, as a prerequisite to going into court and seeking to enjoin the existing rate. The City Council is the proper body in the first instance to set aside an old rate and fix a new one.”

This rule was followed in City of Houston v. Memorial Bend Utility Co., Tex.Civ.App., 331 S.W.2d 418, wherein it was held:

“When the ordinance was passed, the rate fixed became the rate promulgated by law and it could not be changed except in a manner provided by law. The utility could not itself promulgate new rates until the existing rates fixed by law be set aside. The only way the rates could be changed would be through a hearing before the City Council. The courts could not intervene until appellee first exhausted its remedy before the City Council. San Antonio Transit Company v. City of San Antonio, Tex.Civ.App., 323 S.W.2d 272, no writ hist. Of course, if the Council should deny a hearing and seek to continue to enforce an ordinance that appellee contends operates to confiscate its property, the courts would intervene to determine whether there was in fact confiscation.”

Since there was no allegation that plaintiffs had complained of excessive rates to the City Council or sought to have them lowered, the courts could not intervene and the suit was properly dismissed.

We do not believe the plaintiffs have a justiciable interest to assert this cause of action complaining of excessive rates charged all consumers, and the suit was properly dismissed for that reason. In San Antonio Conservation Society v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259, writ ref., it was held that suit to enjoin construction of a bridge could not be brought by the Conservation Society, its members, or persons who owned property on the river and alleged they would be financially affected by depreciation of their property if the bridge was constructed across the San Antonio River. The Court held they had no justiciable interest to authorize the bringing of suit, as they shared the San Antonio River in common with all the people of San Antonio and with the public in general, and “any impairment of this right is an injury or damage sustained by appellants in common with the general public. Only lawfully constituted guardians of the public interest may maintain actions for the redress of such character of injuries.” See also Estes v. City of Granberry, Tex.Civ.App., 314 S.W.2d 154, wr. ref.; West Tex. Utilities Co. v. Smith, Tex.Civ.App., 168 S.W.2d 665, wr. ref.; Powell v. City of Baird, Tex.Civ.App., 132 S.W.2d 464; City of Corpus Christi v. Flato, Tex.Civ.App., 83 S.W.2d 433.

For these reasons the trial court did' not err in dismissing plaintiffs’ cause of action for want of jurisdiction. This was not a trial on the merits and the court erred in dismissing the suit “with prejudice.”' Crofts v. Court of Civil Appeals, Tex., 362 S.W.2d 101; McDonald, Texas Civil Practice, § 17.20. We, therefore, reform the judgment to strike these two words from the judgment entered in this cause.

The order of dismissal as reformed is hereby affirmed.

MURRAY, Chief Justice

(dissenting).

I do not concur in the opinion of the majority and now give my reasons for my dissent.

The trial court makes it plain in its judgment that it holds that the district court does not have jurisdiction to hear a cause between a consumer or rate-payer of a municipally owned utility, though his property is being confiscated as a result of the City Council or some other body’s fixing gas and electric rates so high as to confiscate his property.

The majority readily admit that if the council of a home rule city fixes rates so low as to conficate the property of a utility company, that such utility company, after exhausting prescribed administrative remedies, can go into court and enjoin the city from enforcing such confiscatory rate. There is no question but that rate fixing is a legislative function that can be performed in Texas, under our Constitution and laws, by the Legislature, in the first place, and by the City, where such power has been delegated to the City, but where the City fixes utility rates so low as to confiscate the property of the utility, it can go into court, not to fix rates, a legislative function, but to enjoin the enforcement of such •confiscatory rate. The majority say they are not deciding, in their opinion, whether the courts are equally open to a consumer or rate-payer, where the rate fixed by the City Council is so high as to confiscate his property. The majority have held in their opinion that appellants herein do not have a justiciable interest in the subject matter of this suit that will permit them to maintain this suit. It occurs to me that in making this decision the majority have decided the above question in the negative.

The first ground, according to the opinion of the majority, why the district court does not have jurisdiction of this suit is that administrative remedies of appellants must be exhausted before the courts will intervene. The statutes of this State, the ■charter and ordinances of the City of San .Antonio, give to a consumer or rate-payer • of the City’s utility company no administrative remedy whatever, much less an adequate one. If people who are having their ■property confiscated are to be denied a hearing in the courts, there must be prescribed, either by State statute, or, as here, by the charter or ordinances of the City, .an adequate administrative remedy, or otherwise appellants will be denied the ■ equal protection of the law and their property is taken from them without due proc- ■ ess of law.

In 1 Tex.Jur.2d, § 37, p. 676, we find the -.following:

“Conformity to the statutory requirements is essential to invest a court with authority and jurisdiction to hear and determine the issue involved by the decision, ruling, or order of an administrative agency. As a condition precedent to the right to contest the validity of an agency’s order or decision, an aggrieved person is not required, absent statutory requirement therefor, first to apply to the agency to rescind or modify the action which it has taken. Where, however, the legislature has provided a mandatory method of review by an administrative agency, under the doctrine of exhaustion of administrative remedies resort must first be had to such method before the courts will entertain jurisdiction, unless the administrative agency or commission has refused to act, or has acted illegally, arbitrarily, or beyond the scope of its authority.
“Where review is sought in a suit to set aside the agency’s action, the court acquires jurisdiction on the proper filing of the suit.” (Emphasis mine.)

In attempting to show that there was a prescribed administrative procedure to be followed by utility consumers for relief from confiscatory rates, the majority have set forth a part of Sec. 135 of the San Antonio City Charter. The quotation shows upon its face that while a right to a hearing before the City Council is extended to a utility company or a franchise holder as to whether utility rates should be increased, no right whatever is given to the consumer or rate-payer to be heard as to whether rates should be decreased. A rate hearing can only be initiated by the franchise holder by petition to the council or by the council on its own initiative, with notice to the franchise holder, but apparently great pains were taken to not give such a privilege to a consumer or rate-payer. The utility is entitled to notice but not the rate-payer, he is completely ignored by Section 135, as well as the other sections of the charter.

When we consider that the purchase and operation of the Gas and Electric Company was done without liability on the City of any taxpayer, and that all of the cost of this entire transaction was to be borne by the consumers of the utility services and products, it would seem that these payers of all obligations should have some consideration and should have some tribunal where they can be heard as a matter of right, when the City enacts rates, or permits trustees to do so, that confiscate their property. Neither the statutes nor the city charter, nor any city ordinances accord to the consumer the right to be heard, and now he finds the .courts closed to him. He must silently suffer his property to be confiscated without a hearing before any tribunal, judicial or administrative. As was said by Chief Justice Hickman, speaking for the Supreme Court, in Glen Oaks Utilities, Inc. v. City of Houston, 161 Tex. 417, 340 S.W.2d 783:

“We cannot sustain the City’s position that the court has no jurisdiction over the question of procedural due process because the ordinance on its face is regular and valid, and the court is not authorized to go behind the ordinance to investigate the facts of its passage. It is settled law that procedural due process requires that a rate-fixing body give due notice to the utility involved and grant a hearing before enacting an ordinance. * * * Justice requires that a court must have authority to go behind an ordinance which is valid on its face and inquire into the facts surrounding its enactment ; otherwise the utility would have ' a right without a remedy.”

It is true that the Court was speaking of the rights of utilities, but the principle laid down applies equally to consumers of utility products.

The majority have held that the consumer must first exhaust his administrative remedy. I ask, what administrative remedy? Where is it to be found? It has not as yet been pointed out by any one.

There are numerous cases holding that, while the courts will hear a utility company’s contention that rates are so low that its property is being confiscated, the consumer will not be heard to contend that the rates are so high as to be confiscatory of his property. The only reason given for this unjust discrimination is that a consumer is not required to buy the services and products of a utility company, and if he considers such rates too high he can simply do without such services and products. If there ever was a time when this was true, it is not true today in the large City of San Antonio of well over a half million people. To say that a person can live in one of our large metropolitan cities today and not subscribe to public utilities is to ignore reality. How could a person maintain his home or business in the City of San Antonio today without electricity, gas, telephone, water and sewerage connections ? It simply cannot be done, it is an utter impossibility. This doctrine of existing in a large city without public utilities has been repudiated in this State by our Supreme Court in City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622.

The majority hold that appellants herein do not have a justiciable interest to assert this cause of action. In support of this contention they cite San Antonio Conservation Society v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259; Estes v. City of Granbury, Tex.Civ.App., 314 S.W.2d 154; West Texas Utilities Co. v. Smith, Tex.Civ.App., 168 S.W.2d 665; Powell v. City of Baird, Tex.Civ.App., 132 S.W.2d 464; City of Corpus Christi v. Flato, Tex.Civ.App., 83 S.W.2d 433. I do not disagree with the holdings of these cases, they are, speaking generally, suits by taxpayers, property owners, conservation societies, competing utility companies and other organizations and inhabitants of a city, to enjoin the city from entering into a certain contract, or something similar. None of those cases deal with a consumer or ratepayer who comes into court alleging that the City is permitting' the utility company to collect from him money at a rate that is confiscatory of his property. It cannot be logically said that a person who is having money wrongfully taken from him each month by a confiscatory rate has no justici-ble interest in endeavoring to put a stop to such procedure. Before he can have his money wrongfully taken away from him by a public utility he must be accorded “due process of law,” which right is accorded to him by both the federal and state constitutions. U. S. Const., Amendments 5 and 14; Texas Const. Art. 1, §§ 3, 13, 17, 19, Vernon’s Ann. St.

In 13 Words and Phrases, p. 539, we find the following definition of “due process of law”:

“ ‘Due process of law’ does not mean legislative enactment, but condemnation by judicial decree. The Legislature cannot usurp the right and the power of the courts to determine every question concerning life, liberty, or property.”

Other definitions of “due process of law,” found in the above work, are as follows:

“ ‘Due process of law’ requires notice to all interested parties and an opportunity for them to be heard. * * *
“ ‘Due process’ implies a notice and hearing but the hearing must not of necessity be in the courts, and it may be before the appropriate administrative agency. * * *
“ ‘Due process of law,’ guaranteed by Constitution, includes notice and hearing as matter of right in matters wherein one’s property rights are involved. * * *
“ ‘Due process of law as to procedure means notice and opportunity to defend in an orderly proceeding before a competent and impartial tribunal having jurisdiction of the case. * *
“ ‘Due process of law’ is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only afterwards, and such due process of law is required both by Federal and State Constitutions.”

Whether or not the trial court had jurisdiction of this cause must be determined by the pleadings. No hearing on the merits was undertaken. According to the allegations, appellants are being charged by the Gas and Electric Company for its products and services at a rate that is confiscatory of their property. The City of San Antonio has contracted away its legislative right to fix utility rates and has not exercised such legislative right since it purchased the public service company in 1942. The indenture trustees now fix utility rates and they are making and collecting money from appellants at rates that are unreasonable and confiscatory, and unless they can appeal to the courts they have no legal remedy against this alleged confiscation of their property. Even if appellants’ petition were subject to general demurrer, the trial court would not be justified in dismissing this cause. Rule 90, T.R.C.P.

The majority have held that the cause was properly dismissed “Since there was no allegation that plaintiffs had complained of excessive rates to the City Council or sought to have them lowered.” If the pleadings were defective in this respect, the defect related to a matter that might have been cured by amended pleadings. No such opportunity was given appellants.

According to the allegations of the petition, appellants’ property is being confiscated by exorbitant rates fixed not by the City Council, but by the indenture trustees. No administrative procedure is provided whereby they may be heard as to their complaint. Under such circumstances the doors of the court should be open to them, so that they can be accorded due process of law. Art. 1, § 13, Vernon’s Ann.Tex. Const., provides in part as follows: •

“ * * * All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

I would reverse the judgment of the trial court, not only because the suit was dismissed with prejudice, but also because I feel that appellants were entitled to be heard upon the numerous allegations of their petition. In any event, they should have been given an opportunity to amend.


author: MASSEY, Chief Justice.

text:
    Mrs. Mittie ANDERSON et al., Appellants, v. John Foster CLINGINGSMITH, Appellee.
    No. 16439.
    Court of Civil Appeals of Texas. Fort Worth.
    June 28, 1963.
    Rehearing Denied July 19, 1963.

      T. B. Coffield Bowie, Sewell & Forbis and James E. Forbis, Decatur, for appellants.
    Joe H. Cleveland, Bowie, and Vincent Stine, Henrietta, for appellee.
   MASSEY, Chief Justice.

We affirm the judgment of the trial court which declares the validity of a will, in a suit brought in contest thereof.

Mrs. Mittie Anderson, a widow, Mrs. Maud Hillard, a widow, A. A. (Mack) Harrington, and Mesdames Essie Howard, Agnes Prather, and Willie L. Swindler, who were joined by their husbands, filed written contest of the application to probate the will of J. P. Clingingsmith, deceased, in the County Court of Montague County, Texas. Said contestants are either sisters, or surviving children of deceased sisters of the testator.

Proponent of the will, upon whose application for probate the County Judge admitted same, was John Foster Clinging-smith, a surviving brother of the deceased, who was named as independent executor. He was also a beneficiary under the terms of the will, along with others, in particular one Max Rice, son of a surviving sister of the deceased.

The writing filed by proponent, claimed to be the will of the deceased, was alleged by the contestants to have been signed by the testator at a time when he lacked the mental capacity required by law for the making of a valid will, and at a time when the testator was not of sound mind. Contestants further alleged that when the instrument was signed, or caused to be signed, the testator was unduly influenced to sign the same by compulsion and arguments of, and in order to avoid the importunities and relentless pressure by, the proponent, Edith Rice, Max Rice, and Glen Wilson, or one or more of said persons.

There was a judgment in the County Court admitting the will to probate, and an appeal was taken therefrom to the District Court of Montague County, Texas. Contestants signed an appeal bond for that purpose, along with R. F. Griffith and Elmer Adkins as sureties.

In the District Court trial was before a jury. Following the return of a finding upon a single special issue, which found the testator to have been of sound mind at the time he executed the instrument purporting to be his will, judgment was entered admitting the same to probate. That the proponent was entitled to letters testamentary upon taking the oath as executor was also decreed.

A major complaint on the part of the contestants relates to the manner in which the case was submitted to the jury. In this the complaint was not so much the special issue itself, but of the instruction the court gave to the jury as to the manner by which their finding in answer thereto should he returned. The sole special issue submitted, and court’s instruction relative thereto, read as follows: “Do you find from a preponderance of the evidence that at the time of the execution of the instrument dated February 29, 1960, that Jim Clingingsmith was of sound mind? You will answer this Issue by stating that ‘He was of sound mind,’ or ‘He was of unsound mind.’ ”

The answer returned by the jury was, "He was of sound mind.” The term “sound mind” was defined in the charge, but the term “unsound mind” was not defined. “Sound mind” was defined as follows: “By the term ‘sound mind’ is meant that the person making the will must, at the time the will is executed, have sufficient mental ability to understand the business in which he is engaged, the effect of his acts in making the will, the capacity to know the objects of his bounty and their claims upon him, and the general nature and extent of his property.”

It is observable from the form of the special issue set out above that the burden of proof was at least intended to be placed upon the proponent of the will. That it be so placed was proper in this case, the contest of the will having been so timely made that the burden was cast upon the proponent to sustain and uphold it.

In connection with the issue as submitted the question arisen on account of the court’s instruction to the jury as to the manner by which the same was to be answered is different from that which was before the court in Nass v. Nass, 1949 (Tex.Civ.App., Galveston), 224 S.W.2d 280, affirmed at 149 Tex. 41, 228 S.W.2d 130. Therein “sound mind” was defined exactly as it was defined in this case, and the special issue inquired whether the testator “was of sound mind * * * at the time he signed said instrument * * * of date January 3, 1947, and offered in evidence as his last will and testament?” The jury was instructed to answer the issue either by finding “He was of sound mind”, or “He was not of sound mind”. In the present case the jury was instructed to answer the issue we have set out either by finding “He was of sound mind”, or “He was of unsound mind”.

The complaint of the contestants is more readily understandable by hypothesizing the instruction to the jury as a direction that it answer the issue either by finding “He was of sound mind”, or “He was a lunatic”. Had such been the instruction we would have readily agreed with the contestants that it amounted to a comment on the evidence and a charge on the weight of the evidence. Contestants also contend that the instruction actually given operated to so diminish the burden of proof devolved upon the proponent that he was not obliged to sustain an affirmative answer returned by truly discharging his legal burden.

We must remember that the burden of proof was upon the proponent of the will. By the charge he was obliged to have submitted and obtain a favorable finding on an issue that the testator had “testamentary capacity” or was of “sound mind”. This he did. It was wholly unnecessary that the trial court give any definition of “unsound mind” or to so instruct the jury that it might readily understand what would amount to a want of testamentary capacity, being necessary only to define “testamentary capacity” or “sound mind”. We believe that it would have been better had the trial court instructed the jury to answer the issue submitted by a simple “yes” or “no” answer, or by the same instruction given the jury in the case of Nass v. Nass, supra. In view of the instruction given the jury in this case it would have been better to have given also a definition of the legal term “unsound mind”, so that there would have been no danger that the jury or some member or members thereof would conceive that the alternative to a finding of “sound mind” would be to find the testator was a lunatic, given to idiocy, or anything kindred thereto.

However, we do not hold that what was done amounted to reversible error, or even error, particularly since there was no showing that any member of the jury did actually misunderstand the instruction of the court or that the manner of submission did in fact cause the jury to return an answer to the special issue contrary to the answer it would have otherwise returned. The term “unsound mind”, used in its broad and common sense (as opposed to the legal meaning which may vary according to whether it is applicable to a will contest or some other character of proceeding in which mental capacity or derangement is at issue) includes every species of defectiveness and impairment of mind or memory, even though slight, and perhaps in a manner wholly unrelated and having nothing whatever to do with a question of whether it affected a testator’s testamentary capacity. See Words and Phrases, “Unsound Mind”; Durham v. Smith, 1889, 120 Ind. 463, 22 N.E. 333; In re Eiker’s Estate, 1942, 233 Iowa 315, 6 N.W.2d 318, 324.

When the term “sound mind” is used in connection with the right and power to make and execute wills in Texas its meaning is synonymous with a testator’s “testamentary capacity”, invariably dependent upon the showing as to whether such person understood and appreciated the consequences of executing the propounded script. Chambers v. Winn, 1939 (Tex.Civ.App., Fort Worth), 133 S.W.2d 279, reversed in 1941 on other grounds at 137 Tex. 444, 154 S.W.2d 454; Reiche v. Williams, 1944 (Tex.Civ.App., San Antonio), 183 S.W.2d 587, writ ref., w. m., at 143 Tex. 365, 185 S.W.2d 420; Trezevant v. Rains, 1892, (Sup.Ct.), 19 S.W. 567, 569, new opinion reversing lower courts and granting another trial at 85 Tex. 329, 23 S.W. 890.

Under the circumstances we believe we are required to assume that the jury did consider the term “unsound mind” in its broad and common sense, and.that it did not infer from the instruction of the court that to find the testator to have been a person of “unsound mind” had any import of his idiocy, lunacy or the like. Result thereof defeats the contentions of the contestants. We overrule the points of error predicated thereon, and because the court refused to submit the question of “testamentary capacity”, with requested instructions appertaining thereto.

We next consider the contestants’ complaint that the special issue inquired in such a way as to assume the testator’s “execution” of the instrument purporting to be his will and because the reference to such instrument was by way of merely the use of the date of such purported “execution”. Contestants say that the issue as thus framed was not an ultimate issue upon which the rendition of a proper judgment depended. We overrule these contentions.

We initially note that the form of contestants’ pleadings assume a questionable “execution” only in the event there was want of testamentary capacity and/or a want of undue influence in connection therewith. That the inquiry posed by tha special issue amounted to the ultimate issue was the holding of Nass v. Nass, supra, where there was no question relative to “execution” apart from “signing” in a test of the validity of the will. The facts and circumstances, not controverted, concerning the events attendant to the signing of the instrument purporting to be the testator’s last will, dated February 29, 1960, conclusively establish that there was an “execution” thereof according to requisites of law, unless as of that time testator did not have testamentary capacity. We cannot see where contestants would be justified in a contention that the issue could amount to a comment on the weight of the evidence, if we are correct in our holding previously discussed overruling their contentions relative to the court’s instructions as to the form of answer to be returned to the special issue which was submitted.

Under the contestants’ points of error, numbered 8 to 18, inclusive, complaint is made because of the court’s admission of evidence which contestants believe should have been excluded, and because of the exclusion of other evidence which they believe should have been admitted. In the examination of these types of points of error appellate courts are denied the right to reverse the judgments of trial courts unless they first find that error has been committed (which prior to our Rules of Civil Procedure would be presumed to have amounted to reversible error), and additionally find that such error amounted to such a denial of the rights of the losing party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or probably prevented him from making a proper presentation of the case to the appellate courts. See T.R.C.P. 434 and 503. With such in mind we have examined the complaints made in the points of error.

We have concluded that as to each point no reversible error is presented. In most instances, if not all, there would be no •error in the acceptance or exclusion of the •evidence about which complaint is made, and we are convinced in any event that the jury was not thereby caused or induced to return a verdict other than that which it would have returned but for such exclusion ■or acceptance of evidence. Nothing occurred which hampered contestants in presentation of any point of error. We will not unduly lengthen this opinion by a discussion, except upon the matter of the court having admitted in evidence a certain prior purported will executed by the testator in 1958, which will was stated to have been revoked pursuant to the execution of the will as to which the contest is made.

This 1958 will gave one of the contestants even less than she was given under the will under contest. Mrs. Anderson had only received $500.00 under the earlier will, while under that filed for probate she received $2,000.00 in cash and a devise of certain real estate to the proponent was subjected to her right to use and occupy a residence thereon located so long as she desired. The later will also directed that she be maintained out of the residue of the estate as long as she lived. Furthermore, she was given a third interest in the minerals under a 3181/2 acre tract of land. There had been no substantial change in the amount or value of testator’s property in the time interval between the making of the former and later will, hence, those taking under the later will received proportionately less than they would have received had it been the 1958 will which was offered for probate.

Contestants would have been disputing the validity of the 1958 will had that question been the issue in the trial court. They are franlc to state that if they had been successful in their contest below, thus probably resulting in the tender of such earlier will for probate, they would have presented themselves in that proceeding as contestants. That this would be the case was likewise obvious to the trial court. Contestants will be happy only if the estate of the testator is to pass according to the Laws of Descent and Distribution of the State of Texas.

In view of the provisions of the 1958 will it was to the interest of the contestants that the jury not be apprised thereof. Such will was admitted into evidence over their objection. They believe that they were unduly prejudiced thereby and by reason of the argument that the attorney for the proponent of the will was able to make before the jury to the effect that if contestants were not to take under the will of February 29, 1960, then they would “take less” under the earlier will. While we are not prepared to say that the jury would have probably returned a verdict other than that it did return if it had not been informed of the existence and provisions of the earlier will, we can agree that such knowledge, coupled with the argument in behalf of the proponent that to uphold the will he sought to sustain would be to contestants’ advantage rather than their detriment, counted heavily against them.

In this connection it is important to notice that contestants had alleged that the making of the later will was the result of undue influence. There was no certainty that the court would conclude that the issue of undue influence was not in the case until the time arrived for preparation of the court’s charge to the jury. Indeed, contestants at all times contended that the evidence made an issue thereon and still do, for one of the points of error advances the proposition that the trial court was in error in refusing to submit an issue on undue influence. We believe and hold, therefore, that the 1958 will was admissible in behalf of the proponent as tending to disprove the allegations of undue influence made by the contestants.

Furthermore, the 1958 will was admissible on the issue of mental capacity on the theory that it showed a prior state of mind relative to disposition of testator’s property and a prior declaration demonstrative of his intent which had a relation to the issue to be resolved. Trezevant v. Rains, 1892, 85 Tex. 329, 23 S.W. 890; Brown v. Mitchell, 1895, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64; Burkett v. Slauson, 1952 (Tex.Civ.App., El Paso), 256 S.W.2d 179, writ dism. In the usual will case it is the contestant who desires to show the jury the contents of an earlier one if there was one. Here the contrary happens to be true.

If the 1958 will was admissible on the issue of testator’s mental capacity to make the later will, it necessarily follows that the counsel for either party was entitled to argue in relation to it. In this instance it was the attorney for the proponent who saw the situation as one on which he could found persuasive argument. In making this argument he told the jury that if it “busted” the will offered for probate then “that would bring up the 1958 will”, under which Mrs. Anderson would get less and the other beneficiaries correspondingly more. Contestants objected but were overruled. We agree with their contention that the argument informed the jury of the legal effect of their answer to the special issue in the charge, but we furthermore believe that it would be a dull mind indeed that would not have known such without proponent’s argument. Where the members of the jury necessarily are aware of the legal effect of an answer to a-special issue they are informed of nothing additional when they are told. In such a case there is no reversible error.

Counsel argues that the very same vice exists in the argument made that the Supreme Court held to be reversible error in Howard v. Salmon, 1962, 163 Tex. -, 359 S.W.2d 882, contrary to the opinion of this court in 359 S.W.2d 120. We see no similarity for in that case the fact question to be resolved was whether there had been an agreement not to probate a valid will and there was no issue of testamentary capacity or undue influence. Here we have the issue of testamentary capacity, to which the argument would be germane.

Furthermore, we believe the argument was invited. Although undue influence was not an issue submitted to the jury, the attorney for the contestants had embarked upon an argument to the effect that proponent “had already manipulated two wills out of him. He had already dictated the terms of those two wills. But he hadn’t gotten ahold of the property quite fast enough, * * At another point the attorney had argued that the will offered' for probate was the result of testator’s inability to withstand the entreaties of the proponent to make a will favorable to him.

As heretofore mentioned, the contestants claim that the trial court erred in refusing to submit an issue to the jury on undue influence. We have examined the state of the evidence and have concluded that the issue was not raised and that submission of such an issue was not justified. To have submitted the issue could have only been upon surmise and suspicion by reason of the obvious trust and confidence that the testator had for many years conferred upon the proponent and his nephew Max Rice, and by reason of his close association with these persons. Such proof does not warrant the submission of the issue of undue influence. We know of no case which holds that it does.

Contestants found a point of error on the premise that the trial court should not have entered a judgment against Griffith and Adkins, the sureties on the bond executed upon taking an appeal from the County Court of Montague County into the District Court. We hold that the judgment of the trial court in such particular to have been correct and strictly in accord with the direction of T.R.C.P. 144, “Judgment on Cost Bond”. By this Rule such a decree is authorized to be entered as part of the final judgment of the cause on an appeal taken from the lower court into the higher for a trial de novo.

Judgment is affirmed.