author: BRADY, Commissioner. PER CURIAM.

text:
    Saul ROZEN, Plaintiff-Respondent, v. Paul GRATTAN, Defendant-Appellant.
    No. 31270.
    St. Louis Court of Appeals. Missouri.
    July 16, 1963.
    Rehearing Denied Sept. 4, 1963.

      Evans & Dixon, John C. Shepherd, Paul V. Gilbert, Edward F. Downey, St. Louis, for appellant.
    Samuel A. Goldblatt, William L. Mason, Jr., James E. McDaniel, St. Louis, for respondent.
   BRADY, Commissioner.

The parties will be referred to by their designation in the trial court. The jury returned a verdict for the defendant on his counterclaim and judgment was so entered. Plaintiff’s timely motion for new trial was sustained by the trial court and defendant appeals. In view of the circumstances of this appeal, only a brief statement of the factual situation will be necessary.

Both plaintiff’s cause of action and defendant’s counterclaim arose out of an automobile accident which occurred on February 12, 1960, at the intersection of Hampton Avenue and Arsenal Street in the City of St. Louis, Missouri. Hampton Avenue runs north and south and Arsenal Street runs east and west. Hampton is six lanes, wide and Arsenal is four lanes wide. There are electric traffic signals controlling traffic on both Hampton and Arsenal at this intersection. It was a sunny day and the streets were dry. Plaintiff was proceeding south on Hampton Avenue. Defendant was-driving west on Arsenal Street. Defendant was driving at twenty to twenty-five miles per hour in the center lane for westbound traffic on Arsenal. As he approached the intersection, the light was in his favor, but as he was about three-fourths across the first northbound lane of Hampton, the light turned amber. His testimony was that he was seventy-five or one hundred feet from the intersection when he first saw the stop' sign and that “ * * * I looked straight ahead, a chauffeur always looks straight ahead” and that he never saw the plaintiff’s automobile until he was “turned around” by the force of the impact. He further testified that he proceeded at the same twenty to twenty-five mile per hour speed at all times. Defendant testified that the front end of his automobile was almost through Hampton when the impact occurred, with his automobile being struck at the front and rear doors on the right side.

Plaintiff’s evidence was that as he approached the intersection of Hampton and Arsenal, the light was red and he came to a complete stop in the outside or most westward lane of southbound traffic. He was there about one and one-half minutes, being the first car at the light in his lane. There was an automobile in the lane to his left. He could see the lights both ways and both were working. He looked to his left and saw a car about sixty or seventy feet from him coming west on Arsenal at about twenty-five or thirty miles per hour and about fifty feet from the east curb line of Hampton. He saw no indication that defendant would not stop. He then looked to his right and straight ahead and did not again see the defendant until the impact occurred some ten feet out into Arsenal. He shifted to first gear as the signal changed to go (the automobile had a standard transmission) and started to move, going about five miles per hour. In plaintiff’s own words: “As I proceeded forward, the car left of my side was moving about the same direction, I couldn’t saw (sic) what model or what type of car it was, because it was directly — it was moving the same general direction I was going, about the same speed, and all of a sudden, he stopped, and I tried to stop, and I stopped mine, naturally I went forward out a little bit more than he did, because I was watching him stopping first, then I stopped.” The point of impact on the plaintiff’s automobile was at the left front fender. He heard no horn nor the sound of any brakes being applied and he testified that defendant did not swerve his automobile. The plaintiff produced the witness, Sommer, who testified he was stopped at the light, waiting to go north on Hampton and that he saw the defendant’s car approaching; that when the defendant was about twenty-five feet from the intersection and going about thirty miles per hour, the signal changed; that he could tell the defendant was not going to stop and that the car to plaintiff’s left stopped after starting to cross the intersection.

The plaintiff submitted his case to the jury on two primary negligence instructions: Instruction No. 1 charging violation of the electric signal, and Instruction No. 2 charging failure to keep a lookout. Defendant’s case was submitted- to the jury on humanitarian negligence on plaintiff’s failing to stop or slow his automobile. Neither party contends that the other failed to make a submissible case and, in fact, both admit the submissibility of the other’s case. Both parties suffered personal injuries in addition to their property damage. In his answer, the defendant set forth the affirmative defense of contributory negligence. However, he did not offer an instruction on that issue and none was given.

The jury returned a verdict as follows:

“We, the jury in the above entitled cause, find in favor of the defendant and against the plaintiff on defendant’s counterclaim and assess defendant’s damages for the aggregate of the items in connection with his personal injuries the sum of Fifteen Hundred ($1,500,00) Dollars; and for the aggregate of the items of damages in connection with the injury to defendant’s property, the sum of Five Hundred ($500.00) Dollars ; aggregating the total sum of Two Thousand ($2,000.00) Dollars.
“E. W. Campbell, Foreman.”

This court has proceeded under Civil Rule 82.12(c), V.A.M.R., to secure the following additional information. There were two other verdict forms given the jury in this case. One of those provided for a verdict in favor of the defendant on plaintiff’s cause of action and in favor of the plaintiff on defendant’s counterclaim. The other verdict form provided for a verdict for the plaintiff on plaintiff’s cause of action, the assessment of his damages, and further provided a finding in favor of the plaintiff on defendant’s counterclaim. Both of these verdict forms were returned unmarked in any manner.

The transcript discloses that the jury was polled and there was no objection to the verdict forms as submitted or as returned by the jury. No judgment was ever entered for or against the plaintiff on his cause of action.

Thereafter plaintiff filed his timely after-trial motion which included as one of the allegations of error, paragraph 25, which reads as follows:

“25. The court erred in submitting to the jury the verdict form in which the jury could find in favor of the defendant on defendant’s counterclaim, and in which damages were to be assessed for property damage and personal injury, for the reason that the jury was not required to find in favor of defendant on plaintiff’s cause of action in said verdict form, although in the verdict form submitted to the jury wherein the jury might find in favor of plaintiff on plaintiff’s cause of action, it was therein required to find in favor of plaintiff on defendant’s counterclaim.”

Again proceeding under Civil Rule 82.12 (c), V.A.M.R., this court has had reference to the original files in the trial court. These disclose that on April 24th, four days after plaintiff filed his notice of appeal, defendant filed in the trial court a dismissal of his counterclaim without prejudice and at his costs. It further appears that on that same day the trial court ordered dismissal of defendant’s counterclaim without prejudice and at defendant’s costs. The records of this court disclose that on April 26th, six days after the filing of the notice of appeal and two days after the above dismissal in the trial court, the defendant filed the same dismissal with the Clerk of this court. In both instances, the dismissal was signed by the defendant and his attorney of record.

The trial court granted the plaintiff’s motion for new trial on the ground contained in paragraph 25 of that motion as set out earlier herein. Defendant has perfected this appeal contending that the verdict in his favor on his counterclaim submitted on humanitarian negligence necessarily precludes the plaintiff from a recovery upon his cause of action submitted upon two assignments of primary negligence. He also contends that the plaintiff waived any error when he failed to object to the form of the verdict when it was given to the jury or returned by them.

The effect of defendant’s attempted voluntary dismissal of his counterclaim without prejudice must first be determined. In Lavignon v. Dietzel, Mo., 34 S.W.2d 92, and in Stocker v. J. C. Penny Co., Mo.App., 338 S.W.2d 339, 1. c. 344, it was held that a party could dismiss as to one of several claimed to be jointly liable even though the proceedings were then in the appellate court. We think that rule equally applicable to the case at bar. However, regardless of the stage the proceedings have reached, a party does not have an absolute right to dismiss. Smith v. Taylor, Mo.App., 289 S.W.2d 134, 1. c. 140[8]. The vital question is whether the dismissal will prejudicially affect the rights of other parties to the action. 27 C.J.S. Dismissal and Nonsuit § 26, p. 355.

Civil Rule 67.04, V.A.M.R., Sec. 510.160, RSMo 1959, V.A.M.S., provides that the dismissal of any counterclaim shall be subject to the same rules as the dismissal of a plaintiff’s cause of action. Civil Rule 67.01, V.A.M.R., Sec. 510.130, RSMo 1959, V.A.M.S., provides “A plaintiff shall be allowed to dismiss his action without prejudice at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward. * * * ” Civil Rule 67.03, V.A.M.R., Sec. 510.150, RSMo 1959, V.A.M.S., provides that “ * * * Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal * * * shall be with prejudice * * In the instant case, dismissal occurs after the submission of this case to the jury and must be held to be with prejudice. Civil Rules 67.04, 67.03, 67.01, supra; Sections 510.130, 510.150, 510.160, supra; see also Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456. Civil Rule 67.03, supra, also provides that a dismissal with prejudice operates as an adjudication on the merits. See Max v. Spaeth, Mo., 349 S.W. 2d 1, foreclosing the defendant’s rights to proceed further upon the counterclaim either to collect the judgment for $2,000.00 or to file another action. It is, therefore, clear that insofar as the counterclaim is considered, the plaintiff is not prejudiced by the dismissal.

Neither does the defendant’s dismissal prejudice the plaintiff as to his own cause of action. A dismissal leaves the situation as though the counterclaim had never been brought. State ex rel. Burns v. Shain, 297 Mo. 369, 248 S.W. 591 [3], It has the effect of an absolute withdrawal of the claim, 27 C.J.S. Dismissal and Nonsuit § 39, p. 376 et seq. Under these circumstances, the dismissal is beneficial and not prejudicial to the plaintiff’s rights as to his own cause of action for it leaves that cause of action unaffected. Accordingly, the dismissal will be entered with prejudice and the only issue before this court is with regard to the trial court’s action in granting the plaintiff a new trial on his cause of action.

In his brief, counsel for defendant states, “As the plaintiff’s case was submitted entirely on primary negligence, the finding that he was negligent is also a finding of contributory negligence and prevents his recovery.” However, in a recent case, the Supreme Court of this state held that where one pleading contributory negligence (as defendant did in the instant case) fails to submit on that issue, it goes out of the case for any purpose. Shepard v. Harris, Mo., 329 S.W.2d 1.

The defendant’s contentions with regard to plaintiff having waived any objection to this verdict will not be ruled in this opinion. As plaintiff contends, this is a situation where Civil Rule 79.04, V.A. M.R., is particularly applicable. It is therein provided that plain errors affecting substantial rights may be considered upon motion for new trial or on appeal even where defectively preserved. Plaintiff did not object to this verdict form at the trial but he did present this point in his motion for new trial and it was extensively briefed and argued before this court. Certainly nothing affects his rights more substantially than the question he now seeks to present. If the plaintiff’s failure to object does not constitute waiver, then the issue is before us from the record. If that failure does constitute waiver, the result is the same for then the issue is before us under the provisions of Civil Rule 79.04, supra. The defendant’s contentions with regard to plaintiff’s waiver by failure to object will not be ruled.

The general rule is that a judgment must dispose of all parties and issues in the. case. In Staples v. Dent, Mo.App., 220 S.W.2d 791, 1. c. 792[1, 2], the court stated; that rule by quoting the following excerpt from 49 C.J.S. Judgments § 43, p. 102:

‘Ordinarily judgment should not be rendered without disposing of matters raised by defendant’s pleadings, such as. a counterclaim or cross complaint, witless the determination of the issue on. which the judgment is based is necessarily decisive of the whole case or the-actions have been separated under statutes or court rules permitting such, practice.’ (Emphasis supplied.)

The determinative question is whether the* verdict for defendant on his counterclaim-submitted on a theory of humanitarian negligence necessarily precludes the jury from-finding, for the plaintiff on his cause of action submitted on a theory of primary-negligence even though the wording of that-verdict does not contain any express reference to the plaintiff’s cause of action.

In Staples v. Dent, supra, and in Ragsdale v. Young, Mo.App., 215 S.W.2d 514, it was held that a verdict which did not-in specific language refer to the losing-party’s cause of action nevertheless determined that cause of action where both the-petition and the counterclaim were submitted on primary negligence. In Page v. Hamilton, Mo., 329 S.W.2d 758, a verdict for plaintiff who submitted on the humanitarian theory against two defendants and' for one defendant, Crowe, on his cross-claim against Hamilton submitted on a. theory of primary negligence was allowed’ to stand against a contention it was inconsistent. However, a careful reading of the-opinion will disclose that the decision was. limited to the cross-claim situation there present where separate causes of action, were joined under the permissive authority of Sec. 509.460, RSMo 1959, V.A.M.S. In Wilson v. Tolliver, Mo., 305 S.W.2d 423, a recovery for both plaintiff and defendant, where each submitted on humanitarian negligence, was impliedly recognized although the court held that one party failed to make •a submissible case. See also Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659, on transfer, 231 Mo.App. 460, 100 S.W.2d 943. As indicated, each of these situations is distinguishable from that presented by the instant case.

However, there are decisions of the courts of this state clearly enunciating the principles which control the decision in the instant case. In Jameson et al. v. Fox, 364 Mo. 237, 260 S.W.2d 507, Jameson, the owner of a truck, and Silkey, the driver there of, brought their action against Fox seeking recovery of Jameson’s property damage •and for Silkey’s personal injuries. These claims were submitted to the jury upon both humanitarian and primary hypothesization. Fox counterclaimed for property damage and for $15,000.00 for the wrongful death of his wife, for a total of $25,926.50. He submitted on primary negligence. The jury found separate verdicts for each plaintiff for $500.00 and also found for them on defendant’s counterclaim. The defendant appealed, seeking a new trial on his counterclaim as well as on plaintiff’s petition. The Springfield Court of Appeals transferred the case to the Supreme Court on the theory that the monetary jurisdiction of that court had been exceeded by the amount then in dispute. The Supreme Court held that the amount in dispute was only $1,000.00, the aggregate of the recovery by Jameson and Silkey, stating:

■“ * * * This is not a case where plaintiffs’ claims and defendant’s counterclaim can coexist in law. Proof of one necessarily disproves the other, so that there can be no such eventuality as both recovering * *

The opinion quotes extensively from a case decided by this court, Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. In that case, the plaintiff, who sought $10,801.26 for personal injuries, submitted on a theory of humanitarian negligence. Defendant counterclaimed seeking $11,809.00 and submitted on primary negligence. The verdict was for defendant on plaintiff’s petition and also for defendant on his counterclaim. The trial court granted plaintiff a new trial as to both his petition and the counterclaim. In that case, this court pointed out the issue and stated its solution in these words:

“ * * * Indeed, if the two causes of action could exist independently so that there could be both a plaintiff’s verdict on plaintiff’s cause of action and a defendant’s verdict on defendant’s counterclaim, the amount now in dispute would comprise the amount sued for on plaintiff’s cause of action plus the amount recovered by defendant on his counterclaim, and appellate jurisdiction would be all the more clearly in the Supreme Court. (Citing a case.)
“The solution of our problem lies in the fact that owing to the nature of this case a plaintiff’s verdict on plaintiff’s cause of action and a defendant’s verdict on defendant’s counterclaim could not exist together. By his cause of action plaintiff sought to impose complete responsibility for the collision upon defendant, while defendant, by his counterclaim, sought to impose complete responsibility for the collision upon plaintiff. In other words, the situation is one where defendant’s counterclaim was not only a counterclaim in the sense that it asked for affirmative relief, but also where the facts upon which the counterclaim was based, if established, constituted a complete defense to plaintiff’s cause of action. Bramblett v. Harlow, Mo.App., 75 S.W. 2d 626, 633. Upon the question of liability for the accident the proof of either cause of action would at the same time disprove the other. In this situation the issues arising both on plaintiff’s cause of action and on defendant’s counterclaim were merged in and resolved by the verdict in defendant’s favor on his counterclaim * *

In Stonefield v. Flynn, Mo.App., 347 S.W. 2d 472, the situation differed from Jameson, supra, and Hoefel, supra, only in that plaintiff there submitted on both primary and humanitarian negligence. The defendant counterclaimed submitting primary negligence and seeking $7,500.00 as damages. The verdict was for the plaintiff on his petition in the amount of $14,535.00 and also in his favor on defendant’s counterclaim. Defendant sought a new trial on both causes of action. This court held that it had jurisdiction, citing Jameson, supra, and stating that proof of one of the causes of action necessarily disproved the other.

Bramblett v. Harlow et al., Mo.App., 75 S.W.2d 626, is cited in Hoefel v. Hammel, supra, as the basis for the latter decision just as Hoefel v. Hammel, supra, is cited and forms the basis for the decision in Jameson et al. v. Fox, supra. In Bramblett, supra, plaintiff submitted upon humanitarian negligence and upon primary negligence. Defendants submitted upon humanitarian negligence. The jury returned a verdict for the plaintiff on his petition and in his favor on defendant’s counterclaim. This court reversed the judgment for a reason not here pertinent and the question arose as to the scope of the remand. That is, whether the new trial granted should include giving defendant another opportunity to recover on his counterclaim as well as another trial on plaintiff’s efforts to recover on his petition. This court held, 75 S.W.2d 626, 1. c. 633[18], that:

“Here the petition and counterclaim involve but one and the same principal issue, that of whether plaintiff or Mrs. Harlow was ultimately responsible for the collision. Upon the question of negligence, the proof of the one cause of action would obviously disprove the other, and neither is in any sense separate and distinct from the other. In fact, the counterclaim is not only a counterclaim in that it asks for affirmative relief, but the facts upon which it is based, if established, likewise constitute a complete defense to plaintiff’s cause of action. Under such circumstances we think that right and justice require that the counterclaim (if asserted by Mrs. Harlow individually) be retried along with plaintiff’s cause of action, provided counsel still wish to rely upon it when the new trial is had.”

It is true that in Jameson, supra, and in all the cases cited above, the verdict did dispose of all the issues and parties. That is to say, the wording of the verdict returned in the case did expressly encompass both the petition and the counterclaim. It is also true that Jameson, supra, and the other similar cases herein referred to were considered upon a question of jurisdiction. These differences do not rise to the level of distinctions authorizing us to disregard the clear ruling of our Supreme Court contained therein. This ruling was that there could not be a recovery in the same case for one party upon a theory of primary negligence and for another party upon a theory of humanitarian negligence. It follows that the verdict in this case completely disposes of the plaintiff’s petition as though a finding for defendant on plaintiff’s petition had been expressly stated in that verdict.

However, it should be clearly understood that 'nothing herein is to be interpreted as approving the failure of plaintiff’s trial counsel to object to the verdict forms when given to the jury or when returned by them. The same is true of the action of both court and counsel in submitting to the jury verdict forms which did not completely dispose of both the cause of action stated in the petition and that contained within the counterclaim by requiring a specifically spelled out finding on each of them in every one of the verdict forms submitted to the jury. The extension of this litigation could have thereby been easily avoided.

The trial court acted erroneously in setting aside the verdict and judgment for the defendant and in granting plaintiff a new trial. Defendant’s dismissal of his counterclaim precludes the reinstatement of the jury’s verdict and the judgment entered thereon. The trial court’s order granting plaintiff a new trial is reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The trial court’s order setting aside the verdict and judgment for the defendant and granting plaintiff a new trial is reversed. Defendant’s counterclaim is dismissed with prejudice.

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


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Commissioner.

license: Public Domain

text:
    Howard GRIFFIN, Cleta Jean Griffin, Otes Kerley, (Plaintiffs) Respondents, v. Edward ANDERSON, (Defendant) Appellant.
    No. 31279.
    St. Louis Court of Appeals. Missouri.
    July 16, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 4, 1963.

      William B. Spaun, Hannibal, and John' E. Mills, New London, for appellant.
    Albert L. Rendlen, Branham Rendlen,. and Rendlen & Rendlen, Hannibal, for respondents.
   SAMUEL E. SEMPLE, Special Commissioner.

This is an action for damages resulting' from an invasion of defendant Anderson’s-cattle on the land of plaintiffs Griffin and eating and trampling a growing crop of corn which had been planted thereon on a-sharecrop basis by plaintiff Kerley. The trial resulted in a verdict in favor of the plaintiffs in the sum of $643.00. From the judgment for plaintiffs rendered on the verdict, the defendant has perfected an appeal to this court.

Plaintiffs, Howard and Cleta Jean Griffin, owned a 160 acre farm in Pike County, Missouri, which adjoined land owned by defendant Edward Anderson. Some years prior to 1958, plaintiffs Griffin and defendant Anderson, by mutual agreement, erected •a division fence consisting of four strands of barbed wire on white oak posts along the east side of plaintiffs’ farm which adjoined defendant’s land. Plaintiff Howard Griffin testified that he and the defendant orally agreed that plaintiff Griffin was to maintain the south half and that defendant was to maintain the north half of this division fence. Defendant in his testimony in substance stated that the fence was built by agreement but positively denied that any agreement as to maintaining the fence after it was built was ever made or discussed.

In 1958 a crew of men employed by the Walker distillery were engaged in cutting timber for stave bolts on defendant’s land. This timber crew crossed plaintiffs Griffin’s land to get to some of the timber on defendant’s property which was done without the permission or knowledge of the plaintiffs. The timber crew tore down a portion of the north half of the division fence between plaintiffs’ (Griffin) and defendant’s land to gain access to defendant’s land. Plaintiff Howard Griffin testified that he discovered the break in the fence in the fall •of 1958 and notified defendant of the situation. Defendant testified that plaintiffs said nothing about the break in the fence until June of 1959, but did state that a member of the timber cutting crew told him they had cut the fence. In the spring of 1959 plaintiff Kerley rented from the Griffins two fields separated by a spring branch and consisting of approximately twenty acres and planted corn thereon on a 50-50 sharecrop basis. Kerley cultivated the corn on June 15th for the second time and on or about June 21st or 22nd went back to cultivate the crop for the last time and found about twenty head of cattle in the two fields which he identified as defendant’s stock. There was testimony by plaintiff Kerley that he drove the cattle back on to defendant’s land through the gap in the fence made by the timber crew. He also testified that he inspected the entire fence and found it to be in good condition except for the break caused by the stave bolt cutters and that the tracks showed that the cattle entered on the Griffin land through the gap. The evidence revealed that the corn in the two fields was eaten and trampled down and was practically a total loss.

On the day of the trial plaintiffs filed an amended petition in two counts. The first count alleged a cause of action for damages for failure to restrain livestock under provisions of Chapter 270 R.S.Mo.1949, V.A.M.S. The second count of petition alleged that defendant entered into an agreement with plaintiffs Griffin whereby plaintiffs were to repair and maintain the south half of division fence on east side of plaintiffs Griffin’s property and defendant was to repair and maintain the north half of the fence. This count then alleged that the casualty was the direct and proximate result of (1) defendant’s failure to keep up and maintain the north half of the division fence in accordance with his agreement with plaintiffs Griffin and (2) the violation of the provisions of Chapter 270 R.S.Mo.1949, V.A. M.S., of defendant’s permitting his cattle to run at large beyond the enclosures of his farm. Plaintiffs abandoned the cause of action alleged in Count One of the amended petition and tried the case on Count Two on the theory that defendant had failed to keep up and maintain the north half of the division fence in accordance with the agreement made with plaintiffs Griffin. Plaintiffs offered no evidence as to violation of provisions of Chapter 270 R.S.Mo.1949, V.A.M.S., and no instructions were offered or given on that theory of recovery.

Defendant contends that Count Two of the amended petition does not state a cause of action because it was improperly brought under Chapter 270 R.S.Mo.1949, V.A.M.S., for the reason that said chapter does not apply to adjoining owners whose fields are under a common enclosure. Aside from the question as to whether Chapter 270 R.S. of Mo., V.A.M.S. applies in this case, the contention cannot be sustained.

Adjoining landowners may provide for a division or partition fence between them by an agreement, and in such case the rights of the parties are to be controlled by the terms of the contract. A fence built under such an agreement serves to enclose both farms and each owner is entitled to treat the entire fence as a part of his enclosure and to look to his neighbor for the maintenance of that portion of the fence which the agreement required him to keep in reasonable repair. Matthews v. McVay, Mo.App., 234 S.W.2d 983, 987. The failure of either of the adjoining landowners to perform his contractual duty would give to the other an action for damages sustained by the latter in consequence of the breach of contract by the former. McLean v. Berkabile, 123 Mo.App. 647, 653, 100 S.W. 1109. It is concluded that plaintiffs Griffin as owners and plaintiff Kerley as their tenant had the right to maintain an action for defendant’s failure to perform an alleged agreement to maintain a certain portion of the division fence in question and that Count Two of the amended petition states such a case of action.

In the instant case, even though plaintiffs alleged in Count Two of the amended petition that there was a violation of the provisions of the statutes in failing to keep up and restrain his livestock, they did not offer any evidence or instruction based upon this theory of recovery, and thus it was abandoned and was no longer a part of plaintiffs’ case. It is well settled that where several theories of recovery are pleaded but the case is only submitted to the jury on one theory, all others are deemed to be abandoned, Edmisten v. Dousette, Mo. App., 334 S.W .2d 746, 751; and an appellate court can only review a case upon the same theory upon which it was submitted in the trial court. Welch v. McNeely, Mo., 269 S.W.2d 871, 875.

The defendant also complains that the court erred in giving Instruction No. 1 because the court did not follow Count Two of the amended petition under which it was predicated. Defendant does not specify in his brief in what respects Instruction No. 1 did not follow the pleadings to support his contention as required by Supreme Court Rule 83.05, V.A.M.R. However, the instruction properly submitted the issues of fact on the theory of recovery based on a violation of defendant’s contractual duty to keep up and maintain a portion of the division fence and is entirely consistent with this cause of action set out in Count Two of the amended petition. As previously stated herein, plaintiffs abandoned the theory of recovery based on violation of statutory duties provided in Chapter 270 R.S.Mo.1949, and an instruction given on that theory would have been unnecessary and improper.

Defendant’s next contention of error was that plaintiffs did not make a submissible case because they did not establish an agreement between the parties as to maintenance of the division fence. This argument is clearly without merit. In passing on the point only the evidence most favorable to plaintiffs and inferences to be drawn therefrom may be considered, and the evidence of the defendant will be disregarded unless it aids plaintiff’s case against the defendant. Hartz v. Heimos, Mo., 352 S.W.2d 596, 598; 3 Mo.Digest, Appeal & Error, <⅜:3930(1). Plaintiff Howard Griffin testified that he and defendant Anderson agreed that plaintiff Griffin would maintain the south half of the division fence on the east side of this farm and that defendant would maintain the north half of the fence. The defendant Anderson, in his testimony, stated that the fence was built by agreement but denied that any agreement was made concerning the maintenance and repair of the fence. Although there is a conflict in the evidence it is clear that plaintiff’s own testimony was sufficient to make a submis-sible case for the jury. There was evidence that defendant did agree to maintain and repair the north half of the division fence; that he failed to repair a break in the north half of the fence after having notice of the existence of such break; and that as a result defendant’s cattle went through the gap in the fence and damaged plaintiffs’ corn crop.

Defendant’s last contention is that the court erred in not granting him a new trial on the ground of evidence discovered after the trial. Defendant attached an affidavit of one Andrew Gillett to his motion for new trial and argues that the testimony of Gillett would have been essential had it been known in advance of the trial date' that plaintiffs were amending their petition to cover a contractual arrangement concerning the division fence. The affidavit of Gil-lett was in substance that in 1955 he and Edward Anderson helped build the south portion of the east fence dividing the Anderson and Griffin farms; that Griffin paid him one half the cost of putting in the south half of the fence, and Anderson paid him the other half of the cost; that Griffin did not work on the fence and that he was hired by Anderson to do the work. It should be noted that the affidavit shows on its face that defendant knew about Gillett’s knowledge of how the fence was built and by whom; that defendant, after the court allowed the amended pleading to be filed, answered ready for trial; that no subpoena was issued for the witness, and defendant did not ask for a continuance to obtain the witness at the time of the trial.

The granting of a new trial on newly discovered evidence rests largely in the discretion of the trial court. Ward v. Goodwin, Mo., 345 S.W.2d 215, 219. The record does not show that the trial court here abused its sound discretion. The evidence as disclosed in the affidavit, if it had been introduced at the trial, would have been cumulative, as it merely substantiates the testimony of both plaintiff Howard Griffin and defendant Anderson, that they agreed to build the division fence and share the cost of same. There is nothing to indicate that this evidence would have produced a different verdict and certainly that was the opinion of the trial court as he denied the motion for new trial.

Finding no error the judgment should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by SEMPLE, Special Commissioner, is adopted as the opinion of the court.

The judgment of the trial court is accordingly affirmed.

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


author: JACK P. PRITCHARD, Special Judge.

text:
    Percival C. BARNES, Jr., and Dorothea N. Barnes, Plaintiffs (Respondents), v. ANCHOR TEMPLE ASSOCIATION, Defendant (Appellant).
    No. 31518.
    St. Louis Court of Appeals. Missouri.
    July 16, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 4, 1963.

      Harry C. Avery, Ralph V. Wilson, St. Louis, for defendant-appellant.
    Lashly, Lashly & Miller, William E. Ru-lon, St. Louis, for plaintiffs-respondents.
    John J. Morris, City Counselor for City of University City, University City, as amicus curiae.
   JACK P. PRITCHARD, Special Judge.

Plaintiffs filed this suit May 5, 1961, asking for a permanent injunction against defendant, Anchor Temple Association, from building and constructing a parking lot, and using and occupying therefor property adjoining plaintiffs’ residential property in University Heights, a subdivision of St. Louis County, Missouri, alleged to be in violation of certain building and use restrictions as hereinafter set forth. Trial was had on June 22, 1961, which resulted in a decree of injunction against defendant from using the property as a parking area for automobiles, from which decree defendant appeals, after having filed motion for judgment or in the alternative for new trial, which were overruled.

The appeal in this case was first lodged in the Supreme Court of Missouri, but that court, holding that no constitutional question was preserved by defendant, ordered the case transferred to this court on January 21, 1963.

Although respondents have filed a brief herein, they did not participate in the oral arguments had on March 6, 1963, but at that time their former counsel informed the court that respondents had disposed of their property since the decree below.

The motion of the City of University City, Missouri, for leave to file brief as Amicus Curiae, and motion to intervene, were granted by the trial court.

Plaintiffs, after alleging and setting forth descriptions of the adjoining properties owned by the parties (Lot 19 in Block 5 of University Heights Subdivision owned by plaintiffs, and Lot 20 in Block 5 of University Heights Subdivision as owned by defendant) further alleged that on February 23, 1904, the University Heights Realty and Development Company caused to be subdivided into lots by a plat recorded in Volume 6 of Plats, pages 14 and IS, in the Office of the Recorder of Deeds for St. Louis County, Missouri, certain lands then owned by it into the subdivision named “University Heights” which includes the properties owned at this time by the parties. Along with said plat were restrictions set out in a Declaration of Trust and Agreement, recorded in Book 161, page 37, of the records of said Recorder of Deeds, providing, insofar as is pertinent now, as follows;

“ARTICLE II
“The Company agrees and covenants that neither it nor its successors or assigns will or shall any of them have power to convey, demise or otherwise dispose of any of the said lots or any part thereof, except expressly subject to the conditions, restrictions and easements in these presents set forth and defined, and that every conveyance by said Company, or its successors or assigns of any of said lots or parts thereof shall expressly refer to this declaration of trust and agreement, and by such reference or otherwise make the provisions hereof a part of such conveyance.
“The burden of, and the obligation to observe and perform the covenants, restrictions, conditions and easements herein expressed in respect of each lot, shall run with the land and shall bind the owner or owners of such lot into whomsoever hands it may come, and the corresponding benefit, and the right to compel the observance of such covenants, restrictions, conditions and easements in respect to such lots, shall run with the title to all others of said lots, and enure to the benefit of the owners thereof from time to time, and such right may be enforced by the owner of any of such lots, by appropriate proceedings at law or in equity.
“ARTICLE III
“Section 1. No building other than a private dwelling house, and the stable and outbuildings appurtenant thereto, shall be erected on any of said lots, nor shall any lot or part thereof be used or occupied for any but private residence purposes, * * *. This declaration of trust and agreement has been executed, and is made a part of the public records, for the express purpose of inducing persons, in consideration of the benefits hereby conferred, to purchase the said lots in University Heights, and is hereby made irrevocable and binding upon said Company, and upon said property and every lot and part thereof, in favor of the purchaser or purchasers of any of said lots of University Heights, as laid down on said plat, and their heirs and assigns. * * * ”

Defendant admitted by answer the above allegations and the further matters alleged by plaintiffs that it purchased Lot 20 on or about January 29, 1952, by deed which contained by reference the identical restrictions and conditions as above set forth, and it also admitted that it is building a parking lot.

So far as is material to this appeal, defendant denied plaintiffs’ allegations as follows: that its property is not a “private residence” or a “building appurtenant thereto” within the meaning of said restrictions and conditions, or that the use or occupancy of said Lot 20 as a parking lot is not for private residence purposes. Defendant further denied plaintiffs’ allegations that they will suffer irreparable damage if the defendant is permitted to construct and maintain said parking lot or use it for parking lot purposes; that their property will be depreciated in value thereby; that they will be subjected to constant noise and noxious odors caused by the ingress and egress of automotive vehicles and that the desirability of plaintiffs’ property for use for residence purposes will be substantially reduced and diminished.

Further answering, defendant alleged that since the restrictions contained in the Declaration of Trust and Agreement, the whole neighborhood covered by same has so changed that it is no longer, and at the times herein complained of, was no longer an exclusive residential neighborhood; that in close proximity thereto was erected an apartment house, a Masonic Temple, three Jewish Synagogues and two churches; and that Delmar Boulevard, upon which plaintiffs’ and defendants’ properties front, is no longer a residential street, but is a main thoroughfare that today is burdened with the heaviest traffic in University City, especially bus and commercial motor vehicular traffic; that the restrictions are, accordingly, no longer valid or applicable; and the large congestion of automobiles and commercial vehicles on Delmar Boulevard and along the curbs of property abutting Delmar Boulevard, make it desirable for the owners thereof to provide off street parking on their respective properties for their individual use and that of their guests; and that to restrain defendant from using a portion of its prop-perty for private parking purposes would impose great hardship on it and yield no benefit to plaintiffs whatsoever.

Defendant also alleged that the Declaration of Trust was on July 5, 1923, amended by court decree so as to permit the erection of a Masonic Temple on Lot 22 and the West 44 feet of Lot 1 in Block 5 of University Heights Subdivision, which temple was erected on said property, and by the acquisition of said lots all of said lots became limited and restricted for use as a single lot or parcel of ground in connection with the Masonic Temple as an appurtenance thereto, all of which benefitted the neighborhood in question and the property of plaintiffs in particular.

The evidence adduced reveals that plaintiffs, residing at 6925 .Delmar Boulevard, have six children, three of whom are now residing at home with their parents. The Barnes purchased their property, Lot 19 in Block 5, of University Heights Subdivision, in 1946, paying $12,500 therefor. On April 2, 1961, the Barnes returned from a trip to Florida, and upon seeing a bulldozer in Lot 20, just east of their lot, made inquiries, and Mr. Barnes attended a conference with defendant’s members. He learned that defendant intended to construct and use a parking lot on Lot 20, purchased by it in January, 1952, for use in connection with its building located farther east on Lots 21 and 22, and the West 44 feet of Lot 1, all in said Block 5. At this meeting the question of defendant purchasing plaintiffs’ house came up, and Mr. Barnes quoted a price of $45,000 for it. Lot 20 had been a tennis court which had been built and used by plaintiffs’ predecessor in title. Upon the tennis court some part of the backstop, one of the net posts and part of the clay court were remaining in part, although the court was fading out.

The original Declaration of Trust, setting up the residential restrictions on the properties here involved, was made January 19, 1905. On July 5, 1923, pursuant to provisions of the Declaration, Article III, Section 6, as follows:

“It is further agreed that if, at any time after January 1, 1910, a majority of the owners of lots in University Heights (estimated by the frontage of said lots and also by the assessed value of said lots) shall agree that further limitations and restrictions on the use of said lots in University Heights are desirable to maintain said tract as a first-class residence quarter, said majority of lot owners may petition the Circuit Court of said locality for a decree that such further limitations and restrictions be imposed as though recited herein, and if the said court upon due hearing (after such notice to all other lot owners as may be practicable) shall adjudge that said limitations prayed are reasonable and just, then it is hereby authorized by decree to make the same a part of the terms of this instrument upon the due record of said decree in the office of the Recorder of Deeds of said locality.”

The Circuit Court of St. Louis County by order amended the original Declaration to add thereto the following:

“Lot 22 and the West 44 feet of Lot 1, all in Block 5 of University Heights, are hereby limited for use as a single lot or parcel of ground for the erection of a Masonic Temple.”

On January 6, 1936, a Pro Forma Decree of Incorporation was granted the Temple Association, defendant herein.

The area surrounding plaintiffs’ residence, a fourteen room house, is all residential on the north side of Delmar Boulevard, excepting defendant’s building. The City Hall, a school, a police and fire department and a library, all existing and lying east of plaintiffs’ property in University Heights Subdivision, were reserved for such use by the original Declaration. To the south, across Delmar directly from the proposed parking lot, is a building originally erected as a private home, now being used by a Synagogue as a type of school, and to the east of the Synagogue school is the Synagogue itself. Almost directly across, south from the Anchor Temple, is a Greek Orthodox Church. Defendant’s committee offered to landscape the parking lot to make it as least objectionable to plaintiffs as possible. Plaintiffs did not directly ask anyone to join them in this suit, but talked to two persons about the parking lot, Mr. Hennessee, who lives directly behind the parking lot, and Mr. Weishaar, who lives directly behind the Temple. Mr. Weishaar, one of the trustees for University Heights Subdivision, told Mr. Barnes that he was in favor of the parking lot because it would remove some of the parking from in- front of his home.

Traffic conditions on Delmar Boulevard are heavy. In ten years the increase has been from around 10,000 to around 27,900 vehicles in a 24 hour period. On some evenings the traffic problem around the Temple is quite acute and at times it is not possible to find parking facilities close to the Temple, there being something going on there generally five nights a week. There has been a chaotic condition of parking along Delmar in front of Anchor Temple, and across the street in front of City Hall for a number of years due to the intensive use of the land, although City Hall has a parking lot immediately behind the Fire Department, which is on Harvard Avenue.

Witness Napolilli, Assistant Director of Public Works for University City, testified that in his opinion the off street parking around defendant’s property would be beneficial. Witness Jensen, Building Commissioner for University City, testified it is the policy of the City to require off street parking on new buildings, from dwellings on up. Mr. Rippstein, member of defendant’s lodge, drew the plans (Defendant’s Exhibit H) for the parking lot, and submitted them to University City, and a permit therefor was issued. The use the parking lot is to be put is to provide parking facilities for the occupants or attendants at Anchor Temple, and not for any public use. Plans were made to screen the lot and decorate it with shrubbery, and this was discussed with Mr. Barnes at the time of the meeting with him.

Defendant first says that the trial court erred in failing and refusing to find the parking lot was not prohibited by the restrictive covenant and was not mentioned in the restrictions. The court further erred, defendant says, by reading into the restrictions a prohibition of the parking lot where none existed, and by extending and enlarging the restrictions by implication to prohibit the use of said parking lot.

Many cases in Missouri, and those cited by defendant, set forth the general principle of law that, “ * * * Restrictive covenants will not be extended by implication to include anything not clearly expressed in them, and if there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property. * * * ” Chiles v. Fuchs, 363 Mo. 114, 249 S.W.2d 454, 456(4 — 5); Mathews Real Estate Co. v. National Printing & Engraving Co., 330 Mo. 190, 48 S.W.2d 911, 913(2-4), 81 A.L.R. 1039; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 555(21, 22); Marks v. Bettendorf’s, Inc., Mo.App., 337 S.W.2d 585, 590(6-8).

Of course the words “parking lot” were not mentioned in this 1905 instrument, for as defendant suggests, these were the horse and buggy days, and parking lots as we know them today would not have been contemplated by the developers of this residential subdivision. But the words of the declaration are clear enough: “No building other than a private dwelling house, and the stable and outbuildings appurtenant thereto, shall be erected on said lots, nor shall any lot or part thereof be used or occupied for any but private residence purposes(Emphasis added.)

We can see no ambiguity in the quoted words of the restriction as would admit to any construction other than to give effect tO' their plain meaning, that is, that the use or occupancy of the lots in question be only for residential purposes, and this would be clearly to the exclusion of all other purposes. Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529, 533(11, 12), where the court said: “ * * * The rules governing construction of restrictive agreements are the same general rules to be followed in construing any contract or covenant. Strauss v. J. C. Nichols Land Company, 327 Mo. 205, loc. cit. 213, 37 S.W.2d 505. The prime rule of construction is that when there is no ambiguity in the language used, then there is no room for construction. The plain every day meaning of the language of the contract governs. * * * ” See also Marks v. Bettendorf’s, Inc., Mo.App., 337 S.W.2d 585, 590(6-8). Thus it is apparent that the trial court did not read into the restrictions a prohibition against the parking lot where none existed, and did not extend and enlarge the restrictions (beyond their plain meaning) by implication as contended by defendant.

Under its Point II, defendant urges that even if the restrictions could be enlarged and extended to include the parking lot, the term “stable” as used in the restrictions of 1905 could be construed to mean the same thing as a garage and parking area today. Defendant cites two cases from other jurisdictions in support of this argument. That of Smith v. O’Brien, 46 Misc. 325, 94 N.Y.S. 673, 674, states, “The garage is the modem substitute of the ancient livery stable, and it was always the common law that the livery stable keeper had no lien, because the owner had and exercised the right of use of the horse kept, and so the continuous possession was destroyed.” The court in the case of Diocese of Trenton v. Toman, 74 N.J.Eq. 702, 70 A. 606, 611, stated: “These garages occupy, with relation to automobiles, the same place that stables do with regard to horses, and stables have not been held to be nuisances.” (Emphasis supplied to the excerpts from both cases, neither of which involved restrictive agreements.) Neither of these cases hold that the word stable is today analogous to the words parking lots or areas as used in connection with a building such as the defendant’s Temple, assuming that it has acquired the attributes of a private residence by the court decree of 1923 amending the Declaration of Trust and Agreement to permit the erection of a Masonic Temple.

It is indeed common knowledge today that private residences do not ordinarily have stables, and that the extensive use of automobiles has occasioned home owners to provide garages, driveways and “pads” before such garages, for use in the keeping of their vehicles in off street facilities. But such fact would not permit the conclusion that defendant could use the entirety of Lot 20 of Block 5 for the parking of some 44 automobiles (according to the engineer’s drawing, Defendant’s Exhibit H) on the theory that the word “stable” may logically be construed to mean “parking lot or area.” In this connection, we note further from the provisions of the Declaration of Trust and Agreement, Article III, Section 4, in evidence, that, “No stable, shed or other outbuilding shall be constructed or maintained upon any of the lots in said University Heights nearer to the line of any public or private street upon which said lot abuts, than two-thirds (2-3) of the distance between the line of such street and the opposite side of said lot.” Thus, although neither party has raised the point, this restriction would militate against the proposition that a “stable” (acknowledging that it is a modern garage) can now become a parking lot or area occupying the whole of Lot 20. Thus, defendant’s Point II is ruled against it.

Defendant next presents, under its Point III, its argument that the restrictions should not be enforced because they, or a portion of them (relating to stables and like appurtenances) had ceased to be effective by reason of lapse of time and changed conditions. As to the time factor urged, defendant cites Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452. That case involved the construction of a 25 year restriction on the property conveyed that “ * * * ‘the conveyance hereby made is subject to these reservations, easements, restrictions, covenants and conditions, that shall remain in full force and effect for twenty-five years,’ * * The first conveyance was made in 1895. Plaintiff in this 1934 suit (more than 25 years after the restriction was imposed) sought to remove the cloud of a building line restriction contained in his 1907 deed which referenced the 1895 plat containing the restriction, the applicable part being, “ * * * and no building, or any part or portion thereof, shall, at any time be erected or placed between said building line and said street.” (Emphasis supplied.) The court held that the previous words of the restrictions above set forth were controlling, saying, “ * * ⅜ The duration of 25 years fixed in the provision immediately preceding this complete recital of the restrictions imposed applies grammatically and logically to each of them. * * * ” The court did say there (Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 607): “ * * * Where the time during which a restrictive covenant is to endure has not been expressly limited by the parties, it should be implied that some limitation was intended and that it was such as the nature of the case would indicate as reasonable. * * * ” See also Duncan v. Academy of Sisters of the Sacred Heart at St. Joseph, Mo., Mo., 350 S.W.2d 814, 819. The last mentioned quotation is the one upon which defendant relies. We believe and hold that the facts here of the Declaration of Trust and Agreement creating a perpetual property right or easement (for the benefit of the covenantees) in each of the successive owners of the properties within University Heights Subdivision, that the same be used for residential purposes only, distinguishes the case at bar from the rule announced in the Gardner and Duncan cases, supra. This is true for the further reason that the restrictive instrument here is clear as to the intention to protect this residential neighborhood, the restrictions are reasonable to this area, and they are certainly not against public policy. 26 C. J.S. Deeds § 162(3), p. 1088; 26 C.J.S. Deeds § 170, p. 1170.

The evidence in this case is that this subdivision as originally platted and developed remains wholly residential within its area with the exception of defendant’s building. It is a well cared for area, according to the testimony and photographs in evidence, with the nicer type of expensive large homes, albeit that some of them are many years old. The fact that the traffic on Delmar Boulevard past this area has heavily increased over the years would not destroy the residential character of this subdivision, nor would the fact that some of the surrounding territory had changed destroy the restrictions. Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W. 2d 346; Proetz v. Central District of C. & M. Alliance, Mo.App., 191 S.W.2d 273; Hickey v. Greengard, Mo.App., 176 S.W.2d 661, 665; Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 553. Under this evidence and the law of the foregoing cases, we must reject defendant’s contention that the restrictions here are no longer valid because of changed conditions. So long as University Heights Subdivision retains its essential residential character which it now has, without deterioration or impairment of value for residential uses, the restrictions against other than that use will remain valid and enforceable.

There is some evidence here that the permitting of the parking lot would be beneficial to the neighborhood and to various residence owners by removing the street parking of those who use defendant’s facility from in front of their residences. And it may be inferred that by reason of the heavy traffic along Delmar Boulevard that a traffic safety problem would be alleviated somewhat. The trial court recognized the necessity for relieving congestion in the area which would benefit the municipality, and also the need for a parking area by defendant. Yet, a balancing of the inconveniences or hardships of the parties cannot be done in this case where there is no evidence of change of conditions within the restricted area in which both parties are subject to a valid, enforceable restrictive agreement. Rombauer v. Compton Heights Christian Church, supra. Plaintiffs (or their successors in title) may insist upon enforcement of their covenants, and may not, under the facts and circumstances of this case, be forced to reside next to a busy parking lot, filled to capacity with 44 automobiles on as many as five nights per week, with resultant noise and fumes, and interference with the peaceable enjoyment of their property, the very thing these restrictions were designed to prevent.

The cases cited in plaintiffs’ brief, hereinafter listed, are controlling on the question of whether the use or occupancy here proposed by defendant is prohibited by the Declaration of Trust and Agreement. In Rombauer v. Compton Heights Christian Church, supra, 40 S.W.2d 545, 552(6), it was stated: “The general rule is that equity will enjoin the violation of restrictive covenants, irrespective of the amount of damage which would result from a breach, and even though there be no substantial monetary damage. The cove-nantee may stand upon his contract and the law will enforce it. (Citing authorities.)”

The reasons for this general rule are more fully developed in the case of State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S,W.2d 741, 743(1-3), as follows:

“The plaintiffs in the injunction suit (relators here) are owners of lots in University Heights subdivision. The defendant school district was proceeding to erect and use buildings and grounds in such subdivision for school purposes in violation of valid building restrictions excluding and prohibiting such use. It is the settled law of this state that where the deeds of conveyance impose valid restrictions on the lots within a given area, then each lot and the owner of same has an easement in each and all the other lots affected by the restrictions, which easement is a property right to be protected by injunction, at the owner’s instance, restraining and preventing violations of the building restrictions. * * * ”

See also Bub v. McFarland, Mo.App., 196 S.W. 373; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346; and Proetz v. Central District of C. & M. Alliance, Mo.App., 191 S.W.2d 273.

In defendant’s Point V, it sets forth that the finding and decree of the trial court is erroneous in that it enj oins defendant from using the proposed parking lot while at the same time permitting defendant to construct the same. While we can see no practical merit in this contention (for if defendant cannot, by reason of the injunction, use the area for parking purposes, it would be useless to construct it) we think that for purposes of clarity the decree below should be amended to prohibit also the construction of the lot, as pleaded and prayed for by plaintiffs, and the construction of which was admitted by defendant.

Defendant, by its Point VI, complains that the court erred in that the Declaration of Trust and Agreement (Plaintiff’s Exhibit E, page 7) relates only to the type of building to be erected, or to the use to which it can be put. There is no merit in this argument, because as above set forth, these restrictions are clear: “Nor shall any lot or part thereof be used or occupied for any but private residence purposes.”

It is ordered that this case be remanded to the trial court for amendment of the decree enjoining defendant also from constructing the parking lot in question, otherwise the decree is affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: CALVERT, Chief Justice. GREENHILL, Justice

text:
    Jack ASBECK, Petitioner, v. L. N. ASBECK et al., Respondents.
    No. A-9424.
    Supreme Court of Texas.
    July 10, 1963.
    Rehearing Denied July 31, 1963.
    Whitlow, Cole & Seerden, Victoria, for petitioner.
    W. T. McNeil, Cullen B. Vance, Edna, for respondents.
   CALVERT, Chief Justice.

This suit originated in the probate court of Jackson County as a proceeding to declare the heirs of Ben Asbeck, deceased, and to establish their respective interests in his estate.

Ben Asbeck died in 1959, intestate, and was not survived by mother, father, wife or child. When he died, title to his estate passed to and vested in those taking under our laws of intestate succession.

Jack Asbeck, petitioner, is the natural child of Norman Asbeck, nephew of Ben Asbeck, and a grandson of Will Asbeck, brother of Ben Asbeck, both of whom had died before the trial and entry of judgment herein. As a grandnephew of Ben, petitioner has been awarded a Jáoth interest in his estate under the laws of descent and distribution. That interest is not questioned. But petitioner also claims title to an additional ]/sth interest in the estate as the adopted child of Eddie Asbeck, brother of Ben, who predeceased Ben. It is this interest which is in controversy. Petitioner’s claim to the ½⅛ interest is contested by a surviving brother and descendants of deceased brothers and a deceased sister of Ben.

Petitioner does not claim that he was formally adopted by Eddie Asbeck according to any statutory procedures. Rather, his claim is based on an adoption by estop-pel.

The probate court denied petitioner’s claim. On appeal to the district court, certain issues were tried by a jury. The jury made findings which in a proper case would support a judgment based on estoppel, conferring on petitioner all of the rights of an adopted child of Eddie. Based on the jury findings, the district court rendered judgment awarding the i/sth interest to petitioner as an adopted child. The Court of Civil Appeals reversed the judgment of the district court and rendered judgment that as to the ½⅛ interest petitioner take nothing. 362 S.W.2d 891.

We affirm the judgment of the Court of Civil Appeals.

A reading of the opinion of the Court of Civil Appeals discloses that judgment was rendered against petitioner for one reason and one reason only: that as a matter of law estoppel to deny the adopted status of petitioner does not operate against respondents because there is no privity of estate between petitioner and respondents. Nowhere in petitioner’s Motion for Rehearing in the Court of Civil Appeals or his Application for Writ of Error, and in no manner, by assignment, point of error, argument or otherwise, is the correctness or propriety of that holding challenged and we have no jurisdiction to review it. Rules 469(c) and 476, Texas Rules of Civil Procedure ; Railroad Commission v. Mackhank Petroleum Co., 144 Tex. 393, 394, 190 S.W.2d 802, 803 ; Shambry v. Housing Authority of City of Dallas, 152 Tex. 122, 255 S.W.2d 184. Since the judgment of the Court of Civil Appeals can, and does, rest on that holding, its judgment must be affirmed.

Petitioner seems to assume that the findings of the jury establishes his status as that of an adopted child of Eddie Asbeck. Based on that assumption, he argues that Sec. 9 of Art. 46a, Vernon’s Texas Civil Statutes, and §§ 3(b) and 40, Texas Probate Code, V.A.T.S. confer on him the same right of intestate succession as if he were a natural child of Eddie. We need not decide that question, for the assumption is unsound. We have only recently held in Heien v. Crabtree, Tex.Sup., 369 S.W.2d 28, that “equitable adoption” and “adoption by estoppel” does not create and establish a status of parent and child as does a legal adoption.

The judgment of the Court of Civil Appeals is affirmed.

GREENHILL, Justice

(concurring).

This case was before the Court at the same time as Heien v. Crabtree. The two cases were argued to the Court on the same day. The opinion in the Heien case was handed down first. Heien v. Crabtree, Tex. Sup., 369 S.W.2d 28. My views on adoption by estoppel in Texas were expressed in a dissenting opinion in that case.

Because the principles announced in Heien v. Crabtree have become controlling, I concur in the result reached by the Court in this case.


author: PER CURIAM.

text:
    The BOARD OF TRUSTEES OF GEORGETOWN INDEPENDENT SCHOOL DISTRICT, Petitioners, v. C. J. KREGER et al., Respondents.
    No. A-9696.
    Supreme Court of Texas.
    July. 24, 1963.

      William S. Lott, Georgetown, Bracewell, Reynolds & Patterson, Houston, for petitioners.
    Ashton, Allen & Smith, L. Hamilton Lowe, Austin, for respondents.
   PER CURIAM.

Petitioners, the Board of Trustees of Georgetown Independent School District, have filed their motion to declare this case moot and order its dismissal. Attached to the motion is a copy of the order of the United States District Judge for the Western District of Texas, Austin Division, in Civil Action No. 1311, dated June 12, 1963, holding unlawful and unconstitutional the racial segregation policy and practice of petitioners, and directing the desegregation of the public schools of the Georgetown Independent School District pursuant to the plan and schedule set forth in the order. Petitioners are subject to this order and to such further orders as may be entered by the United States District Court or by any Federal courts of appellate jurisdiction in event an appeal of the case is prosecuted.

Also attached to the motion of petitioners is a copy of the resolution of petitioners adopted June 25, 1963, reading, in part, that ■“in connection with the building program heretofore adopted, that all school buildings and facilities in the Georgetown Independent School District, including the Westside School, will not be segregated schools but will be desegregated in accordance with the order of the aforesaid United States District Court, and that all such schools will be occupied and used in accordance with such rulings.”

Respondents oppose the motion of petitioners but do not challenge the correctness of the order and resolution attached to the motion of petitioners and referred to above.

Since petitioners are now subject to orders of the Federal courts requiring desegregation of the schools operated by the Georgetown Independent School District, and may not expend the funds of the District for a purpose contrary to such orders, we declare this case moot. Cf. State v. Society for Friendless Children, 130 Tex. 533, 111 S.W.2d 1075; United States and Interstate Commerce Commission v. Alaska Steamship Company et al., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808.

The application for writ of error is granted, the judgment of the Court of Civil Appeals, 368 S.W.2d 873, is vacated and, without further proceedings, the case is ordered dismissed. No motion for rehearing will be entertained.


author: SMITH, Justice.

text:
    Louis F. ROTHERMEL, Individually and as Independent Executor, Petitioner, v. Sarah R. Rothermel DUNCAN et al., Respondents.
    No. A-9542.
    Supreme Court of Texas.
    July 10, 1963.
    Rehearing Denied July 31, 1963.

      W. H. Betts, Hempstead, for petitioner.
    Roland B. Voight, Williams, Lee & Lee, Houston, McLain & Harrell, Conroe, J. C. McEvoy, Hempstead, for respondents.
   SMITH, Justice.

This is a suit filed by Sarah R. Rother-mel Duncan et al. in the County Court against Louis F. Rothermel, individually and as independent executor of the estate of Sallie A. Rothermel, contesting the validity of the will of Sallie Rothermel, deceased. On March 7, 1960, trial was held in the County Court, and the contest was denied. Upon the trial of the case in the District Court the plaintiffs pleaded both mental incapacity and undue influence, but the latter ground was the only issue submitted to the jury. The jury found that the contested will was the result of undue influence exercised upon the deceased by her son, Louis Rothermel. Based on the jury verdict the trial court entered judgment in favor of the contestants. The Court of Civil Appeals affirmed. 365 S.W.2d 398.

The issue before this court is whether the record contains any evidence of probative force to support the finding of the jury that undue influence was exercised by Louis F. Rothermel in the execution of the will of Mrs. Sallie A. Rothermel. We have concluded that such evidence does not exist in this record. Therefore, the judgments of both the trial court and the Court of Civil Appeals are reversed.

We shall confine our statement of the evidence to that relied upon by the contestants to sustain the jury finding. The record reveals that Sallie Rothermel was the mother of three children; Louis, a daughter and Bill. In 1906 Sallie Rother-mel’s husband died. At the time of their father’s death Louis was sixteen years of age and Bill was one. Upon the death of his father, Louis left school and assumed the responsibility of providing support for his mother, sister and Bill. Louis’ sister died in 1916.

In 1918 Louis was married, and in 1920 Louis and his wife, Mrs. Rothermel and Bill moved from Pennsylvania to Houston, Texas. Since Bill was sixteen years younger than Louis, Mrs. Rothermel leaned more towards Louis than Bill for help and assistance, especially in the earlier years of her widowhood. Mrs. Rothermel did not remarry. The record reflects that at all times the Rothermel family was a close one, and that Louis continued to support his mother until investments made by him for and in Mrs. Rothermel’s name became sufficient to provide for her. Mrs. Rothermel was equally devoted to her two sons, and in 1939 she executed her first will whereby her estate was devised equally to her two sons.

Subsequently, Bill and Louis associated in the very successful business of the Maritime Oil Company, and in 1952 Bill became a partner of Louis in this business. The partnership lasted until Bill’s death in 1955. Mrs. Rothermel was greatly grieved over the loss of her younger son.

After Bill’s death Mrs. Rothermel resided with Bill’s family from October, 1955, to March, 1956. From March, 1956, to October, 1956, she resided with Louis. From October, 1956, to October, 1957, Mrs. Rothermel was in residence at an old ladies’' home in Houston. On or about October 1, 1957, Louis took his mother to his farm in Waller County, some 50 miles from Houston. Thus, began the chain of events leading to the filing of this suit.

Louis maintained and operated a poultry and egg business on his farm and had employed a single woman named Mary Blum-berg who cared for the business. From the time of her arrival at the farm, Mrs. Rothermel lived with Mary in her 4-room house on the farm. Mrs. Rothermel was then 93 years of age, and suffered from the common maladies of age: she was hard of hearing, her eyesight was bad, her hands shook, and she suffered from arthritis and diabetes. For several years Mrs. Rother-mel’s feeble condition required care and companionship — this became the responsibility of Mary Blumberg.

Soon after she was taken to the farm, Mrs. Rothermel fell and suffered a broken rib. On this occasion she was taken to a hospital in Hempstead, Texas, where she remained for two or three days. At the farm Mrs. Rothermel was “very sparsely” visited by her other relatives.

Mrs. Rothermel was devoted to Louis; she trusted him completely and relied entirely upon him to handle her affairs, which he did. Louis took care of all of her business correspondence and affairs and signed her checks. All of Mrs. Rothermel’s papers, including the 1939 will, were kept in Louis’ safe-deposit box in Houston.

Louis’ testimony reveals that in the latter part of 1957 or in the early part of January of 1958 his mother requested that he bring to her the 1939 will, which he did. The 1939 •will remained in her possession for several ■days, and she conferred with Louis and informed him that she wanted to make another will and leave everything to him. Although he was aware of the possible double federal tax consequences of being the sole beneficiary of his mother, Louis did not try to explain this to his mother. Louis testified that he drew the new will in Houston, and either used the 1939 will or one of his own as a pattern, and that he suggested to his mother that her will provide that if he predeceased her, his daughter would be her executrix and that her property be divided equally among her grandchildren and great grandchildren. No attorney was consulted; and after the new will was drawn, Louis took it to his mother who kept it several days.

On January 30, 1958, the new will was signed by Mrs. Rothermel before two witnesses, Mary Blumberg and her brother, August Blumberg, who was another farm employee of Louis. The witnesses were gathered by Louis. The will was signed by Mrs. Rothermel without comments, questions or suggestions, and at a time when Louis was in the house but not in the room where the signing of the will took place. No one read or explained the will to her or saw her read the will.

After the will was signed, it was delivered to Louis by his mother. He took possession of the will and placed it in his safe-deposit box, and no one knew of its execution except the witnesses thereto and Louis until sometime after his mother’s death. Mrs. Rothermel discussed the execution of this will with no one except Mary Blumberg. Mrs. Rothermel continued to live with Mary Blumberg until her death in October of 1958 at 94 years of age. The new will appointing Louis independent executor of his mother’s estate was probated by the County Court on October 7, 1958.

After this suit was filed Louis went to the home of two witnesses at the trial to inquire if either of them had knowledge of any prior will of Mrs. Rothermel. It further appears that shortly after the probate of the will, and before this suit was filed, Louis made out checks for $1000 each: one was sent to Mary Blumberg, and a check in a like amount was mailed to each of his two nieces, two nephews (respondents herein), a daughter and two grandchildren, totaling $8000.

Other evidence in the record reveals that Mrs. Rothermel loved the children of her two sons equally. Disinterested witnesses had heard Mrs. Rothermel declare numerous times, within five years of her death, that she intended to leave her estate equally to her grandchildren.

It would unnecessarily lengthen this opinion to attempt to analyze each item of evidence which the contestants claim is some evidence of undue influence. Mental incapacity and undue influence was alleged, and the record reflects that evidence was introduced in an effort to support both grounds.

The contestants select from the summarized evidence above three sets of circumstances which they deem sufficient to bring this case within the holding of this court in the case of Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, that the evidence introduced would support a finding of the exercise of undue influence. The particular facts of this case which the contestants claim should support a similar conclusion are: (1) the fragile condition of Mrs. Rothermel due to age and sickness; (2) Louis, the beneficiary, “generally looked after and supervised most of the business affairs and business interests of his mother”; and (3) the circumstances surrounding the signing of this will.

No two cases involving undue influence are alike, and each case must stand or fall depending upon the legal sufficiency of the facts proved. Because of this it does not necessarily follow that it should be held in this case, as it was in the Long case, that the finding of undue influence has support in the record.

Undue influence in the procurement of a testament is a ground for its avoidance separate and distinct from the ground of testamentary incapacity; for while testamentary incapacity implies the want of intelligent mental power, undue influence implies the existence of a testamentary capacity subjected to and controlled by a dominant influence or power. Long v. Long, supra; Besteiro v. Besteiro, Tex. Com.App., 65 S.W.2d 759. Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.

The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.

It cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Long v. Long, supra. Indeed it has even been held that one may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the im-portunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence. See: Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, and cases cited therein.

Influence that was or became undue may take the nature of, but is not limited to-force, intimidation, duress, excessive importunity or deception used in an effort to overcome or subvert the will of the maker of the testament and induce the execution thereof contrary to his will. The courts of Texas treat the exertion of such influence in-the execution of a dispositive instrument as a species of legal fraud. See: Curry v. Curry, supra.

The exertion of influence that was or became undue is usually a subtle thing and by its very nature usually involves an extended course of dealings and circumstances. Thus, it is settled that the elements establishing undue influence may be proved by what is known as circumstantial, as well as by direct, evidence. Long v. Long, supra. In the absence of direct evidence all of the circumstances shown or established by the evidence should be considered; and even though none of the circumstances standing alone would be sufficient to show the elements of undue influence, if when considered together they produce a reasonable belief that an influence was exerted that subverted or overpowered the mind of the testator and resulted in the execution of the testament in controversy, the evidence is sufficient to sustain such conclusion. Barksdale v. Dobbins, Tex.Civ.App (1940), 141 S.W.2d 1035, wr. refused. However, the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Stewart v. Miller, supra. This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358.

Generally, the establishment of the existence of an influence that was undue is based upon an inquiry as to the nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence. The establishment of the exertion of such influence is generally predicated upon an inquiry as to the opportunities existing for the exertion of the type of influence or deception possessed or employed, the circumstances surrounding the drafting and execution of the testament, the existence of a fraudulent motive, and whether there has been an habitual subjection of the testator to the control of another. Where there is competent evidence of the existence and exercise of such influence, the issue as to whether it was effectually exercised necessarily turns the inquiry and directs it to the state of the testator’s mind at the time of the execution of the testament, since the question as to whether free agency is overcome by its very nature comprehends such an investigation. Scott v. Townsend, supra. The establishment of the subversion or overpowering of the will of the testator is generally based upon an inquiry as to the testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind to the type and extent of the influence exerted. Words and acts of the testator may bear upon his mental state. Curry v. Curry, supra. Likewise, weakness of mind and body, whether produced by infirmities of age or by disease or otherwise, may be considered as a material circumstance in establishing this element of undue influence. Long v. Long, supra. Finally, the establishment of the fact that the testament executed would not have been executed but for such influence is generally predicated upon a consideration of whether the testament executed is unnatural in its terms of disposition of property. Long v. Long, supra.

The evidence in the case at bar establishes that Mrs. Rothermel trusted Louis completely and relied entirely upon him to handle her affairs. The evidence likewise establishes that Louis had ample opportunity to exert influence upon his mother as to the execution of the testament in controversy, but evidence as to any deceit or fraud is lacking. It is the law in Texas that a will cannot be set aside on proof of facts which at the most do no more than show an opportunity to exercise influence. Burgess v. Sylvester, Tex.Civ. App. (1944), 177 S.W.2d 271; affirmed, 143 Tex. 25, 182 S.W.2d 358. The establishment of the circumstances of having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing. Price v. Taliaferro, Tex.Civ. App. (1952), 254 S.W.2d 157, wr. ref. n. r. e. The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that influence was not only present but that it was in fact exerted with respect to the making of the testament itself. There is no such evidence here.

The evidence likewise establishes that Mrs. Rothermel was old and suffered from the common maladies of age. This evidence may be considered as establishing Mrs. Rothermel’s physical incapacity to resist or the susceptibility of her mind to an influence exerted. However, such evidence does not establish that her mind was in fact subverted or overpowered at the time of the execution of the instrument in question.

A person of sound mind has a perfect legal right to dispose of his property as he wishes, and the testament in the case at bar makes an unnatural disposition of the property only in the sense that one child was preferred over the widow and children of another child. This circumstance is frequently present in cases involving- the issue of undue influence, and it is only where all reasonable explanation in affection for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or lapsed mentality or of its subjugation. See: Craycroft v. Crawford, Tex.Com.App. (1926), 285 S.W. 275; Curry v. Curry, supra. The evidence in the case at bar does not support the conclusion that Mrs. Rother'mel’s testamentary disposition of her estate was unnatural.

The elements of the exertion and the effective operation of any influence possessed by Louis over his mother so as to subvert or overpower her will and cause the execution of this testament are not supported by any tangible evidence. Because of the disposition we make of this case we need not consider the other issues raised on this appeal.

The judgments of the Court of Civil Appeals and the trial court are reversed and judgment is here rendered that respondents take nothing.

      . See: Long v. Long, Tex.Civ.App., 98 S.W.2d 236; Long v. Long, Tex.Civ.App., 129 S.W.2d 1206; Long v. Long, 133 Tex. 623, 138 S.W.2d 798.


author: CALVERT, Justice.

text:
    Ex parte J. D. THETFORD and Wife, Mamie Thetford.
    No. A-9649.
    Supreme Court of Texas.
    July 24, 1963.
    Doss Hardin, Fort Worth, Sid L. Hardin, Edinburg, for relators.
    Toby Goldsmith, Fort Worth, for respondent.
   CALVERT, Justice.

Petitioners seek relief from an indefinite sentence to jail imposed by a judgment of the District Court of the 17th Judicial District, Tarrant County.

Petitioners are the grandparents of three minor children, Cynthia Kay Thetford, Va-Linda Gay Thetford and Timothy Jason Thetford. Carlton Allen Thetford, petitioners’ son, is the father of the children. Carlton and his wife, Dorothy Ann, were divorced in February, 1961 and legal custody of the children was awarded to the mother. In October, 1961 the mother left the children with one Ruth Scott, and has not been heard from since that time.

On some date not shown in the record, Ruth Scott filed suit in the 48th District Court of Tarrant County against Carlton Thetford and petitioners for legal custody of the children, but citation was never served on Carlton Thetford and he never filed an answer or entered an appearance. Thereafter, petitioners filed suit in the 17th District Court against Ruth Scott for custody of the children. Ruth Scott’s suit was transferred from the 48th District Court to the 17th District Court, and the two suits were consolidated and set for trial on June 4, 1963, at which time trial was begun. The court recessed the trial to June 13th, with an announcement by the court that the children were to remain in the physical custody of Ruth Scott until the taking of testimony was concluded on that date.

Ruth Scott left the children with a sixteen year old babysitter in Fort Worth during the evening of June 4th. They were forcibly taken from her possession.

On June 10th, pursuant to a petition therefor filed by Ruth Scott, the Judge of the 17th District Court issued an order to petitioners commanding them to produce the children before the court on June 12th, and to show cause why they held the children in restraint of their liberty and why they should not be held in contempt of the court.

Both of petitioners appeared, were sworn as witnesses and testified at the hearing on June 12th. They did not produce the children. Both testified that they were not at the home of the baby-sitter on the 4th, but were in Cleburne the entire evening on that date; that during the evening their son telephoned them and told them he had obtained possession of the children, and that he brought them by later in the evening for a visit; that they did not have possession of the children, and did not know where their son had taken them.

The baby-sitter was the only other witness to testify at the hearing. She testified that petitioners and Carlton Thetford came to the house where she was caring for the children during the evening of June 4th; that petitioner, J. D. Thetford, was the driver of the automobile in which they arrived and remained in it, but that petitioner, Mamie Thetford, came into the house with her son and pushed the witness as she was seeking to prevent the father from forcibly taking the children from her possession; that the children were taken away in the automobile.

At the conclusion of the hearing the court ordered petitioners to produce the children in court by 9:00 o’clock, a. m., on June 13th, and when they failed to do so they were adjudged to be in contempt for failing to produce the children as ordered and for giving perjured testimony. As punishment the court imposed a fine of $100.00 on each of the petitioners and ordered them confined in jail for three days, the maximum punishment for contempt authorized by Art. 1911, Vernon’s Texas Civil Statutes. The court further ordered that petitioners remain in jail until they should purge themselves of their contempt by producing the three children before the court.

Petitioners were confined in jail on June 13th and had been confined for three days when we ordered their release on bond on June 17th. They have since paid the fines assessed against them. It thus appears that petitioners are now restrained of their liberty by virtue of the coercive part of the judgment which directs that they be confined in jail until they produce the children before the court.

A habeas corpus proceeding is a collateral attack on a judgment of contempt, and one may be relieved of its impositions only if the judgment is void. Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184, 186. A judgment of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Ex Parte DeWees, 146 Tex. 564, 210 S.W.2d 145; Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184.

There is a conflict between the testimony •of petitioners on the one hand and the babysitter on the other as to whether petitioners aided and abetted their son in removing the children from the custody of Ruth Scott, to whom temporary custody had been awarded, and thus in interfering with orderly judicial processes. But the judgment of contempt was not based upon that action; rather, it was based upon failure to produce the children in court as commanded and the giving of perjured testimony. Since the penalty imposed for that contempt has "been discharged, we need not decide wheth•er it was properly or legally imposed. We are concerned only with the validity of the order that petitioners be confined in jail until the children are produced in court.

All of the testimony at the contempt hearing shows that the father of the children took possession and control of the children. While petitioners may have wrongfully aided their son in obtaining possession, there is in the record of the hearing no testimony that they then took, or have since “had, possession and control of the children. Presumably the children are still in the ■possession and control of their father. As a condition to purging themselves of contempt, petitioners are required, therefore, to perform an act which, on the record made in the trial court, is impossible of performance.

This case is ruled by Ex Parte DeWees, 146 Tex. 564, 210 S.W.2d 145, almost squarely in point on the facts, in which we ordered the relator discharged with the observation that the judgment could result in imprisonment for life if the one having actual possession and control of the child should decline to produce it.

We mention one other matter, not as a basis for discharging petitioners, but as illustrative of the grave injustice which can flow from the type of coercive judgment here entered. An affidavit by Carlton Thet-ford, a resident of Louisiana, has been filed in this court. In it the affiant states that the three children are in his possession and custody, and that the petitioners have informed him of their fines and imprisonment. The affidavit continues:

“I sincerely regret the difficulty my said parents have experienced in connection with this matter, but the future of my said three children is at stake and I intend to keep them in my possession and custody, and do not intend to and will not return said minor children to the State of Texas. I am forced to choose between my own children and their future, and the possible imprisonment of my parents, and as much as I regret to make the decision, I feel forced to decide in favor of my three minor children and against my parents. I have previously informed my parents, J. D. Thetford and Mamie Thetford, by letter, of my sincere regret to learn of the trouble in which they have become involved over my three children, and have advised them that I do not intend to and will not return my three children to the State of Texas, even though my parents requested me to do so.”

Attached to the affidavit is a purported copy of an order of a Louisiana Juvenile Court awarding temporary custody of the three children to Carlton Allen Thetford.

It may be that if petitioners were held hostage for return of the children long enough their son would relent. But as we observed in Ex Parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147:

“Our concern is not what will certainly happen if relief is denied, but what could happen. Obviously, the thing that could happen is the lifetime' imprisonment of relator, and a denial of relief would be a recognition by this court of the power of the trial judge to enter an order having that effect.”
Relators are ordered discharged.

WALKER, J., not sitting.


text:
    COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Petitioner, v. John Q. ADAMS, Respondent.
    No. A-9630.
    Supreme Court of Texas.
    July 17, 1963.
    Rehearing Denied July 31, 1963.
    Touchstone, Bernays & Johnston, Charles C. Sorrels, with above firm, Dallas, for petitioner.
    Bates & Brock, Houston, for respondent.
   PER CURIAM.

The Houston Court of Civil Appeals in this case has held that exception 27 of Art. 1995, Vernon’s Ann.Civ.Stat, is not void and unconstitutional under the 14th Amendment to the United States Constitution as affording a wider venue for action against foreign corporations than is afforded against domestic corporations under Section 23 of the same article. 366 S.W.2d 801. This holding is in conflict with the holding of the Beaumont Court of Civil Appeals in Fireman’s Fund Insurance Co. v. McDaniel et al., Tex.Civ.App., 327 S.W.2d 358, and with that of the Eastland Court of Civil Appeals in Maryland Casualty Co. v. Torrez, Tex.Civ.App., 359 S.W.2d 559.

We are in agreement with the decision of the Houston Court of Civil Appeals in this case. The writ of error is accordingly refused. Rule 483, Rules of Civil Procedure.

      . Writ of error dismissed for want of jurisdiction. Torrez v. Maryland Casualty Company, Tex., 363 S.W.2d 235.