author: HUNTER, Judge.

text:
    Patsy Pearl YOUNT, Appellant, v. Bill G. YOUNT, Respondent.
    No. 23711.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Francis L. Roach, Solbert M. Wasser-strom, Kansas City, for appellant.
    Martin Anderson, Kansas City, for respondent.
   HUNTER, Judge.

This is an appeal from the order of the Circuit Court of Jackson County upon a motion by the divorced husband for a change of child custody from their mother to him. The circuit judge after a hearing on the motion ordered custody of the four children involved changed from the mother to the paternal grandmother, with the mother having visitation privileges each Saturday from 9:00 a. m. to 6:00 p. m.

For review purposes the story commences in June, 1960, when Patsy Pearl Yount, appellant, obtained a divorce from Bill G. Yount, respondent, and she was granted custody of the four children of the marriage, child support in the sum of $40.00 per week, with Mr. Yount granted general visitation privileges. Thereafter, she had custody of these four children, Bill, Jr., now age 11; Pat now age 10; Linda, now age 8; and David, now age 7, until the mentioned trial court’s order on May 4, 1962.

The motion to modify the divorce decree, filed March 20, 1962, alleged in substance a change in conditions of the parties consisting of (1) that the children’s mother is not capable of administering the wants, needs and welfare of the children; (2) that she associates in an immoral manner with other men in and about the premises where the children reside; and (3) does not keep the home where the children reside and permits the children to go about in a dirty and disheveled manner and does not tend to the health or requirements of the children, all detrimental to their welfare.

The trial was held on April 6, 1962. Bill Yount testified that after the divorce his former wife and the four children continued to occupy the three bedroom house purchased by him and her jointly during their marriage. He continued to trisit the house nearly every Sunday to see or pick up the children. The housekeeping was not good and there was never anything in the icebox except milk and wine or whisky. On Sunday mornings appellant’s eyes would be bloodshot and her skin puffy from drinking. Upon some such occasions he saw her drinking wine and beer with the children present. On one Sunday when he picked up the children she introduced him to Mr. Glen Ladd, a married man who had just separated from his wife and who was dating her.

According to respondent, prior to dating Ladd appellant had dated a single army major, visiting with him in his bachelor apartment some four or five nights a week until 1:00 or 2:00 a. m. She would come home in a drunken condition and would drink in front of the children.

Commencing with the divorce in June, 1960, appellant got a job. The children were left alone at the house from school every evening from 4:00 p. m. until she got home from work about 5 :30 p. m. or later. They were frequently left alone all night with young baby sitters. Respondent conceded the children were well reared to an extent but were not well dressed. They are all doing quite well in school.

Oil numerous occasions other than Sundays respondent would call on his ex-wife and attempt to talk to her, sometimes to ask her to remarry him. Almost every time there was an argument. She would call the sheriff or the police to have him put off the premises or to leave her alone. He denied he has ever threatened, struck ■or beat her since their divorce. He had neighbors keep an eye on her and tell him about her activities. He often personally •checked up on her and her dates.

A neighbor, Mrs. Blankenship, at his request kept notes on appellant’s activities. Mrs. Blankenship testified she had to get up every morning at 4:30 a. m. to see her 'husband off to work at 6:00 a. m. and that •she had a big picture window facing appellant’s house. Appellant occasionally used as baby sitters two brothers, Donald and Darrel Phillips, age 12 and 16. Other young baby sitters were also used. Commencing about February 23, 1962, Mrs. Blankenship observed that Mr. Ladd on approximately a dozen occasions spent the entire night in appellant’s home with the four children also present. On other occasions Ladd would stay until the early hours of morning. On a few occasions appellant would be gone all night leaving the four children with some very young baby sitter. The children were not clean and well kept all the time. They were not dressed like other children dress and should have been dressed better. They are good children. Since Christmas, 1961, appellant has employed a woman, Nadine Phillips, to keep the house and the children.

Mrs. Blankenship’s husband, Carl, testified he had seen appellant and Mr. Ladd embrace in Ladd’s car one night, and kissing and embracing a couple of times in the doorway of her house.

Phyllis Ladd testified she and Mr. Ladd were separated but not divorced. On March 23, 1962, she filed a divorce suit against him. She has seen her husband and Patsy together on numerous occasions smooching and kissing. Once she saw them leaving Ladd’s motel room about 1:30 p. m. “He’s been with her every night.” Three weeks before this hearing she caught Patsy in her husband’s office sitting on his lap and kissing him. She also saw them arm in arm in the hall during the trial court hearing.

Donald Phillips testified he saw Mr. Ladd at appellant’s house 20 or 25 times while he was baby sitting. Appellant and Mr. Ladd would come home together “usually real early in the morning, about four thirty or five o’clock.” They ordinarily arrived just before the kids and he had to leave for school. Appellant would feed the children on these occasions. She kept whisky and beer in the refrigerator and some food. The house would have the children’s and her clothes thrown around the various rooms. There would be dirty dishes. Since February 1, 1962, he has sat about fourteen times for her and has earned as much as $50.00 a week. She usually paid him 5(⅝ an hour but when she started going with Mr. Ladd she paid him $10.00 a night which figured about $1.00 per hour. When she went out with the major she was always in between twelve and two but with Mr. Ladd she remained out until four thirty, five or six. He never saw appellant abuse, mistreat or talk rough to her children. He has seen her drink milk and whisky in their presence and has seen her kiss Mr. Ladd “in front of the children, and then after they went to bed.”

Darrel Phillips testified Mr. Ladd was around appellant’s some at night and would also come over and eat breakfast with her. While baby sitting he has observed appellant and Mr. Ladd drinking together and kissing. The children would be in bed. He has observed Mr. Ladd staying all night two or three times. On one such occasion “I slept in her room, and they slept on the divan, I guess, I don’t know.” Sometimes the kissing would last a half hour. He and his brother would be paid $5.00 apiece for each baby sitting job. Mr. Ladd was providing the money for the baby sitter.

Mrs. Ethel Yount, respondent’s mother and the children’s paternal grandmother, told of her three bedroom modern home, of her love for the children and the desire of her and her husband to have the custody of the children. She is forty-eight and her husband fifty-one years’ old and both are in good health. He is a former assistant scoutmaster, and is employed as a steam fitter. She described the times she has had the children in visits, her care of them, the clothes and other items she has bought them, and gave the opinion that Patsy’s baby sitters “were inadequate to care for children every night.”

Patsy, now 28 years’ old, testified that at the age of 17 she married Bill Yount. She is presently employed as a secretary-bookkeeper by a local construction company at a salary of $90.00 per week. She described in detail how after her divorce in June, 1960, her ex-husband would spy on her and threaten any man whom she dated. She told of several single men she had dated but who in effect had been run off by her ex-husband who on at least twenty occasions hit, slapped and beat her. She had been knocked flat on her back and even had a rib cracked. He has gotten her on the floor and choked her until she was unconscious. He has held a butcher knife against her throat. “If I had a date I knew when I got home I would get the very tar beat out of me.” To protect herself from physical harm it was her practice to call the sheriff or the police when her ex-husband came around unless it was for him to get the children for visitation. He continually tried to get her to remarry him but she fears him and does not love him. His last effort to get her to marry him was just three weeks prior to her testimony. He is still going with a married woman “he was going with when we got our divorce, and this married woman has four children.”

Appellant testified she met Ladd through her work. She knew he was a married man, that his wife was pregnant and that he was only separated from her. She freely admitted her numerous dates with him. She has acknowledged she kissed and embraced him many times. He has stopped at her house often until the early morning hours. He has upon occasion “to protect her from her ex-husband” stayed all night. They have drunk together. She asserts nothing improper ever occurred unless the dating, kissing and embracing is so regarded. She testified, “We (Ladd) go to numerous parties, we do go out.” This occurred “very often”. They often stayed out late or all night. She stated, “A lot of instances Mr. Ladd stays very, very late. He might be there until two or three o’clock in the morning, and he will leave and I have had calls from him as early as four o’clock in the morning, and he said, ‘Can I come over and have breakfast?’ And he would show up at four-fifteen.” Appellant stated she did not love Ladd and did not intend to marry him.

Most revealing is the following testimony of appellant: “I had a very difficult time the first summer (after the divorce) trying to find someone to stay with my children. I couldn’t get an older woman. I did have to depend on younger kids, and they weren’t reliable, and I knew it. My mother was mot able to help me, my father was sick. I asked my mother-in-law to watch them, she could not watch them. She wouldn’t watch them, hut she always found time to come out and cause trouble with my baby sitters. * * * I finally got a woman that lives in the neighborhood, a single woman, (Nadine Phillips) and she comes up now. She has since Christmas. She stays with the children and she also takes care of my house for me.”

However, Mrs. Phillips does not come in until after lunch and stays until dinner which she prepares. Two or three times a week appellant doesn’t come home from work and Mrs. Phillips has to arrange for a baby sitter. On several occasions she has had to stay all night and appellant would come in about 4:00 a. m. or later with Mr. Ladd who would stay after Mrs. Phillips left. If appellant goes out at night she has sitters. She now has a lady friend also living with her, an Elaine Jarrett.

Mr. Ladd testified he conducted himself “completely and totally properly”, and that he has no intentions of marrying appellant.

While the above is far from a complete statement of the testimony it is sufficient to paint the general picture which confronted the trial court and now confronts us.

There is no dispute concerning the applicable law. Both sides agree the supreme and paramount consideration is the welfare of the children. Section 452.120 RSMo 1959, V.A.M.S. Both sides cite and rely on such cases as Paxton v. Paxton, Mo. App., 319 S.W.2d 280; Wilson v. Wilson, Mo.App., 260 S.W.2d 770; and Pippas v. Pippas, Mo.App., 330 S.W.2d 132.

Child custody litigation always presents a serious and heart rending problem to the court. No nice mathematical formula or self-operating slide rule exists by which it can be determined what is best for the welfare of the children. An understanding and careful judgment is required, and each case must be judged on its own particular facts. Our duty is to consider, weigh and evaluate all the competent evidence. We are not bound by the trial court’s findings but do accord them proper deference, particularly where the credibility of witnesses is involved. We do not lightly disturb the trial court’s judgment and will defer to it unless we are convinced that the welfare of the children requires some other disposition.

Respondent as the party seeking the change of custody has the burden of showing by a preponderance of the credible evidence changed facts and circumstances to a substantial and- material extent which in the best interests of the children require modification of the custodial provisions of the original decree. Hurley v. Hurley, Mo.App., 284 S.W.2d 72.

By the original decree appellant was adjudged to have been the innocent and injured party and the custody of the four children was awarded to her. We commence with the presumption the children were then with the right party because that is where the court placed them. S-v. G-, Mo.App., 298 S.W.2d 67, 77. In the instant case this is strengthened by the rule that all things being otherwise equal it is presumed the proper place for children of tender years is with their mother.

We acknowledge the general rule that the fact a mother is guilty of adultery does not necessarily disqualify her to have custody of her children. The moral unfitness of a mother must have a bearing on the welfare of the child before it can be sufficient to deprive her of her custody. 17A Am.Jur., Divorce and Separation, Sec. 820, p. 16.

Without arguing the rather clear evidence, or going through an itemized evaluation of it, we state our conclusion that it fully supports the action of the trial court. This evidence convinces us, as it did the trial court, that since the divorce and at the time of the hearing these four children were not receiving proper care and were being exposed to substantial immoral and debasing influences through the misconduct of their mother in their presence. As the record now stands it is to the best interest and welfare of these children to change their custody.

It is the general rule that unless both parents are unfit, custody is ordinarily granted to one or the other of them. Pax-ton v. Paxton, supra. Custody is not to be placed in a grandparent or any third person except as a necessary expedient, and usually as a temporary expedient until one of the parents becomes physically, economically and morally capable of having custody. Wilson v. Wilson, Mo.App., 260 S.W.2d 770; Neustaedter v. Neustaedter, Mo.App., 305 S.W.2d 40.

We think the record justifies the placing of the custody of these four children with the paternal grandmother. We note the father is also a member of that household. He has not appealed or objected to the trial court’s judgment. The mother in the past to some extent has believed the grandmother to be a suitable person for at least their temporary custody as she has sought her assistance in their care.

Whether this custody in the paternal grandmother will be permanent or merely temporary is a matter that can be left safely with the trial judge who will act in accordance with the established rules and the facts as they may be presented to him at some future date. He continues to have full jurisdiction. It is to be hoped, of course, that this mother, once found to be the proper one to have the children’s custody, will put her house in order, both physically and morally, for the welfare of these children she professes to love.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HAMILTON, Justice. STEAKLEY, Justice

license: Public Domain

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. Frances KRAYER, Respondent.
    No. A-9307.
    Supreme Court of Texas.
    April 3, 1963.
    Rehearing Denied May 1, 1963.
    Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, Howard Barker and John McBryde, Fort Worth, with above firm, for petitioner.
    McEntire & Murad, Fort Worth, for respondent.
   HAMILTON, Justice.

This is a suit on a life insurance contract, instituted by the wife of the deceased insured, Kenneth Krayer, against the Prudential Insurance Company of America. The policy insured Kenneth Krayer’s life for $5,000 with “double indemnity” if death was caused by accidental bodily injury. The policy further provided that no benefits of any kind would be paid if death was by suicide within two years of the effective date of the policy. Within the two-year period Krayer was found dead in his automobile, shot in the left temple by a .22 caliber bullet.

Mrs. Krayer (respondent) sued both on the basic policy and on the accidental death provision. The insurance company (petitioner) defended on the grounds that Kenneth Krayer had committed suicide and that Krayer had knowingly misrepresented the facts of his medical history with intent to induce the company to issue the policy of insurance. The jury answered all special issues favorably to respondent. The trial court disregarded the answers to two special issues and entered judgment for petitioner notwithstanding the verdict and ordered that respondent take nothing by her suit. The Court of Civil Appeals reversed and remanded. Tex.Civ.App., 360 S.W.2d 844.

The two special issues inquiring of the manner of Krayer’s death, the answers to which the trial court disregarded, are as follows:

“Special Issue No. 1. Do you find from a preponderance of the evidence that Kenneth A. Krayer’s death resulted from accidental bodily injury, as the term ‘accidental’ is defined herein-above ?
“Answer: ‘Yes’ or ‘No.’
‘‘Answer: Yes.”
“Special Issue No. 2. Do you find from a preponderance of the evidence that the death of Kenneth A. Krayer resulted from suicide as the term ‘suicide’ is defined hereinabove?
“Answer: ‘Yes’or‘No.’
“Answer: No.”

The first special issue is respondent’s. She bore the burden of getting a favorable finding on it in order to recover under the double indemnity provision of the contract. The second special issue is petitioner’s defensive issue on which it bears the burden of getting a favorable finding.

In sustaining petitioner’s motion for judgment notwithstanding the verdict, the trial court found that there was no evidence of accidental death and that the evidence of death by suicide was conclusive. The Court of Civil Appeals agreed with the trial court that there was no evidence of accidental death, but held that the finding against suicide was merely contrary to the weight and preponderance of the evidence, that suicide had not been conclusively established. Mrs. Krayer has no application for writ of error.

The Insurance Company’s application for writ of error was granted on a point of error complaining of this holding. The question thus presented is whether the evidence is such that we must say, as a matter of law, that Kenneth Krayer was a suicide. Petitioner has other points of error; among them are points dealing with the defense of Krayer’s representations as to his medical history, but in view of our holding on the question of suicide, we do not reach those points. We hold that suicide has been established as a matter of law.

There is a legal presumption against suicide; this has been called a “true presumption” which falls or “disappears” when rebutted; that is to say, this presumption once rebutted does not have weight as evidence. Combined American Insurance Co. v. Blanton, Tex., 353 S.W.2d 847. The question in this case is not whether the presumption has been rebutted, but whether it has been conclusively rebutted.

Petitioner has produced circumstantial evidence of suicide which the Court of Civil Appeals characterized as being of “great force”. There is no direct evidence of suicide, but the lack of direct evidence does not prevent its being conclusive; an ultimate fact may be conclusively shown by wholly circumstantial evidence. The question is whether reasonable minds might differ as to the inference to be drawn. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W. 2d 972. “When the only reasonable inference which can be drawn from all the evidence is that death was the result of suicide, the presumption against suicide is [conclusively] rebutted.” Combined American Insurance Co. v. Blanton, supra. Thus our inquiry is reduced to whether there was some evidence in the record raising an issue either of accidental death or of homicide, the only other possible hypotheses.

It is undisputed that Krayer had been committed to a mental hospital in Buffalo,' New York, at-the age of fifteen. His illness was diagnosed as schizophrenia, catatonic type. One of the doctors at the Buffalo hospital testified that the nature of this illness is such that one thus afflicted is “unstable and unpredictable”. Another testified that such persons “readily and frequently do commit acts of violence either against other people or against themselves.” Respondent does not contradict the testimony of these doctors that Krayer was diagnosed as still having this disease when he was finally discharged from the hospital at the age ox eighteen. The hospital discharged Krayer at this time because he and his mother left New York and moved to Texas.

While in the hospital Krayer had received some eighteen shock treatments which had caused his condition to improve but did not cure it. Krayer was also diagnosed as having “ideas of reference.” This was explained by one of the doctors to mean that one so affected “attached erroneous or pathological significance to ordinary, every-day occurrences. The patient feels that these things refer to him.”

When he was twenty Krayer married respondent, who then had a four-year old child born of a former marriage. In 1957, after his marriage to respondent, Krayer became upset by respondent’s former husband’s failure to make his child support payments. Krayer bought a .22 caliber revolver and left home for a week. He went to Oklahoma and Lake Texhoma. When he returned his mother returned the revolver to the store where he had purchased it. There is disputed testimony tending to show that when Krayer returned he told his wife that he had gone with the intention of killing himself but “did not have the guts to end it all.” Krayer’s wife and mother deny that he said this.

In April, 1958, Krayer was laid off his job at the Convair plant in Fort Worth. By this time his wife had had one child by him and was expecting another. He took a job selling encyclopoedias, but quit this after two days. Again his wife’s former husband got behind on child support payments. The family had $50 in a savings account.

Two days before he disappeared, unknown to his family, Krayer purchased a .22 caliber revolver of the same type he had bought the year before.

The night of his disappearance (April 24, 1958) Krayer stayed up to watch the television while his wife went to bed. Mrs. Krayer awoke about 4:30 a. m. and discovered that he had gone in the car. It is not disputed that Krayer left a note, but the contents of that note are disputed.

Petitioner introduced a missing persons report made out by the police officer who had taken Mrs. Krayer’s telephone report of her husband’s disappearance. This report purports to show that Mrs. Krayer told the officer that her husband had left in 1957 intending to kill himself but that he had returned stating that he had lost his nerve. The report further purports to show that Mrs. Krayer told the officer that he had recently been upset about her former husband’s failure to make child support payments and that she feared he had bolstered his courage and might kill himself. The report contains what is said to be the language of the note left by Krayer the night of his disappearance: “I think it best that I do it this way. Remember that I love you, no matter what happens.”

The note has disappeared and Mrs. Krayer denies that it contained the language in the police report, but she was vague as to just what it did say. Mrs. Krayer’s brother, who saw the note, was likewise vague about its contents.

The only clues to Krayer’s activities between the time he left home and his death were found in an automobile repair order of a Denton, Texas, garage, dated April 25, the day after his disappearance from home, and a ticket stub to a Denton movie theater also dated April 25. The repair order showed that he was charged $1.00 for the tightening of a bolt on the bumper of his car.

Krayer’s body was found in his automobile in a lonely wooded area near Phenix City, Alabama. The Alabama state toxicologist estimated that Krayer had been dead about seven days when discovered on May 8. His body was in a sitting position behind the steering wheel. His right hand lay on the seat. His left hand was resting on the lower inside circumference of the steering wheel, held up and away from the body by the wheel. The palm was toward the body. The fingers were bent, and slightly spread apart, somewhat as if the hand were lightly grasping a spherical object. In the space between the hand and the body lay the revolver, resting on the abdomen. The revolver was upside down, the stock almost touching Krayer’s belt buckle. The barrel pointed to the left. It is undisputed that Krayer was ambidexterous ; he wrote with his left hand.

In the seat beside the body lay billfold-size photographs of Krayer’s wife and children, his eyeglasses, and his wallet containing other items not necessary to list.

The key was in the ignition, the passenger door locked, and all the windows were rolled up. Other items found in the car included an almost empty half-pint bottle of whiskey, clothes on hangers, and a cocktail napkin with a girl’s name written on it. Krayer’s diamond wedding ring was found in the clothes hanging in the back seat, and his gold wrist watch was on his body.

The revolver found on the body was shown to have been the same gun purchased by Krayer two days before he disappeared. The nine-round magazine contained eight unfired hollow point cartridges and one that had been fired. A box of .22 caliber long rifle hollow point cartridges was found in the glove compartment of the car. Investigators could account for only 49 of the box of 50 cartridges, counting the nine found in the magazine of the gun.

■ The bullet entered Krayer’s skull at a point one inch behind his left eye, passed through his brain, and lodged just inside the right side of the skull in line with the top of his right ear. The bullet was badly mutilated, as — according to the toxicologist —hollow points generally are when they have penetrated flesh. The mutilation of the bullet made it impossible to determine whether the bullet had been fired by the gun found on the body.

There was no evidence of a struggle. Decomposition of the body made it impossible to take fingerprints anywhere inside the car. No footprints were found around the car. There was testimony that it had rained between the time of Krayer’s death and the time his body was discovered.

Respondent argues that suicide has not been established as a matter of law because the evidence reasonably supports the theory that Krayer was with a stranger, who robbed and killed him.

There is testimony by a neighbor that Krayer was in good spirits before he disappeared from home. Respondent argues that the Denton garage mechanic’s description of the man who had come in to have the bumper bolt tightened shows that someone other than Krayer was driving the car. Respondent established without dispute that Krayer was ordinarily not a drinking man and argues that the presence of the nearly empty whiskey bottle and the napkin with the girl’s name on it tend to show that another person had been in the car. The police report introduced into evidence by petitioner shows that Mrs. Krayer told the officer that he had $109.00 with him when he left home. Respondent argues that these facts taken together reasonably support the theory that Krayer fell in with a stranger who robbed and murdered him.

Even if it be conceded that the evidence tends to show another person had at some time been with Krayer, there is no evidence of this stranger’s presence at the time of death, or that such stranger shot Krayer. On this evidence the jury had to resort to pure fantasy and speculation in order to conclude homicide. Nor does the position of the revolver with the barrel pointing in the wrong direction add anything.

Respondent’s contention seems to be that this court must judicially know that Krayer’s hand would tighten its grip the moment the bullet entered the brain and that this would cause the gun to fall with the barrel pointing to the right rather than to the left. There is no testimony that the position of the gun was inconsistent with suicide. In fact, the Alabama state toxicologist testified that Krayer would not have died immediately but would have been made unconscious by the first impact of the bullet and would have relaxed, allowing the gun to fall free of his hand.

After reviewing the whole record and disregarding that part of petitioner’s evidence which is disputed by respondent, we are of the opinion that reasonable minds could not reach any other conclusion than that Krayer’s death was suicide.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

SMITH, WALKER and STEAKLEY, JJ., dissenting.

STEAKLEY, Justice

(dissenting).

I am unable to agree that the circumstances rule out any hypothesis except that the insured committed suicide, or are conclusive against the jury finding that he did not. True it may be that the more reasonable hypothesis is suicide, and that such is the preponderance of the evidence. But these are questions for jury decision, not ours.

The majority relies on Combined American Insurance Co. v. Blanton, Tex., 353 S.W.2d 847. In my view the facts here are considerably less supportive of the suicide hypothesis than in Blanton. But more to the point is that Blanton was a suit to recover for loss of life by accidental means and our holding was that “there is no evidence which would support a reasonable inference that Blanton’s death was caused by accidental means.” We distinguished United Fidelity Life Insurance Co. v. Adair (Tex.Com.App.), 29 S.W.2d 944, in which the Court refused to disturb a jury finding that the deceased did not commit suicide, by recognizing that in Adair the suit was on a life policy and there, as here, the insurer relied upon the defense of suicide; whereas, in Blanton “[s]mcide was not an affirmative defense. The negative of suicide was an element of Plaintiff's case.” The Court of Civil Appeals in the case at har recognized this distinction and followed Blanton, with which I agree, in disregarding the jury finding against suicide with respect to the phase of respondent’s suit seeking recovery for accidental death.

The facts here are considerably less supportive of suicide than in Grand Fraternity v. Melton, 102 Tex. 399, 117 S.W. 788, where, among other things, there were witnesses upon the scene after the pistol shot and before death, and there was actually no basis for any hypothesis except suicide. Nor am I able to reconcile the majority decision here with the judgment we left undisturbed in Great Southern Life Insurance Co. v. Watson, Tex.Civ.App., 343 S.W.2d 921, writ ref. n. r. e. The judgment was for both life and accidental death benefits. The deceased was found dead with a .22 pump rifle by his body. There were no eye witnesses. He had been shot twice. The only way two shots could have been fired was by working the pump lever mechanism of the rifle. One empty shell was found near the body and the other was in the rifle. It was argued by the insurer that it was beyond probability that the deceased accidentally shot himself twice. But there were other circumstances favorable to a non-suicidal death and a majority of the Court of Civil Appeals concluded that the judgment of the trial court should stand.

It was a difficult, perhaps impossible, burden in the case at bar for respondent to prove that the insured met his death from means other than suicide. It was an equally difficult, if not impossible, burden for petitioner to prove that the insured committed suicide. The law properly presumes against suicide.

The facts and circumstances are reviewed in the majority opinion. Disputes in the testimony are recognized. There are various matters of particular emphasis. Proof could not be made that the bullet which killed the deceased was fired from the gun found with him. The discovery of the badly decomposed body in a remote and isolated location seven days after death, during which time the automobile was closed and without air circulation, rendered many facts unavailable. The body in its state of decomposition could not show any evidence of a struggle. The taking of finger prints was not possible. Intervening rains prevented any evidence of foot prints or tire marks of another automobile. The circumstances suggested the possibility of the involvement of an unknown person, or persons. Persons committing foul play on the deceased could have done so either at the location of the automobile or elsewhere; if the latter, the deceased and his automobile could have been driven to the isolated location and the body and surrounding circumstances there contrived to give the appearance of suicide. The isolated location afforded ample time for the possible assailants to go far away.

Even granting that the foregoing is speculation, it must be recognized that what actually happened is necessarily in the field of speculation in the sense that we are compelled to reason and theorize about a matter which does not admit of direct proof or substantiation. We surely are not to say that the finding of a body in circumstances strongly indicative of suicide is always to be held conclusive. It is too well known that foul play can be made to appear as suicide and that accidents can so appear. We can go too far in supplanting fact findings of a jury with our strong beliefs about what actually occurred. I think the majority has done so here.

SMITH and WALKER, JJ., join in the dissent.


author: McDonald, Judge.

text:
    Jack Northrup CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 35530.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied May 1, 1963.

      No attorney on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, Judge.

The appellant was charged by indictment with the primary offense of burglary; two prior convictions were alleged for enhancement purposes under the provisions of Article 63, Vernon’s Ann.P.C. Upon the jury’s finding of guilty, he was sentenced by the court to life imprisonment in the penitentiary.

Amos Oakley, the manager and operator of a Someburger Stand, testified that he had the care and control over the Some-burger Stand, located at 3202 Morse Street, at the time of the unlawful entry. He testified that during the early morning hours of May 29, 1962, he was called to the Some-burger Stand at approximately 2:00 A.M., where several officers and the appellant were present. When he arrived, the hasp and lock that were on the back door had been pried loose from the wall. Mr. Oakley had not given the appellant or anyone else his consent and permission to enter the Some-burger Stand after it had been closed that evening.

Mr. Troy G. Jenkins, who was an employee of Mr. Oakley and worked at the Someburger Stand, said that he closed the stand at about 11:00 P.M. He said that there was only one door which was located at the rear of the stand, and that it was secured with a heavy-duty Yale lock which he locked before leaving the establishment. He described the Someburger Stand as being completely enclosed with a ceiling and roof. No money had been left in the cash register, and it was left open. This witness said that he had a bottle containing vitamins in a drawer where he kept some paper bags. The bottle of vitamins was missing.

Officer T. J. Smith, a detective in the burglary and theft division of the Houston, police department, testified to receiving a call to go to the Someburger Stand. At the time he received the call, he was approximately a mile from the stand. He and his partner arrived at the stand at midnight. His partner went to the front of the stand, and he went around to the rear. He noticed that the lock had been pried off; so he kicked the door open, walked in, and found the appellant down on the floor in a corner. The appellant had a long screwdriver in his hand at that time. The officer identified a bottle containing vitamin pills as being the one which he found in the shirt pocket of the appellant. The appellant, after being taken to the police station and after being duly and legally warned, made a voluntary statement in which he admitted breaking into the Someburger Stand and hunting for anything worth taking; that he found a bottle of vitamin pills in one of the cabinets and put it in his pocket; that about that time he heard someone coming and looked up and saw the officers who entered the stand and placed him under arrest.

The State introduced into evidence Exhibits Nos. 2 and 3 which were properly authenticated copies of the records of the Texas Department of Corrections of the sentences and judgments, photograph and fingerprints of the appellant relating to the offenses alleged for enhancement purposes. Expert testimony was employed to show that the known fingerprints of the appellant were identical to those received with the records from the Texas Department of Corrections.

The State introduced into evidence a copy of the indictment in Cause No. 83,507, which was the indictment upon which the appellant was convicted in the second prior alleged conviction used for enhancement purposes. The former offense of burglary was alleged to have been committed upon the 25th day of January, 1958. William K. Bondesen was the complaining witness.

Mr. William K. Bondesen was called as a witness and testified that he was president of the Kran Company on the 25th day of January, 1958, and that his place of business was broken into and burglarized on that date. He said that he was present in court and heard this appellant plead guilty to the offense of burglary committed on the 25th day of January, 1958.

The appellant did not testify in his own behalf and offered no other evidence.

There were no objections or exceptions to the court’s charge, and no requested charges were submitted to the court. No formal bills of exception have been brought forward with the record. No brief has been filed in appellant’s behalf.

We find the evidence amply sufficient to support the jury’s verdict.

Prior to trial, the appellant filed a written motion for continuance, alleging that Mr. Frank Mabry had been appointed as an attorney to represent him but that he had acquired enough money to hire counsel of his choice. He alleged he had hired Mr. John Knoff, on the date of the trial, who had not had sufficient time to familiarize himself with the facts of the case. The motion was by the court overruled, to which the appellant excepted. No error is shown, however, for the reason that both attorneys, Mr. Frank Mabry and Mr. John Knoff, participated actively in the trial of the case as it appears from the record. Furthermore, the record does not show how the appellant was in any way injured by the denial of the continuance. Gordon v. State, 161 Tex.Cr.R. 594, 280 S.W.2d 267, 269.

None of the informal bills of exception appearing in the statement of facts merits discussion.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    William E. WARDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 35517.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Rehearing Denied May 1, 1963.

      Will Hadden, Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary of a house at night, with a prior conviction for an offense of like character alleged for the purpose of enhancement; the punishment, twelve years.

The state’s evidence shows that on the date alleged the appellant entered a house in the city of Odessa, owned by Irma King, without her consent, and did fraudulently take certain corporeal property therefrom.

It was shown that on said date two entries were made by appellant into the house. The first entry was around 11:30 o’clock, a. m., when he and two young boys entered the house through a window after removing a screen and opening the window. When inside the house the three piled some clothes on the floor, then pulled down the window, unlocked the back door, unlatched the screen, and left. Later that night appellant and one of the boys returned, around 9 :30 o’clock, and entered the house by opening the back screen and door which they had unlocked. On this occasion they removed from the house certain items of personal clothing in two of the victim’s suitcases.

In proving the prior alleged conviction, the state introduced in evidence as state’s exhibits 1, 2, and 3, certified copies of the indictment, judgment, and sentence in cause #5885, styled The State of Texas vs. William Warden, on the docket of the District Court of Coryell County, which showed that on January 21, 1957, the defendant therein was convicted in said court of the offense of burglary and assessed punishment of confinement in the penitentiary for five years. The state also introduced in evidence as state’s exhibits 4, 5, and 6, and 7, certain authenticated copies of the original records of the Texas Prison System, which were duly certified to by J. C. Roberts, record clerk of the Texas Department of Corrections. Such authenticated records included copies of the judgment and sentence in said cause #5885 on the docket of the District Court of Coryell County, and copies of certain photographs and fingerprints from the original records of William Edward Warden, Convict No. 140217, a person committed to the Texas Department of Corrections.

Officer Byron Hawthorne, superintendent of the Bureau of Identification and Records of the Odessa Police Department, whose qualification as a fingerprint expert was shown, testified that he took appellant’s fingerprints — which prints were introduced in evidence by the state as exhibit #9 — and that he had compared the prints with the fingerprints in the prison records. He further stated that in his opinion the two sets of fingerprints were identical and came from the same person.

Appellant did not testify or call any witnesses in his behalf.

Appellant’s first contention on appeal is that the evidence is insufficient to sustain his conviction for nighttime burglary. He insists that the proof fails to show a breaking and entry into the house at night but, at the most, shows a breaking and entry in the daytime with intent to commit theft, which theft continued into the night.

While the proof does show a breaking and entry in the daytime, it also shows an entry into the house at night. When appellant, after entering the house during the day, returned that night and entered by opening the back door, which was closed, he committed the offense of burglary at night. An actual breaking is not essential to a conviction for nighttime burglary. Proof of entry by means of force, threats, or fraud is sufficient. Thomas v. State, Tex.Cr.App., 353 S.W.2d 463. The entry into a house through a door that is closed is an entry by force and sufficient to constitute burglary. Jones v. State, 60 Tex.Cr.R. 426, 132 S.W. 476; Matelski v. State, 126 Tex.Cr.R. 217, 71 S.W.2d 272; Haigh v. State, 151 Tex.Cr.R. 189, 205 S.W.2d 992; Thomas v. State, supra.

The evidence of appellant’s entry into the house during the daytime was admissible to show his motive and intent, which was made an issue in the case, in returning to the house that night and was also admissible as a part of the res gestae of the transaction and burglary committed upon his second entry into the house. 10 Tex.Jur.2d 270, Sec. 102; Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; and McPherson v. State, 79 Tex.Cr.R. 93, 182 S.W. 1114.

We overrule appellant’s contention that the evidence is insufficient to authorize enhancement of his punishment because the indictment charged a prior conviction in the District Court of Coryell County for “burglary at night” and the evidence adduced showed a conviction in the court for “burglary.” Appellant insists that this constituted a fatal variance between the pleading and the proof. With such contention we cannot agree. Whether the prior conviction was for “burglary” or “nighttime burglary,” either is of like character to the present offense of burglary charged in the indictment. It is not necessary to allege the prior conviction with the same particularity as must be used in charging the original offense. Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76. In Farris v. State, 155 Tex.Cr.R. 261, 233 S.W.2d 856, it was pointed out that the allegation of a prior conviction is only the recitation of an historical fact for the purpose of enhancement of the penalty and not for a trial thereof. In Covarrubias v. State, 169 Tex.Cr.R. 288, 334 S.W.2d 187, this court upheld a conviction for burglary with punishment enhanced under an indictment alleging a prior conviction for “burglary with intent to commit theft,” upon proof showing a prior conviction for “burglary.”

Appellant’s remaining contention is that the court erred in admitting in evidence the duly authenticated copies of the records of the Texas Department of Corrections when offered by the state in making proof of appellant’s prior alleged conviction, over his objection that the same were hearsay, that the exhibits had not been delivered to him prior to the time of trial, that the same were copies of copies and not of the originals, and that it was not shown that such records were made and kept by J. C. Roberts in the performance of his office and employment as record clerk of the Texas Department of Corrections.

We shall not discuss appellant’s objections to the admission of the records in evidence, as this manner of proof of a prior conviction of an accused has been many times •approved by this court. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182; Rhodes v. State, 164 Tex.Cr.R. 407, 299 S.W.2d 153; Spencer v. State, 164 Tex. Cr.R. 464, 300 S.W.2d 950; Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154; Stockwell v. State, 166 Tex.Cr.R. 577, 316 S.W.2d 742; Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80, cert. den., 361 U.S. 849, 80 S.Ct. 107, 4 L.Ed.2d 88; Mullican v. State, 167 Tex.Cr.R. 563, 322 S.W.2d 284; Gutierrez v. State, 168 Tex.Cr.R. 378, 327 S.W.2d 758; McCown v. State, Tex.Cr. App., 338 S.W.2d 732, cert. den., 368 U.S. 856, 82 S.Ct. 96, 7 L.Ed.2d 54; Self v. State, Tex.Cr.App., 346 S.W.2d 850.

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

Opinion approved by the Court


author: WOODLEY, Presiding Judge.

text:
    Charles Edward HARPER, Appellant, v. The STATE of Texas, Appellee.
    No. 35656.
    Court of Criminal Appeals of Texas.
    April 17, 1963.
    No attorney on appeal.
    Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, 10 years.

No notice of appeal appears to have been given in open court and entered of record.

The instrument filed with the Clerk of the trial court reciting that notice of appeal was given is insufficient under our holding in Anderson v. State, 165 Tex.Cr.R. 525, 309 S.W.2d 239.

Under the record we are without jurisdiction to entertain the appeal.

The appeal is dismissed.


author: POPE, Justice.

text:
    The HAVERFIELD COMPANY, Appellant, v. Morris L. SIEGEL, Individually and d/b/a Siegel’s, Appellee.
    No. 14067.
    Court of Civil Appeals of Texas. San Antonio.
    March 13, 1963.
    Rehearing Denied April 10, 1963.
    Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellant.
    Peter Michael Curry, Herbert M. Schen-ker, San Antonio, for appellee.
   POPE, Justice.

The Haverfield Company, lessee, sued Morris Siegel, individually and d/b/a Siegel’s, to recover trade fixtures. It has appealed from a judgment which held that all the items belong to lessor by the terms of the written lease and also by annexation.

The items in dispute are eight millinery wall cases, four mirrors which are constructed around a column in the building, carpeting, two fitting tables, four millinery tables, and three double try-on tables. The parties made their lease on December 18, 1947. It was to begin on July 1, 1948, for a five-year term. They later extended the term, and finally mutually terminated the lease on July 16, 1960. Lessee occupied the premises for a little more than twelve years. Lessor contends that the lease agreement provided a method by which he would pay for all items over a period of ten years, which he has done, and that all articles in suit now belong to him. The trial court upheld this contention.

The building which lessee occupied was under construction at the time the parties executed the lease. They attached a scale drawing to the lease which showed the portion of the building which lessee would occupy, and the detailed arrangement of the area. The drawing showed that eight wall cases would he located in the lease area. They would be arranged in a semi-circle at one end of the second floor. A door would be hung between the fifth and sixth wall cases. The eight wall cases were specially constructed for the building, and the building was constructed to accommodate the fixtures. A plaster curtain wall was constructed from the ceiling to a point about two inches above the circle of cases. Wall cases of a similar design and arrangement would also be erected for all the other departments on the second floor. So arranged, the cases served as a partition wall between the sales area and fitting rooms, stock rooms and lounges, which were located behind the cases. The floor covering for the entire second floor was in one piece. It covered not only the area leased by Haverfield, but also three other large sales areas. The building was supported by columns, one of which was located in the center of the area leased to Haverfield. Four mirrors were built around the column. The tables also appeared on the drawing and they were located in the area around the column. They could be picked up and carried away, as they were not attached to anything. The lease provision which required construction is:

“9. The Lessee shall install fixtures and floor covering at its own expense as sketched on the fixture plan attached hereto. The Lessee shall also furnish its own display fixtures, both for the millinery department and millinery window display. Upon the termination of this lease, whether by lapse of time or for any other cause, the Lessor agrees to pay to the Lessee for such fixtures and floor covering, the difference between the cost to the Lessee of such fixtures and floor covering less depreciation computed at the rate of ten per cent (10%) per annum. Upon such payment the fixtures and floor covering, excepting trade fixtures, shall become the property of the Lessor and nothing shall be removed that will mar, damage or change the fixtures.”

The intention of the parties is expressed and governed by the lease agreement. Rogers v. Ft. Worth Poultry & Eggs Co., Tex.Civ.App., 185 S.W.2d 165; 22 Am. Jur., Fixtures, § 141. The quoted lease provision mentions three different kinds of fixtures, about which the parties contracted. Sentence one mentions “fixtures and floor covering * * * as sketched on the fixture plan attached hereto.” Sentence two mentions “display fixtures,” which are not involved in this suit. The last sentence again mentions fixtures and floor covering, but adds the phrase, “excepting trade fixtures.” To give all the words of the lease consistency and meaning, trade fixtures must mean something different from the other items mentioned in the same sentence, both of which were within the contemplation of the contracting parties. A similar phraseology is found in the lease construed in White v. Cadwallader & Company, Tex. Civ.App., 299 S.W.2d 189, 190.

The wall cases throughout the second floor were constructed to serve as walls. The column in the Haverfield lease area was permanently enclosed with mirrors, and the floor covering could be removed only by cutting the one-piece rug. These items were grouped as one class, and the others, not attached to anything, constituted another class. The parties contemplated that those items which were a part of the permanent construction, together with the floor covering, were the items termed “fixtures and floor covering” in the lease. They were the items which the lease permitted lessor to buy “upon the termination” of the lease, which he did. Contrasted with those built-in items were the two fitting tables, four millinery tables, and the three try-on tables, which were actually pieces of movable furniture which could be placed or moved anywhere. Those were the items which the parties called trade fixtures. They were articles which were excepted from the provision that the lessor would acquire by purchase. To move them would not mar, damage or change the fixtures. They belong to lessee.

No point is made on appeal, but the trial court awarded small sums to lessee for lessor’s right to keep the millinery tables, fitting tables, and try-on tables. Since we hold that those items belong to lessee, the $41.00 which the court found that lessor owed lessee for those items is remitted.

The judgment is affirmed in part and reversed and rendered in part. The tables, itemized above as trade fixtures, belong to lessee. The other items belong to lessor. Since lessee has prosecuted the appeal with effect, costs are adjudged against lessor.


author: DENTON, Chief Justice.

text:
    Jeff GRAHAM et al., Appellants, v. Dillard C. MORRIS et al., Appellees.
    No. 7239.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1963.
    Rehearing Denied April 22, 1963.

      Cade & Bowlin, Lubbock, for appellants.
    Huff & Bowers, Lubbock, for appellees.
   DENTON, Chief Justice.

This is a suit for property damage and personal injuries which arose out of a collision between a truck owned by Jeff Graham and being driven by his employee, Luther Bourns, and a tractor-drawn cotton trailer owned by Dillard C. Morris and being operated by his son, Jerry Morris. Upon a jury verdict judgment was rendered for plaintiffs, and defendants have perfected this appeal.

Jerry Morris was driving the tractor with an attached cotton stripper pulling a cotton trailer in a southeasterly direction on the highway between Post and Slaton in Garza County, Texas. The front wheels of the tractor were at the edge of the righthand lane of pavement, leaving the left rear wheels of the tractor and the trailer some three to four feet on the paved highway. The right wheels of the tractor and trailer were approximately the same distance off the pavement onto the shoulder. Appellant’s truck was proceeding in the same direction in the righthand lane when it collided into the rear of the trailer.

The jury found Jerry Morris suffered personal injuries in the amount of $42,-500.00; past and future medical and doctors’ expenses to be $2,787.45; and the damages to the trailer, cotton stripper and tractor to be $3,662.45. The jury further found appellant’s truck driver was negligent in driving at an excessive rate of speed; in failing to keep a proper look out; in failing to keep his vehicle under proper control; in failing to turn to the left in order to avoid the collision; in failing to sound his horn or give other warnings; and that he was not acting in an emergency. Each of the above acts of negligence was found to he a proximate cause of the collision. In response to several special issues, the jury found Jerry Morris had committed no act of contributory negligence, and that his injuries were not the result of an unavoidable accident. In accordance with the findings of the jury, the court entered judgment against the defendants in the amounts set out above.

Appellants’ first four points of error deal with the refusal of the trial court to allow the appellants to file a trial amendment, and his refusal to give special requested issues and instructions in connection therewith. The trial amendment alleged the plaintiff below was operating a trailer twenty feet long and that a trailer of such length was a violation of the law and, as such, was negligence per se. In support of their position, appellants rely on the provisions of Article 6701d, Section 106, Vernon’s Ann.Civ.St. This section of 'the article pertains to the limitations of trailers being driven upon the highway. This section prohibits the drawing or having attached to a motor vehicle more than one vehicle, such as a trailer, semi-trailer or pole trailer, and then continues, “provided, however, that there may be attached to motor vehicles used exclusively in the actual harvesting of perishable fresh fruits and vegetables not to exceed two (2) trailers under the following conditions: (5) No one harvesting trailer shall exceed seventeen (17) feet, nine (9) inches in length, nor shall any combination of two (2) trailers and motor vehicle, as provided herein, exceed fifty-five (55) feet over-all length.” Appellants’ contention that the above statute is applicable here is based on the following: 1. The trailer of appellees was admittedly twenty feet long; 2. The trailer was used for the purposes of hauling seed cotton from the field to the gin; and 3. That cotton is a vegetable. Appellants have cited no case and we have found none which holds that cotton is a vegetable. Although we are aware of the fact modern scientific research has found uses of cotton seed by-products as ingredients in edible food stuffs, we are not prepared to hold seed cotton in its original state is a vegetable. We are impressed with counsels’ ingenuity, hut we find no legal basis upon which to support this contention.

Appellants next contend the trial court erred in overruling its motion for pre-emptory instruction. This motion was based on the ground the appellant’s truck driver was confronted with an emergency as a matter of law, and that appellee’s trailer was in violation of Article 6701d, Section 106, as mentioned above. We think our discussion above adequately disposes of the second ground for the motion for pre-emptory instruction. Appellant contends the emergency facing the truck driver was an approaching automobile from the opposite direction which prevented his turning left to avoid the tractor-trailer. To sustain this position we must hold there is no evidence to the contrary. The record does not support such a conclusion. This defense of emergency is available only so long as such condition was not created by such party’s own negligence. Beck v. Browning, 129 Tex. 7, 101 S.W.2d 545. Sam v. Sullivan, (Tex.Civ.App.), 189 S.W. 2d 69. Booker v. Baker, (Tex.Civ.App.) 306 S.W.2d 767, (Refused, NRE).

Appellants pleaded that the emergency arose due to the oncoming automobile, and an issue on emergency was submitted to the jury along with an approved definition. The jury answered this issue in the negative, and we are of the opinion there was ample evidence to support this finding. Several witnesses, including the driver of the oncoming car, placed this car from one-fourth to one-half mile from the point of the collision. The jury’s finding that the appellant’s truck driver was not confronted with an emergency was consistent with their other findings that his negligent acts were the proximate cause of the collision. Appellants’ fifth point of error is overruled.

In submitting special issues concerning various alleged acts of the appellant’s truck driver, the trial court used the phrase “at the time and on the occasion of the collision in question”. Appellants take the position the issues as worded constitutes a comment on the weight of the evidence. In connection with appellants’ defensive issue of emergency, the argument is that in as much as the issues directed the jury to the acts of appellant “at the time” of the collision it had the effect of precluding the jury from considering his conduct prior to the time he got into the perilous situation. First, we do not think the phrase complained of has such a connotation. The phrase is broad enough to include the time leading up to the collision in question. To interpret it otherwise would constitute a technical and strained construction. It is further noted the defense of emergency is available only if the party claiming it did not create the condition by his own acts of negligence. Beck v. Browning, Supra. The jury found that several acts of the appellant’s truck driver were negligent and the proximate cause of the collision. These findings were consistent with the finding appellant was not acting in an emergency “just before and at the time of the collision”. This quoted language of the emergency issue itself is consistent with our holding. Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386. This case also approved an almost identical definition of “emergency” as was used in the case at bar. Appellants’ points of error six through ten are accordingly overruled.

Among the several definitions and instructions given to the jury, the trial court instructed them relative to the necessity of a motor vehicle being equipped with a horn. This instruction was in the language of Article 6701d, Section 133(a), Vernon’s Ann.Civ.St. An issue was submitted concerning the failure, if any, of the appellant to use his horn. Although the issue was raised by the pleadings, appellant contends the instruction was a comment on the weight of the evidence. Rule 277, Texas Rules of Civil Procedure, authorizes the trial court to submit such explanatory instructions and definitions as shall be necessary to enable the jury to properly pass on special issues. In our opinion the instruction was not subject to appellant’s objection. However, it would not have been error if the instruction had been omitted. Assuming such instruction was improper, the error would be harmless. Independent of this instruction and the special issue in connection therewith, the jury’s findings included negligence on the part of the appellant on other grounds that proximately caused the collision complained of. These later findings could not have been influenced by the instruction. We, therefore, think no prejudice to the rights of the appellant is shown. Dallas Railway & Terminal Co. v. Orr, (Tex.Civ.App.), 210 S.W.2d 863, (Affirmed by the Supreme Court in 147 Tex. 383, 215 S.W.2d 862). However, this question was not discussed. Texas & Pac. Ry. Co. v. Duncan, (Tex.Civ.App.), 193 S.W.2d 431. Coca-Cola Bottling Co. v. Krueger, (Tex. Civ.App.), 239 S.W.2d 669. Rule 434, T.R. C.P.

Appellant next charges appel-lees’ counsel with improper jury argument. The complete arguments are not in the record, but only the portions complained of are set out in the three bills of exception. From them it can be determined the argument was a reference to the appellant’s truck driver’s statements he made to witnesses at the scene and a reference to argument made by appellant’s counsel concerning the manner appellee was driving the tractor along the highway. The burden is on the complaining party to show the improper argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596. Stephens v. Mendenhall, (Tex.Civ.App.), 287 S.W.2d 259, (Refused, NRE). King v. Miller, (Tex.Civ.App.), 280 S.W.2d 331, (Refused, NRE). It is well established that in order for an argument to present reversible error the argument must not only be improper, but such argument must be calculated to cause and probably did cause the rendition of an improper judgment. Ault-man v. Dallas Railway & Terminal Co., supra. Most of the cases relied on by appellant were announced prior to the Ault-man case which materially changed the burden required in these cases.

The most questionable argument is as follows:

“It hasn’t been but ten minutes ago you heard what he said about pulling a trailer on there. Whatever it is that’s what it is. I can’t change it. Jerry Morris had just as much right on that highway as Jeff Graham’s biggest truck, or the biggest trucking outfit in the world, because he happened to be a farmer doesn’t mean you have to get down there in the bar-ditch like that truck triver said you should. You red blooded tax paying citizens have got just as much right to use that highway as anybody. You don’t even have to get four feet off of it. You are not violating the law when you get out here on the highway that your tax dollars have built. Driving in the broad daylight. Working and making an honest dollar.
“MR. CADE: Your Honor, we object and except to those remarks. They are highly inflammatory and prejudicial, and not in answer to any argument I made because I made no such contention, and we move the Court to instruct the jury not to consider those remarks.”

When this and the other arguments complained of are considered with the record as whole, we cannot say they are sufficient to constitute reversible error. In our opinion the arguments were not of such a nature as to influence the jury to return a verdict it would not have otherwise returned.

Appellants next urge that the verdict is excessive. The jury awarded $42,500.00 damages to Jerry Morris for personal injuries in addition to $2,500.00 for future medical and hospital expenses. No attack is made on the damages awarded for the tractor, cotton stripper and trailer. In deciding this question, it must be determined whether the award is fair and reasonable under the facts of the case. Where this court determines a jury verdict is excessive, Rule 440, T.R.C.P., authorizes us to require a remittitur to reduce the verdict to reasonable compensation for the injuries actually suffered.

Jerry Morris received his injuries on November 17, 1960, when he was twenty years of age. He was hospitalized for a period of three days immediately following the collision. When the case was tried in March of 1962, he had been examined and treated by two doctors and had been examined by a third doctor. These three doctors testified at the trial, and as is so often the case, their testimony was in conflict in several respects. All agreed an injury had been sustained to Jerry Morris’ back but the degree of injury was the primary dispute. Doctors Tubbs and Tull called by appellees found a dislocated vertebra that had slipped forward, causing a curvature of the spme to the extent that the vertebrae may become fused in the future. On the other hand, Doctor Loveless, who testified for the appellants, stated that in June of 1961, he found muscle spasm in Morris’ back. He described the injury as a back sprain, and testified it was not of a permanent nature. Aside from the medical testimony, there was other testimony offered. After the family doctor had treated Morris for approximately three months, he was advised he could go back to work. He then continued to drive a tractor and to perform general farm duties. This same type of work was performed up to the time of the trial. There is no evidence that his earning capacity has been materially impaired. During the interval between the time of the collision and the trial, Morris had married and had cultivated a cotton crop of his own in 1961. Some witnesses testified of a marked difference in the manner Morris was able to work and carry himself after the accident. Other witnesses testified they detected no difference. Two co-workers testified he had made no complaint to them.

It is apparent Jerry Morris received a severe blow when his tractor and trailer were struck from the rear and thrown several feet into the bar ditch. He obviously received an injury to his back that has been and will continue to be painful, but when this whole record is considered, we are convinced the jury’s finding was excessive. After considering all of the evidence, we are of the opinion that the award in answer to special issue twenty-four is excessive by the sum of $20,500.00.

In answering special issue twenty-three, the jury found the medical and hospital bills incurred since Jerry Morris reached his twenty-first birthday on June 21, 1961, and all such future bills which would reasonably be incurred amounted to $2,500.-00. The record shows the sum of $134.00 has been charged for medical and hospital expenses from the 21st day of June, 1961, up to the date of the trial. The only evidence offered on the question of future medical expenses was from Doctor Tull to-the effect expensive drugs may be required and “Oh, he could easily take a hundred dollars a month. Of course, he could take much more.” This is very indefinite and the conclusion is not supported by the history of the case for the sixteen months immediately after the injury had been sustained-We therefore conclude this award was excessive by the sum of $1,500.00.

Therefore, because of such excessive awards, this Court is under a duty to reverse and remand this case unless appellee, Jerry Morris, files a remittitur in the total amount of $22,000.00 within fourteen (14) days after the date of this opinion. In the event such remittitur is filed, the judgment of the trial court will be reformed and affirmed to conform with the holding stated in this opinion.

On March 29, 1963, appellee, Jerry Morris, filed a remittitur of $22,000.00 in compliance with the suggestion of remittitur by this Court’s decision of March 18, 1963. The judgment of the trial court will be reduced by the amount of such remittitur, and as so modified, the judgment of the trial court is affirmed.

Affirmed.


author: DAVIS, Justice.

text:
    O. B. CRUMPLER et ux., Appellants, v. BAY PETROLEUM CORPORATION et al., Appellees.
    No. 7460.
    Court of Civil Appeals of Texas. Texarkana.
    April 2, 1963.

      Ned A. Whitt, Cain & Cain, Liberty, for appellants.
    Ralph S. Carrigan, Baker, Botts, Shepherd & Coates, Houston, for appellees.
   DAVIS, Justice.

The opinion handed down on March 5, 1963, is withdrawn and the following is substituted in lieu thereof.

Plaintiffs-appellants, O. B. Crumpler and wife, 'Gladys Crumpler, sued defendant-ap-pellee, Tennessee Gas Transmission Corporation and several others. Appellee, Tennessee Gas, stipulated that, regardless of the exact ownership of the land or the varying corporate structure of its subsidiaries, and for the purpose of this action, the defendant-appellee might be considered to be Tennessee Gas Transmission Company. Appellants were seeking to perpetually enjoin and restrain appellee from permitting noxious odors and gases to escape from their premises onto appellants’ premises, and for damages sustained by appellants to their persons and property. In the alternative, they prayed that appellee be compelled to correct the nuisance created by its operation.

In a trial before a jury, it made the following findings in response to Special Issues submitted:

“SPECIAL ISSUE NO. 1.
“Do you find from a preponderance of the evidence, that gases, odors, fumes or stenches escaping solely from the operations of the defendant, Tennessee Gas Transmission Corporation, have, in substantial quantities, been carried by the wind onto the property of the plaintiffs, O. B. Crumpler? (Emp. added).
“Answer ‘Yes’ or ‘No’.
“ANSWER: No.
* * * * * *
“SPECIAL ISSUE NO. 6.
“Do you find from a preponderance of the evidence, that the gases, odors, fumes, or stenches, if any, escaping solely from the operations of the defendant, Tennessee Gas Transmission Corporation, naturally and proximately caused injury and damages to plaintiffs’ real estate and building in such a manner as to cause substantial depreciation in the value thereof ?
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 7.
“What do you find from a preponderance of the evidence, is the depreciation in the reasonable market value of plaintiff’s property, if any, caused by gases, odors, fumes, or stenches escaping solely from the operations of the defendant, Tennessee Gas Transmission Corporation?
“Answer by stating the amount in dollars and cents, if any.
“ANSWER: $5,500.00
“SPECIAL ISSUE NO. 8.
“What do you find from a preponderance of the evidence, to be the reasonable value of the home house of plaintiffs to them, after it was moved to its present location and before any additional improvements had been made thereupon ?
“Answer by stating the amount in dollars and cents, if any.
“ANSWER: ‘$3,000.00
“SPECIAL ISSUE NO. 9.
“Do you find from a preponderance of the evidence, that the gases, odors, fumes, or stenches, if any, escaping solely from the operations of the defendant, Tennessee Gas Transmission Corporation, naturally and proximately caused material personal discomfort and impairment of health to the plaintiffs from the time such condition, if any, began to the date of this trial ?
“Answer ‘Yes’ or ‘No’.
“ANSWER: No.
******
“SPECIAL ISSUE NO. 11.
“Do you find from a preponderance of the evidence, that a reasonable person of ordinary sensibilities, tastes and habits living in the locality in question, would have moved his house from the locality in question solely because of the condition of nuisance, if any you have found ? (Emphasis added)
“Answer: ‘Yes’ or ‘No’.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 12.
“Do you find from a preponderance of the evidence, that the condition of nuisance, if any you have found, was the proximate cause of any damage to plaintiffs’ house in question? (Emphasis added).
“Answer ‘Yes’ or ‘No.’
“ANSWER: No.
“SPECIAL ISSUE NO. 13.
“What do you find from a preponderance of the evidence, is the difference, if any, caused solely by the condition of nuisance, if any you have found, between the reasonable market value of plaintiffs’ house immediately before the condition of nuisance, if any, began and the reasonable market value of plaintiffs’ house at its present location, but not considering any improvements made to said house at its present location? (Emphasis added).
“Answer in dollars and cents, if any,
“ANSWER: $10,000.00
“SPECIAL ISSUE NO. 14.
“Do you find from a preponderance of the evidence that the gases, odors, fumes, or stenches of which the plaintiffs complained after September, 1956, were not caused solely by industrial and petroleum installations other than that of Tennessee Gas or its subsidiaries?
“Answer: ‘They were caused solely by industrial and petroleum installations •other than Tennessee Gas’,
or
“ ‘They were not caused solely by industrial and petroleum installations other than Tennessee Gas.’
“ANSWER: They were not caused solely by industrial and petroleum installation other than Tennessee Gas.”

Appellants have perfected their appeal and bring forward two points of error. By their point One, they complain of the action ■of the trial court in failing to disregard the answer of the jury to Issue No. 1, and to ■enter judgment in their favor. By their point 2, they take the position that the answers of the jury to the special issues are in irreconcilable conflict. They base their ■contention on point one upon the following authorities: Brewster v. City of Forney, (Tex.Com.App.), 223 S.W. 175; Gulf Oil Corporation v. Vestal, 231 S.W.2d 523, aff’d, 149 Tex. 487, 235 S.W.2d 440; Dworkin v. Town of Lakeview, (Tex.Civ.App.), 327 S.W.2d 351, W/R., N.R.E.; Lamesa Cooperative Gin v. Peltier, (Tex.Civ.App.) 342 S.W.2d 613, W/R., N.R.E., and 31 T.J. 419, Sec. 9. The authorities are not in point. Point One is overruled.

The answers of the jury are in irreconcilable conflict. By Special Issue One the jury found that gases, odors, fumes or stenches had not been carried by the wind onto the property of the plaintiffs in substantial quantities. In answer to Special Issue No. Six, the jury found that gas, fumes, odors or stenches had naturally and proximately caused injury to plaintiffs’ real estate and buildings. In answer to Special Issue No. Eleven, the jury found that persons of ordinary sensibility, taste and habits living in the locality in question would have moved their house from the locality. In answer to Special Issue No. Fourteen, the jury found that the gases, odors, fumes or stenches were not caused solely by industrial and petroleum installations other than those of appellee. The jury also found that the gases, odors, fumes or stenches had caused injuries and damages to the real estate and buildings to the extent of $15,500.00.

The gases, odors, fumes or stenches had to be in substantial quantities upon appellants’ property to do the damages and cause the injuries as found by the jury. There is an irreconcilable conflict between the jury findings to Special Issue No. 1 and the other Special Issues. If the trial court should follow the answer of the jury to Special Issue No. 1 and disregard the other jury findings, he must enter a judgment for the appellee. If the trial court should disregard the finding of the jury to Special Issue No. 1 and follow the answers of the jury to the other Special Issues he would have to enter a judgment for the appellants for $15,500.00. There is no way for the trial 'court to enter a judgment without disregarding certain fact issues that were found by the jury in favor of both the appellants and the appellee. For this reason, it becomes the duty of this court to reverse the judgment of the trial court and remand the cause for a new trial. 41B T.J. 794, Sec. 580; Speers Special Issues, Secs. 431 and 434; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985; Fort Worth & Denver Railway Company v. Britton, (Tex.Civ.App.) 310 S.W.2d 654, W/R, N.R.E.; 89 C.J.S. Trial § 562, p. 323. Point 2 is sustained.

The Special Issues were not properly submitted. There should have been an issue submitted as to whether or not the appellee permitted gases, odors, fumes and/or stenches to escape from its industrial and petroleum installations. In some of the Special Issues, the trial court referred to the word “nuisance” as an issue of fact. This is improper. It is the doing, or not doing, the things that constitutes a nuisance. The jury must make findings of fact that constitute a nuisance. A nuisance is a question of law. In Lamesa Cooperative Gin v. Peltier, (Tex.Civ.App.), 342 S.W.2d 613, W/R, N.R.E, the court held:

“ * * * The court did not submit an issue inquiring whether the business as operated was a nuisance. The court held it was only necessary for the jury to determine the facts from which the court might conclude as a matter of law that they did, or did not, constitute a nuisance. The court held that the findings of fact constituted a sufficient basis for the court’s conclusion that defendant’s operation constituted a nuisance.”

See authorities cited therein.

Much has been written on the question of nuisance. The following authorities seem to be in point to the case at bar: King v. Columbian Carbon Co, 5 Cir, 152 F.2d 636; Burditt v. Swenson, 17 Tex. 489; Bowie Sewerage Co. v. Chandler (Tex.Civ. App.) 138 S.W.2d 585, err. dism’d, judg. cor.; Brewster v. City of Forney (Tex. Com.App.) 223 S.W. 175; 31 Tex.Juris. 462, Sec. 46; 66 C.J.S. Nuisances § 9a(2) and 2b, p. 747 ; 39 Am.Juris. 340 and 341, Secs. 58,59; 39 Am.Juris. 408, Sec. 145; 66 C.J.S. Nuisances § 82, pp. 837, 838; 66 C.J.S. Nuisances § 170, p. 974.

Upon another trial, there should be appropriate special issues submitted conforming to the pleadings and evidence in the case. The judgment of the trial court is ■reversed and the cause is remanded. The appellants and the appellee will have 15 days from the date hereof to file a motion for rehearing.

CHADICK, C. J., was legally disqualified and did not participate.