author: J. MORGAN DONELSON, Special' Judge.

text:
    Nellie FUERST, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Howard P. Mullins, and Graybar Electric Company, a Corporation, Defendants, St. Louis Public Service Company, a Corporation, Appellant.
    No. 31150.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 25, 1963.

      Don R. Williams, St.Louis, for appellant.
    Gregg Wm. Keegan, St. Louis, John E. Bardgett, Clayton, for respondent.
   J. MORGAN DONELSON, Special' Judge.

Nellie Fuerst brought suit against the St. Louis Public Service Company, Howard P. Mullins, and Graybar Electric Company, for personal injuries resulting from an intersectional collision on December 29, 1960, in the City of St. Louis, Missouri. Plaintiff was a passenger aboard a westbound motorbus operated by defendant St. Louis Public Service Company on Arsenal Street, which runs in an east-west direction. Defendant Mullins was employed by and was driving a northbound automobile, on company business for defendant Graybar Electric Company, on Louisiana Avenue, which runs in a north-south direction. On trial after verdict a judgment was rendered for plaintiff in the sum of $4,500 against defendant St. Louis Public Service Company. The jury found for the other two defendants and against plaintiff. No appeal was taken by plaintiff, but in due time defendant St. Louis Public Service Company, hereinafter referred to as Service Company, perfected its appeal.

Plaintiff’s petition for damages pleaded primary negligence and humanitarian negligence, but she submitted her case on only one ground of negligence, that of failure to keep a proper lookout. Defendants, except for some formal matters, which were admitted, separately answered with general denials. No contributory negligence, ordinance or violation thereof concerning any stop sign, street, or right of way, was pleaded in defense by any of the defendants, including Service Company. No affirmative defenses were raised in any of the pleadings.

Evidence presented at the trial justifies the following statement of facts necessary for an understanding of this case and its disposition herein:

There were stop signs which regulated north-south traffic on Louisiana Avenue at the intersection with Arsenal Street. There were no traffic controls on Arsenal Street. The bus was westbound in the traffic lane next to the middle line of Arsenal Street, which is 36 feet wide. A bus stop or zone was located on Arsenal Street across the intersection of Louisiana Avenue and Arsenal Street. Approximately 25 feet east of the east curb line of Louisiana Avenue, the bus started to pull or veer to the right to cross the intersection to the bus zone when the collision occurred. The right front corner of the bus collided in the intersection with the last two feet on the right side of the automobile.

The evidence was in conflict as to whether or not defendant Mullins stopped for a stop sign for northbound Louisiana Avenue traffic at Arsenal Street before entering the intersection. Defendant Mullins said he stopped, but two other witnesses said he did not. There was also conflicting evidence as to distances, speeds, and stopping distances involved.

The evidence presented by plaintiff supports her submission to the jury on the issue of negligence for failure to keep a proper lookout, and that said negligence resulted in injury to plaintiff. These issues are not contested here, and a detailed account of the evidence relative to these issues is not necessary.

During the defense of the case by Service Company, it offered Article V, Sections 33 and 35, of Ordinance No. 46687 of the City of St. Louis, which deal with stop signs, the duty of drivers to obey said signs and to yield the right of way. Counsel for co-defendants objected to its introduction on the grounds that the ordinance was not pleaded and that there was no cross-claim against co-defendants. The trial court sustained the objection. Later, Service Company again offered the ordinance and again, on objection, it was excluded by the court. Still later, Service Company again requested that the ordinance be admitted and read in evidence as a part of its defense. Counsel for co-defendants made the following objection:

“MR. GOODWIN: I object to it for the reason it is irrelevant and immaterial and improper, is an improper submission against this defendant. It is not pleaded and it comes as a surprise at this point to the defendants Mullins and Graybar Electric Company, and for the further reason the ordinance is not relevant or material to any issue submitted to the jury in this case.”

Counsel for plaintiff made the following objection:

“MR. BARDGETT: I join in the objection, Your Honor, for the reason it is irrelevant and immaterial and no foundation has been laid for its submission.
“THE COURT: The objection will be sustained.”

The Service Company then made an offer of proof of the ordinance, which was denied by the court.

Defendants Mullins and Graybar Electric Company offered no evidence and stood on their motion for a directed verdict.

Appellant Service Company complains that the action of the trial court in denying the admission into evidence of the ordinance was prejudicial to it and its defense that co-defendants failed to stop at the stop sign at the intersection of Louisiana Avenue and Arsenal Street and were the sole cause of the accident and injury to plaintiff. Respondent plaintiff urges, however, that the ordinance and its violation were not pleaded, and that no request was ever made to amend its pleadings to include the ordinance. She also urges that this is not a situation where the ordinance would be evidence of common law negligence. In effect plaintiff urges that the ordinance and any violation thereof constituted an affirmative defense and must be set forth in Service Company’s pleadings and cannot be admitted into evidence under a general denial.

Should the ordinance be excluded because it was not pleaded? We think not. The general rule is that when a party asserts and bases his claim upon an ordinance, it must be set forth in the pleading, and the same is true if a defendant desires to justify an act done by him under an ordinance. Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 91 S.W. 527. Neither of these situations apply in this case. By its answer defendant Service Company asserts no counterclaim or crossclaim, and it did not seek to justify or admit any act on its part which caused injury to plaintiff under the ordinance. Service Company asserted it was not liable under its general denial. It sought to prove that third parties, Mullins and Graybar Electric Company, were negligent in failing to obey the stop sign and yield the right of way, and that their negligence was the sole cause of the accident and injury to plaintiff. The ordinance was a vital and necessary part of that proof. A sole cause defense is not an affirmative defense and need not be pleaded. Wiseman v. Jackson, Mo.App., 309 S.W. 2d 356; Long v. Mild, 347 Mo. 1002, 149 S.W .2d 853; State ex. rel Wells v. Mayfield, 365 Mo. 238, 281 S.W.2d 9; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W. 2d 461. Defendant Service Company therefore was not required to plead the ordinance in question or the violation thereof. It likewise is not required to plead a sole cause defense affirmatively. The ordinance could be and was to be used merely as evidence in support of its defense. The trial court therefore should not have sustained an objection on the ground that the ordinance was not pleaded by defendant Service Company, and that it was incompetent, irrelevant, and immaterial, and no foundation for its admission. The latter objection is too general and should not be sustained, except where said evidence is inadmissible for any purpose. We find it was admissible for the purpose outlined above. Hart v. Skeets, 346 Mo. 1118, 145 S.W.2d 143; Collins v. Leahy, Mo.App., 102 S.W.2d 801; Ayres v. Keith, Mo.Sup., 355 S.W.2d 914.

The cause is reversed and remanded for a new trial.

RUDDY, Acting P. J., and JACK P. PRITCHARD, Special Judge, concur.

ANDERSON, J., not participating.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Darlene BROPHY, Plaintiff-Respondent, v. Nick CLISARIS, d/b/a Nick Carter’s Surf ’N Sirloin, Defendant-Appellant.
    No. 31262.
    St. Louis Court of Appeals. Missouri.
    May 21, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 25, 1963.

      Murphy & Roche, Byron A. Roche, St. Louis, for defendant-appellant.
    Eaker, Dempsey, Heath, Lloyd E. Eaker, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action for damages for personal injuries resulting from a fall. In her petition plaintiff named as defendants Pan-American Realty Corporation and Nick Clisaris, d/b/a Nick Carter’s Surf ’N Sirloin, but at the close of her case dismissed as to Pan-American, without prejudice. Verdict and judgment below was for plaintiff for $5000, from which defendant Clisaris has appealed.

Plaintiff’s fall occurred in the ballroom of the Forest Park Hotel, in St. Louis, on December 31, 1957. The hotel building was owned by Pan-American, which by a written instrument (not introduced in evidence) had leased certain rooms to defendant Clisaris, including the ballroom. Defendant also operated a cocktail lounge named the Surf ’N Sirloin in other parts of the leased premises, and in addition carried on a catering business. An organization named the French Club, Society de Lafayette, arranged with defendant’s catering manager to hold its New Year’s Eve Party in the ballroom. The arrangements made provided for the use of the ballroom by the French Club, and a buffet supper to be served by defendant’s catering service. A former member of the French Club, Gustav A. Schmidt, invited Herman Haenel to the party, and Haenel, in turn, invited plaintiff to accompany him.

It appears from the plaintiff’s evidence' that plaintiff, Haenel and Schmidt arrived at the hotel, apparently somewhere around 10:00 P.M. They had one drink apiece in the cocktail lounge, and then proceeded to the ballroom. Their table was situated against the west wall, towards the south end of the room. Sometime after they arrived food for the supper was carried into the ballroom from an adjacent kitchen by defendant’s four waiters and placed on tables located along the east wall. The guests were served buffet style, and carried their own plates about the room.

Plaintiff testified that after reaching the ballroom she danced a couple of times, consumed part of one highball, and ate some food. Thereafter she left her table with the intention of going to the restroom, located outside of the ballroom. Plaintiff walked towards the doorway to the ballroom, which was situated in the northeast part of the room. According to plaintiff, Schmidt left their table at the same time she did and accompanied her partway across the room, but then stopped to talk to someone and she proceeded on alone. When she reached a point 8 to 12 feet south of the doorway her foot started to skid, “ * * * it was like you were on ice * * * ” and she fell to the floor. In an effort to break her fall she thrust out her hands. She stated that after her fall she did not notice anything on the floor. Two men who were nearby assisted her to her feet and seated her in a chair in the hallway just outside of the ballroom. Schmidt appeared a couple of seconds after she was seated and immediately went for Haenel. When Haenel arrived he drove her to St. John’s Hospital, where she was given emergency treatment. The next day x-rays taken at St. Mary’s Hospital revealed a Colies fracture of the left wrist, which was reduced and a cast applied.

! 'Schmidt’s testimony differed somewhat from that of plaintiff’s in that he stated that he did not leave the table with plaintiff nor walk partway with her towards the door. According to Schmidt, plaintiff was still sitting or standing at their table when he left to go to the lavatory. On his way out of the ballroom he slipped at a place about 10 to 12 feet diagonally south of the ballroom door, and upon looking to see what had caused him to slip observed spots of moisture on the floor, spread out over an area two feet in diameter. They were about five to seven feet from the table with the food on it. He spoke to a lady from the French Club about it, but not with any one connected with the hotel. He proceeded on to the lavatory, and upon coming out, saw plaintiff sitting in a chair in the hallway, with people standing around her, and learned that she had fallen. He immediately reentered the ballroom to get Haenel, and on his way again looked at the place where he had previously seen the spots and slipped. He saw a wet place — moisture, dampness— which did not look the same as it had before. Schmidt stated that approximately 10 minutes elapsed from the time he slipped until he returned from the lavatory and saw plaintiff seated in the chair in the corridor.

Haenel testified that Schmidt came to him in the ballroom and said, “ * * * 'She just fell, come on out.’ ” He went to the corridor, saw plaintiff sitting in the chair, and hustled her off to the hospital. On the way to the hallway he “ * * * slipped at the same spot.” Haenel could not remember where he was when plaintiff left the table to go to the restroom, and said that he didn’t know when she left. He testified that about 10 to 15 minutes before he went to the hallway he saw a porter mopping the floor of the ballroom at a point a few feet inside the door. Subsequently he stated, “I saw him wheeling a stick around. I didn’t actually see the mop but I saw him at the table there going like that. (Indicating).” And later, “He was going like that. (Indicating) He was mopping, that’s what he was doing.” On cross-examination Haenel testified that he knew the man was a porter because, “He had a white coat on, and he was a colored man.”

Plaintiff read into evidence, as admissions against interest, certain portions of the deposition of the defendant taken prior to the trial. Such portions included testimony as to the defendant's lease from Pan-American, and the arrangements made by his catering manager, Harry Mazer, with the French Society for the use of the ballroom and the food. They also included the following :

“Q. (By plaintiff’s counsel) Besides Mr. Mazer and the four waiters, did you have any other employees working on that party on that occasion?
“A. Not while the affair was taking place. We did have porters who cleaned the room up prior, set up the room prior to this banquet.
“Q. But they were not present after the guests were in the room and the party was in progress?
“A. That’s right. No, they were not present.”

Plaintiff was also permitted, over the objection of defendant, to read that part of defendant’s deposition to the effect that it was defendant’s responsibility to keep the floor of the ballroom clean while the party was in progress.

Defendant’s only witness was one John Noce, who testified that at the time of the occurrence he was bell captain of the Forest Park Hotel. On the night in question, however, he was in civilian clothes and was on the security watch, to discover any fires or quell any disturbances. He was in and out of the ballroom 10 to 12 times that night, and was in the room when plaintiff fell. According to Noce, plaintiff fell on the dance floor, towards the south end of the room, and not near the door. He hadn’t noticed her before she fell, and didn’t know whether she had been dancing. Others reached plaintiff before he could, and seated her in a chair in the hallway. He offered to take plaintiff to the hospital in a cab. He smelled the odor of alcohol about plaintiff. Noce also testified he saw Haenel, who became abusive; and that Haenel’s speech was slurred and he was staggering. Asked whether he had seen anything on the floor near the exit door he answered that he had seen nothing but dust, and had not noticed any grease spots or water on it.

Defendant’s primary point on appeal is that plaintiff did not make a submis-sible case and that the court erred in overruling his motion for a directed verdict at the close of the whole case. No contention is made that the evidence failed to show a foreign substance on the floor, nor that plaintiff slipped and fell as the result thereof. What defendant does assert is that the plaintiff failed to prove either actual or constructive notice on the part of defendant of the foreign substance on the floor prior to plaintiff’s fall. As a host of cases declare, in determining whether a plaintiff made a submissible case we must consider the probative evidence in the light most favorable to the plaintiff, and give the plaintiff the benefit of all favorable inferences that reasonably may be drawn from such evidence. However, as was recently stated in Probst v. Seyer, Mo., 353 S.W.2d 798, 802:

“ * * * But, of course, the case is not to be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Neither may any fact essential to sub-missibility be inferred in the absence of substantial evidentiary basis. In other words, liability cannot rest upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence. Willey v. Fyrogas Company, 363 Mo. 406, 251 S.W.2d 635, 642; Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323 ; 32 C.J.S. Evidence § 1042, p. 1116. The question of whether the evidence in a given case is substantial is one of law for the court. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787-788; Tharp v. Monsees, Mo., 327 S.W.2d 889, 899.”

The foundation upon which an action by a business invitee rests is the superior knowledge by the defendant of the defective condition of his premises which results in the injury to plaintiff. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Bullock v. Sklar, Mo.App., 349 S.W.2d 381. The rule as to defendant’s duty and liability to a business invitee, as stated in 2 Restatement, Law of Torts, Sec. 343, is as follows:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
(c) invites or permits them to enter or remain upon the land without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.”

This statement of the law has been repeatedly approved by our Supreme Court. Gruetzemacher v. Billings, supra; Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226; Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623.

In the instant case, therefore, it was incumbent on plaintiff to produce evidence showing either (1) actual knowledge by defendant of the existence of the foreign substance on the floor, or (2) constructive knowledge, in that the substance had remained on the floor for such a period of time that defendant by the exercise of ordinary care could have discovered it. Plaintiff asserts that she proved actual knowledge, and points to Haenel’s testimony that 10 to 15 minutes before he learned of plaintiff’s fall he saw a porter mopping the floor. He concluded that the individual was a porter because, “He had a white coat on, and he was a colored man.” Plaintiff argues that the porter’s knowledge of the slippery substance on the floor constituted actual knowledge on the part of the defendant. Inherent in plaintiff’s contention is the tacit assumption that the porter was one of defendant’s employees.

The weakness in plaintiff’s argument is that there is no evidence from which such an inference reasonably may be drawn. There is no evidence in the record that any of defendant’s waiters, or any other employee, wore a white coat. Nor is there any evidence that defendant had a colored man in his employ and present at the party, either as a porter, a waiter, or otherwise. It must be remembered that the ballroom was in a hotel operated by one other than the defendant, which undoubtedly had a variety of employees. One, in fact, John Noce, was present in the ballroom when plaintiff fell. For aught that appears in the evidence the member of the French Club, to whom- Schmidt spoke about the foreign substance, may have summoned an employee of the hotel to clean it up.

Of greater significance, however, is the fact that the inference which plaintiff seeks to draw is diametrically contrary to plaintiff’s direct evidence on the issue. It will be recalled that when plaintiff took defendant’s deposition defendant testified in effect that he did not have a porter present while the party was in progress. Plaintiff voluntarily put such testimony in evidence by reading it to the jury. In the absence of. any contradictory evidence, as is true here, plaintiff is bound by defendant’s testimony and may not successfully invite us to disregard it. Browne v. Heeter, Mo., 267 S.W.2d 666; Cruce v. Gulf, Mobile & Ohio R. Co., Mo., 361 Mo. 1138, 238 S.W.2d 674; Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190. Nor was plaintiff entitled to make a sub-missible case by relying upon an inference which was contrary to her only direct evidence on the basic issue upon which her inference rested. Brooks v. Rubin, Mo., 293 S.W.2d 295; Lappin v. Prebe, 345 Mo. 68, 131 S.W.2d 511. Since plaintiff’s evidence did not show that the alleged porter was one of defendant’s employees, and in fact was to the contrary, it necessarily follows that plaintiff failed to prove actual knowledge on the part of the defendant.

Nor was the evidence sufficient to show constructive knowledge. The only testimony as to the length of time the foreign substance remained on the floor was that of Schmidt, who stated that approximately 10 minutes elapsed from when he slipped until he came out of the lavatory and saw plaintiff sitting in a chair in the hallway. The Supreme Court, as well as this court, has held as a matter of law that 10 to 15 minutes is not a sufficient length of time to charge a defendant with constructive knowledge of a foreign object on the floor. Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648; Varner v. Kroger Grocery & Baking Co., Mo.App., 75 S.W.2d 585.

It follows that the court erred in failing to direct a verdict for defendant at the close of all the evidence, and that the judgment should be reversed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is reversed.

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


author: NORVELL, Justice.

text:
    GOVERNMENT SERVICES INSURANCE UNDERWRITERS et al., Relators, v. Honorable Herman JONES, District Judge, Respondent.
    No. A-9590.
    Supreme Court of Texas.
    May 22, 1963.
    Rehearing Denied June 12, 1963.
    Franklin Spears, Perry Rowan Smith, San Antonio, Heath & Davis, Austin, John Peace and J. B. Langham, San Antonio, for appellant relators.
    Waggoner Carr, Atty. Gen., Austin, Joe R. Long and Dudley D. McCalla, Asst. Attys. Gen., for respondent.
   NORVELL, Justice.

The sole question involved in this proceeding is whether or not Article 2168a, Vernon’s Ann.Tex.Stat., which provides for a mandatory continuance of pending lawsuits upon application of a member of the Legislature is invalid because it is violative of Article II, § 1, of the Constitution of Texas Vernon’s Ann.St., relating to the division of the powers of government into three distinct departments. No other constitutional basis for the invalidity of the statute is here urged. In our opinion this question was determined contrary to the respondent’s position in Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759, decided by this Court in 1947 and on authority of this case relators are entitled to the mandamus they pray for.

The essential facts are these:

An insurance company liquidation proceedings is now pending in the District Court of Travis County, Texas, styled, State of Texas v. Government Services Insurance Underwriters, Inc., et al. Some time in October, 1962, Honorable Franklin Spears, an attorney at law and member of the State Senate, was employed as counsel by one or more of the defendants in said cause. The defendants in the case mentioned are now the relators before this Court.

The defendants in the district court case filed a motion for continuance based upon various grounds such as inability to complete the taking of the depositions of the statutory liquidator because of illness and the like. The only ground which is pertinent here, however, is that portion of the motion which is styled “Alternative Motion for Continuance” wherein Senator Spears by a sworn pleading states that he is a member of the State Senate which is presently in session and prays that the cause be continued in accordance with the provisions of Article 2168a. This “Alternative Motion for Continuance” was originally filed on April 8, and the grounds therein set forth were again urged in a pleading filed on April 25, 1963.

Article 2168a reads as follows:

“In all suits, either civil or criminal, or in matters of probate, pending in any court of this State at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. Where a party to any cause is a Member of the Legislature, his affidavit need not be corroborated. On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature and such affidavit shall be proof of the necessity for such continuance, and such continuance shall be deemed one of right and shall not be charged against the party receiving such continuance upon any subsequent application for continuance. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.”

The wording of the statute makes clear the Legislative intent that the court in which a statutory motion is filed shall have no discretion to grant or refuse the motion. It is expressly stated that, “it shall be mandatory that the court continue such cause” and that “It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.”

The Honorable Herman Jones, respondent here, and the judge of the court in which the liquidation proceedings are pending, overruled the motion for continuance and held that the mandatory nature of the statute rendered the same unconstitutional under Article II, § 1 of the Texas Constitution relating to the division of governmental powers which provides that:

“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

The order of the district court rests squarely upon the proposition that the portion of the statute which undertakes to deprive a district court of all discretion in granting a continuance regardless of whether in fact the presence of the attorney-legislator is essential to a fair trial of the cause amounts to an invasion of the judicial realm by the Legislature and hence comes under the constitutional proscription embodied in Article II, § 1 of the Constitution. No other basis for the refusal of the continuance is set forth in the order of the trial judge and it is not urged by the Attorney General who is here representing the respondent that the granting of a continuance would result in any person being deprived of a remedy by due course of law, or that anyone would be deprived of equal protection of the laws contrary to the provisions of the Fourteenth Amendment to the Constitution of the United States or Article I, §§ 13 and 19 of the Texas Constitution; or that any constitutional provision other than Article II, § 1 would prevent Article 2168a from being fully operative under the facts of this particular case.

Upon Judge Jones’ refusal to grant the statutory continuance, the relators applied to this Court for a peremptory writ of mandamus directing said District Judge to enter an order continuing the cause pending in his court in accordance with the holdings and practices outlined in Mora v. Ferguson, supra.

Express provisions similar to that contained in the Texas Constitution relating to the division of governmental powers are found in many state constitutions. Undoubtedly, as pointed out by counsel, such a provision is implicit in all written constitutions patterned after that of the United States of America. However, the problem of determining that which is judicial and that which is legislative is often difficult of statement under varying factual circumstances. Classification may depend upon the particular nomenclature and definitions employed in the field of learning with which one is concerned. To a political scientist who regards the legislative power as that authority which determines those rules of conduct which will be supported by governmental sanctions, the action of a court in declaring a law passed by a Legislature to be null and ineffective might appear to be a clear exercise of legislative power. As mentioned by this Court in Goode v. McQueen’s Heirs, 3 Tex. 241, the power of the judicial branch to set aside and hold for naught an act of the legislative branch has been regarded by foreigners as an anomaly and a somewhat dangerous one at that (p. 257). Yet, as pointed out by the Attorney General in his brief, Alexander Hamilton, in the Federalist Papers (No. 78), clearly-anticipated Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, when he asserted that the judicial branch of government must necessarily possess the power to declare those acts invalid which are contrary to the Constitution upon the theory that the judiciary must follow fundamental law and disregard non-fundamental law which is contrary thereto.

Proceedings in which a court is involved are not necessarily classified as judicial in character under any and all circumstances. This is recognized by the terms of the Constitution itself in various instances. For example, Article V, § 8 of the Constitution vests the District Court with original jurisdiction of contested elections. In De Shazo v. Webb, 131 Tex. 108, 113 S.W. 2d 519, it was said, “The jurisdiction conferred upon the district.courts to hear and determine ‘contested elections’ is legislative in its nature. * * * In other words * * * the power and jurisdiction to hear and determine a contested election action is the power and jurisdiction to exercise a legislative function, and * * * it is not a civil suit.” See also, Williamson v. Lane, 52 Tex. 335, and Gonzales v. Laughlin, Tex.Civ.App., 256 S.W.2d 236, no writ history.

In determining whether or not the exercise of a power by one branch of government is an unauthorized invasion of the realm or jurisdiction of another branch, we must consider the relationship of the various governmental departments as set forth and defined in the Texas Constitution, for that which is permitted by the Constitution cannot be unconstitutional. The power and authority of a state legislature is plenary and its extent is limited only by the express or implied restrictions thereon contained in or necessarily arising from the Constitution itself. State v. Brownson, 94 Tex. 436, 61 S.W. 114. Insofar as procedure is concerned, the 1891 amendment to the judicial article of the Constitution vesting the Supreme Court with rule-making power expressly recognizes that such power is subordinate to that of the Legislature. Article V, § 25 of the Constitution, reads as follows:

“The Supreme Court shall have power to make and establish rules of procedure not inconsistent with the laws of the State for the government of said court and the other courts of this State to expedite the dispatch of business therein.”

See also, Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822.

The right of the Legislature to adopt rules of evidence for the government of judicial proceedings has never been questioned. Articles 3713-3737, inch, Vernon’s Ann.Tex.Stat. The Legislature creates district courts and sets the terms for said courts. See, Apportionment Statute relating to district courts, Article 199, and Article 1919 providing for continuous terms. Numerous other examples of legislative control of judicial procedures could be given; and when we examine the matter which is specifically involved here, we find that the Legislature controls the granting of continuances in criminal cases by provisions which have been codified in the Code of Criminal Procedure, Articles 538 to 551 inclusive. In civil cases, provisions governing such matters were also enacted by the Legislature prior to the 1939 Act which repealed all laws or parts of laws governing the practice and procedure in civil actions in order to relinquish full rule-making power to the Supreme Court in such suits. Acts 1939, 46th Leg., p. 201, Article 1731a, Vernon’s Ann.Tex.Stat. See also Rules 251 and 252, which adopt in rule form the provisions of Articles 2167 and 2168 of the 1925 Revised Statutes.

A rule prescribed by the Legislature which deprives a trial judge of all discretion in granting or refusing a continuance is not a novel development in the jurisprudence of this State. Article 2, § 1 of the Constitution of 1845 is practically identical in wording with Article 2, § 1 of the present Constitution, and in Prewitt v. Everett, 10 Tex. 283, Mr. Justice Lipscomb on authority of Hipp v. Bissell, 3 Tex. 18, and Hipp v. Hutchett, 4 Tex. 20, said:

“The statute prescribes what shall be sufficient grounds for a first and second continuance, but is silent as to a subsequent application to continue, and it has been decided by this court that, if the terms of the statute are complied with on the first and second application, the court can exercise no discretionary power; that it must be granted.”

See also, Cleveland v. Cole, 65 Tex. 402, Lillard v. State, 17 Tex.Cr.R. 114.

The Attorney General in a well-prepared brief cites a number of general authorities relating to the doctrine of separation of powers and specially calls our attention to two cases decided since this Court’s decision in Mora v. Ferguson. These are McConnell v. State (1957), 227 Ark. 988, 302 S.W.2d 805, by the Supreme Court of Arkansas, and Booze v. District Court of Lincoln County (1961) Okl.Cr., 365 P.2d 589, by the Oklahoma Criminal Court of Appeals. The Oklahoma case follows and quotes from the McConnell decision and is persuasive authority in support of respondent’s position. The opinion therein quotes with approval the following statement from American Jurisprudence, viz:

“The fundamental principle running throughout the subject of continuances is that the granting or refusal of a continuance rests in the discretion of the court to which the application is made.” 12 Am.Jur. 450, Continuances § 5.

The Court then pointed out that under a long line of decisions in Oklahoma “an application for a continuance is addressed to the sole discretion of the trial court,” and followed with a holding that a statute which provides for a mandatory continuance which places the- matter beyond the discretion of the trial judge violates the Oklahoma constitutional provision relating to the division of governmental powers.

It seems that the difference in the holding of the Oklahoma Court in the Booze case and the holding of this Court in the Mora case stems from an underlying divergence of view as to legislative authority over the subject of continuances from the constitutional standpoint. Under the Oklahoma Constitution as construed by the Criminal Court of Appeals of that state, the matter of continuance lies within the sole discretion of an officer of the judicial department. When this Court in Mora v. Ferguson upheld the legislatively prescribed mandatory continuance, it necessarily held that the matter of continuance did not rest solely within the discretion of the trial judge. There is a clear conflict of principle between the Booze and Mora cases and this is seemingly recognized by the Attorney General for he argues that in Mora this Court did not pass upon the contention that the mandatory continuance statute was violative of Article II, § 1 of the Constitution.

We are unable to agree with the argument presented. In stating our reasons for disagreement, some repeating of what was said in Mora is unavoidable. We speak of the American system of separation of powers and checks and balances. These are seemingly contradictory terms and it should be recognized that all three branches of government are to some extent interdependent. A mandatory continuance by legislative enactment will undoubtedly interfere somewhat with the operations of the judicial department of government. On the other hand when a court requires that the legislator-attorney be in attendance upon it while the Legislature is in session, some interference with the legislative process necessarily takes place. The statutory right or privilege of the legislator is undoubtedly subject to abuse, but so is the discretion of the judge. It is primarily the responsibility of the respective branches of government to curb abuses within their particular spheres. While a continuing failure to meet this responsibility may indicate a need for constitutional change, the circumstance that a power may be abused is not a valid basis for arguing that the power is non-existent.

In upholding the mandatory continuance this Court in Mora quoted with approval the following from Bottoms v. Superior Court, 82 Cal.App. 764, 256 P. 422, 424:

“The purpose of the provision of Section 1054 of the Code of Civil Procedure [providing for a mandatory continuance] is obvious. It will readily be conceded that there is no activity connected with and essential to the preservation and maintenance of the social fabric of greater importance than that of the functioning of the legislative department of a state. In exercising and administering that branch of the sovereign powers of a state that is appropriated to it by the people, in a government such as ours, in which the sovereign powers are divided into and assigned to three different, distinct, and independent departments, the Legislature is .required to deal with the most sacred of human rights — rights which directly affect the life, the liberty, and the property of the citizen. The members of that body, therefore, must give constant and uninterrupted attention to their duties as such while it is in session lest there be either ad-vertently or inadvertently bad legislation put over or good laws repealed, the effect of which would necessarily be to work, for the time, irreparable damage to the state. But these propositions are well understood and their soundness will be conceded, since it cannot possibly be doubted that the members of the Legislature, particularly such members as may belong to the legal profession and engaged actively in the practice thereof, should be relieved by the law from concerning themselves with extraneous matters or interests not pertaining to their legislative duties while they are in attendance on sessions of the Legislature and actually prosecuting their duties as such. On the other hand, the suggestion may be ventured, significant in the present connection, that a practicing lawyer deals with a science involving the most abstruse learning, in its remedial and procedural as well as its substantive branch, and in conserving or preserving, or protecting or defending the rights of his clients when such rights are questioned in the judicial tribunals, the demand for his undivided attention to those causes is as necessary or imperative as is the demand upon him for like attention while he is engaged in performing the duties of a member of the Legislature.”

In substance, the argument of the California Court is that the mandatory continuance would tend to prevent rather than bring about conflicts between the legislative and judicial departments of government. In referring to the California opinion in Mora, it seems clear that this Court was considering the problem of the division of governmental powers and necessarily must have had in mind the constitutional provision here urged to invalidate the statute.

This view is strengthened when we consider the contentions urged by the respondent in the Mora case together with what was said by this Court in disposing of the case contrary to these contentions. In his answer to the petition for mandamus, the Honorable Bryce Ferguson, one of the abler lawyers occupying the district bench at that time (1947), asserted:

(1) that insofar as Article 2168a seeks to “set up any right, immunity or privilege which members of the leg- , islature would be entitled to in the case, wholly apart from the existence of such statute, the same is to such extent unconstitutional as being an attempt on the part of the legislature to add to its immunities and privileges, * * * ” and,
(2) that “to the extent that Article 2168a undertakes to impose upon the judiciary any rule or principle of procedure concerning the governing of our judicial branch of the government different from which ordinary principles of fairness, public consideration, public welfare, waiver and estoppel would dictate under the same circumstances, then to that extent such article constitutes an unwarranted invasion by the legislative branch of the duties and function of the separate and distinct judicial branch of government.”

In the Mora opinion, Mr. Justice Brewster writing for this Court stated Judge Ferguson’s position as follows:

“Then respondent urges that if Art. 2168a, supra, undertakes to impose upon the judicial branch of the government any rule of procedure different from the ordinary rule of waiver and estoppel, it constitutes an unwarranted invasion by the Legislature of the functions of the judiciary. He asserts, also, that the statute in question is unconstitutional in that it undertakes to add to the privileges and immunities given members of the Legislature by express constitutional provision.”

It seems abundantly clear that Judge Ferguson raised the question of an unlawful invasion of the judicial realm by the Legislature, i. e., that a violation of the principle of division of governmental powers had occurred. This Court was reasonably accurate in stating Judge Ferguson’s position although the statement thereof in the opinion was in somewhat briefer form than that set forth in respondent’s reply to the petition for mandamus. In our opinion the scope of the Mora decision cannot be restricted to the narrow holding that Mora and his attorney were not es-topped from claiming the benefits of the mandatory continuance statute. The quotation from the California case set forth in the Mora opinion does not deal with es-toppel nor does it discuss an allegedly unwarranted expansion of the privileges and immunities given to members of the Legislature by express constitutional provision. It discusses the separate departments .of government and the position of the attorney-legislator with reference thereto. The position taken by Judge Ferguson in Mora was the same as that which was sustained by the Oklahoma court in Booze v. District Court of Lincoln County. In Mora, however, Judge Ferguson’s contention was decided adversely to him. In view of the issues raised in the Mora case and the opinion of this Court disposing of such issues, we must conclude that the holding of the Court was that the mandatory continuance statute did not violate Article 2, § 1 of the Constitution. See, King v. State, 160 Tex. Cr.R.R. 556, 273 S.W.2d 72, 49 A.L.R.2d 1071.

We anticipate that the respondent District Judge will vacate his present order setting the case of State of Texas v. Government Services Insurance Underwriters et al. for trial and grant a statutory continuance therein. Only in the event of a failure to take action as indicated in this opinion will mandamus actually issue.

Mandamus conditionally granted.

MOTION FOR REHEARING

This Court’s original opinion adequately disposes of the issues raised by the petition for mandamus and the answer thereto. It was stated in the opinion that questions involving the Fourteenth Amendment to the Constitution of the United States and Article I, Sections 13 and 19, of the Texas Constitution were not raised. They are not effectively raised now despite the Attorney General’s attempt to expand his original position in his motion for rehearing. The order of Judge Jones denying Senator Spears’ application for a statutory continuance is based solely upon Article II, Section 1, of the Texas Constitution and the record in this Court is not developed so as to support any other constitutional position or contention. The motion for rehearing is overruled.

      . The order entered by Judge Jones recited that the court “is of the opinion and finds that Article 2168a, V.A.C.S., undertakes to make the court’s postponement of a case mandatory upon the filing of an affidavit that an attorney in such case is a member of the Legislature and that the Legislature is in session, regardless of whether in fact the presence of such attorney is necessary for a fair trial to be had; that it is the intent of Article 2168a that no discretion be vested in the Court upon the filing of such an affidavit; that defendants upon the trial of this case will be fairly and properly represented by other counsel without the necessity for the presence of the attorney-legislator in this case; that the determination of whether or not a trial should be continued in the interest of justice is an elementary judicial duty and must, under Article II, Section I of the Constitution of the State of Texas, be exercised by the judicial branch of our government; that insofar as Article 2168a undertakes to divest the Court of all discretion to determine when it shall be necessary in the administration of justice, for a postponement to be allowed, said Article violates Article II, Section I of the Constitution of the State of Texas and is, therefore, unconstitutional to that extent; that in view of such unconstitutionality, this Court may exercise its discretion in determining whether defendants’ alternative motion for continuance should be granted.”

      . In connection -with the power to promulgate rules of procedure, see, Acts 1939, 46th Leg., p. 201, Art. 1731a, Vernon’s Ann.Tex.Stat. Denbow v. Standard Accident Insurance Company, 143 Tex. 455, 186 S.W.2d 236.

      . In Story on Constitutional Daw, it is said:
      “But when we speak of a separation of the three great departments of government, and maintain, that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm, that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possesses the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. * * * ” Story, Commentaries on the Constitution of the United States (3rd ed. 1858), Vol. I, p. 368, § 525.

      . In Sweeney v. Jarvis, 6 Tex. 36, 1. c. 40, Mr. Justice Wheeler referred to the dictum of Lord Camden wherein “arbitrary discretion” in a judicial officer was characterized as being “the law of tyrants: always unknown; different in different men; casual; depending upon constitution, temper, passion.”

      . Under the 1929 Act (Acts 1929, 41st Leg., p. 17) the continuance because of attendance upon the Legislature was discretionary in that it was necessary that the applicant show that the presence of the attorney-legislator was necessary to a fair and proper trial of the case. Burkhart v. State, 114 Tex.Cr.R. 462, 26 S.W.2d 238; Davis v. State, 120 Tex. Cr.R. 330, 49 S.W.2d 805; Burton v. State, 129 Tex.Cr.R. 238, 86 S.W.2d 768; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759. With the adoption of the Texas Rules of Oivil Procedure by the Supreme Court as authorized by the 1939 Rule Making Act, the provisions of the statute were written into Rule 254 with minor textual changes and the statute (Art. 2168a) insofar as it related to civil actions was listed as repealed. In 1941, the statute was re-enacted in mandatory form. (Acts 1941, 47th Leg. p. 69.) In 1949 the statute was amended and placed in its present form (Acts 1949, 51st Leg. p. 1111).