author: STEPHENSON, Justice.

text:
    WHITE OAK COMMON SCHOOL DISTRICT, NO. 19, HARDIN COUNTY, Texas, et al., Contestants, v. Dwayne V. OVERSTREET, County Attorney of Hardin County, Texas, Contestee.
    No. 6809.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 24, 1965.
    Rehearing Denied Dec. 15, 1965.
    H. A. Coe, Jr., Kountze, Edward W. Jones, Jr., Livingston, for appellants.
    Dwayne Overstreet, Kountze, Robert Q. Keith, Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an election contest. The election involved the consolidation of the West Hardin County Consolidated Independent School District with the White Oak Common School District No. 19, both of Hardin County. The declared result in the West Hardin box was 48 votes for consolidation and 3 votes against. The declared result in the White Oak box was 63 votes for consolidation and 60 votes against. Trial was before the court challenging the White Oak box only, and judgment was rendered upholding the validity of the election and the consolidation. Contestants are taxpayers residing in the White Oak District and Contestee is the County Attorney of Hardin County, Texas. The parties will be referred to as contestants and contestee, as they were in the trial court.

Contestants and Contestee each challenged certain specific votes which had been cast. The votes of Mr. and Mrs. J. M. Myers were challenged by both sides and a stipulation was made that these votes were invalid and that their votes should be subtracted from the total votes for which they were counted. The trial court proceeded to hear evidence on the part of Contestants as to the remaining votes challenged by them. Each vote was considered separately and the trial court ruled that all of these votes were valid. Evidence was then heard as to the votes challenged by Contestee and the trial court ruled that seven of such votes were invalid. The record then shows the trial court requested the bailiff to ask the County Clerk to bring the ballot box and stub box to the courtroom. The record then contains a statement by the trial court that the stub box was presented in court and a suggestion that one of the parties to this suit ask the County Clerk to take the oath and put into the record his version of what happened to the ballots. At this point attorney for Contestee dictated into the record an instrument designated “Contestee’s Motion for Nonsuit”. In substance, it was stated that Contestee non-suited and dismissed his challenges as to the seven votes held by the court to be invalid as well as to the votes of Mr. and Mrs. Myers. It was further stated that it was stipulated that Mr. and Mrs. Myers each cast a ballot for consolidation and asked the court to declare the result of the election to be 61 votes for consolidation and 60 votes against consolidation. Contestants opposed this action and were permitted to call the County Clerk to the stand. His testimony showed that he had been ordered by the trial court at an earlier hearing to preserve such ballots but that apparently the ballot box had been opened by someone else and that the box was now empty and the ballots were gone. The County Clerk assumed the ballot box had been emptied by someone else while preparing for a later election. That this was done inadvertently with no fraud or illegal conduct involved. The court then granted contestee’s motion for a non-suit as to the seven votes challenged by him and deducted two votes from the total cast for consolidation and declared the result of the election to be 61 for consolidation and 60 against.

Contestants first complained of the action of the trial court in permitting con-testee to take a non-suit as to the seven votes declared invalid. It is argued that under Rule 164, Texas Rules of Civil Procedure, a non-suit may be taken at any time before a decision is made, and that the trial court had already made a decision as to such votes before the motion for non-suit was filed. It is pointed out that such rule does not say “before judgment is rendered,” but only “before a decision is made.” No authorities are cited to this court by the contestants directly in point.

In Corder v. Corder, Tex.Civ.App., 189 S.W.2d 100, wr. ref., it is stated:

“In our opinion, the words used in the rule ‘before the decision is announced’ mean before judgment is rendered.”

We agree with this interpretation of the rule. Many decisions are made by a court during the course of a trial, before a judgment is finally determined. No judgment had been entered by the trial court before contestee filed his motion for non-suit, and in fact, the trial court could have changed its decision as to the validity of any of the votes passed upon before entering a judgment. Further, the taking of the non-suit by contestee could not have in any manner prejudiced the right of contestants to be heard on their claim for relief. The trial court properly granted such motion. The contest of these seven votes was put in issue solely because of the pleadings and evidence offered by contestee. If this motion by contestee be construed to be in effect a trial amendment, the trial court could within its discretion permit contestee to amend his pleadings under Rule 165, T.R. C.P. The point is overruled.

The other points raised by contestants as to the court not being able to arrive at the true result of the election because of the destruction of the ballot and the refusal of the trial court to permit contestants to issue subpoenas for the persons casting the nine votes declared to be invalid in order to ascertain how they voted both are dependent upon the validity of the order of the trial court permitting contestee to take such non-suit. Such action being proper, these points are overruled. It is immaterial whether contestee could stipulate that Mr. and Mrs. Myers’ votes were cast for consolidation, as such two votes could not have changed the outcome of the election.

The only point which remains to be passed upon is validity of the vote cast by Mrs. Sarah A. Perkins. This point involves the construction of Article 5.05, Subdivision 15 of the Election Code, V.A.T.S., which now reads in part as follows:

“No assistance shall be given a voter in marking his absentee ballot except where the voter is unable to prepare the same himself because of some bodily infirmity, such as renders him physically unable to write or to see.”

The evidence shows Mrs. Sarah Perkins was about 78 years of age and had suffered a stroke about three years ago. She was driven to the polls in order to cast an absentee ballot by her daughter-in-law, Mrs. Faye Perkins. The evidence further shows Mrs. Sarah Perkins discovered after arriving at the polls that she did not have her reading glasses and she could not see well enough to cast her ballot without assistance. Mrs. Faye Perkins took the oath required by law and assisted Mrs. Sarah Perkins in casting her ballot. Contestants contend she was not entitled to be assisted, citing Hillert v. Schweppe, Tex.Civ.App., 234 S.W. 152, as authority supporting their position. This case, which has no writ history, was decided at the time Article 3003, Rev. St., was in effect. The pertinent portion of such statute reads as follows:

“ * * * nor shall any assistance be given a voter in preparing his ballot, except when a voter is unable to prepare the same himself because of some bodily infirmity, such as renders him physically unable to read and write, * * (emphasis added)

We interpret the portion of Article 5.05, Subdivision 15 of the Election Code, quoted above, to mean that a voter is entitled to assistance if the voter has a bodily infirmity which renders him physically unable to see well enough to cast a ballot without assistance, at the time such voter goes to the polls. According to the evidence, Mrs. Sarah Perkins was entitled to the assistance she received. The point is overruled.

Judgment affirmed.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Nancy BIGGS, Plaintiff-Appellant, v. David C. BIGGS, Defendant-Respondent.
    No. 31848.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Rehearing Denied Dec. 16, 1965.

      Bartlett, Muldoon, Stix & Bartlett, Daniel Bartlett, Jr., St. Louis, for plaintiff-appellant.
    Boyle, Priest, Elliott & Weakley, Edward Weakley, Aubrey B. Hamilton, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This is a divorce action brought by Nancy Biggs against her husband David C. Biggs. The prayer of the petition was for a divorce; an award of alimony to plaintiff; custody of the three children born of the marriage, with an allowance for their support; reasonable visitation rights to defendant; an attorney’s fee for plaintiff’s attorney; and, the cost of the proceedings.

Defendant’s answer, after admitting his marriage to plaintiff and the birth of three children, denied each and every allegation of the petition.

On November 25, 1964, the court rendered its final judgment. By said decree, plaintiff was granted a divorce; alimony in gross in the sum of $25,000, which, by agreement of the parties, could be satisfied by defendant’s transfer to plaintiff of the premises known as and numbered 5370 Waterman Avenue, St. Louis, Missouri; monthly alimony in the sum of $300.00 per month; custody of the three children to plaintiff; child support in the sum of $100.-00 per month for each child; payment by defendant of all school tuition and other school fees, summer camp tuition together with all transportation costs therefor; direction that the parties confer from time to time about proper schools, and camps for children and, failing agreement, to submit such question to the Court for determination; that defendant pay all medical expenses in the case of accident or serious illness of any of the children, and that in such event the parties confer with each other regarding proper treatment; that defendant’s obligation to support each child cease after said child shall have reached the age of 21 years, but if defendant die before any of his children reach the age of 21 years, the support of any such child or children should be a charge against defendant’s estate, diminished by the amount any child should receive from any trust established prior to defendant’s death; reasonable visitation rights to defendant; temporary custody, with certain limitations, in defendant for a period not exceeding thirty days during the school vacation period; authority to take the children out of the City of St. Louis and the State of Missouri, for the purpose of trips, schooling, educational or camp purposes; the sum of $3,000.-00 to plaintiff for attorneys’ fees; and the costs of the action against defendant.

Plaintiff filed her motion for new trial. The grounds alleged inadequacy of the court’s award of alimony and the payments required for child support; failure to require defendant to pay all necessary hospital expenses, medical expenses, and health insurance fees incurred on behalf of the children. She also complained of the admission of incompetent, irrelevant and immaterial evidence as well as the court’s refusal to receive competent, material and relevant evidence offered by her. The court overruled this motion and plaintiff has appealed from provisions of the decree with respect to alimony, support money for the children, and the allowance of attorneys’ fees.

Since the decree of divorce is not an issue on this appeal, it will not be necessary to detail the facts brought out in the evidence bearing on that issue.

Plaintiff and defendant were married May 21, 1948. Three children were born of this marriage, David Clifton Biggs, who at the time of the trial (May 16, 1963) was twelve years old, Bruce Goddard Biggs, seven years old at said time, and Christopher Chapman Biggs, five and one-half years old at the time of the hearing. These children were at said time living with plaintiff at a residence owned by defendant at 5370 Waterman Avenue in the City of St. Louis. Plaintiff was 42 years old. She was first married in November 1940 to John Barber Hill from whom she secured a divorce in 1944. Two daughters were born of this previous marriage, twenty-one and nineteen years old at the time of the hearing below. They were living with plaintiff at the Waterman Avenue address. Plaintiff was awarded $225 a month at their present age for the support of each of these daughters by the court which granted her a divorce from her former husband. According to the decree in that case the support money awarded would terminate when each daughter reached the age of twenty-one years.

The sons attend private schools, David at Rossman’s School, Bruce and Christopher at the Wilson School.

The house on Waterman Avenue where plaintiff and her five children live was described by Mrs. Biggs as a typical town house. On the first floor there is a living room, dining room, kitchen, pantry and large entrance hall. On the second floor are three bedrooms and two bathrooms, and on the third floor three bedrooms. It is worth, according to the evidence, $25,-000.00. Defendant has been paying the taxes on this property which amount to $480 a year. Prior to the decree a stipulation was entered into between the parties providing for payments to plaintiff of $575.-00 per month for alimony pendente lite and child support and $600.00 for attorneys’ fees on account.

The evidence shows that plaintiff owns securities worth approximately $65,000 which were given to her by Mr. Biggs. In addition plaintiff, at the time of the hearing, owned a Corvair automobile not fully paid for, and more than $12,000.00 worth of jewelry.

She had also owned a 1950 Jaguar automobile, a gift from defendant, which was sold for $700, plaintiff receiving the proceeds of the sale. She had also received a part of the proceeds from the sale of a Brugatti automobile owned jointly by defendant and a friend named Bruce Carson. During the marriage, defendant conveyed to plaintiff a 170 acre farm in Pike County which she sold in 1960 for $15,500 retaining all but $4400.00, the value of personal property on the farm which belonged to defendant. In 1962, plaintiff received dividends from stock owned by her in the sum of $1500.00. She owes the First National Bank in Clayton $6,800, being the amount of two loans secured by her from said bank, one loan being for $1,800.00 and the other for $5,000.00. Plaintiff maintains a membership in the Sports Car Club, paying dues of about $17.50 per year, and in the Bridlespur Hunt Club. The dues in the latter club amount to $17.00 per month.

At the trial below, plaintiff gave the following estimate of her monthly expenses for herself and the three children:

Electricity $ 25.00
Gas $ 30.00
Dairy Products $ 32.00
Groceries $225.00
Cleaning of Clothing $ 15.00
Cleaning Woman (who also does ironing) $140.00
Yard Man, once a week during summer months and a man twice a month during winter months for cleaning porches and basement $ 35.00
Medical Expense for Children $ 35.00
Medical Expense for Plaintiff $ 5.00
Drugs $ 30.00
Expense of Automobile $ 20.00
Charitable Contributions $ 25.00
Sports Car Club $ 1.15
Bridlespur Hunt Club Dues $ 17.00
Real Estate Tax on Waterman Avenue House $ 40.00
Allowances to Children $ 15.00
Clothing for Children $ 35.00
Cost of Plaintiff’s Clothing $ 50.00
Total $775.15 Per Month.

Plaintiff further testified that she was asking for the support of herself and her three sons $750.00 per month; $200.00 a month for each child and $150 per month for herself. She further testified the figure sought did not include school tuition or summer camp tuition, and was based on the proposition that she would retain the Waterman Avenue house. Under the decree, the Waterman Avenue property may by agreement be transferred to plaintiff in lieu of the payment by defendant of the $25,000 award of alimony in gross. The decree also provides that defendant pay school tuition and summer camp tuition. Defendant has permitted plaintiff and the three children born of the marriage, as well as plaintiff’s two daughters by a previous marriage to reside at the Waterman Avenue address, and has been paying the above mentioned tuition during the period of separation.

Defendant owns two farms in Pike County. One of these farms is referred to in the evidence as “Walnut Valley,” consisting of 625 acres and the other as “Clifton Hill” containing 200 acres. These farms were inherited by defendant from his father. Defendant testified that he was a farmer by occupation, and that he supervised the farming operations on these farms. Defendant resides on the Clifton Hill farm. The house on Walnut Valley is occupied by defendant’s employee one Edwards, who is paid a salary of $35.00 a week. Defendant also employs a farm manager, Oma Monroe, at a salary of $200.00 per month. On the Walnut Valley farm, at the time of the trial, were 125 cows, some with calves, and approximately 30 head of swine. Defendant testified that the Walnut Valley farm was worth $150.00 per acre, $93,750.00. He further testified that the Clifton Hill farm was worth $150.00 an acre which would amount to a total value of $30,000. He stated that the farm equipment on the Walnut Valley farm was worth seven or eight thousand dollars; that the 125 cows were worth $200 apiece which would amount to a total of $25,000.00; the four bulls on said farm were worth $200.00 apiece; and that the calves, most of them rather young and therefore not of much value. He further testified that the hogs were worth $30.00 apiece which would amount to a total value of $900. He further stated that the Waterman Avenue property was worth $25,000.

Defendant owned a collection of automobiles; two Mercedes Benz, worth three or four thousand dollars each; two Ferraries, one worth $2,000.00 and the other three or four thousand dollars; two Alpha-Romeos worth $2,000.00 each; two Model T. Fords worth two or three hundred dollars each; a German Porsche of the value of $1,500.00; two other cars of no great value; and a part interest worth $1,000.00 in a Mercedes Benz located in Detroit. It thus appears that these automobiles are worth over $20,-000.00.

Defendant is the beneficiary of an irrevocable trust created by his mother. During the year 1962, defendant received about $7,753.55 from this trust. The assets in said estate were listed in an exhibit introduced in evidence. This exhibit was not lodged by appellant in this court, hence, we are unable to say what assets are in the estate. Other exhibits were introduced showing the income from this trust estate for the years 1961, 1960, 1959 and 1958, but these exhibits are not before us, not having been lodged in this court by appellant.

Defendant himself, at sometime previous to the trial below, created an irrevocable trust. A copy of this trust instrument was introduced in evidence as plaintiff’s Exhibit 14. This exhibit was not lodged in this court by appellant, but from the testimony of Edgar L. Taylor, a trust officer of the Mercantile Trust Company, who stated he had supervision of administering said trust, it appears that the income from said trust was payable to defendant for life, and thereafter to his children. Exhibits were also introduced showing the income from the trust for the year 1958, 1959, 1960 and 1961. These exhibits were not lodged in this court and therefore we are unable to state the amounts revealed by said statements. However, Mr. Taylor when asked if the sum of $2,279.14 was received by defendant from this trust in 1962, replied “that is substantially correct.”

Defendant maintains membership in the University Club, Racquet Club, Noonday Club, Sports Car Club and Pike County Country Club.

The joint income tax returns of the parties were introduced in evidence but were not lodged in this court. However, appellant in her brief states, “David and Nancy’s 1961 Federal Income Tax return (Plaintiffs Exhibit 35) reveals that both of these ‘farms’ owned by Mr. Biggs were operated at a loss of $12,624.81 during the year 1961. Their 1962 return indicates a farm loss of $7,441.31. David testified that not only did the ‘farms’ not make money in 1961, but that they did not make money in 1960 or 1959. David testified that his full time occupation is that of a ‘farmer,’ and that he has been so engaged in this occupation for quite some time.” Defendant testified that if the income tax return for 1961 showed that he made $26,784.32 in that year such figure was correct, but that his income for the first five months of 1962 was substantially less than that in 1961. It was stipulated that in 1962 defendant received as dividends on stocks owned by him the sums of $5,945.70, and that if the dividend rate was not changed he would receive that amount in 1963. In that event he would receive from dividends and from the trust estates the total sum of $16,978.39. At the time of the trial the market value of the stocks was stipulated to be $178,000.00.

Defendant had been previously married, and at the time of the trial was under obligation for the support of two children by said prior marriage in the sum of $480.00 per month. Defendant was also responsible for a $4,000.00 dental bill incurred by plaintiff after the separation. He also owed $42,247.09 at the First National Bank of Clayton, the annual interest payments amounting to $1,896.12.

Points I and II of the points relied on, which are set forth in appellant’s brief under the heading “points and authorities,” do not comply with Civil Rde 83.05(e), being mere abstract statements of law without showing how they relate to any action or ruling of the court. However, since it is apparent from that portion of appellant’s brief denominated “argument” that under said points appellant is attempting to raise the issue of inadequacy of the award of alimony and child support, we will not, on account of the nature of the case, enforce the rule, but will examine the complaints thus made. Milanko v. Austin, 362 Mo. 357, 241 S.W.2d 881.

Under point I it is urged that the awards fall short of allowing plaintiff the minimum amount ($750) which she testified without contradiction was necessary for her support and the support of the children. It would appear therefore that she is asking this court to increase the awards so that they will total $750.00.

As heretofore stated plaintiff was awarded $25,000.00 alimony in gross and in addition $300 per month. She was also awarded $100.00 per month for the support of each child. It was also provided that defendant should pay for each child all school tuition fees, including text books, sport equipment, lunches and transportation to and from school. The decree also provided for the payment by defendant of expenses of each child at whatever summer camp he might attend, including the expense of transportation to and from such camp. There was also a provision that defendant pay all medical and nursing fees in case of accident or serious illness of any of the children. The decree further provided that the obligation of support should be a charge against defendant’s estate should he die before said child should reach his majority, reduced by the amount accruing to the benefit of such child from any trust established by defendant or others prior to his death or under His last will and testament.

An award of alimony to a wife who obtains a divorce from her husband is based purely upon a statute. Sec. 452.070 RSMo 1959, V.A.M.S. Its allowance is not automatic, but discretionary with the court, which discretion is to be exercised in the light of all the relevant facts and circumstances revealed by the evidence. Therefore in an appeal by the wife where she contends that the amount allowed is inadequate, it must affirmatively appear that this discretion has been abused before the appellate court will be moved to interfere. Knebel v. Knebel, Mo.App., 189 S.W.2d 464; Viertel v. Viertel, 212 Mo. 562, 111 S.W. 579. An abuse of discretion is an erroneous finding and judgment which is clearly against and contrary to the facts or the logical deductions from the facts and circumstances before the court; which is untenable and clearly against reason which works an injustice, and not justified by the evidence. Harriman v. Harriman, Mo.App., 281 S.W.2d 566.

The guide posts for determining the question of the proper exercise of discretion in such matters are set out in an opinion of this court in Knebel v. Knebel, supra. Those are detailed as follows, “ * * * the financial status of the respective parties, including the question of their individual estates, incomes, obligations, and necessities; the contributions of each to the accumulated property; the probable future prospects of each; their respective ages, health, and ability to follow gainful occupations; their stations in life; their children, if any, and the disposition made with respect to their custody; the duration of the marriage, and whether it was one of affection or convenience; and the conduct of the parties, with particular regard to the cause of the divorce, and the relative or comparative responsibility of each therefor.”

After considering the needs of the wife, the allowance for the support of the children, the amount of property owned by plaintiff and the income therefrom and the ability of the defendant to pay, we think the award of alimony evidences a judicial discretion soundly exercised. It is well within the rules announced in approved cases. There was no abuse of discretion.

We hold the same view with reference to the allowance of $300 for the support of the children. It must be borne in mind that the three hundred dollar allowance is not the only expense for which defendant is liable under the decree. We have heretofore set out those items and for that reason will not dwell on them further. On account of the ages of the children we believe the provision of the decree adequate. If through change of conditions a greater allowance is called for plaintiff has her remedy by a motion to modify.

Appellant’s next point is that the court erred in failing to require defendant to furnish security for the payment of alimony and child support. The authority for such an order is found in § 452.070 RSMo 1959, V.A.M.S. Whether this should be done rests within the sound discretion of the trial court. Slaughter v. Slaughter, Mo.App., 313 S.W.2d 193. The record fails to show that defendant has failed to pay the amounts allowed by the court as alimony pendente lite. He has permitted plaintiff and the children to remain in the town house, and he himself has paid the taxes. We cannot say there is a likelihood that he will fail to comply with the provision of the decree. We fail to find an abuse of discretion in the matter. Slaughter v. Slaughter, supra.

Appellant’s final point is that the court erred in refusing to admit into evidence the U. S. Income Tax returns for the years 1959 and 1960. Appellant has not lodged these exhibits with this court. We therefore do not know the contents of these exhibits. As a general rule the allowance for alimony and child support is to be based upon the financial condition of the husband and father at the time the award is made. 27B C.J.S. Divorce § 319(5), p. 614. The decree in this case was rendered November 25, 1963. Regardless of the financial condition shown by the returns for the years 1959 and 1960, we must hold that there was no prejudicial error committed by the trial court in their exclusion.

The judgment appealed from is affirmed.

WOLFE, P. J., and WOODSON OLD-HAM, Special Judge, concur.


author: WOLFE, Presiding Judge.

text:
    STATE of Missouri ex rel. James E. McINTOSH et al., Relators (Respondents), v. Paul RAINEY, Clerk of Reorganized School District R-3 of Washington County, Missouri, Jesse Essmeyer, Dr. E. W. Lake, Floyd Kennon, Harry Riehl, and Frank McKinistry, Members of the School Board of Reorganized School District R-3 of Washington County, Missouri, and Richard Wigger, Successor to Paul Rainey, Clerk, and Elmer Reed, Robert Nicholson and Cecil Johnson as members and succeeding Floyd Kennon, Harry Riehl and Frank McKinistry, Respondents (Appellants).
    No. 31905.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Rehearing Denied Dec. 16, 1965.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondents-appellants.
    Warren D. Welliver, Welliver, Porter & Cleaveland, Columbia, John W. Waller, Sullivan, for relators-respondents.
   WOLFE, Presiding Judge.

This is an action in mandamus. It was brought at the relation of those named who are all residents, voters and taxpayers in Consolidated School District C-2 of Franklin County, Missouri. By this action they sought to compel the respondents below, who were the members of the School Board of District R-3 of Washington County, Missouri, to submit a proposition in their district to an election. The question which they desired to have voted upon was a proposed annexation by the Franklin County District of twelve sections of land which are a part of the Washington County District and located in Washington County. The court found for the relators and ordered the respondents below to do all necessary things to put the proposition before the voters of District R-3 of Washington County at the next annual school election. The respondents below appealed.

There is no dispute as to the following facts. The relators were all, as they alleged, residents, qualified voters and taxpayers of C-2 Consolidated School District. This is in Franklin County and it adjoins the Reorganized School District R-3 of Washington County. The relators who were more than ten in number, signed the petition for a change of boundaries to enlarge the C-2 Franklin County District to include Sections 1, 2, 3, 4, 9, 10, 11,12, 13, 14, 15 and 16 of Township 39 North, Range 1 West, all in Washington County, Missouri. It requested that the school districts, in response to the petition, prepare said proposition for the annual school election to be held on April 7, 1959, all in compliance with § 165.294, V.A.M.S. A signed copy of the petition was sent to the clerk of each school district on about February 19, 1959, quite a while prior to the time for the clerks of each of the districts to post notices of the desired change in time for the school election held on April 7, 1959.

The Franklin County District gave notice of an election on the proposition and it was voted upon on April 7, 1959, and carried by a vote of 813 for to 53 against. The clerk and members of the Board of Reorganized School District R-3, Washington County, refused to prepare the proposition for the annual school election on April 7. No election was held there.

The respondents below and the appellants here, over the objection of the relators, put on evidence touching upon the necessity for the change. This disclosed that there were only four children in the area over which petitioners sought to, extend the boundaries of C-2 Franklin County District. These children were served by bus and the schools which they attended in Washington R-3 were considered adequate by their parents. There was also evidence that the area, which contained mining operations, had a total assessed valuation of $6,687,850. The total assessed valuation of District R-3 of Washington County was $13,818,184 and its bonded indebtedness was $1,175,000.

The first point raised by the appellant-respondent is that the trial court erred in ordering the respondents below to call an election because there was no legal duty upon them to call such an election at the time of the commencement of the action in mandamus. This requires consideration of the school laws in effect at the time the petition for the election was filed with R-3 District of the Washington County Board and changes in the law which became effective in 1959 after the time for the election had passed. Section 1, Laws of Missouri 1955, Page 529, was in effect at the time petition for the election was filed with the boards of the two districts and at the time of the school election on April 7, 1959. This provided: “ * * * when it is necessary to change the boundary lines ten qualified voters who are taxpayers in any district affected may petition the district boards of directors in the districts affected for a change in boundaries. * * * ” The foregoing part of the section was changed later in § 165.294, V.A.M.S., requiring the petition for change of boundaries to be signed by 10% of the qualified voters who are taxpayers in the district desiring the changes, instead of the ten voters previously required.

Both statutes dealing with six director school districts provided that where the voters of one district voted against a proposed annexation the matter may then be appealed to the boards of directors. Both statutes set up the method and procedure for arbitration of the differences between the districts involved. The law in relation to this was again enacted without major changes in 1963 and it is now § 162.431 V.A. M.S.

As stated, it is the contention of the appellants that although the law, at the time that the petition for the election was filed by the Washington County Board, provided that ten signers were sufficient, the subsequent change in the law making signatures of 10% of the voters necessary bars the right of the relators to a writ of mandamus to compel the holding of an election. The appellants press this theory on the ground that the law was changed prior to the relators filing their petition for the writ of mandamus. The petition for mandamus was filed April 11,1960.

When the petition, valid under the law, was filed with the school board the duties of the board with which it was filed were simply ministerial. They were obliged under the law to post notices and present the matter to the voters. State of Missouri ex rel. Kugler v. Tillatson, Mo.App., 312 S.W.2d 753, l. c. 756. The Washington County Board refused and did not intend to submit the matter to an election. Under such circumstances mandamus was the proper remedy. State ex rel. Kugler v. Tillatson, supra. The fact that the noted changes in the law took place following the refusal did not alter the relators’ right to the writ. State of Missouri ex inf. Dalton ex rel. Hough v. Eckley, Mo., 347 S.W.2d 704.

It is also asserted by the appellants that no necessity existed for the change of boundaries. The voters are the ones who pass upon the necessity for the change in the first instance and in the case of disagreement between the voters of contending districts the Board of Arbitration considers the necessity for the proposed change. Section 162.431, V.A.M.S. It is not the function of the court to pass upon the necessity for any change in the school boundaries. England v. Eckley, Mo., 330 S.W.2d 738, l. c. 745.

The appellants claim that the rela-tors are barred by laches. The general meaning of laches is that the party seeking relief has delayed his action for an unreasonable and unexplained length of time resulting in disadvantage to the other party. Keiser v. Wiedmer, Mo.App., 283 S.W.2d 914; Schaeffer v. Moore, Mo., 262 S.W.2d 854; In re Thomson’s Estate, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 791. Each case involving a question of laches must therefore be determined by the evidence of the particular case. Kopp v. Thomson, Mo., 277 S.W.2d 579. The record discloses that at the time the attempted annexation was started, and that between the time of the suit and trial, there were pending in the appellate courts two cases which would have been determinative of the issues raised (England v. Eckley, supra; and Reorganized School District R-1 of Crawford County v. Reorganized School District R-3 of Washington County, Mo.App., 360 S.W.2d 376). It was apparently agreeable to the parties that the trial of the issues be delayed until those two cases were decided. This is an explained and not unreasonable delay in view of the circumstances. It should also be noted that there is no evidence that the delay worked any disadvantage or prejudice to the appellants and absent such showing the defense of laches does not lie. Keiser v. Wiedmer, supra.

Since the date set for the holding of an election has passed it will be necessary to set a new date. See State ex rel. Kugler v. Tillatson, supra.

For the foregoing reasons the judgment of the trial court is affirmed and the cause is remanded to it with directions to set a date for a special election at which the voters of Reorganized School District R-3 of Washington County may vote upon the proposed change of boundaries, and to issue its supplementary writ of mandamus in peremptory form requiring these appellants and any successors in office to take all necessary steps toward that end.

RUDDY, J., and ROY W. McGHEE, Special Judge, concur.

ANDERSON, J., not participating.


author: STONE, Judge.

text:
    Henry F. GADDY, Plaintiff-Appellant, v. STATE BOARD OF REGISTRATION FOR the HEALING ARTS of Missouri, Defendant-Respondent.
    No. 8481.
    Springfield Court of Appeals. Missouri.
    Nov. 23, 1965.
    Rehearing Denied Dec. 22, 1965.

      William C. Myers, Jr., Garold L. Morían, Webb City, for plaintiff-appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Asst. Atty. Gen., St. Louis, for defendant-respondent.
   STONE, Judge.

This is an appeal from a judgment of the Circuit Court of Jasper County affirming upon judicial review [Sec. 334.100, subsec. 3; Secs. 536.100 to 536.140, inch] an order of the State Board of Registration for the Healing Arts (hereinafter referred to as the Board) dated November 23, 1963, revoking the license of Henry F. Gaddy, D.O., to practice the healing arts in Missouri.

At the outset, we are confronted with the Board’s motion to dismiss Gaddy’s appeal because the transcript on appeal was not filed “within 90 days from the date of filing of the notice of appeal” [Rule 82.18], 1. e., within 90 days after July 28, 1964, the date on which Gaddy filed his notice of appeal to the Supreme Court of Missouri, by whom the case subsequently was transferred to this court. It is true that the transcript was filed in the Supreme Court on November 2, 1964, 97 days after the date of filing of the notice of appeal; that the circuit court had not extended the time for filing the transcript and, indeed, would have had no authority to do so by reason of the failure of appellant’s counsel to comply with the requirement that “the transcript on appeal be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order to the reporter be filed in the case within 15 days thereafter” [Rule 82.19]; and that no application was presented to the Supreme Court or to this court invoking the exercise of the discretionary power of the appellate court under Rule 83.26 to extend the time for filing the transcript. Clader v. City of Neosho, 354 Mo. 1190, 1191, 193 S.W.2d 620, 621; Heard v. Frye’s Estate, Mo.App., 319 S.W.2d 685, 687(7). In these circumstances, the appeal properly might be dismissed. School Dist. No. 24 v. Mease, Mo.App., 193 S.W.2d 513.

However, the spirit of our rules of procedure, which finds expression in Rule 83.-24, is that they should be construed liberally with a view to disposition of cases on their merits unless the procedural delinquency has been too grave to condone. See Baldwin v. Desgranges, 355 Mo. 959, 199 S.W.2d 353, 355(1); Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935, 937(7). Mindful that it does not appear that the Board or its counsel have been “injured or inconvenienced in any way” by the tardy filing of the transcript on appeal [Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W.2d 794, 798(1,2)] and that the case is one of paramount importance to appellant Gad-dy, whose license to practice his chosen profession has been revoked, we have concluded that, in the exercise of our discretion, we should treat the transcript as having been filed by leave of court under Rule 83.26. State v. Amsden, Mo., 299 S.W.2d 498, 502(7); City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257(1-3). See Costello v. Goodwin, 240 Mo.App. 538, 210 S.W.2d 375, 377-378. Before proceeding to the merits, we again confess our wonderment that capable counsel so frequently assume such not inconsiderable but wholly unnecessary procedural risks in dealing with the interests of their clients, and we emphasize the caveat that our failure to impose the justified penalty of dismissal in the instant case must not be regarded as a precedent or as any indication that the same policy of condonation will be indulged in the future.

Preliminary to our factual review, it may be well for us to remind ourselves that, since the Board is an administrative body, and since Section 334.100, subsec. 3, expressly provides that “[a]ny person whose license is revoked or suspended by the hoard shall have the right to have the proceedings reviewed as provided by law for the review of decisions, rules and regulations of administrative officers and bodies existing under the constitution and laws of this state,” the scope of judicial review in the instant case is that provided by Article V, Section 22, Const, of 1945, as implemented by Section 536.140. Cf. Burrows v. County Court of Carter County, Mo.App., 308 S.W.2d 299, 301. Although the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Board reasonably could have made the findings and order under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Board; and the reviewing court may set aside the findings and order of the Board only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably dedueible therefrom, is viewed in the light most favorable to such findings and order.

On March 9, 1963, the Sheriff of Jackson County served on appellant, then practicing at Lee’s Summit, Missouri, written notice that the Board would, on March 30, 1963, hold a hearing to inquire into the charge “that on or about 1958 through on or about February 24, 1961, you were addicted to the habitual use of a narcotic drug or drugs” and that, “if, upon the evidence, the Board finds that such charge is true, the Board will determine whether your license to practice medicine should be revoked.” See Section 334.100, subsec. 1, subd. (5), and subsec. 2. At the hearing, two witnesses were called by the attorney general and appellant, represented by counsel, voluntarily testified. After the oral arguments of counsel, the Board took the matter under advisement and thereafter, to wit, on November 23, 1963, handed down its written findings of fact, conclusions of law, and order [Sec. 536.090], in which, inter alia, it found “that through and during the years 1959 and 1960 [appellant] was addicted to habitual use of narcotic drugs,” held “that addiction to a drug habit constitutes unprofessional and dishonorable conduct within the meaning of Section 334.100,” and “by unanimous vote of all members” revoked License No. 7188 theretofore issued to appellant.

Although the transcript does not reveal when appellant first was licensed to practice in Missouri, his counsel inform us, de-hors the record, that appellant graduated from an osteopathic school in 1940 and interned in a Tulsa hospital. The period covered by the evidence begins in October 1958, when, as the result of an automobile accident, appellant sustained severe personal injuries, including fractures of the pelvis and of the shaft and neck of the right (?) femur. Following the accident, appellant was taken to a hospital at Claremore, Oklahoma. About 24 hours later he was moved to the Tulsa General Hospital, a 25-bed osteopathic hospital located “in a poor part of town” and owned by appellant. For about five weeks, he remained in his hospital at Tulsa under treatment, “extension mostly and sedation,” by Dr. Frank Gaddy, his brother, and Dr. Frank Wolf. In November 1958, he was transported to the Mayo Clinic where Dr. F. L. Peterson did an arthrodesis, “put a pin through the neck [of the femur] and into the pelvis and then did a bone graft with two screws to hold the bone graft in place.” Some eight to ten days later, appellant, then in a body cast, was returned to his hospital in Tulsa, where he remained in the cast until April 1959. Thereafter he was on crutches until “sometime during the Summer of 1959.” With his hospital “in bad financial shape,” he returned “to practice as soon as possible; I am sure it was in May or June” 1959. His practice included “major surgery” and “abdominal surgery” but “not much fracture work.”

One of the witnesses called at the hearing conducted by the Board was Ted Hagrstrom, a state narcotic agent attached to the office of the Attorney General of Oklahoma. In company with Charles Casey, a Federal narcotic agent, Hagrstrom had interviewed appellant at his hospital in Tulsa on February 24,1961, and on that occasion had questioned appellant about his use of narcotic drugs. According to Hagrstrom, appellant had said “that he had been using both methádone and dolophine [identified as synthetic narcotic drugs], about four cc. four times a day” and again that, “since his release from the hospital [following the automobile accident], he had been using narcotics off and on, and finally he was using as much as four cc. four times a day.” When asked specifically whether he was addicted to the use of methadone or dolophine, appellant’s reply (as given by witness Hagrstrom) was that “he didn’t think he was actually addicted but he said, T presume the amount that I have been taking would indicate that I had been addicted, but I don’t think I will have any trouble relieving myself from the use of it.’ And [he] did not want to take treatment.”

The agents checked appellant’s narcotic records for the period from May 30, 1960, “at which time he [had] reported a burglary and all narcotics . . . taken,” to February 24, 1961. During that period of less than nine months, appellant had purchased and had “an accountability” for 5,860 cc. of methadone, 10 mg. per cc., but had a shortage of 5,187 cc. of that narcotic drug; and, during the same period, he had purchased and had “an accountability” for 5,960 cc. of dolophine, 10 mg. per cc., but had a shortage of 5,520 cc. of that narcotic drug. During the same period, he also had purchased 100 ampules of dolophine, 100 mg. per cc., and was short the entire amount. The only “overage” found by the agents was sixty-nine 1/3 gr. tablets of some narcotic drug not identified in the record. Appellant’s narcotic license was revoked “because of inaccuracies on the accounting and shortages of narcotics.”

The other witness called by the attorney general was Herbert Brigham, a retired Lieutenant in the Missouri State Highway Patrol who, in the course of his work as a part-time investigator for the Board, had interviewed appellant on March 1, 1963, at his then office in Lee’s Summit, Missouri. Brigham testified that appellant “did not admit to addiction” but that, after telling Brigham about the accident of October 1958, appellant said that “from the time that he was hospitalized until February of 1961 „ . he used these drugs [methadone and dolo-phine] as the pain required.” Appellant was unwilling to state “how much he used” but “repeated himself to say he used it when the pain hit him.” When asked where he had obtained the narcotic drugs, “he indicated that they were coming from hospital supplies.”

In his testimony, appellant denied the use of narcotic drugs prior to the accident of October 1958, admitted the use thereof during the period from the date of accident to February 24, 1961, always (so he said) for the relief of pain, and insisted that, after the latter date, he had taken no narcotic drug but, when needed, had used Kanacin, which is not a narcotic. In appellant’s words, “I did not feel that I ever became addicted to drugs” and “I don’t remember taking [them] routinely at any time.” On the other hand, appellant’s unequivocal affirmative answers evidenced his complete agreement with counsel when on cross-examination this series of questions was propounded, “you did take [them] whenever you had the pain” and “you testified that you had the pain frequently” and “you still have pain today, as a matter of fact.”

When appellant conceded that, after he had returned to practice in May or June 1959, he had continued to use narcotic drugs “when I needed it,” counsel’s inquiry as to “how often would that be” evoked only the casual, uninformative response, “I just really couldn’t tell you,” and the further query “could you give us some kind of an approximation” was answered in like vein, “I just don’t see how I could.” But when counsel persisted, “would it be more frequently than once a week,” appellant agreed, “yes, I would say so; mostly when I was tired and hurt,” and then admitted that he had followed “that practice” throughout the years of 1959 and 1960.

With respect to the shortages in narcotic drugs discovered by the agents on February 24, 1961, appellant had no explanation other than that he was “plagued with thieves at the hospital” and that he “didn’t have very good help and it was impossible to get any record of value.” He acknowledged that no prescriptions were signed for the narcotic drugs he used and that they “would just be removed from the hospital stock.” So he agreed that he had used “some” of the missing drugs although he professed the “positive” belief that he had not used “anything like” the quantities for which he could not account.

At the close of the oral testimony, appellant’s counsel moved for a continuance in order that they might take the depositions of Dr. Earl H. Laughrin, Jr., identified only as a physician who had examined appellant during May 1961, Dr. Frank Wolf who had treated appellant in Tulsa during the period of five weeks immediately following the accident in October 1958, Dr. F. L. Peterson who had operated on appellant at the Mayo Clinic during November 1958, and Dr. Frank Gaddy of Tulsa, appellant’s brother. The attorney general objected to the requested continuance because “this is the first time we ever heard anything about depositions or about the testimony of these other persons” and also because “what these doctors would have said got into the record through [appellant] without any objection . . . even though it constituted hearsay.” But, when appellant’s counsel inquired whether it might be stipulated that the above-named doctors would, if present, testify that appellant was not addicted to the use of narcotic drugs, the attorney general agreed so to stipulate, pointing out in the colloquy in which opposing counsel and appellant participated that Drs. Wolf and Peterson had treated appellant only in 1958, that Dr. Laughrin had examined him only in May 1961, and that Dr. Frank Gaddy was appellant’s brother.

Appellant contends that the Board’s finding (hereinafter referred to as such) that “through and during the years 1959 and 1960 [he] was addicted to habitual use of narcotic drugs” was not supported by competent and substantial evidence upon the whole record [Art. V, Sec. 22, Const, of 1945] and that, therefore, the Board’s finding was arbitrary and unreasonable and revocation of his license involved an abuse of discretion. Section 536.140, subsec. 2, subds. (6) and (7). Prerequisite to an intelligent determination as to whether the Board’s finding was supported by competent and substantial evidence is a proper understanding of what is meant by “[addiction to a drug habit,” as that phrase is used in Section 334.100, subsec. 1, where such addiction is designated as one of the “specifications . . . deemed unprofessional and dishonorable conduct” for which the Board may suspend or revoke a license. In turn, the meaning of the phrase “addiction to a drug habit” largely depends upon the meaning of the word “addiction.”

Appellant’s counsel cite and rely upon State ex rel. Johnson v. Clark, 288 Mo. 659, 671, 232 S.W. 1031, 1034(2), and State ex rel. Spriggs v. Robinson, 253 Mo. 271, 284, 161 S.W. 1169, 1172(2), in which our Supreme Court said that the predecessor statute to Section 334.100 was highly penal in its nature and should be construed strictly against the Board and liberally in favor of the physician charged. But the court did not long remain of this mind. For, in State ex rel. Horton v. Clark, 320 Mo. 1190, 1199, 9 S.W.2d 635, 638(4), the court, en banc, said that “powers conferred upon boards of health to enable them effectually to perform their important functions in safeguarding the public health should receive a liberal construction”; in State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943, the court approved the quoted statement from Horton, supra, added that, “[l]ooking to the policy and object of our Medical Practice Act as a whole, we find it to be an exercise of the inherent police power of the state in the protection of its people attempting to secure to the people the services of competent practitioners learned and skilled in the science of medicine, of good moral character and honorable and reputable in professional conduct” [334 Mo. at 235, 65 S.W.2d at 950], and disapproved Spriggs, supra [334 Mo. at 236, 65 S.W.2d at 951]; and in Hughes v. State Board of Health, 348 Mo. 1236, 1240, 159 S.W.2d 277, 279, the court commented that, long prior to Spriggs, supra, the court “had held that the medical practice act was enacted in the interest of society” [citing State v. Hathaway, 115 Mo. 36, 21 S.W. 1081], pointed out that the primary purpose of a proceeding to revoke a physician’s license is to protect and safeguard the public health, not to punish the physician [quoting from Hawker v. People of State of New York, 170 U.S. 189, 196, 18 S.Ct. 573, 576, 42 L.Ed. 1002, 1006], and disapproved both Spriggs and Johnson, supra. See also Rust v. Missouri Dental Board, 348 Mo. 616, 623, 155 S.W.2d 80, 83.

The overriding objective of all statutory construction is to ascertain and give effect to the legislative intention [see cases collated in 26 West’s Missouri Digest, Statutes,

and, as aids in that quest, the courts frequently make use of various auxiliary rules. Among those widely accepted and often employed in the judicial endeavor to determine legislative intention are the following, to wit, that one of the important factors to be considered is the purpose or objective of the enactment; that remedial statutes enacted in the interest of the public welfare should he construed with a view to suppression of the mischief sought to be remedied; and that nontechnical words and phrases should he given their plain and ordinary meaning unless that would defeat the manifest intent and purpose of the statutory provision.

“Addiction” is defined as “state of being addicted; indulged inclination; also, habituation, esp. to drugs”; and “addicted” is defined as “given up or over (to) ; devoted (to)” and as being synonymous with “accustomed, habituated, inclined, prone, attached.” When used in a bad sense, “addicted . . . refers to one who is given up or strongly disposed to some taste, practice, or pursuit.” Webster’s New International Dictionary (2nd Ed.), p. 30. “Drug addiction” is defined simply as the “habitual use of a drug.” Dorland’s Illustrated Medical Dictionary (23rd Ed.; 1957), p. 33. “Addiction” is not a word of art or technical word [Palmer v. Spaulding, 299 N.Y. 368, 87 N.E.2d 301, 302; In re De La O, 59 Cal.2d 128, 28 Cal.Rptr. 489, 505, 378 P.2d 793, 809, 98 A.L.R.2d 705]; and, with the foregoing rules of statutory construction in mind, we are of the opinion that, in the case at bar, “addiction” should he given its plain and ordinary meaning.

Returning to the facts of the instant case, the Board had before it the admissions of appellant that, “from the time he was hospitalized [in October 1958] until February of 1961,” he had used methadone and dolophine “when the pain hit him” and again “whenever [he] had the pain”; that he “had the pain frequently” and had taken the drugs “more frequently than once a week” throughout the years of 1959 and 1960; that “finally he was using as much as four cc. four times a day”; that, during the period of less than nine months from May 30, 1960, when he had reported a burglary and the theft of all narcotics, to February 24, 1961, when the agents had checked him, the records of his relatively small hospital reflected stupendous shortages in the two narcotic drugs which he had been using personally from the hospital stock without prescriptions therefor; and that, although “he didn’t think he was actually addicted” or would have “any trouble relieving [himself] from the use” of these narcotic drugs, appellant had told the agents on February 24, 1961, “I presume the amount that I have been taking would indicate that I had been addicted”— an observation which the Board well might have regarded as particularly significant. A party’s admission against interest of a material fact relevant to an issue in the case is competent against him as substantive evidence of the fact admitted. And, for a statement by a party to be competent as an admission against interest, it is not necessary that it be a direct admission of the ultimate fact in issue, but it may be competent and of probative value if it bears on the issue incidentally or circumstantially.

Counsel for instant appellant argue that, to have permitted the finding “that through and during the years 1959 and 1960 [appellant] was addicted to habitual use of narcotic drugs,” it would have been necessary to have shown appellant’s daily use of such drugs throughout that two-year period. We do not agree. In considering charges of habitual drunkenness in divorce suits, our appellate courts observed many years ago that “ ‘[a] man may be an habitual drunkard and yet be sober for days and weeks together.’ ” Wallace v. Wallace, Mo.App., 194 S.W. 523; Tarrant v. Tarrant, 156 Mo.App. 725, 730, 137 S.W. 56, 57. See Lester v. Sampson, Mo.App., 180 S.W. 419, 422. Similarly, we think that positive proof of daily use of narcotic drugs is not an essential prerequisite to a finding that one is an habitual user of such drugs.

Leaning heavily on the stipulation before the Board that, if present, four physicians would have testified that in their opinion appellant was not addicted to the use of narcotic drugs, his counsel here construe that stipulation as including an agreement that Dr. Peterson, who had operated on appellant at the Mayo Clinic in November 1958 (prior to the two-year period during which the Board found that appellant had been addicted), also would have testified that appellant was not addicted in January 1960, when appellant had returned to the Clinic for examination. We think that the stipulation is not fairly susceptible of that construction for, when the attorney general agreed to stipulate as to Dr. Peterson, he was identified as “the man who treated [appellant] in November of ’58 at Mayo Hospital.” But, irrespective of that, we do not regard the precise construction of the stipulation of counsel as determinative here. If the physicians had testified in person, they could have done no more than to have offered their opinion evidence as expert witnesses, and the weight and value to be accorded to their testimony would have been for the Board as trier of the facts. Cf. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 116-117, 220 S.W.2d 61, 65(8-10). Even administrative bodies composed entirely of laymen are not solely dependent upon, or as to all matters conclusively bound by, the opinion evidence of medical experts. E. g., Davis v. Brezner, Mo.App., 380 S.W.2d 523, 528 (12, 13), and cases there cited; Hall v. Spot Martin, Inc., Mo., 304 S.W.2d 844, 854(6,7). A fortiori, the seven members of the Board, themselves distinguished members of the medical profession, would not have been compelled to have embraced and followed the opinion evidence of other physicians.

In their brief, appellant’s counsel “concede that the members of the Board may utilize their expert knowledge and experience in the evaluation of the evidence submitted to them.” Accepting this statement of counsel, and mindful that it was for the Board, as trier of the facts, to draw from the evidence such inferences as were fairly permissible [cf. Vandaveer v. Reinhart & Donovan Const. Co., Mo.App., 370 S.W.2d 156, 163(9); Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 349(6)], we are constrained to conclude that the Board reasonably could have found “that through and during the years 1959 and 1960 [appellant] was addicted to habitual use of narcotic drugs,” and that this finding was supported by competent and substantial evidence upon the whole record. Art. V, Sec. 22, Const, of 1945. If so, the Board was empowered to revoke appellant’s license [Sec. 334.100, subsec. 1, subd. (5)], and the wisdom of doing so is not, and could not well be, gainsaid. See Board of Medical Registration & Examination of Indiana v. Armington, 242 Ind. 436, 178 N.E.2d 741, 93 A.L.R.2d 1391; Palmer v. Spaulding, 299 N.Y. 368, 87 N.E.2d 301; Paley v. Connecticut Medical Examining Board, 142 Conn. 522, 115 A.2d 448. For, it is common knowledge that narcotic drugs produce results other than the mere relief of pain and, in strange and diverse respects, influence and affect the reactions and judgment of users. And if, as others appropriately have pointed out, “[s]uch a blithe spirit is a hazard on the road” [People v. O’Neil, Cal.App., 37 Cal.Rptr. 734, 737], certainly he would be, in an examining or operating room, no less “a hazard” to the life and limb of unsuspecting but trusting patients.

Respondent Board’s motion to dismiss the appeal is overruled, and the judgment of the circuit court affirming the order of the Board is affirmed.

RUARK, P. J., and HOGAN, J., concur

      . All statutory references are to RSMo 1959, V.A.M.S., and all references to rules are ro the Rules of Civil Procedure, V.A.M.R.

      . Cf. Thompson v. Jenkins, Mo., 330 S.W.2d 802, 803; Hoover v. Whisner, Mo.App., 373 S.W.2d 176, 179; Moore v. Rone, Mo.App., 355 S.W.2d 398, 401; Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 131.

      . See State ex rel. Horton v. Clark, 320 Mo. 1190, 1199, 9 S.W.2d 635, 639; Horton v. Clark, 316 Mo. 770, 779, 293 S.W. 362, 365 (9); State ex rel. McAnally v. Goodier, 195 Mo. 551, 559, 93 S.W. 928, 929-930; 70 C.J.S. Physicians and Surgeons § 16 c, p. 875.

      . Cf. Rapp v. Industrial Com’n. of Missouri, Mo.App., 360 S.W.2d 366, 368(1); Burrows v. County Court of Carter County, Mo.App., 308 S.W.2d 299, 301 (2); Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 93(1); Cotton v. Voss Truck Lines, Mo.App., 392 S.W.2d 428, 431(3); United Brotherhood of Carpenters, etc. v. Industrial Com’n. of Missouri, Mo.App., 363 S.W.2d 82, 89(1, 2).

      . State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 235, 65 S.W.2d 943, 950(9); State ex rel. Gerber v. Mayfield, 365 Mo. 255, 259, 281 S.W.2d 295, 297 (3); In re Duren, 355 Mo. 1222, 1235, 200 S.W.2d 343, 352(8), 170 A.L.R. 391; Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 590(18); City of Ava v. Yost, Mo.App., 375 S.W.2d 884, 886; Globe Democrat Pub. Co. v. Industrial Com’n. of Missouri, Mo.App., 301 S.W.2d 846, 852(4): Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827, 829(1); Willis v. American National Life Ins. Co., Mo.App., 287 S.W.2d 98, 104(8).

      . State ex rel. Lentine v. State Board of Health, supra, 334 Mo. at 235, 65 S.W.2d at 950(9); State on Inf. of Dalton v. Miles Laboratories, 365 Mo. 350, 365, 282 S.W.2d 564, 574 (14); Co-Operative Live Stock Com’n. Co. v. Browning, 260 Mo. 324, 344, 168 S.W. 934, 938(2); State ex rel. Laundry, Inc. v. Public Service Com’n., 327 Mo. 93. 106, 34 S.W.2d 37, 42—43(3); Dodd v. Independence Stove & Furnace Co., 330 Mo. 662. 671, 51 S.W.2d 114, 118(11).

      .In re Tompkins’ Estate, Mo., 341 S.W.2d 866, 871(5); City of Olivette v. Graeler, Mo.. 338 S.W.2d 827, 833(5); State ex rel. Spink v. Kemp, 365 Mo. 368, 397, 283 S.W.2d 502, 527(39); State ex inf. Rice ex rel. Allman v. Hawk, 360 Mo. 490, 495, 228 S.W.2d 785, 788(5): Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922, 926, 137 S.W.2d 452, 454 (4) State ex rel. City of St. Louis v. Caulfield, 333 Mo. 270. 277. 62 S.W.2d 818, 822(6); Bellerive Tnv. Co. v. Kansas City, 321 Mo. 969. 989, 13 S.W.2d 628, 638(14).

      . See United States v. Eramdjian, D.C.Cal., 155 F.Supp. 914, 930; Aetna Life Ins. Co. v. Davey, 123 U.S. 739, 742, 8 S.Ct. 331, 332, 31 L.Ed. 315, 316; Des Moines Life Ins. Co. v. Clay, 89 Ark. 230, 116 S.W. 232(2); Rogers v. Morrill, 55 Kan. 737, 42 P. 355, 357.

      . Rutledge v. Ballance, Mo.App., 375 S.W.2d 214, 215(1); Wells v. Wells, Mo.App., 48 S.W.2d 109, 111; Kilcoyne v. Metz, Mo.App., 258 S.W. 4, 6(5); Pinteardd v. Hosch, Mo.App., 233 S.W. 81, 83(2); Latham v. Hosch, 207 Mo.App. 381, 387, 233 S.W. 84, 85(1). See Black v. Epstein, 221 Mo. 286, 303, 120 S.W. 754, 759(2); Concrete Steel Co. v. Reinforced Concrete Co., Mo.App., 72 S.W.2d 118, 121(2).

      .White v. Burkeybile, Mo., 386 S.W.24 418, 422(2); Donnelly v. Goforth, Mo..284 S.W.24 462, 465(2). See Albertson v. Wabash R. Co., 363 Mo. 696, 704, 253 S.W.24 184, 189(6); 31A C.LS. Evidence § 272 a, l. c. 697.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. B. L. SNODDY et ux., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Bowling Green, Robert J. Beale, Frankfort, for appellant.
    Samuel R. McCracken, Jr., Franklin, James M. Hunter, Gallatin, for appellee.
   HILL, Judge.

Appellant contends that (1) incompetent evidence was admitted, and that (2) the verdict is not sufficiently supported by the evidence, in this appeal from a $13,500 verdict for about 14 acres actually taken and 2.03 acres landlocked from the 187.67 acre farm of appellees located three miles east of Franklin, Kentucky, on Kentucky highway 100. The land sought was needed for the construction of 1-65, north-south super highway.

Appellee B. L. Snoddy and J. A. Hunt were permitted to testify concerning the sale of the Hunt farm nearby for $1,000 an acre. The Hunt farm is nearer town and perhaps more valuable than the subject farm. It may not have been identical land. As a matter of fact, it would be practically impossible to find identical farms. However, we think evidence of the sale of the Hunt farm was competent and furnished some guidance to the jury in fixing the value of appellees’ land. It is shown the Hunt farm is similar to the Snoddy land except that the Hunt property is nearer the town of Franklin. The fact that the purchaser of the Hunt farm planned to subdivide a portion of it into town lots does not thereby render evidence of such a sale incompetent. Commonwealth, Department of Highway v. Gearheart, Ky., 383 S.W.2d 922 (1964); East Kentucky Rural Electric Cooperative v. Smith, Ky., 310 S.W.2d 535 (1958).

The next and final argument of appellant asserts that the verdict is not supported by evidence and is excessive. Appellant’s two witnesses fixed the difference in before and after value of appel-lees’ farm at $4,390 and $4,500. Four witnesses, including B. L. Snoddy, fixed the difference in before and after value as follows : Snoddy, $30,000; Edgar Walker, $17,500; J. A. Hunt and E. W. Stinson, $20,000. The land is good, located near town on a good road. The right-of-way takes three beautiful shade trees from the front yard of the principal dwelling and extends to within 22 feet of the residence. Over 16 acres were taken including 2.03 acres landlocked.

Upon the whole case we cannot say the verdict appears, at first blush, to have been given under the influence of passion or prejudice in disregard of the evidence. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963).

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    RUSSELL CONSTRUCTION COMPANY et al., Appellants, v. WORKMEN’S COMPENSATION BOARD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Rehearing Denied Jan. 21, 1966.
    Robert G. Hunt, King, Deep, Branaman & Hunt, Henderson, for appellants.
    Robert Matthews, Atty. Gen., Frankfort, William L. Sullivan, Dorsey & Sullivan, Henderson, for appellees.
   WADDILL, Commissioner.

Appellee, Cosby Melton, a common laborer, who was 62 years of age when injured, obtained from the Workmen’s Compensation Board an award of total permanent disability (KRS 342.090) for injuries sustained while working for the appellant, Russell Construction Company.

On this appeal several grounds are urged for the reversal of the circuit court judgment upholding the award, the chief one being that there is insufficient evidence to support the finding of either total or permanent disability.

Appellee was seriously injured while assisting other employees in laying a heavy pipeline for the appellant. The dirt on the side of the trench in which appellee was working caved in, pitching part of a digging machine onto his back. Medical testimony described his injuries as: A deep laceration over his left shoulder; a pneumal thorax (which is a partially collapsed lung); a broken back (specifically fractures of the twelfth dorsal and the lumbar vertebrae); several fractured ribs and a fractured left collar bone.

Dr. W. H. Cave, who rendered emergency treatment and thereafter attended ap-pellee, testified that initially the shoulder laceration was taken care of and subsequently appellee was placed in a body cast which was worn for several weeks. Approximately one month later, Dr. Cave performed an operation which was described as an open reduction of the left collar bone. He stated the appellee remained in the hospital for about two months and, following his discharge from the hospital, he treated ap-pellee about ten times. As to the nature of appellee’s recovery Dr. Cave stated that the wires placed to hold the fractured collar bone together broke and appellee has a nonunion of the left clavicle. While the vertebrae have healed, appellee does not have full motion of his left shoulder. It was Dr. Cave’s opinion that appellee has reached maximum recovery from his injuries, that he is physically unable to perform duties requiring laying pipe or other similar work and that he cannot compete in the labor market for jobs requiring heavy manual labor. With respect to whether the disability is permanent, Dr. Cave stated that the separation or non-union of the clavicle fracture is permanent.

Dr. F. H. Zeier, an orthopedic surgeon, examined appellee approximately eight months after he was injured. This surgeon found a non-union and deformity of the appellee’s left clavicle. He observed that appellee had some limitation of motion of the left arm and shoulder, a definite kyphotic posture and pain in the lower dorsal region. He stated further that the non-union of the clavicle was probably due to his age and that the condition could be remedied by a bone graft. Dr. Zeier fixed appellee’s permanent disability at 27.5 per cent.

An official of the labor union, to which appellee belongs, stated that appellee’s disability would not only handicap him in competing in the labor market but would make him ineligible for job placement by his union except as a watchman or flagman. It was established by lay testimony that prior to the injury appellee had been performing manual labor since his youth.

Upon the consideration of the whole case we find ample evidence to justify a finding of total permanent disability. See Leep v. Kentucky State Police, Ky., (1963), 366 S.W.2d 729, 731.

Appellant next contends that the Board should have made the Subsequent Claim Fund a party defendant and should have also apportioned part of the award against it. KRS 342.120. This contention is based upon that portion of Dr. Zeier’s testimony that the X-rays of appellee’s back revealed some degenerative interverte-bral disc disease in the lower lumbar region. Apparently the Board did not believe this condition had been disabling to any appor-tionable degree prior to the accident in view of the fact that appellee was lifting and laying heavy pipe at the time of the accident. We observe that Dr. Zeier did not attempt to evaluate its disabling effect and Dr. Cave attached no significance to it other than describing it as part of the aging process. Under these circumstances the Board was not required to make the Subsequent Claim Fund a party defendant.

Finally it is contended that appellee is not entitled to damages in the event of an affirmance of the superseded circuit court judgment, We decline to consider this contention because it has been prematurely presented to this Court.

The judgment is affirmed.


author: CALVERT, Chief Justice.

text:
    Bernard WHITTEN, Trustee, Petitioner, v. REPUBLIC NATIONAL BANK OF DALLAS, Respondent.
    No. A-10475.
    Supreme Court of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 19, 1966.
    Wynne, Jaffe & Tinsley, Carl W. Wilson, Dallas, for petitioner.
    Leachman, Gardere, Akin, Porter & De-Hay, Dallas, for respondent.
   CALVERT, Chief Justice.

Petitioner Whitten, Trustee in Bankruptcy of Tex-Mex Corporation, seeks to recover the sum of $65,270.83 from respondent, Republic National Bank of Dallas. Right of recovery is predicated on allegations that Bank required Tex-Mex, prior to its bankruptcy, to pay a personal note of its president out of the proceeds of a $257,500.00 loan made by Bank to Tex-Mex. The underlying- theory of Whitten’s suit is that use of corporate funds to pay a debt of a corporate officer is prohibited by Article 1349, Vernon’s Texas Civil Statutes, and by Article 2.02, subd. A(6), Texas Business Corporation Act, V.A.T.S.; and that although Bank knew or was charged in law with knowledge of the statutory prohibition, it required that payment of the debt of Tex-Mex’s president be made from corporate funds and thus diverted such funds.

Both parties moved for summary judgment. Bank’s motion was overruled, but Whitten’s motion was granted and judgment was rendered against Bank for $65,270.83. The Court of Civil Appeals reversed the trial court’s judgment, granted Bank’s motion for summary judgment, and rendered judgment that Whitten take nothing. 383 S.W.2d 207. We affirm the judgment of the Court of Civil Appeals.

Bank had before the Court of Civil Appeals five points of error designated “arguments” and stated as follows:

“Argument (a) The Trustee has no cause of action against the Bank under Article 2.04, Texas Business Corporation Act.
“Argument (b) TexMex as a matter of law ratified the transaction with the Bank upon which this suit is based.
“Argument (c) The Trustee is estopped as a matter of law to recover against the Bank.
“Argument (d) The Trustee may not disaffirm that part of the agreement with the Bank which he considers onerous to TexMex and affirm and retain the benefits of the beneficial part.
“Argument (e) TexMex sustained no damages in the transaction with the Bank.”

The Court of Civil Appeals considered separately and sustained the first four points, but did not consider the fifth point.

The briefs of the parties filed in this Court are devoted primarily to the first point which concerns a proper interpretation of Art. 2.04, T.B.C.A., and its application to the facts of this case. Whitten contends that his suit is not precluded by that statute which abolishes “lack of capacity” of a corporation as the basis of a claim or defense at law or in equity. Bank asserts that it is. To a somewhat lesser extent the parties argue the point on ratification, Whitten contending that ratification of the transaction out of which the claim grows could only be effected by unanimous consent of all shareholders of Tex-Mex and Bank arguing that the Board of Directors could ratify on behalf of the corporation. Perhaps it would be of academic interest for this Court to resolve those issues; but, having concluded that Whitten is estopped as a matter of law from asserting his claim, resolution of the issues is unnecessary and would serve no useful purpose in this case. For, even if the claim is not precluded by Art. 2.04, T.B.C.A., and the transaction has not been legally ratified, as Whitten contends, he is still estopped from asserting the claim.

The facts in the case are reflected in summary judgment affidavits and are set out in the opinion of the Court of Civil Appeals in considerable detail. Only those which bear on the issue of estoppel will be related here.

In 1959 Tex-Mex was indebted to Bank in the sum of $329,187.50, and its wholly owned subsidiary, People’s Realty Company, was indebted to Bank on a note in the sum of $97,500.00. Robert A. Yarber, President of Tex-Mex, owed Bank $65,-000.00, plus interest, on a personal note. Yarber’s note was secured by 37,500 shares of common stock of Tex-Mex and by a letter agreement of Tex-Mex, signed by Yarber and by Robert M. Cozine as Executive Vice-President, to purchase the 37,500 shares of stock at $2.00 per share if called on to do so during the term of the loan. Tex-Mex sought to borrow an additional $257,500.00 from Bank and, after informal discussions between officers of the two institutions, its Board of Directors on November 24, 1959, authorized the execution of its note to Bank for that sum, the note to be secured by two second lien notes for $600,000 and $80,000 respectively. Bank refused to make the loan unless Yarber’s note was paid out of the proceeds. On November 27, 1959, Bank agreed to make and did make the loan upon condition that out of the proceeds of the loan the balance of $65,-270.83 on Yarber’s note, the balance of $97,955.00 on the note of People’s Realty Corporation, and claims of various other creditors totalling $73,800.00 would be paid. There were other terms of the agreement. As a part of the same transaction, Bank was to mark Yarber’s note “Paid” and surrender the note, the 37,500 shares of Tex-Mex stock and the agreement to purchase the same to Tex-Mex. In turn, Yarber was to execute his note to Tex-Mex for $65,-270.83 and assign his 37,500 shares of stock to Tex-Mex as collateral. Tex-Mex was to assign to Bank the $600,000 and $80,000 second lien notes and Yarber’s note for $65,270.83 as security for its note for $257,-500.00. The agreement was fully consummated and executed on the terms and conditions indicated. Certain payments were thereafter made on the note for $257,500.00, and in October, 1960, the note was sold by Bank to one Atkerson to whom it and its collateral security were assigned. A petition in bankruptcy was filed against Tex-Mex December 23, 1960, and Whitten was appointed Trustee March 21, 1961.

On the basis of the foregoing facts, Bank contends that Whitten is estopped to assert that payment of Yarber’s note by Tex-Mex out of corporate funds was ultra vires and to assert a claim for recovery of the sum so paid. The contention of Bank was sustained by the Court of Civil Appeals, as heretofore indicated. That court pointed out that Whitten did not allege any fraud on the part of Bank, and that Tex-Mex unquestionably received benefits from the fully executed agreement of November 27, 1959. Assuming those facts to be true, and that payment of the Yarber note was ultra vires only in the sense that it was beyond the powers conferred on Tex-Mex by its charter and the statutes under which it was incorporated, the holding of the Court of Civil Appeals is undoubtedly sound. See Kincheloe Irr. Co. v. Hahn Bros. & Co., 105 Tex. 231, 146 S.W. 1187 (1912); Bond v. Terrell Cotton & Woolen Mfg. Co., 82 Tex. 309, 18 S.W. 691 (1891); Hildebrand Texas Corporations, §§ 135, 137; 19 Am.Jur.2d, Corporations, §§ 973, 974, 975. But Whitten argues that Tex-Mex did not receive benefits adequate in law to predicate an estoppel.

The benefits said by the Court of Civil Appeals to have been received by Tex-Mex are (1) payment of the $97,955.00 note of People’s Realty Corporation, Tex-Mex’s subsidiary; (2) execution by Yarber to Tex-Mex of his note for $65,270.83, secured by his 37,500 shares of stock; (3) release of Tex-Mex’s obligation to buy Yarber’s stock at $2.00 per share; (4) the receipt of $73,-800.00 with which to pay claims of other creditors; and (5) receipt of approximately $21,000.00 in free funds in its account. If we assume, as Whitten contends, that the first three listed items were of no real benefit to Tex-Mex, the fact remains, as pointed out by the Court of Civil Appeals, that from the funds made available Tex-Mex was able to refinance claims of other creditors in the amount of $73,800.00 and to obtain $21,000.00 for such other purposes as it cared to use it. We hold that these benefits were direct and substantial and that they are sufficient in law to estop Tex-Mex, as a matter of law, from asserting that payment of Yarber’s note was ultra vires, and from asserting a claim for the money so paid.

As compelling a different conclusion, Whitten cites Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148 (1953); Farracy v. Security National Bank, Tex.Civ.App., 4 S.W.2d 331, judgment modified, Tex.Com.App., 29 S.W.2d 1073 (1930); and First Merchants Nat. Bank & Trust Co. of Lafayette v. Murdock R. Co., 111 Ind.App. 226, 39 N.E.2d 507 (1942). We do not regard these cases as controlling or persuasive on the issue of estoppel. In both Dunagan v. Bushey and Farracy v. Security National Bank, a hank was held liable for the return of corporate funds used to pay personal debts of officers and directors, but in neither case did the corporations benefit from the transaction in which the debts were paid nor was an issue of estoppel involved. The Indiana decision is by an intermediate appellate court. In that case Murdock Realty Company executed a mortgage on real property to secure a corporate debt and to secure personal debts of its officers. Foreclosure of the mortgage lien was decreed to satisfy the corporate debt but foreclosure was denied in so far as the lien was given to secure the debts of officers. This in spite of the fact that in the transaction in which the security was given the bank had advanced an additional $18,000.00 to the corporation. Evidently estoppel was not an issue in the case as it is not discussed in the court’s opinion. The court concluded its opinion thusly: “We can find no basis either in law or equity sufficient to warrant the court in taking from the assets of this corporation an additional $85,000 for the purpose of satisfying the individual debts of the corporate officials.” 39 N.E.2d 514. The court thus refused to enforce an executory contract. The contract in the case before us was fully executed.

But it is argued by Whitten that estoppel will not lie when the executed contract is illegal as distinguished from ultra vires. Support for this argument is found in Bond v. Terrell Cotton & Woolen Mfg. Co., 82 Tex. 309, 18 S.W. 691 (1891), in which a distinction between ultra vires acts and illegal acts is recognized. An illegal act is there defined as one which is inherently and essentially evil or immoral (malum in se), or which is expressly prohibited by specific statute (malum prohibitum), or which is against public policy. The question, then, is whether the use of corporate funds to pay the debt of an officer is an illegal act as there defined.

That the act is not inherently evil or immoral must he conceded. It must he conceded also that the act is not against public policy since only the stockholders and creditors of the corporation, not the public generally, have an interest in the matter. Is the act illegal because expressly prohibited by specific statute ? We think not.

Before enactment of the Texas Business Corporation Act in 1955, the only statutory prohibition of the use of corporate funds to pay debts of corporate officials was Art. 1349, V.A.C.S., which prohibits corporations from using their means or assets “directly or indirectly for any purpose whatever other than to accomplish the legitimate business of its creation, or those purposes otherwise permitted by law.” This Court held in Bond v. Terrell Cotton & Woolen Mfg. Co., supra, that this general prohibition did not render illegal an act which was otherwise merely ultra vires. That decision would foreclose the question presented here but for the inclusion of Art. 2.02, subd. A(6) in the Texas Business Corporation Act. Art. 2.02, subd. A provides: “Subject to the provisions of Sections B and C of this Article, each corporation shall have power: * * * (6) To lend money to, and otherwise assist, its employees, hut not to its officers and directors.” Art. 2.02, subd. A is by its very wording a grant of powers. That is made doubly clear by a reading of the other eighteen paragraphs of the Article. Considered in this context, the phrase, “but not to its officers and directors,” is but a limitation on a specific power granted, not a positive prohibition.

The judgment of the Court of Civil Appeals is affirmed.

      . The summary judgment affidavit supporting “Bank’s motion states the latter figure as $21,200.00.” Arithmetical computation indicates that it should be $20,-474.17. The difference is immaterial.


author: SMITH, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Respondent.
    No. A-10101.
    Supreme Court of Texas.
    Nov. 10, 1965.
    Rehearing Denied. Jan. 19, 1986.

      Ed Gossett, Dallas, Ford W. Hall, Sears & Burns, Houston, for petitioner.
    Bracewell, Reynolds & Patterson, William Key Wilde, Houston, with above firm for respondent.
   SMITH, Justice.

Southwestern Bell Telephone Company, hereinafter referred to as Bell, brought suit against the Houston Independent School District, hereinafter referred to as the District, to recover the sum of $82,-899.67 representing the balance of service charges due from the District for the period of September 1, 1959, to March 1, 1961. The District claims that by authority of a city ordinance adopted in 1911, it is entitled to have local exchange telephone service within the city limits of Houston furnished at the residence rate of $5.90 per month and accordingly paid a sum computed on that basis, as provided in such ordinance. On the other hand, Bell contends for payment on the basis of a one-party business flat rate of $16.50 per month.

After a trial without a jury and upon stipulated facts, the trial court rendered judgment for Bell. The Austin Court of Civil Appeals has reversed that judgment and rendered judgment that Bell take nothing. 376 S.W.2d 375. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court for the reasons now to be stated.

The ordinance which is the basis for the District’s position was adopted on January 3, 1911, by the City Council of the City of Houston and reads as follows:

“AN ORDINANCE FIXING THE RATES TO BE CHARGED BY ANY PERSON, FIRM, CORPORATION, OR RECEIVER, OPERATING OR OWNING TELEPHONE LINES IN THE CITY OF HOUSTON FOR FURNISHING TELEPHONE SERVICE TO FIRE STATIONS AND TO THE PUBLIC SCHOOLS OF THE CITY OF HOUSTON.
******
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON:
“Section I. That from and after the passage of this ordinance any person, firm, corporation or receiver, operating or owning telephone lines within the City of Houston shall furnish telephone service to fire stations and to public schools at the following rate, viz: Telephone service shall be furnished to fire stations at the rates provided for business or office phones. And telephone service shall be furnished to public school buildings at the rates provided for residence phones.”

This ordinance was re-enacted in the 1914 Code and the 1922 Code of Ordinances of the City of Houston in substantially the same form, but it was not included in a later 1942 Code of Ordinances or in a rate ordinance adopted in 1949 or any' other subsequent telephone rate ordinances.

Bell contends, and the trial court held, that the 1911 ordinance is invalid because (1) it is discriminatory and therefore void, (2) it has been repealed by implication, and (3) because the enforcement of the 1911 ordinance would be in violation of the terms of a district court judgment entered in 1955 enjoining the City from enforcing the rates provided in an ordinance adopted in 1949 or the rates adopted “ * * * in any other ordinance heretofore enacted and effective in the City of Houston.”

The District has consistently maintained that it is only obligated to pay at the lower residence rate prescribed by the ordinance of 1911. The District’s position is that the 1955 injunction is not applicable because the ordinance is a “classification” ordinance, and not a rate ordinance. Bell contends that the 1911 ordinance is not a “classification” ordinance, as held by the Court of Civil Appeals, but is actually a “rate” ordinance, and, therefore, the City has been effectively enjoined by the terms of the 1955 judgment from enforcing or attempting to enforce the 1911 ordinance. We have concluded to sustain Bell’s position on this ground; therefore, it is unnecessary to pass upon the questions of repeal by implication and discrimination.

A city has no inherent power to regulate a utility. Whatever powers of this nature municipalities have in Texas are derived only from an express grant from the Legislature. Tri-City Fresh Water Supply District No. 2 v. Mann, 135 Tex. 280, 142 S.W.2d 945 (1940); Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934); Texas-Louisiana Power Company v. City of Farmersville, 67 S.W.2d 235 (Tex.Com.App.1933); Coleman Gas & Oil Company v. Santa Anna Gas Company, 67 S.W.2d 241 (Tex.Com.App.1933).

At the time the 1911 ordinance was originally adopted, and at all times thereafter, the only grant of authority to the City of Houston relative to telephone rates was contained in its - charter, Article II, Section 6, pertinent part as follows:

“The City Council shall have the power by ordinance to fix and regulate the price of water, gas and electric lights, and to regulate and fix the fares, tolls and charges of local telephones and exchanges; of public carriers and hacks, whether transporting passengers, freight or baggage, and generally to fix and regulate the rates tolls or charges of all public utilities of every kind.” (Acts of 1905, 29th Leg., Regular Session, Special Laws, Chap. 17, pages 131-133.)

Under this section the Legislature did not expressly grant to the City the power to prescribe classifications. It is sufficient to note that both Bell and the District agree that, if the City has such power, it is a power derived from the express grant oi rate-making authority. However, the District argues that after enactment the “classification” ordinance occupies a status separate from that of rate ordinances generally. We limit our decision to that of examining the language and effect of the ordinance so as to determine whether it is actually distinguishable fr.om rate ordinances.

This ordinance was originally enacted when the public school system within the corporate limits of the City of Houston was actually owned by the City. The ordinance itself, in its caption, was designated as one “FIXING THE RATES” to be charged to fire stations and public schools within the City by any telephone company. The purpose stated in the body of an act must conform to the notice-giving purpose stated in the caption, and the courts have given controlling effect to the purpose stated m the caption. Missouri, K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S.W. 881 (1912); Hennessy v. Automobile Owners’ Insurance Association, 282 S.W. 791, 46 A.L.R. 521 (Tex.Com.App.1926). In 1923 the District assumed ownership and operation of the school system. It was stipulated that since 1911 the City has been regulating and fixing rates for the various classes of local exchange telephone service as proposed by Bell without ever attempting to generally classify Bell’s services and customers for the application of local rates. In view of the wording of the ordinance, it seems apparent that the actual objective of the ordinance was not to create classifications, but rather to direct that public schools were to be charged the same rates as residences. We conclude that the City was inherently exercising its legislative power to actually fix the rates applicable to the public schools within its limits when it adopted the ordinance of 1911.

The ordinance of 1911 is, in effect, a rate ordinance, and it follows that the City has been enjoined by the judgment of the District Court entered on April 26, 1955, from enforcing or attempting to enforce by suit or otherwise the charging, collecting or observance by this plaintiff of the rates and charges for telephone services. The words of the judgment are clear and unambiguous. The judgment not only prohibits the enforcement of the 1949 ordinance, but prohibits the enforcement of all previous ordinances affecting rates. See Bankers Home Building & Loan Association v. Wyatt, 139 Tex. 173, 162 S.W.2d 694 (1942); Permian Oil Company v. Smith, 129 Tex. 413, 73 S.W.2d 490 (1934), 107 S.W.2d 564, 111 A.L.R. 1152 (1937).

In the absence of rate regulation by some authorized body, state or municipal, the telephone company may prescribe and apply its own rates, subject to the dictates of reasonableness and justice. Harris County Water Control and Imp. Dist. No. 58 v. City of Houston, 357 S.W.2d 789 (Tex.Civ.App., 1961 ref. n. r. e.); City of Houston v. Memorial Bend Utility Co., 331 S.W.2d 418 (Tex.Civ.App.1960, ref. n. r. e.); and see United Gas Corporation v. Shepherd Laundries Co., 144 Tex. 164, 189 S.W.2d 485 (1945); 86 C.J.S. Tel. & Tel., Radio & Television §§ 83 and 87; 73 C.J.S. Public Utilities §§ 14 and 15.

We conclude that the ordinance applying residence rates to all public schools within the limits of the City of Houston is unenforceable by reason of the 1955 district court injunction, and Southwestern Bell Telephone Company is entitled to a judgment for the balance of the amount due from the Houston Independent School District.

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

      . “It is, therefore, ORDERED, AD JUDGED AND DECREED that the temporary injunction heretofore issued, herein he and the same is hereby' made permanent and that the Clerk of this Court forthwith issue a permanent injunction restraining and enjoining' the defendants, the City of Houston, Texas, Roy .Hofheinz, as Mayor, George Ke.sseler, Joe G. Resweber, Matt Wilson, Clyde J. ffitz-gerald, J. M. Heflin. Ira Kohler, Harry Holmes, Jr., and George G. Marquette, Jr., as Members of the City Council of tlie City of Houston, Texas, their agents, servants, employees, representatives and successors in office:
      (a; Fx-om enforcing or attempting to enforce by suit or otherwise the charging, collecting, or observance by this plaintiff of the rates and charges for telephone service prescribed and set forth in Ordinance 4508 enacted by the City Council of the City of Houston on the 1st day of December, 1949, or in any other ordinance heretofore enacted and effective in the City of Houston;
      (b) From assessing or seeking to enforce against the plaintiff, its of-fieers, agents or employees, any fine or penalty or criminal charges on account of the failure of the plaintiff to charge and collect only the rates and charges for telephone service prescribed by Ordinance 4508." [Emphasis added.]


author: WOODLEY, Justice.

text:
    Alberto ADAMI, Appellant, v. The STATE of Texas, Appellee.
    No. 38107.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 19, 1966.

      Raeburn Norris, Houston, Nago L. Alaniz, San Diego, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Justice.

This is an appeal from a conviction for the felony offense of drank driving with punishment assessed by the jury at two years in jail and a fine of $5,000.

The state’s testimony reflects that about 10 o’clock P.M. three State Highway Patrolmen met appellant who was driving an automobile on a public highway, weaving from one lane of traffic to the opposite lane; that the officers turned and followed him for approximately a mile and a half and stopped him; that he was the only person in the car; that upon being asked for his driver’s license he fumbled for his wallet; that he staggered when he walked and almost fell down; that in the opinion of the officers he was intoxicated.

A sample of his urine taken from appellant with his consent was shown to contain 0.36 percent alcohol, which according to the testimony of the chemist and toxicologist would approximate .18 percent alcohol in the blood, and everyone with that amount of alcohol in the urine would be intoxicated.

The prior misdemeanor conviction for drunk driving was proved by certified copies of the complaint, information and judgment and appellant was identified by a witness as the defendant so convicted.

Appellant took the stand in his own defense. He admitted his previous misdemeanor conviction as alleged in the indictment.

He testified that he drank one beer before lunch; two after lunch (about 3 P.M.) and two about 8 P.M., but denied that he was intoxicated.

In his brief appellant concedes that the record reflects sufficient evidence, although conflicting, to support the jury’s finding’ of guilty and that no formal bills of exception were taken.

The sole ground upon which reversal is sought is that the court erred in overruling his motion for new tiral.

The motion for new trial is only a pleading and cannot be made a substitute for a bill of exception. Tindol v. State, 156 Tex.Cr.R. 187, 239 S.W.2d 396.

The matters complained of are alleged to have occurred during jury argument and are not before us other than as shown in the statement of facts on the motion for new trial which sets out conflicting testimony of counsel for appellant and the district attorney.

In the absence of a formal or informal bill of exception, this Court is in no position to pass upon the claim of error.

The sentence provides for appellant’s confinement in jail for not less than 10 days nor more than 2 years and until the fine of $5,000 and costs are paid.

Art. 775 C.C.P. which requires an indeterminate sentence does not apply when a jail term is assessed. The sentence is reformed to provide that appellant be confined in jail for two years and until the fine and costs are paid.

As reformed, the judgment is affirmed.