author: COLEMAN, Justice.

text:
    CONNECTICUT INDEMNITY COMPANY, Appellant, v. Roy G. TREJO, Appellee.
    No. 14086.
    Court of Civil Appeals of Texas. Houston.
    April 18, 1963.

      Hicks, Dollahon, Boss & Wohlt, Willard E. Dollahon, Houston, for appellant.
    McCully & Christensen, Helm, Jones, Pletcher & Winkelman, Robert C. Winkel-man, Houston, for appellee.
   COLEMAN, Justice.

This is a Workman’s Compensation case. Appellant seeks to reverse the judgment of the trial court by reason of alleged improper jury argument made by counsel for ap-pellee.

No statement of facts has been filed in this Court. Appellant has filed an instrument denominated “Defendant’s Bill of Exceptions.” This instrument, in the form of a bill of exceptions, has attached thereto . as “Exhibit A” a transcription of the argument of appellee’s counsel which is certified ■ correct by the court reporter and appellee’s counsel. Counsel for appellee struck from the certificate to the bill of exceptions the words, “and I have approved same as a correct bill of exceptions and agree that,” and as filed it reads: “Submitted to me, exhibit ‘A’ thereto is a correct transcription of oral argument of plaintiff’s attorney.”

Thus it appears that the bill of exceptions was not approved as correct by appellee’s counsel and, additionally, it was neither approved, refused nor ordered filed over the signature of the trial court. Neither has appellee’s counsel agreed that the reporter’s transcription be considered as a bill of exceptions. While appellant’s counsel asserts that the bill of exceptions was presented to the trial court who stated that he neither approved nor disapproved bills of exception where counsel for both parties have agreed that the court reporter’s transcription of the argument is correct because in his opinion it was not necessary, no bill of exception to this action of the court appears in the record, and, therefore, no certification as to the truth of the matter.

While the trial court’s duty and responsibility with respect to bills of exception are clearly stated in Rule 372, Texas Rules of Civil Procedure, a case may not be reversed by reason of error of the trial court unless such error appears in the record. Appellant has not presented a point of error in his brief complaining of the failure of the trial court to act on his bill of exceptions. The necessity for a bill of exception is illustrated when, as in this case, it is contended that the objectionable argument was made in response to an argument made by the appellant. In the absence of a bill of exception the appellate court usually cannot consider that circumstance.

“Only when the complaining party has presented the matter in a bill of exceptions is the opportunity afforded to his adversary and to the court for the addition of an appropriate qualification that might render harmless argument that otherwise would be improper or prejudicial.” Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46.

The instrument filed in this Court does not constitute a bill of exceptions since the record does not show that it was properly presented to the trial court and the record does show that no action thereon was taken by the trial court. While the reporter’s transcript of the argument was not intended as a statement of facts and was not presented to this Court as a partial statement, it is settled that the fact that the argument of counsel is inserted in the statement of facts filed in the appellate court will not constitute the objections and exceptions contained therein informal bills of exception under Rule 372. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Company v. Tatom, Tex. Civ. App., 342 S.W.2d 25, ref. n. r. e.; Smith v. United Gas Pipe Line Co., 149 Tex. 69, 228 S.W.2d 139; American General Insurance Co. v. Dennis, Tex.Civ.App., 280 S.W.2d 620.

In Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, ref., n. r. e., this Court sustained a motion to strike from the record a transcript of the jury argument certified as correct by both the official court reporter and the trial judge for the reason that such a transcript, in the absence of an agreement by counsel, is not a proper part of the statement of facts and does not constitute a bill of exceptions.

While appellee has filed no motion to strike the purported bill of exceptions, it is not properly a part of the record and cannot be considered by this Court. Prit-chett v. Highway Insurance Underwriters, supra.

Before the judgment of the trial court is reversed because of improper jury argument, the record must reflect that the improper argument was made to the jury, and the appellate court must be satisfied that the argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596. Since this record contains no statement of facts, we would be unable to form an intelligent opinion as to whether the argument complained of probably caused the rendition of an improper judgment. Walker v. Texas Employers Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    GRAPEVINE TRUCKING, INC., et al., Appellants, v. Ruby SHEPHERD et vir, Appellees.
    No. 16409.
    Court of Civil Appeals of Texas. Fort Worth.
    March 22, 1963.
    Rehearing Denied April 26, 1963.

      Shields, Jones & Whittington, and Charles O. Shields, Dallas, for appellants.
    Sewell & Forbis, and James E. Forbis, Decatur, for appellees.
   MASSEY, Chief Justice.

The appeal is by writ of error from the district court of Wise County, Texas, to vacate a certain default judgment entered in a negligent collision case.

Judgment is reversed and the cause remanded.

Plaintiffs in the trial court were Ruby Shepherd and her husband. Defendants were Grapevine Trucking, Inc., a Texas corporation, and the driver of its truck, one Billy Duain Jones. Judgment in default of any answer or appearance was entered against both defendants. As to Jones the judgment has become final. It is only the defendant Grapevine Trucking, Inc., who has brought an appeal by writ of error under the provisions of Texas Rules of Civil Procedure 359-363, inclusive. In the petition therefor Grapevine Trucking, Inc., was joined by A. G. Wise, Buford J. Eatmon and T. E. Prince, its stockholders and directors.

After this court's jurisdiction was complete, Ruby Shepherd et vir filed a motion to dismiss the appeal on the ground that there had been a forfeiture of the right of Grapevine Trucking, Inc., to do business in this state prior to the time of the collision which gave rise to the cause of action, which condition of forfeiture continued up until the time the motion was filed. V.A. T.S. Title 122A, “Taxation-General”, Ch. 12, “Franchise Tax”, Art. 12.14, “Failure to Pay Tax”. It is of interest to note that since time the motion was filed the fees and penalties requisite to the restoration of the trucking company’s right to do business have been paid, and such restoration had, although we do not consider this of any importance to the appeal.

When an appellate court is called upon to revise the ruling of a trial court, it must do so upon the record before the court when such ruling was made. A party to a suit will not be permitted to try his case in the appellate court on a different statement of facts than that presented in the court below. Since the trial court did not have before it on trial therein the fact that Grapevine Trucking, Inc., had forfeited its right to do business in this state and to prosecute or defend suits in the courts of the state, we are hound on the appeal to treat the case as though said defendant labored under no impediment to a presentation of a proper defense. Stephens County v. J. N. McCammon, Inc., 1932, 122 Tex. 148, 52 S.W.2d 53, 55. That the appeal is by writ of error rather than by an ordinary form of appeal would not alter the rule.

We overrule the motion to dismiss.

Premise on which Grapevine Trucking, Inc., contends for reversal of the default judgment lies in the defect of the officer’s return on the citation purportedly served with the objective to bring it into court and subject it to jurisdiction.

The officer’s return reads as follows: “Came to hand on the 20 day of Oct., 1961, at 11:21 o’clock A. M., and executed in Tarrant County, Texas, by delivering to each of the within named defendants, in person, a true copy of this Citation with the date of delivery endorsed thereon, together with the accompanying copy of the plaintiff’s petition, at the following times and places, to-wit: * * * Marry Adkisson, Bookkeeper For Grapevine Trucking, Inc., 10 (month) 23 (day of month) 61 (year), 1:35 P. M., (at) Rt. 1, Grapevine, Texas.”

The return does not affirmatively disclose requisite compliance with the provisions of Texas Rules of Civil Procedure 107, “Return of Citation”. In connection therewith we take notice of V.A.T.S. Texas Business Corporation Act, Art. 2.11, “Service of Process on Corporation”, which contains provisions as to certain types of service of process which may be sufficient to satisfy legal requisites as to a Texas Corporation. The parties concede that within contemplation of this Article there was no adequate service of citation in the case. We agree that the concession is proper and that the parties are correct. However, appellees Ruby Shepherd et vir insist that reference is proper to be made to V.A. T.S. Title 42, “Courts — Practice in District and County”, Ch. 3, “Citation”, Art. 2029, “Against corporations and joint stock associations”, and the part thereof which states that in suits against corporations the citation may be served on certain specified persons, or “by leaving a copy of the same at the principal office of the company during office hours.” We see nothing in the article, nor in the provision for leaving a copy of the citation at the principal office of the corporation during office hours, which alters our opinion that the record, in so far as it purports to disclose service of citation, failed to comply with requisites of T.R.C.P. 107.

Only by the aid of an inhibited presumption may the service of citation be said to have been sufficient. That the person (Marry Adkisson, bookkeeper), upon whom the service was had, was then present at the principal office of Grapevine Trucking, Inc., when process was served upon her, must necessarily be presumed in any conclusion that the officer executing the return complied with the provisions of Art. 2029. That other presumptions were necessary is certainly arguable if not positively apparent. In the respect stated necessity of presumption is positively apparent. No presumption will be indulged to aid the sheriff’s return in order to support a judgment by default. See Tullis v. Scott, 1873, 38 Tex. 537, 538, citing Graves v. Robertson, 1858, 22 Tex. 130; Underhill v. Lockett, 1857, 20 Tex. 130; and Roberts v. Stockslager, 1849, 4 Tex. 307. This is still the law. The trial court had not acquired jurisdiction over the person of Grapevine Trucking, Inc., at the time default judgment was entered. Therefore the judgment cannot stand.

Judgment is reversed and the cause remanded to the trial court.


author: BARROW, Justice.

text:
    Theresa Real SCHWAB et vir, Appellants, v. COUNTY OF BEXAR, Appellee.
    No. 14085.
    Court of Civil Appeals of Texas. San Antonio.
    April 3, 1963.
    Rehearing Denied May 1, 1963.

      Park Street, Walter Powell Gray, San Antonio, for appellants.
    James E. Barlow, Dist. Atty., Joe E. Anderson, C. J. Matthews, Asst. Dist. Attys., San Antonio, for appellee.
   BARROW, Justice.

Phis is an appeal by landowners from a judgment entered, after jury trial, in a condemnation hearing involving a partial taking of two small tracts of land. Appellants complain by three points, of alleged prejudicial error in the introduction in evidence of the award of the special commissioners.

Appellee recognizes the rule that the arvard of the special commissioners is not admissible in evidence. City of Corpus Christi v. Magee, Tex.Civ.App., 285 S.W.2d 236, no writ history; Chandler v. Bexar County, Tex.Civ.App., 258 S.W.2d 439, writ ref., n. r. e.; Lower Colorado River Authority v. Burton, Tex.Civ.App., 170 S.W.2d 783, no writ history. Appel-lee asserts, however, that the amount of the award was admissible to impeach appellants’ witness Mrs. Burke, who had served as one of the special commissioners, and that the introduction of the entire award was invited by appellants. Appel-lee further asserts that appellants did not request a charge limiting the jury’s consideration of this award, and, to the contrary, objected to an instruction offered by appellee to limit the jury’s consideration of the award to impeachment purposes. Appellee contends that in any event the admission of said award was harmless.

The frontage of two tracts of land is involved: Tract “A” consisting of .092 acres, and Tract “B”, .62 acres. The jury awarded $600.00 as the value of each part taken, and $600.00 for severance damages to the remainder of each, making a total award of $2,400.00. The special commissioners returned a total award of $2,000.00, which was signed by all three commissioners. Mrs. Burke had served as a commissioner and was called as an expert witness by appellants. It has been held that a commissioner is not disqualified from testifying as an expert witness at the trial involving the same land. City of Houston v. Schorr, Tex.Civ.App., 231 S.W.2d 740, writ dismissed. In such event, however, he should be subjected to the usual rules of impeachment. Texas Law of Evidence, McCormick & Ray 2nd Ed., §§ 687-698.

The events leading up to the introduction in evidence of the special commissioners’ award are contained in thirty pages of the statement of facts, a substantial portion being discussion heard outside the presence of the jury. Mrs. Burke, a witness for appellants, testified that the damages amounted to $7,950.00, and appel-lee undertook to cross-examine her on the valuation she had placed on the property by the commissioners’ award. After Mrs. Burke denied any familiarity with the property prior to her appraisal of it for appellants, she was asked to identify her signature on the award. At appellants’ request, the jury was then withdrawn. Ap-pellee advised the court that it did not intend to offer the award in evidence or tell the jury that the three commissioners had made such an award, but wanted to question Mrs. Burke as to whether she had signed a statement under oath that the damages amounted to $2,000.00. Appellants urged that the commissioners’ award was signed by Mrs. Burke through coercion of the other two commissioners. Appellants further contended that they had only put on a prima facie case at the hearing, and that the award did not represent Mrs. Burke’s true appraisal, as she had not seen the property prior to that time. The record does not indicate any action by the trial court after this discussion. The jury was recalled, and when Mrs. Burke did not remember her previous valuation, she was shown the award for her identification. Appellee then started to propound a question: “Is it a document that states,” at which point appellants’ attorney interrupted and stated substantially that the document spoke for itself, and if it was read appellants would move for a mistrial. Appellants objected to appellee’s reading of a part of the award, and also objected to the introduction of the document. No ruling is shown by the trial court. In response to a subsequent question, Mrs. Burke testified that she had signed the award, but it did not represent her appraisal of the property. At this point, ap-pellee offered the award in evidence, and it was received over the objection of appellants. Appellants immediately moved for a mistrial. After careful consideration of this sequence of events, we are of the opinion that the introduction in evidence of the special commissioners’ award was not invited by appellants, although their objection to the manner in which appellee first sought to impeach the witness was without merit, and the subsequent involved discussion by all counsel undoubtedly created confusion of the issue.

It was proper for appellee to impeach the witness by inquiring about her previous inconsistent valuation. However, by introducing the award, the jury was informed that Commissioners Patton and Garwood also found damages of $2,000.00. We therefore hold that it was error to introduce this award into evidence. Rule 434, Texas Rules of Civil Procedure, provides that no judgment shall be reversed on appeal unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and reasonably did cause the rendition of an improper judgment in the case. In determining this issue we are required to review the entire record and grant a reversal only when we are convinced that a different verdict would probably have been returned but for the error. Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210; Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806; Gordon v. Aetna Cas. & Sur. Co., Tex.Civ.App., 351 S.W.2d 602, writ ref.

We have therefore carefully reviewed the entire statement of facts which consists of 526 pages, all devoted to the questions of valuation and damages. Appellants presented four expert witnesses. The record shows that appellants’ case was primarily based upon the testimony of their witnesses Reinhardt and Fry, whose testimony requires 219 pages of the statement of facts, and who testified very fully on the property description and severance damages. Appellants witnesses Mrs. Burke and Green gave comparatively brief testimony. Appellee used the witnesses Drane and Cory. The valuations given by the witnesses are as follows:

Part taken $ 950. $ 800. $ 1,000. $ 1,025. $ 285. $ 220.

Rem. before taking 22,350. 21,700. 20,000. 19,000. 12,215. 14,665.

After taking 15,000. 15,700. 15,000. 14,250. 11,347. 12,940.

TRACT B

Part taken 1,350. 1,150. 1,240. 1,540. 311. 465.

Rem. before taking 31,460. 9,839. 10,860.

After taking 30,850. 9,537. 10,560.

The witnesses Reinhardt, Mrs. Burke and Green did not find any severance damages to Tract B, but the other three found the damages to be the cost of a new fence.

The commissioners’ award as introduced in evidence consists of a handwritten note reading as follows: “We, the undersigned commissioners, make the following total award of two thousand dollars ($2,000.00) in the Schwab condemnation case on Farm to Market Highway No. 78, Bexar County, Texas. Commissioners (signatures) October 20, 1960.” It is signed by J. E. Patton, Cecille Burke and Roy H. Garwood, Jr. It is styled “AWARD OF SPECIAL COMMISSIONERS” and was filed with the County Judge and County Clerk of Bex-ar County on October 21, 1960. The record reveals that it was stated on several instances that the award was being offered to impeach Mrs. Burke and for that purpose only. Appellants objected to this limitation being included in the charge of the court. There is no other reference anywhere in the statement of facts to Patton or Garwood. On redirect evidence appellants developed that Mrs. Burke had not even seen the property at the time she signed this award, and that a competent appraisal required an inspection of the premises. The manner in which the exhibit was offered does not indicate any significance or use of same other than in connection with the testimony of Mrs. Burke.

It is our considered opinion, after review of the entire record, that we can not say that this improper evidence probably influenced the jury in returning a small award. We therefore hold that this error was harmless under Rule 434, T.R.C.P.

The judgment is affirmed.


author: PHILLIPS, Justice.

text:
    Merle Hart DUFFY, B. Pete Jackson and R. L. Foree, Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees.
    No. 11069.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1963.
    James N. Ludlum, John Davenport, Austin, for appellants.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson, W. H. Drushel, Jr., Houston; Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin; Cable & McDaniel, Baltimore, Md., of counsel, for appellees.
   PHILLIPS, Justice.

This is an appeal from an order granting a plea of privilege of the appellees Crown Central Petroleum Corporation et al., in a suit brought by appellants Merle Hart Duffy, et al.

In July, 1962, the Attorney General of Texas brought suit under Section lie of Article 6049a, Vernon’s Ann.Civ.St., to compel appellees to comply with an order of the Railroad Commission of Texas which required appellees to connect, by pipeline, the tank batteries of B. A. Duffy in the Haskell County Regular Field, Haskell County, Texas. Section lie of Article 6049a reads as follows:

“The Railroad Commission shall, upon information that discrimination is practiced in its purchases by any common purchaser, request the Attorney General to bring' a mandatory injunction suit against said common purchaser to compel such reasonable extensions as are necessary to prevent discrimination.”

On September 21, 1962, appellants intervened in the State’s suit and asked not only for a mandatory injunction under Section lie of Article 6049a, but also for one-half of the penalties provided for in Section 11 of Article 6049a (not less than $100 or more than $1000 for each day the discrimination existed). In addition, appellants brought an action for $47,850 actual damages under Section 11c of Article 6049a which reads as follows:

“When any person, persons, association or corporation is discriminated against by a common purchaser as defined herein in favor of the production of said common purchaser, a cause of action for damages, when such has occurred, shall lie against said common purchaser and said person, persons, association or corporation may bring suit for same in any court of competent jurisdiction in the county in which the damage occurred.”

On September 24, 1962, the Attorney General filed his First Amended Original Petition and, for the first time, sought penalties as well as a mandatory injunction. The Attorney General asked that one-half of such penalties be recovered by the State and the other one-half of such penalties be awarded for the use and benefit of the holders and owners of the producing lands and mineral interests involved.

Appellees filed a plea of privilege to appellants’ claim for damages. The Trial Court sustained appellees’ plea of privilege as to appellants’ claim against appellees for actual damages for discrimination and ordered the suit to be transferred to Harris County.

Appellants contend that the venue for their action for damages under 11c of Article 6049a is in Travis County or in the alternative, that this suit for damages be transferred to Haskell County and not Harris County.

Appellants contend that the cause of action instituted by the Attorney General under the provisions of Article 6049a set out above was instituted in Travis County pursuant to that provision of said article that makes venue in Travis County mandatory; that the appellants intervened in this lawsuit wherein the State was suing for penalties in their behalf. That the main issue of the lawsuit was that of discrimination; that the damage issue in the suit brought by the appellants was permissive; that the damage portion of the lawsuit was properly brought in Travis County in order to avoid a multiplicity of suits. In behalf of the point on multiplicity of suits, the appellants contend that par. (a), Rule 40, Texas Rules of Civil Procedure as authority for this contention. The portion of the rule relied on reads as follows:

“All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action * * * a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”

The appellees defend on the theories that the appellants could have brought their damage suit for discrimination in Haskell County, Texas, the county in which the damage was alleged to have occurred, Sec. 11c, Article 6049a; that they failed to do this and inasmuch as venue for the damage portion of the suit does not lie in Travis County, the court correctly transferred the case to Harris County, the home county of the defendants under the venue statute requiring that a defendant be sued in the county of his residence, Article 1995, V.A.C.S. In their contention that venue for appellants’ damage suit for discrimination does not lie in Travis County, appellees argue that appellants do not have a cause of action under the penalty section of Article 6049a but have only a cause of action under Section 11c of Article 6049a. Thus the present suit is one with two plaintiffs, each with a separate cause of action trying to join their separate causes in a single suit against appellees. That the appellants are attempting to use the State’s penalty action as a prop for their private damage suit, which but for the penalty action could have been maintained only in Haskell County as against appellees’ plea of privilege.

Appellants ask this Court to apply the doctrine announced by the Texas Supreme Court in Middlebrook v. David Bradley Manufacturing Company, 86 Tex. 706, 26 S.W. 935. In the Middlebrook case an action was brought by the plaintiff on three promissory notes. The first two were made payable in the county where the action was brought, but the third note named no place of payment. The defendant filed a plea of privilege to the latter note which was sustained. The court reversed the Trial Court as to its ruling on the third note stating that the suit was properly brought for recovery of all three notes in the same suit in order to avoid a multiplicity of suits. Appellants further cite Parkhill Produce Company v. Pecos Valley Southern Railway Company, Tex.Civ.App., 348 S.W.2d 208, affirmed, Tex., 352 S.W.2d 723. Here a plaintiff sued defendant for damages to three carloads of cantaloupes, amended his original petition to add another count for breach of a lease contract. The venue to the suit for damages to the cantaloupes properly lay in the county wherein it was brought due to an exception to the venue statute; however, the defendant filed a plea of privilege to the count for breach of contract subsequently added pleading the venue statute. The Trial Court severed the breach of the lease contract from the counts for damages, granted the defendant’s plea of privilege as to the breach of the lease contract and transferred this portion of the case in accord with defendant’s plea. In reversing the Trial Court and allowing all of the counts alleged by plaintiff to be tried together, the court stated that since the district Court had acquired venue of the suit as to the damage counts, it had venue as to the breach of contract count, it being a claim between the same parties. (Emphasis added.) The court cited Kendall v. Hackworth, 66 Tex. 499, 18 S.W. 104 as authority for the holding, in that where jurisdiction rightfully belonged under the case stated in plaintiff’s original petition, that court would retain its jurisdiction over the case in respect to any supplemental cause of action subsequently engrafted on the original cause of action by an amended petition, unless such amendment set up such additional cause of action fraudulently to deprive the defendant of his personal privilege to litigate it in the county of his residence. To hold otherwise would be to attach a condition to the right to amend the cause of action, as originally declared on, incompatible with the spirit of the law regulating amendments and which the venue statute has not prescribed.

The Middlebrook doctrine is not applicable to this case as we have more than one plaintiff, more than one claim. Full relief can be awarded to each of the parties on his claim, neither party being a necessary party to the other’s claim.

The rule is stated in 1 McDonald, Texas Civil Practice, Sec. 4.38, as follows:

“The application of the Middlebrook rule becomes more complicated where there are multiple parties. Where plaintiffs have separate claims which may be joined under the rules of permissive joinder, each plaintiff must, as against the timely plea of privilege, establish the propriety of the venue as to his own claim; and if one or more fails while another succeeds, the cause will be severed and the claims of the unsuccessful plaintiffs will be transferred to the county of the defendant’s residence.” (Emphasis added.)

McDonald states the rule applicable to this case and is in accord with the decisions. This rule is applicable whether the multiple plaintiffs have plead more than one cause of action as in Finder v. Jenka Corporation, Tex.Civ.App., 348 S.W.2d 236, no writ history, or where there is more than one plaintiff having several claims arising out of the same cause of action as in Grimes v. McCrary, Tex.Civ.App., 211 S.W.2d 1005, no writ history.

Here we have a claim for alleged discrimination under Section lie, Art. 6049a for penalties being brought by the Attorney General under a penalty statute which must be strictly construed. See Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972. The other claim, by the appellants herein, is for damages under Section 11c of said statute. The rule allowing permissive joinder must give way to the defendant’s timely plea of privilege to be sued in the county of his residence.

Appellants could have brought their suit in Haskell County under Section 11c of Article 6049a as an exception to the venue statute, however, having chosen not to do so and having chosen to file suit in a county in which, under the particular facts and the law applicable, venue does not lie, appel-lees’ contention that they now have the right to have the suit removed to the county of their residence is correct. Art. 1995, V.A. C.S. In this connection see 1 McDonald, Texas Civil Practice, Section 4.57 and the cases there cited.

The judgment of the Trial Court is affirmed.

Affirmed.


author: ANDERSON, Presiding Judge.

text:
    Mary BOYHER, Plaintiff-Respondent, v. ESTATE of Lucas B. GEARHART, Michael Joseph Hart, Executor, Defendant-Appellant.
    No. 31253.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Burton H. Shostak, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Robert E. Morley, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is a claim filed by plaintiff, Mary Boyher, in the Estate of Lucas B. Gear-hart, deceased, in which action a recovery is sought for the reasonable value of services alleged to have been rendered the deceased during his lifetime. The cause was transferred by the Probate Court to the Circuit Court where it was tried to the court. The trial resulted in a finding and judgment for plaintiff in the sum of $5,352.-00. From this judgment defendant has appealed.

Deceased was a man 65 or 70 years of age. In July 1955 he resided at 1923 LaSalle Street, in the City of St. Louis. His wife died in May or June 1955. Plaintiff was decedent’s niece and began living with him in May 1955. The relationship between these two people was very good, one of the witnesses stating, that “he seemed to be more like a father to her than an uncle” and that “if he had been her own father, I don’t think she could have treated him any better.” No one else lived with decedent at the time plaintiff moved into the premises. In July 1955, Mr. Gearhart was very ill. He could not get out of a chair without assistance. His ankles were swollen and he had to be assisted to his bed. During the first two months that Mary was there his health improved. In fact it got to the point where he could get up and around and could leave the house. However, he did not get completely well. Plaintiff stayed with Mr. Gearhart until April, 1956. After Gearhart’s health improved, plaintiff secured a job with a dress company for a couple of weeks, working a few hours each day. She worked mornings and would get home about 3 P.M. She quit this job to take care of Mr. Gearhart. During the period she lived with Gearhart she worked in the kitchen preparing meals for him; she carried coal from the basement to fire the kitchen stove; she did his laundry and sewing. She put him on a diet and prepared special foods for him, and, at times when he was seriously ill, would assist him to his bed and to the bathroom. She did the housekeeping.

Plaintiff left decedent’s home in April, 1956, but returned in November, 1956, when he became ill and stayed until May, 1957. His condition was so bad when she first came back that it was recommended that he go to a hospital for a check-up. Decedent was admitted to Firmin Desloge Hospital on December 4, 1956, and remained there until December 16, 1956. The diagnosis of Mr. Gearhart’s condition at the time as shown by the hospital record was bronchopneumonia, alcoholism, Laennec’s cirrhosis, generalized arteriosclerosis, ar-teriosclerotic heart disease and obstructive emphysema. After plaintiff returned to decedent’s house in November, 1956, she performed the same services for decedent that she had during the first period of her stay. She moved out of decedent’s home in May, 1957, because decedent tried to get plaintiff in bed with him. When decedent was asked about this by one of the witnesses he did not confirm or deny it, but tried to pass it off as a joke.

Decedent had two or three houses on LaSalle Street and property in St. James, Missouri, of some fifteen to twenty-five acres. Eugene Johnson, plaintiff’s witness, testified that Gearhart told him that plaintiff was the only one who ever did anything for him, and that he was going to give her all the houses he owned in return for her having been so good to him and for taking care of him. He also testified that “actually all the time I knew him I never heard him say anything bad about her” and that decedent usually expressed gratitude for what plaintiff was doing for him, and said he intended to give her something to make up for it; that because of what Mary had done for him in caring for him, he was going to give her those pieces of property.

About January 8, 1957, the following document was executed.

“CONTRACT
“I the undersigned Lucas B. Gear-hart do hereby employ and direct O. M. Carey to have my real estate appraised and to have a general warranty deed and deed of trust drawn and to employ a lawyer. Therefore appointing O. M. Carey, Trustee of the deed of trust giving to said O. M. Carey, full and complete authority for and in my name and stead to see to the execution and sale of said property located at 1823-25-27 La-Salle, St. Louis, Mo., and
“I further appoint and authorize O. M. Carey to handle any and all further business matters relating to my real and personal property in my name and stead.
“As he has represented my interest for many years, I hereby direct him in case of my sickness or disability to see that I am properly provided for and in case of my death he will see to it that my affairs are settled according to law and upon rendering a statement of his services, and all claims and demands, which is to be paid out of my estate as a preferred claim.
“I am selling the above real estate to my niece, Mary Boyher, with the condition that she properly provide for my maintenance and unkeep to my satisfaction or the satisfaction of O. M. Carey. Said O. M. Carey to undertake collection of accrued notes and as paid to surrender same to my niece.
“However if my niece does not provide for me to my satisfaction or satisfaction of O. M. Carey, O. M. Carey is authorized and directed to foreclose on the property and resell same.
“In case of my death, he is directed to collect from the note(s) as they become due to the extent of my indebtedness to pay same and surrender balance of said notes to my niece without further payment, if this contract proposal has been complied with to the satisfaction of the trustee.
“In witness whereof, I have read the foregoing, know its contents and do sign my name as my free act and deed.
“/s/ L. B. Gearhart,
“Lucas B. Gearhart.
“/s/ Ondo Johnson
“/s/ Gladys Johnson
“Be it known that Ondo Johnson and Gladys Johnson being requested to witness the signature of this instrument do hereby certify that at Mr. Gearhart’s request; he read the foregoing, we were asked to sign the foregoing statement and we certify that it was the statement of a person in full possession of his faculties, witnessed and signed as our free act and deed after his request for the purposes therein mentioned.
“PROPOSAL'
&
ACCEPTANCE
“I Mary Boyher after reading the foregoing instrument accept its terms and conditions in its entirety and without modification or revocation, all understandings being expressed therein, in.
"/s/ Mary Boyher.”

The foregoing document was prepared by a lawyer from information given to him by Mr. Carey, who in turn secured said information from Mr. Gearhart and plaintiff. The so-called contract was admitted into evidence as an expression of Gearhart’s intent to pay plaintiff for her services. Mr. Carey testified that between November 1956 and May 1957, no one else performed any services for the decedent other than plaintiff.

Tom Elmer White was the only witness called by defendant. He rented a home from decedent during the first part of 1955. He testified that from the summer of 1955 to December 1956, his wife worked for decedent; that she would fix his meals for him; do laundry and sweep and mop the floors. Witness White stated that he also did work for Mr. Gearhart such as cutting the grass every two or three weeks. Both Mr. White and his wife filed claims against Gearhart’s estate. White further testified that from November 6 to December 6, 1956, decedent stayed at the White’s home because he was ill.

Appellant’s first point is that the judgment should be reversed for the reason that the evidence was insufficient to support a recovery by plaintiff. In this connection it is urged that the evidence showing that plaintiff was related to decedent and lived with him in the same household gave rise to a presumption that the services rendered were gratuitous, which presumption was not overcome by any convincing evidence, or proof of any contract or mutual understanding to the contrary.

Where valuable service is rendered by one person for another, and such is accepted by the person for whom such service is performed, the law will presume an implied promise to pay. Smith v. Sims, Mo.App., 258 S.W. 1032; Abresch v. Schultz, Mo.App., 216 S.W.2d 134; Taylor v. Currie’s Estate, Mo.App., 83 S.W.2d 194; Sprague v. Sea, 152 Mo. 327, 53 S.W. 1074. However, where a family relationship exists between the parties, or where there is a relationship of such a character as would lead a reasonable person to believe that a person occupying such relationship would more likely render the service gratuitously than for compensation, the implication does not arise, but on the contrary, it will be presumed that the service was intended as a gratuity. Abresch v. Schultz, supra; Taylor v. Currie’s Estate, supra; Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83; Cole v. Fitzgerald, 132 Mo.App. 17, 111 S.W. 628. And the burden in such cases rests upon plaintiff to dispel such presumption by evidence tending to show that the parties intended and understood that the service was to be paid for by the recipient thereof. Kingston v. Roberts, 175 Mo.App. 69, 157 S.W. 1042; Taylor v. Currie’s Estate, supra; Hyde v. Honiter, supra; Wood v. Lewis’ Estate, 183 Mo.App. 553, 167 S.W. 666; Fitzpatrick v. Dooley, 112 Mo.App. 165, 86 S.W. 719.

It has also been held that relationship either by consanguinity or affinity is not sufficient to raise a presumption that beneficial services rendered and accepted are gratuitous, except where the relationship is that of parent and child. Hyde v. Honiter, 175 Mo.App. 583, l. c. 598, 158 S.W. 83, 87. Thus the relationship of uncle and niece does not alone raise a presumptioin of gratuitous service where they are not members of the same family. 98 C.J.S. Work & Labor § 23, p. 754.

The term “family” is one of great flexibility and is capable of many different meanings according to the connection in which it is used, but its meaning within the rule herein discussed has been defined by this court in the case of Offord v. Jenner’s Estate, Mo.App., 189 S.W.2d 173, l. c. 176, as follows:

“The term ‘family,’ within the rule above mentioned, has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other. Wood v. Lewis’ Estate, 183 Mo.App. 553, 167 S.W. 666; Birch v. Birch, 112 Mo.App. 157, 86 S.W. 1106; 71 C.J. 55.”

This definition was approved in Steva v. Steva, Mo., 332 S.W.2d 924, and Sevier et al. v. Estate of Staples, Deceased, etc., Mo.App., 309 S.W.2d 706.

In the case at bar plaintiff did not move into decedent’s premises until after Gearhart’s wife died. At that time decedent was ill and in need of nursing service and the services of a housekeeper and cook. Plaintiff was under no legal or moral duty to render this service; nor was there natural, legal or moral duty on the part of either to support the other. We find the evidence wholly insufficient to show that plaintiff and deceased were members of a family under the facts and circumstances shown. Nor was there any evidence of such a relationship between the parties which would lead a reasonable person to believe that plaintiff intended her services as a gratuity. Under such circumstances the law implies an agreement that the services were to be paid for.

It is also our view that the evidence shows that Gearhart intended to pay for the services rendered and that plaintiff expected pay for the same. This is established by the testimony of the witnesses, who testified to declarations by decedent, the document signed by both parties, which we have heretofore set forth, and the character of the work which plaintiff performed. Cole v. Fitzgerald, supra. The trial court did not err in ruling that plaintiff was entitled to recover.

Finally it is urged that the trial court erred in rendering judgment in any amount other than nominal damages for the reason there was no evidence offered by plaintiff of the reasonable value of the services rendered. We find no merit to this contention. Plaintiff, during the period she resided with decedent, rendered nursing service and did domestic work. Such being the case, there was no necessity for the introduction of opinion evidence as to the value of such services. Said value is a matter of common knowledge, and evidence thereof is not essential to a recovery in quantum meruit. The trier of facts may reach its own conclusion without evidence on the matter. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875; McDonough v. Freund, 323 Mo. 346, 19 S.W.2d 285; Wise v. Rubenstein, Mo.App., 24 S.W.2d 203. We find that the amount found by the trial court represents the reasonable value of the services rendered by plaintiff in this case.

The judgment is affirmed.

SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.

RUDDY and WOLFE, JJ., not participating.


text:
    Clyde C. MINKS, (Plaintiff) Respondent, v. Lee E. SMITH, (Defendant) Appellant.
    No. 31277.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    H. L. C. Weier, and Dearing, Richeson & Weier, Hillsboro, for appellant.
    Raymond S. Roberts, Raymond R. Roberts, and Roberts & Roberts, Farmington, for respondent.
   ANDERSON, Presiding Judge.

This is a negligence action instituted by plaintiff, Clyde C. Minks, against Lee E. Smith. In said action plaintiff sought to recover damages for personal injuries sustained as the result of a collision between an automobile being driven by Roy F. Smith, in which automobile plaintiff was a passenger, and an automobile being operated by defendant. The trial below resulted in a verdict and judgment in plaintiff’s favor in the sum of $3,000.00. Defendant has appealed from the judgment.

The accident occurred on August 25, 1961, at around 6:45 to 7:00 P.M. Sunset occurred that evening at 6:41 P.M. The automobile belonging to Roy F. Smith, and in which plaintiff was a passenger, was just prior to the accident being driven in an easterly direction on Highway 32, a two-lane Highway, in St. Francois County. Roy F. Smith was driving about 40 to 45 miles per hour, and as he approached the Wolf Creek bridge he saw the car, which was being driven westwardly by defendant, Lee Smith, come from behind a Nash Rambler station wagon onto the south half of the Highway. Roy Smith then turned his automobile to the right and thereafter collided with defendant’s car. The impact occurred at the left front of defendant’s automobile, and at the driver’s door on the left side of the Roy Smith car. Prior to the collision the parking lights on the Roy Smith car were burning. The lights on defendant’s automobile and those on the station wagon, which defendant was in the act of passing, were also on at the time.

As a result of the collision, plaintiff received a strain of the muscles of his back, abrasions of his hands with swelling and tenderness, and a fracture of two ribs. Doctor Grebel estimated that plaintiff could have complaints which would continue for six months to a year.

Appellant’s first complaint is that “the Court erred in admitting over the objection of the defendant certain testimony of Dr. Clement B. Grebel in which the doctor recited a statement of the plaintiff as to what had happened to him at the time of the accident * * * because such testimony was hearsay and prejudicial.” This testimony appears in a deposition of the doctor which was introduced and read to the jury by plaintiff, and is as follows:

“Q. And when Mr. Minks came to you, did he have any complaints and did he give you any history which was elicited by you so that you could better treat him and understand his problems ?
“A. Well, he dated his complaints with an auto accident in which he was thrown from the car onto some rocks and apparently he had been tossed back and forth across the front seat of the automobile before being thrown out.”

Prior to the reading of the foregoing question and answer, counsel for defendant objected thereto on the ground that the answer embraced hearsay testimony. The court overruled this objection.

The foregoing testimony was hearsay and its admission in evidence over the timely objection of defendant was error, Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314; Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922, but defendant was not prejudiced by the error since the evidence related to facts over which there w,as no real dispute. Defendant did not dispute the fact that there was an accident or that plaintiff was a passenger in one of the automobiles involved in it. In fact, defendant testified he saw and talked to plaintiff at the scene of the accident. He also testified that he saw plaintiff on the ground after Roy Smith’s car went down the embankment there and thought he was thrown from the car. Defendant’s wife, testifying for defendant, stated that Roy Smith’s car “skidded around in that chat * * * finally came to a stop”, and that she saw plaintiff getting up on the other side of the car. She stated he complained that he “flipped” over against the steering wheel and that the next time he “flipped” over he went out the door. It would appear then that not only did defendant not dispute the facts testified to by the doctor, but also offered evidence of them. It follows that the admission of the testimony was harmless under the circumstances. Lesch v. Terminal R. R. Ass’n of St. Louis, Mo., 258 S.W.2d 686; Corley v. Andrews, Mo.App., 349 S.W.2d 395; Fellhauer v. Quincy, O. & K. C. R. Co., 191 Mo.App. 137, 177 S.W. 795, Civil Rule 83.13, V.A.M.R.

During the examination of plaintiff, who testified as a witness in his own behalf, the following occurrence took place.

“Q. Are you married or single? A. Married.
"Q. Do you have a family. A. Yes, sir.
"Q. How many children? A. We have twelve.”
By Mr. Weier (defendant’s counsel) : ■“If the Court please, I want to object to any questions here with regard to the number of children that this man has.”
By the Court: “Well, the answer is already in. I don’t think * * * ”
* * * * * *
By Mr. Weier: “I want to object to this question and answer because it’s highly prejudicial, and I want to move at this time for a mistrial of the case because of the question being asked and the answer given.”
******
By the Court: “The objection’s overruled. Request denied.”

In this court appellant contends that “the Court erred in allowing plaintiff’s testimony to stand to the effect that he had a family of twelve children.” It will be noted that there was no motion to strike upon which to base a ruling withdrawing said testimony from the jury’s consideration, nor was there a timely objection to th'e question asked. An obj ection to a question, which is not made until after the answer has been given, comes too late and will not be considered on appeal unless the record shows that the witness answered too quickly and there was no time to object. Doherty v. St. Louis Butter Company, 339 Mo. 996, 98 S.W.2d 742; Weinel v. Hesse, Mo.App., 174 S.W.2d 903; Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511.

Doherty v. St. Louis Butter Company, supra, is a case squarely in point. There the same information was sought by three questions almost identical with those propounded in the case at bar. After the witness had answered the questions counsel for defendant objected and asked that the testimony be stricken. The Court overruled the objection, and on appeal, our Supreme Court in holding there was no reversible error in the trial court’s ruling, said, (98 S.W.2d l. c. 747)

“The questions asked were not misleading and the answers were responsive to the questions. Appellant waited until the answers were made and then made his objection. An objection, or a motion to strike out evidence, comes too late when not made at the first opportunity. The rule is well stated in 16 C.J. 874, § 2195, as follows : ‘Where a question indicates that the response to it will be incompetent or inadmissible, an objection thereto, in order to be available, must be made before the answer is given, as it is too late to object thereafter, unless the answer is given before there is an opportunity to object; a party cannot sit by and allow a question to be answered and then object in case the answer does not suit him. But where incompetent testimony is given in answer to a question which does not necessarily or naturally call for it, an objection thereafter made to such testimony is in time.’ ”

The record in the case at bar fails to show that the answer complained of was given before defendant had an opportunity to object, and since there was no timely objection the trial court cannot be held to have erred in “allowing plaintiff’s testimony to stand”. The subsequent request by defendant to discharge the jury and,declare a mistrial did not cure the failure to make a proper objection. Collins v. Leahy, Mo.App., 102 S.W.2d 801.

Appellant complains of Instruction No. 2 given at the plaintiff’s request. This was an instruction on the measure of damages, and is as follows:

“The court instructs the jury that if you find the issues in favor of plaintiff, you will assess his damages at such sum as you find and believe from the evidence will compensate him for the injuries, if any, sustained by him as shown by the evidence, and in estimating such damages you will take into consideration: the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which he has endured and suffered, and which he is reasonably certain to endure and suffer in the future; the character and extent of his injuries, if any; his loss of earnings, if any, and the impairment of his earning capacity, if any; and the sums, if any, which he has expended for medical expenses by reason of such injuries, if any.”

The first point made is that by directing the jury to take into consideration “the physical injury” and “the character and extent of his injuries” a double recovery is authorized. We do not believe that a jury would be so misled. While perhaps not artfully drawn, all the instruction does is to direct the jury to take into consideration the injury, its character and extent. We find no merit to the point.

It is next urged that the instruction is erroneous because it authorized recovery for impairment of earning capacity when there was no evidence of permanent injury, or that his earning capacity would be impaired in the future. The precise language of the instruction in this regard is; “his loss of earnings, if any, and the impairment of his earning capacity, if any.” The instruction does not use the word “permanent”.

There was evidence that plaintiff’s earning capacity was impaired. Prior to the accident plaintiff had been engaged in work as a common laborer doing heavy lifting. This work consisted of cutting stave bolts, skidding and hauling logs. As a result of the accident he suffered muscle strain in the lower part of his back, with the result he could not do heavy lifting, as he previously had done, or operate a chain saw which required his getting close to the-ground. Although he went back to work-in a few days he “went back to piddling,, pulling nails, raking with a rake and stuff,, anything that, wasn’t heavy.” He stated he worked about half time. He testified that at the time of the trial he still suffered pain in his back, but that it was not as severe as it was at first. Dr. Grebel testified that plaintiff’s injuries would bother him for a period of six months to a year from the date of the accident, and that the injuries were disabling. Plaintiff testified to the loss of wages in a considerable amount between the date of the accident and day of trial. In our opinion, there was evidence of impairment of earning capacity.

We find that there was no prejudicial error committed by the lower court in the trial of this case. The judgment is affirmed.

SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


author: BRADY, Commissioner.

text:
    Mina BECKMEYER et al., Plaintiffs-Appellants, v. Rudolph BEUC et al., Defendants-Respondents, The Principia Corporation, Intervenor-Respondent.
    No. 31148.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Tenney, Dahman & Mathewson, Edward H. Tenney, Jr., St. Louis, for appellant.
    Husch, Eppenberger, Donohue, Elson & Jones, Shulamith Simon, St. Louis, for respondent, The Principia Corp.
    Thomas Neenan, City Counselor, Thomas F. McGuire, Assoc. City Counselor, for defendants-respondents, Members of Bd. of Adjustment.
   BRADY, Commissioner.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis affirming a decision of the Board of Adjustment granting an occupancy permit and thus permitting hotel usage of premises formerly used by the Principia Corporation, hereinafter referred to as respondent, as a dormitory for a school. The decision of the Board of Adjustment and of the Circuit Court constituted a reversal of the Building Commissioner of the City of St. Louis who denied the occupancy permit. The appellants are owners of property located near the building here involved.

The factual situation shown is that the three-story brick building of forty-seven rooms and twenty-six baths here in question was constructed in 1911. as a hotel under a permit authorizing such construction and was used as a hotel until 1920 when it was purchased by the respondent who used it as a dormitory until 1960. The students paid a regular fee for the lodging they received. The rooms are arranged to have a bath between two bedrooms.

At the proceeding before the Board, the only property owner who objected and appeared was one Airel King who testified that a hotel would hurt the neighborhood. When he was asked if there was any difference in the occupancy between a school dormitory and a hotel, he stated “Just a different atmosphere.”

Daniel I. Offner, deputy building commissioner, also appeared in opposition and testified that the use of these premises as a hotel ceased in 1920 and that under the zoning ordinance a non-conforming use loses its standing if discontinued for a period of ten years. That under the ordinance now in effect this type of building would be permitted to be used as a dormitory by his office even in an “A” zoned or single-family district and so would not now constitute a non-conforming use. When asked for what other purpose the building could be used, the witness answered “Well, I don’t know.”

Mr. Geisel, plan examiner for the building division, appeared in opposition and testified that the certificate of occupancy was denied because it would authorize a multiple-family use not permitted in a “B” zone, a violation of Section 8-A of Ordinance 45309; and that there is no record of a non-conforming use for any other than an “A” or “B” zone. He testified that “A dormitory comes under an accessory type building for a school. A hotel is a commercial type building used for living purposes for a short time.”

On behalf of respondent, Burtran T. Clark, secretary of respondent corporation, testified as to the original use of the building and the length of use as a dormitory. He further testified that the respondent was interested in selling the property and that hotel usage is the only “logical” use for the premises; that if the building cannot be used for that purpose “ * * * we would have to tear it down — it would be of no value unless it can be used for the purpose for which it was originally intended.”

The witness Remsbecker, a real estate dealer and sales representative for the property, testified that the building is in a two-family dwelling area and that “ * * * we can’t sell the property unless we get an occupancy permit.”

The Board reversed the building commissioner : “ * * * on the grounds that the testimony revealed that this building was built in 1911 as a hotel under Building Permit H-610. The building was used as a hotel until 1920 when the use started as a dormitory for students at Principia College, and it was occupied from 1920 to 1960 as a dormitory for students who paid dormitory fees for a fully furnished room. The evidence reveals that the use of the building has been continuous, and having started prior to the 1926 zoning law, the Board is of the opinion that this is a nonconforming use. To deny the permit would be a hardship and that the use of the property in this manner is in the spirit of the zoning ordinance.”

The scope of our review in the instant case is to be distinguished from that in those cases where no additional evidence is offered at the hearing on the petition for review before the Circuit Court. In such cases, the record of the proceedings before the Board are all the Circuit Court has before it and thus is all that appears when the case reaches this court. In this event, our review is the same as that of the Circuit Court and is limited to whether or not, in the proceedings before the Board, there was competent and substantial evidence to support the Board’s findings. Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, certiorari denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Carlyle-Lowell, Inc. v. Ennis, Mo.App., 330 S.W.2d 164. In the instant case, the trial court received additional evidence in the form of both exhibits and testimony. Authority to do so is found in Section 19-D-5 of Ordinance 45309 which is practically identical to the language used in Ordinance 35003 (amended by Ordinance 35009), effective 1926, the first zoning ordinance concerning this building and the same section was left unamended in Ordinance 50547, effective 1961, which amended other sections of Ordinance 45309. This provision reads:

“ * * * If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same' to the court with his findings of fact and conclusions of law, ■which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.”

Section 89.100 RSMo 1959, V.A.M.S., is in identical language. In Cunningham v. Leimkuehler, Mo.App., 276 S.W.2d 633, a 1955 decision of this court, it was held that the above provisions of the ordinance do not make the review by the Circuit Court de novo. The additional evidence and testimony before the Circuit Court is therefore available to this court so that our inquiry encompasses both the proceedings before the Circuit Court and those before the Board. If therein is found competent and substantial evidence to support the Board’s decision, that decision must be affirmed.

In the proceedings in the Circuit Court, the appellants’ case consisted of the transcript of the proceedings before the Board and the introduction of three ordinances. Exhibit 1 was Ordinance 45309 with amendments comprising the zoning ordinances of the City of St. Louis effective May 26, 1950. Exhibit 2 was Ordinance 35003 as amended by Ordinance 35009, as to which it was stipulated that this was the first zoning ordinance covering this building and effective May 26, 1926. Exhibit 3 was Ordinance 50547, effective May 13, 1961 which amended the ordinance introduced as Exhibit 1. It was also stipulated that this building is in a Type “B” or two-family zoned district.

The respondent corporation produced Lee McCandless, secretary of the respondent, who testified that he had been a student at the school and knew this building had been used as a hotel prior to its purchase by the respondent; that until 1926 some “wage earners,” respondent’s employees, rented quarters in the basement of the building; that “supervisory personnel” have rented quarters in the building from its purchase in 1920 until the respondent vcated it; that until 1926, food was served in the building but this has not been done since that time; that charge for room and board was made against the students who lived in the building and the respondent furnished everything in the rooms except blankets; and that some parents stayed in the building at commencement and at other times. The witness also testified that in 1958 respondent applied for and received a certificate of occupancy and identified Exhibit A as the certificate received. This was later introduced into evidence and reads as follows:

“CERTIFICATE OF OCCUPANCY
“THIS CERTIFIES that the property at 5512 ETZEL (erected 11-21-11 H-610 3 str Hotel) is in the ‘B’ Two Family Zoning District and may be used for Hotel-Dormitory which usage is permissible in the ‘B’ Two Family Zoning District in accordance with the provisions of ordinance 45309 as amended.
Issued To THE PRINCIPIA CORP
5539 PAGE A. H. BAUM
IN ADDITION AN OCCUPANCY Building Commissioner
PERMIT IS REQUIRED PER (signed) S.S.”

Arthur A. Schneider testified on behalf of respondent, after stating his experience and qualifications, that the “highest and best” usage of the property would be hotel usage and that this opinion was based upon the type of construction of the building and the surrounding property. He testified that in the same block on the same street as this building are other structures not two-family dwellings; his exact testimony was:

“A. On the north side of Etzel there are — there is one one story building, four four family buildings, flats, and within the same city block on the north side and across Montclair and on the southwest side of Etzel Avenue, from 1204 to 1216 Montclair Avenue is a row of four family flats. Then in the same city block as the subject parcel, which fronts on Belt Avenue, are two four family flat buildings and one three story apartment building.
“Q. And located on the northeast corner of Page and Belt, which is directly catty-corner from the subject property, what is that type of building?
“A. Store and flat building, store on the first floor with flats above it.”

This witness further testified that in his opinion usage of this building as a hotel would not adversely affect but would benefit the neighborhood; and that, except for conversion into an apartment housing more than two families, the building could not be used for any purpose other than a hotel. On cross-examination, Schneider testified that the nearest hotel building was now used as an old folk’s home and was located several blocks west of this building; that hotels are zoned in “E” districts; that the witness would not state without a study whether this building could be converted to apartments and rented on an economically feasible basis; and that on Bartmer Street, shown by the exhibits to be the next street south of Etzel on which this building is located, and on the same block as the subject building, there are four-family flats.

Respondent also introduced Ordinance 48338 which prescribes the regulations for rooming, boarding and lodging houses and hotels.

At appellants’ request, the submission of the case was set aside and they were allowed to file their names and addresses. This list shows that of the thirty-four objectors who filed this proceeding, two lived on Etzel in the 5700 block, eight lived on Etzel in the 5500 block, four lived on Bart-mer in the 5300 block, nine lived on Bart-mer in the 5400 block, ten lived on Bartmer in the 5500 block and the rest lived on Julian and Page. The building which is the subject of this controversy is located at 5512 Etzel at the corner of Etzel and Belt.

The trial court found that there had been a lawful non-conforming use for 5512 Etzel Avenue for hotel purposes established under the evidence and that there was evidence to support the finding of the Board of Adjustments that the denial of the occupancy permit would constitute an unnecessary hardship within the meaning of Section 916.050 of the revised code of the City of St. Louis, 1960, (being Section 19-D-5 of Ordinance 45309) and sustained the Board. It is obvious that if either of the reasons assigned by the Board and the trial court can be reasonably supported from the whole record before us, then that decision must be affirmed.

Section 19-D, 4, of Ordinance 45309, now Section 916.050 of the Revised Code of the City of St. Louis, reads as follows:

“4. In passing upon appeals, where there are practical difficulties or unnecessary hardship in any way of carrying out the strict letter of this ordinance, to vary or modify the application of any of the regulations or provisions of this ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.”

As was held in Carlyle-Lowell, Inc. v. Ennis, Mo.App., 330 S.W.2d 164, l. c. [2], [3], pp. 168-169:

“[2] There is and can he no all-inclusive definition of what constitutes sufficient difficulty and hardship to warrant the granting; of a variance under •zoning regulations. Whether or not such difficulties and hardships exist is a question of fact as to which the Board, an administrative body, is to be accorded a wide discretion. As stated by Yokley Zoning Law and Practice, 2d Ed., Vol. 1, Sec. 142, p. 350:
“[3] ‘In determining whether to authorize a variance from the terms of the zoning ordinance because of special conditions making enforcement of the ordinance inequitable, the board of appeals is vested with a wide discretion and the courts will not interfere with that discretion unless it is abused.’
“Similarly McQuillin on ‘Municipal Corporations,’ 3rd Ed., Vol. 8, Sec. 25.167, p. 394, states:
“ ‘Whether or not an unnecessary hardship exists may be a question of fact to be determined from the particular facts by the zoning board or other appropriate public body or officers.’ ”

McQuillin’s work, supra, at Section 25.167, pp. 394 — 395 also states that “ * * * The one applying for or seeking the variance has the burden of showing the hardship to himself. * * * ”

It is this court’s opinion that the respondent bore its burden of proving hardship to the extent that it cannot be said that the Board’s action was an abuse of its discretion and, absent that, we cannot interfere. The appellants contend that all the evidence shows as to hardship is that if this permit is not granted respondent will be unable to make the greatest profit possible. We cannot agree and are persuaded of the inaccuracy of appellants’ position by a reference to their own citation from the McQuillin text, supra, at Section 25.167, p. 389, that: “The criterion for determining 'unnecessary hardship’ has been said to be whether the zoning limitation, viewing the property in the setting of its environment, is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property.” The respondent’s witness Clark testified hotel usage was the only logical use for the premises and that if the building could not be so used, the respondent would have to tear it down as of no value. The witness Schneider testified that except for conversion into multifamily apartments, a use that would also' be in violation of the restrictions appellants seek to enforce, this building could not be used. There is not one iota of evidence to the contrary and, in fact, when asked for what other purpose the building could be-used, the deputy building commissioner was. unable to give another use. The undisputed evidence, therefore, is that this building could only be used for the non-conforming use of a hotel or for the equally nonconforming use of multiple — as contrasted with two family — apartments. So far as this record discloses, unless put to a. non-conforming use, this property is valueless. It is obvious that such an evidentiary situation goes far beyond the mere loss of profit even though that element is one that can be considered in determining whether hardship exists. Carlyle-Lowell, Inc. v.. Ennis, supra.

Again referring to appellants’ own citation from the McQuillin text, asset out above, this property should be viewed in the light of its environment. The evidence is undisputed that while this is. technically a “B” or two-family zone, there are four-family flats and other violations of that zoning restriction across Etzel Street,, on the same block to the rear of this building on Bartmer, on Belt, and at the other locations in the immediate vicinity of the-premises here involved. This fact may have had something to do with the issuance by the building commissioner as late as 1958 a certificate of occupancy which referred to-the usage of this building as “Hotel-Dormitory” and further stated that such “ * * * usage is permissible in the ‘B’ Two family zone * * A statement to the contrary of the building commissioner’s position in this case. In any event, the fact of the earlier permit is some evidence, whatever weight may be assigned to it, as to whether or not the denial of this permit by the building commissioner would be so unreasonable as to be characterized as arbitrary and capricious.

Under the factual situation presented by this record, we cannot find the action of the Board to have been an abuse of discretion or a decision unsupported by competent and substantial evidence. Accordingly, the judgment of the Circuit Court should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

ANDERSON, P. J., SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


author: DOERNER, Commissioner.

text:
    George W. WARNECKE, Plaintiff-Appellant, v. ESTATE of John RABENAU, Deceased, Defendant-Respondent.
    No. 31326.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Bryan, Cave, McPheeters & McRoberts, George S. Roudebush, John P. MacCarthy, St. Louis, for plaintiff-appellant.
    Greensfelder, Hemker & Wiese, James L. Hawkins, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This is a claim for $4,495.57 against the Estate of John Rabenau, Deceased, founded upon a lease entered into by the decedent. Following successive denials of the claim by the Probate Court and the Circuit Court, claimant appealed to this court in due course.

The facts are undisputed. Claimant, George W. Warnecke, is the owner of the Paul Brown Building, a large downtown office building in the City of St. Louis, having about 200 tenants. The decedent, John Rabenau, was a certified public accountant who for an unspecified number of years maintained his office in the Paul Brown Building, from which he carried on the practice of his profession. Decedent’s tenancy was by virtue of a lease which was about to expire. By a new lease executed on July 24, 1959, claimant leased to decedent Rooms 732, 733, 734 and 735 on the seventh floor of the Paul Brown Building for a term of two years, to begin on November 1, 1959, and end on October 31, 1961, at an annual rental of $3,840, payable in advance in equal monthly installments of $320, plus a charge for such electric current as might be supplied to the leased premises. The lease provided that the leased premises were “ * * * to be used and occupied as office for certified public accountants, but for no other purpose.” Other provisions material to the issues raised on appeal are:

“6. * * * that Lessee will not use the demised premises, or any part thereof, or permit same to be used, for any immoral purposes or for any purpose other than specified, that neither this lease, nor any interest thereunder, shall, without the written consent of the Lessor endorsed hereon, be assigned or otherwise disposed of voluntarily or by operation of law or otherwise, nor shall said premises or any part thereof be sublet without such written consent of Lessor first endorsed hereon, * *

Mr. Rabenau died on March 16, 1960. His widow, Mrs. Leianna Rabenau, was appointed executrix under his will. Following her husband’s death, Mrs. Rabenau paid the rent through the month of August, 1960, but whether in her individual or in her representative capacity is. not shown in the record. Thereafter, on December 10, 1960, claimant filed his claim in the Probate Court of St. Louis County, wherein he pleaded the lease (a copy of which was attached to the claim), and alleged that there was then due rent of $960 and a charge for electric current of $15.57, and that rent of $3,520 would become due for the months of December, 1960, through October, 1961. Claimant also sought to recover interest of 6% upon the rent installments due, as provided in the lease.

At the trial de novo in the Circuit Court, heard without a jury, in addition to the foregoing evidence, the parties stipulated that prior to his death the decedent carried on his practice as a certified public accountant in the premises described in the lease, under the firm name of Rabenau & Slais, of which he was the sole proprietor; that he had employees doing accounting work in such premises, none of whom were certified public accountants; and that Mrs. Rabenau, his widow and executrix, is not qualified or trained as an accountant or certified public accountant.

By its judgment the Circuit Court found the issues in favor of the defendant, but stated no grounds upon which it did so. Claimant contends that in so holding the court erred, because the terms of the lease made by the decedent bound his estate. Defendant, on the other hand, argues that the lease was a personal undertaking of the decedent which terminated with his death, so as to relieve his estate from any liability. While the claim includes rent not yet due, and is therefore in part a contingent demand, Elms Realty Co. v. Wood, 285 Mo. 130, 225 S.W. 1002, defendant does not contend that under our present probate code such a claim may not be allowed or paid. Sections 473.360, 473.390, RSMo 1949, V.A. M.S.; Beckers-Behrens-Gist Lumber Co. v. Adams, Mo.App., 311 S.W.2d 70.

Generally speaking, a lease for a term of years is not terminated by the death of the lessor, or the lessee. But if the terms of the lease and the surrounding facts and circumstances show that the lease was intended to be only a personal obligation of the lessee, then there is necessarily an implied condition that his death will terminate the lease. Brigham v. Kidder, 99 N.J.L. 79, 122 A. 740; 51 C.J.S. Landlord and Tenant § 92, pp. 659, 660; 32 Amer. Jur., Landlord and Tenant, Sec. 65, p. 81. This principle regarding personal contracts or agreements creating a personal relationship is not new to the law of contracts. Thus in McDaniel v. Rose, Mo.App., 153 S.W.2d 828, 830, the court said:

“Generally speaking, the death of a party does not terminate or extinguish a contract unless it is one of a personal nature or creates a personal relationship, the presumption otherwise being that the parties intend to bind their personal representatives, whether specifically referred to in the contract or not. But of course, if the acts to be performed are of a strictly personal nature, or if the subject matter of the contract is such that its performance depends upon the continued existence of a particular person or of a particular condition or status which goes to the very essence of the contract, then there is necessarily an implied condition that death will terminate the contract; and if the death of one of the contracting parties occurs while all or any part of the contract is still to be performed, the death of such party will operate as a discharge, and relieve his personal representative of any duty to perform.”

And in Buddon Realty Co. v. Wallace, 238 Mo.App. 900, 189 S.W.2d 1009, while it was held inapplicable for a number of reasons, this court recognized that the same principle extended to leases.

As in the case of contracts, the difficulty is not with these rules themselves, but with their application to a particular situation. McDaniel v. Rose, supra. As to contracts in general, it was said in that case (153 S.W.2d l. c. 830) that:

“ * * * the test of whether a contract is terminated by death ultimately resolves itself into one of whether its subject matter is such that it may be performed or completed by the deceased party’s personal representative as well and fully as it could have been performed and completed by the deceased himself if he had fortuitously survived. If the contract is one which for any legitimate reason may not be as well and fully performed and completed by the personal representative as by the deceased himself, then the parties, in entering into the contract, are to be presumed to have had in mind that death would excuse performance, so that in determining the question of whether the personal representative is to be bound by an obligation assumed by his deceased, the facts and circumstances of each particular case are necessarily to be taken into account.”

In the case of a lease, the factors to be considered in determining whether the lease is personal to the lessee, as stated in 51 C.J.S. Landlord and Tenant § 92, pp. 659, 660, are: “* * * the terms of the lease, the nature of the business, and the peculiar qualifications of the lessee * * The cardinal rules of construction of contracts and conveyances, of course, are that the intention of the parties must be ascertained and given effect, Johnson v. Missouri-Kansas-Texas R. Co., Mo., 216 S.W.2d 499; Missouri Athletic Ass’n v. Delk Inv. Corp., 323 Mo. 765, 20 S.W.2d 51; and that such intention must be ascertained from within the four corners of the written instrument and the surrounding circumstances and conditions. Kerrick v. Schoenberg, Mo., 328 S.W.2d 595; Paulus v. Board of Education of City of St. Louis, Mo.App., 347 S.W.2d 425. In that connection it is of interest to note that in the Rules and Regulations attached to the lease, the word “Lessor” was defined to include “the Lessor’s successors in interest” while the word “Lessee” was stated to apply to and include only “the Lessee and his servants, clerks, employees and other representatives, visitors, customers, clients, patients, and common carriers”; but not his successor or personal representative.

Applying the foregoing tests to the instant case, we cannot escape the conclusion that the lease between the claimant and Rabenau was one of a personal nature which terminated with the latter’s death. The leased premises were not a farm, plantation, or an entire building, as in many cases cited in support of the general rule, but a suite of offices in a downtown office building. Moreover, as was well known to the claimant, the only purpose for which decedent leased such offices, as he had for many years in the past, was as quarters in which to carry on the practice of his profession, that of a certified public accountant. Indeed, by the very terms of the lease such offices were to be used for that purpose, and that purpose alone. Furthermore, as in the case of medicine and other professions, the decedent’s vocation was one in which the public at large may not engage. Only those who have met the statutory requirements and have been duly issued a certificate may lawfully practice as a certified public accountant. Ch. 326, RSMo 1959, V. A.M.S. Thus, for such offices to be used for the purpose specified it must have been contemplated that Rabenau would remain alive, since upon his death his personal representative could not carry on his profession nor engage in the activities which were highly personal as to him. All of the facts and circumstances of the case indicate that the premises were to be leased to the decedent solely for the practice of his profession while he remained alive, and that it was never contemplated by the parties that in the event of his death during the term of the lease his estate would be obligated for rent on offices for which it had no use. Brigham v. Kidder, supra; McDaniel v. Rose, supra; 51 C.J.S. Landlord and Tenant § 92, p. 659.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

ANDERSON, P. J., and SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.

      . Stone v. Wandling, 307 Mo. 160, 270 S.W. 315.

      . Buddon Realty Co. v. Wallace, 238 Mo.App. 900, 189 S.W.2d 1002: 51 C.J.S. Landlord and Tenant § 92, p. 659; 32 Amer.Jur., Landlord and Tenant, See. 65, p. 81.