author: TUNKS, Justice.

text:
    LOOMIS CONSTRUCTION COMPANY, Inc., Appellant, v. Anthony MATIJEVICH, d/b/a Matijevich Floor Covering, Appellee.
    No. 74.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 7, 1968.

      John Eckel, Mills, Shirley, McMicken & Eckel, Galveston, for appellant.
    Henry G. Dalehite, Jr., Markwell, Stubbs, Decker, Dalehite & Youngblood, Galveston, for appellee.
   TUNKS, Justice.

This is a suit on a sworn account. The defendant in the trial court, appellant here, pleaded the two-year statute of limitations as a defense. The plaintiff, appellee here, by supplemental petition, alleged that because of facts hereinafter set out, the defendant was estopped to assert the defense of limitations. The trial was to the court without a jury. The defendant admitted that the materials and services which were the subject matter of the account were received and that the charges were reasonable. The evidence showed as a matter of law that the plaintiff’s petition was filed more than two years after the cause of action on the account accrued. The trial court sustained the position of the plaintiff and rendered judgment for plaintiff for $945.54 on his account and for $375.00 attorney’s fees.

This account grew out of a contract to repair storm damage to a building in Galveston, Texas. The appellant had an oral general contract to repair the building and, in turn, entered into an oral subcontract with appellee under the terms of which ap-pellee agreed to do that portion of the repair job which consisted of refinishing the floors. No specific price was fixed by the agreement. Appellee began work in December, 1961. His first statement for materials and services was dated December 12, 1961. The work continued until February 13, 1962, and on February 16, 1962, ap-pellee submitted to appellant his second and final statement. Appellant did not pay the account forthwith and gave as its reason for not doing so the fact that the owner of the building had not paid it. A controversy developed between the appellant and the owner and it became necessary for appellant to file suit against the owner on the contract for repairs.

Appellee made repeated demands on appellant for payment and appellant continued giving the owner’s failure to pay it as an excuse for its non-payment of appellee. Appellant also repeatedly told appellee that when it settled its suit against the owner, it would pay appellee out of the proceeds of such settlement.

In the suit against the building owner, the general contractor, appellant, set out as one of the items for which it sought recovery, the floor finishing work which had been done by appellee.

Appellant’s suit against the building owner was settled on February 10, 1964. The proceeds of the settlement, however, were not paid directly to appellant. Its cause of action had been assigned to a bank to whom the proceeds of the settlement were paid. The bank paid out of the proceeds the fee and expenses incurred by appellant’s attorney in prosecuting the claim and paid the claim of one other sub-contractor who had filed a Mechanic and Materialman’s Lien. Appellee did not receive any of the proceeds.

Immediately upon hearing of the settlement of appellant’s suit against the owner, appellee referred this claim to his lawyer for collection. His lawyer telephoned appellant’s lawyer and was, at first, told that the claim would be paid. Later, in about two weeks, appellee’s lawyer was told that the claim would not be paid. That was the first time that appellant had ever told ap-pellee that the debt would not be paid.

Appellee filed his suit in the trial court on August 7, 1964. The record does not show why he waited almost six months after he had been told that his claim would not be paid before he filed suit. In fact, the attorneys for both parties took the position in the trial court that the evidence should be confined to events that occurred before the limitation period had run — that evidence as to events occurring after that date would be irrelevant.

In response to the request of the defendant, the trial court made the following findings of fact:

“ * * * 4. Defendant has never raised any objections to the bill submitted to him by Plaintiff and never denied owing the bill until after two years had expired after such labor and material were furnished.
“5. After the work was completed differences arose between Defendant and the owner of the Phi Chi Medical Fraternity House resulting in the filing of a law suit on August 22, 1962, by Defendant against such owner, and in such law suit Defendant included in its claim against the owner the said sum of NINE HUNDRED FORTY FIVE AND 54/100 ($945.54) DOLLARS as the amount it was obligated to pay to Plaintiff.
“6. On many occasions, both before and after the filing of the lawsuit by Defendant against the owner, Plaintiff inquired of GUS LOOMIS, Defendant’s President, as to when Plaintiff’s bill would be paid, and said GUS LOOMIS on behalf of Defendant represented to Plaintiff and agreed that Plaintiff’s bill would be paid as soon as Defendant was able to settle its differences with the owner of the Phi Chi Medical Fraternity House.
“7. Plaintiff relied on such representations and agreements and waited until Defendant could settle its differences with the owner and if these representations and agreement had not been made, Plaintiff would have filed suit for the collection of his account prior to the expiration of the two year statute of limitations.
“8. The lawsuit filed by Defendant against said Owner was settled on February 10, 1964, resulting in the payment by Owner of the sum of THIRTEEN THOUSAND SEVEN HUNDRED THIRTY FOUR AND 27/100 ($13,-734.27) DOLLARS to the Moody National Bank of Galveston, Texas, to whom Defendant had assigned its claim against the Owner. * * *”

The trial court also concluded as a matter of law that, “Defendant is estopped from pleading or relying upon the defense of limitations.”

Appellant’s points of error may be classified into two general areas: first, appellant contends that there was no factual or legal basis for the trial court’s finding and conclusion that appellant was estopped to assert the defense of limitations. Second, appellant proposes that, if any estoppel ever arose, appellee was not entitled to urge estoppel at the time suit was filed because of the six-month delay after appellant had renounced the debt.

We are of the opinion that the evidence supports the trial court’s findings that appellant told appellee that the claim would be paid as soon as appellant’s suit against the building owner was settled and that ap-pellee’s reliance on that statement was the reason he did not file suit within the two-year limitation period. At one point in the direct testimony of appellee, he testified as follows:

“Question: All right; if Mr. Loomis had not told you this, what would you have done?
“Answer: I would have sued him. I would have put the mechanics’ lien like the rest, like Chester Scruggs did.
“Question: You would have sued him if he had told you he wouldn’t pay you?
“Answer: Yes, I would. He kept telling me all the time he would pay me, he would pay me as soon as he settled the job.”
Again he said:
“Question: Now, Mr. Loomis told you about his differences with the owners of the property, promising he would pay you?
“Answer: Right.
“Question: If he hadn’t promised to pay you, what would you have done?
“Answer: I would have sued him.”

The evidence showed that it was not unusual in the construction industry in Galveston for the general contractor to wait until he had collected from the owner before paying his subcontractors. The plaintiff had done sub-contract work for the defendant before, and while defendant had sometimes been slow in doing so, it had always paid off on other contracts.

The applicable statute of limitations is Article 5526, Vernon’s Ann.Tex.St., which requires that a suit on a debt not evidenced by a contract in writing be commenced within two years after the cause of action shall have accrued. There is no contention here that appellant ever executed any written acknowledgment of appellee’s claim so as to make applicable Article 5539, V.A.T.S.

The authorities on the question here involved are exhaustively annotated at 130 A.L.R., pp. 8-67, and 24 A.L.R.2d, pp. 1413-1449. In the latter annotation, at page 1417, this statement is made:

“It is established by the Overwhelming weight of authority, as pointed out in the earlier annotation and as indicated in the following cases subsequently thereto, that the equitable doctrine of estop-pel in pais may, in a proper case, be applied to prevent a fraudulent or inequitable resort to a statute of limitations, and that a debtor or defendant may, by his representations, promises, or conduct, be estopped to assert the statute, where the other elements of estoppel are present.”

Among the many authorities cited as supporting that statement are a number of Texas cases.

One of the situations listed in the above cited annotations as creating an estoppel to plead limitations by the debtor is that situation wherein the debtor and creditor agree that suit shall not be brought by the creditor until other pending litigation is disposed of and, as a result of such agreement, the creditor delays filing his suit until the limitation period has run. At 130 A.L.R., p. 60, it is said:

“Where action is postponed pursuant to an agreement that the suit shall not be brought pending the outcome of other litigation, the debtor is estopped to set up the running of the statute of limitations during the other litigation.”

We are of the opinion that that rule of law controls the fact situation involved in this case. The rule has been applied by a .Texas court in an opinion directly in point. Moutos v. San Saba County Peanut Growers Ass’n, Tex.Civ.App., 268 S.W.2d 761.

In Seay v. Diversified, Inc., Tex.Civ.App., 382 S.W.2d 518, writ ref., n. r. e., it was held that a debtor was estopped to plead limitations where the creditor had delayed filing suit on his claim at the debtor’s request. There, an attorney sued to recover fees for services performed by him over a period of six years. The president of the client, a corporation, requested that the attorney permit his fees to accumulate and not bill the corporation until a later date when the corporation’s need for capital was less pressing. The attorney agreed to do so. The agreement was confirmed from year to year. Before paying the attorney the corporation became insolvent and a receiver was appointed. The attorney filed a claim for his fees. The trial court held that substantially all of his claim was barred by the two year statute of limitations. The Court of Civil Appeals held that the receiver, standing in the same position as the corporation, was estopped to contend that the claim was barred by the statute of limitations.

In this case, we are strongly persuaded by the equities in favor of the ap-pellee. That he delivered the materials and rendered the services on which his claim is based is readily admitted. So, too, is the reasonableness of the amount of his claim. In fact, the appellant has recovered, at least indirectly, from the owner, payment for the various materials delivered and services performed by appellee. Appellee’s failure to file suit within two years was because he, at the appellant’s request, was accommodating appellant. Under those circumstances the denial of appellee’s right to a judgment on his claim would be a gross injustice. See H. B. Zachry Co. v. Ceco Steel Products Corp., Tex.Civ.App., 404 S.W.2d 113, writ ref., n. r. e. We consider this a proper case for the application of the equitable doctrine of estoppel.

The inducement which had caused appellee to delay in the filing of his suit ended in the latter part of February, 1964, when appellant, for the first time, said that he did not intend to pay the debt. Appel-lee still did not file suit on his account until August 7, 1964. The record is silent as to the reason for such delay. Both parties properly took the position in the trial court that evidence as to what happened after the running of the limitation period was irrelevant insofar as the issue of estoppel to plead limitations was concerned. Conduct or representations of the defendant after the limitation period had run obviously could not have been relied on by plaintiff as an inducement not to file his suit during the limitation period.

However, if there was anything in the plaintiff’s delay after the defendant’s inducement had been withdrawn that would have constituted a defense to the suit, evidence as to what transpired between the day that defendant renounced the debt and the date plaintiff filed his suit might have been relevant. We are of the opinion that once defendant was estopped from pleading the statute of limitations, he was permanently estopped. The conduct of defendant did not give rise to a new cause of action on which a new limitation period began. It simply estopped him from using as a defense the lapse of the statutory period of limitations that began when plaintiff’s cause of action accrued and ended two years thereafter as a defense.

We are of the opinion that defendant’s defense, if any, arising out of plaintiff’s delay after the debt was renounced, was the defense of laches. To establish that defense, the defendant would have had to show that the plaintiff’s delay in filing the suit was unreasonable and had resulted in detriment to the defendant. City of Fort Worth v. Johnson, (Tex.Sup.Ct.) 388 S.W.2d 400. Furthermore, since laches is an affirmative defense, it was waived by the defendant’s failure to plead it. Rule 94, T.R.C.P.

The plaintiff’s judgment in the trial court included a recovery of $375.00 as attorney’s fees. The trial court made the following finding of fact:

“By reason of defendant’s failure to pay plaintiff’s account, plaintiff was required to employ attorneys to collect such account and the sum of THREE HUNDRED SEVENTY FIVE AND NO/100 ($375.00) DOLLARS is a reasonable fee for plaintiff’s attorney for filing the suit and trying the case, up to the time of the entry of judgment, exclusive of any fees plaintiff may be required to pay his attorney for any work done after the entry of judgment.”

The court also recited the following conclusion of law:

“Plaintiff is entitled to recover from defendant a reasonable attorney’s fee for services of an attorney in this case, that may be required after the date of entry of judgment in this case.”

Appellee prays that the judgment of the trial court be affirmed but that the case be remanded to the trial court for a determination of the issue of reasonable attorney’s fees for the appellee for services of an attorney on this appeal, and the entry of an additional judgment in such amount.

We deny the appellee’s request that the case be remanded for entry of an additional judgment representing the attorney’s fees incurred in prosecuting this appeal. The appellee had the privilege in the trial court of showing what his future attorney’s fees would be and would have been entitled to a judgment covering such fees. By not having offered any evidence as to such future attorney fees and by not procuring a finding and judgment thereon, the appellee has waived any such recovery. Lee v. Universal Life Ins. Co., Tex.Civ.App., 420 S.W.2d 222, writ, ref., n. r. e.; Central States Life Ins. Co. v. Byrnes, Tex.Civ.App., 375 S.W.2d 330, writ ref., n. r. e.; Grimes v. Robitaille, Tex.Civ.App., 288 S.W.2d 211, writ ref., n. r. e.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Elzie B. MARSHALL, Appellant, v. BANKERS LIFE & CASUALTY COMPANY, Appellee.
    No. 15226.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 22, 1968.
    Rehearing Denied March 14, 1968.
    John H. Holloway, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, David J. Beck, Houston, for appellee.
   COLEMAN, Justice.

This is a suit to recover the proceeds of a policy of insurance. The appeal is taken from a summary judgment for the Insurance Company.

Appellant alleged in his petition that at the time he received permanently disabling injuries he was insured against disability caused by accident by a preliminary contract of insurance for a one month term as evidenced by a receipt in writing issued to him by the agent of appellee. In the alternative, he alleged that he contracted with appellee to purchase a policy of such insurance against accidental injuries and for a separate consideration appellee agreed to afford immediate coverage until such time as the written policy was issued. He alleged that the written policy was issued, but that while the temporary coverage was in force and before the written policy was delivered, he suffered accidental injuries for which benefits were due under the policy. He alleged that the Insurance Company has refused to pay the benefits due to him and has denied the existence of the contract. Appellant has sued under the theory of anticipatory breach of contract for the benefits due and to become due under the alleged contract.

Appellee filed its motion for summary judgment and an affidavit setting out the fact that appellant made an application for insurance, a true copy of which was attached, and that the insurance policy was not issued on or prior to December 4, 1965, and was not delivered to appellant on or prior to that date. The application attached was dated December 1, 1965. Material parts of the application read:

TO BANKERS LIFE AND CASUALTY COMPANY, Chicago, Illinois 60630 (hereinafter called the Company)
1. I hereby apply for a policy on Form No. P-16, with Rider Form No’s._,_,_, to be issued on the basis of my answers to the following questions and my answers to the Medical Examiner on Part II hereof, if any.
14. Do you understand and agree that the Policy hereby applied for will not take effect until it is issued by the Company and duly executed by the President and Secretary of the Company and that the Company is not bound by any knowledge of, or statements made by, or to any agent, unless set forth herein?. yes
15. * * *.
16. Do you understand and agree that no monthly benefit is payable during the first 0 days of disability due to accident and during the first 0 days of disability due to sickness?. Yes
I have paid a total of $ 15,75 with this application for the initial premium to insure me for ONE (1) months.
I hereby witness the signature of the applicant hereon and I certify that I asked him all of the questions herein contained and that there has been recorded herein-above truly and accurately all of the information supplied by the applicant.
Dated at Houston, Texas 17. this 1st day of December 1965_ x E. B, Marshall Signature of Applicant
/s/ W, L. Beckham No. 58194
Licensed Resident Agent
I have read the EXCEPTIONS or EXCLUSIONS in policy form P-16 for which I have currently applied. I understand that these are limitations on benefits under the policy.
I also understand and agree that accidents incurred before date of issue of the policy by the Company or illnesses having their inception less than thirty days from said date of issue ARE NOT INSURED.
I have read the completed application signed by me and the statements contained therein as to past illnesses and present condition of health are full, true and correct.
/s/ X E. B. Marshall
1101 Kern, Houston, Texas

Attached to appellant’s reply to defendant’s motion for summary judgment is appellant’s affidavit, a copy of the “Receipt for Initial Premium,” a letter from an attorney for appellee, and a copy of the policy of insurance issued by appellee showing date of issue as December 14, 1965.

In his affidavit, appellant states that on December 1, 1965, W. L. Beckham “talked me” into purchasing a life policy for accidental death which included loss of time from sickness and accidental injuries. In his affidavit appellant said:

On December 1st, 1965, Mr. Beckham took $15.75 of my money after taking an application for accidental injury benefits for insurance which was to take effect immediately that date upon his receipt of the premium of $15.75, and by which I was to be paid $150.00 per month for 24 months if accidenfZy injured and was unable to work, plus $3,000 if killed. He assured me that the insurance was immediately in effect if the $15.75 was paid, and that he would indicate that fact on the application and give me a receipt. That he marked on the application that I was to have one month insurance for the $15.75, and told that the monthly renewal premium would be $9.75 per month as was indicated, and that I would receive the written policy within about 10 days. However, he told me that there was no problems about the company accepting it because no physical examination was required since it covered only accidental injuries, and that the insurance went into force immediately upon payment of the $15.75 which was to cover one month. He wrote me a receipt for the $15.75, a copy of which is attached and which is true and correct copy.
He later delivered the policy in written form, which contained the application that I had made, but in the meantime I received accidental injury to my right knee which required the removal of the knee cap and I was off work and entitled to the benefits afforded by the policy for $150.00 each month that I was off work, and I still have not returned to all of the duties which I could do before I was hurt, and the policy, both oral and written, covered 24 months.
Mr. Beckman was notified of my injury and fact that I was in the hospital before the policy was issued in written form, and the policy was later delivered and showed a issue date of December 14, 1965, and when asked about the date of it he said that date did not matter since I was covered from the date of the application, and that was one of the reasons why the company charged more for one months insurance on a temporary basis, and for me to submit the claim to the company. I submitted the claim to the company and they declined to pay the claim, stating that there was no temporary insurance based on the fact that they had not issued the written policy.

The receipt referred to reads :

BANKERS LIFE & CASUALTY COMPANY
Home Office: Chicago Illinois 60630
RECEIPT FOR INITIAL PREMIUM
Received from Mrs. Marshall (applicant) an application for a Policy of insurance, and $ 15.75, (the initial premium exceeds subsequent premiums by $ 6.00) to pay premiums on the policy for-months from its date of issue. In the event the application is declined the above amount will be refunded. No other obligation is incurred by the Company unless said application is approved by the Company at its Home Office and a policy is issued and executed by its President and Secretary.
Date Dec. 1 - 1965
/s/ W. L. Beckham 58194
Representative Number

The policy of insurance issued provides:

BANKERS LIFE AND CASUALTY COMPANY
Home Office at 4444 Lawrence Avenue Chicago, Illinois 60630
A Legal Reserve Stock Company, Hereinafter called the Company Does Hereby Insure the person named as the Insured in the Schedule on the fourth page hereof, subject to the provisions and exceptions hereinafter contained, against loss of life, limb, sight, or time resulting directly and independently of all other causes from injuries, and against loss of time by sickness.
“Injuries” as used in the policy means accidental body injuries sustained and causing loss beginning while this policy is in force.
“Sickness” as used in this policy means sickness, illness, or disease, which is contracted, and begins and causes loss beginning while this policy is in force, and after it has been in force for not less than thirty days from its date of issue.
This policy is issued in consideration of the application herefor, copy of which is attached hereto and made a part hereof and of the payment in advance of the total initial premium set out in the Schedule on the fourth page hereof which shall maintain the policy in force until the first renewal date. It may be renewed with the consent of the Company by the payment of the total monthly renewal premium on said first renewal date and on the same day of each month thereafter subject to the same conditions.
The term of this policy begins at 12 o’clock noon, standard time, at the residence of the Insured on the date of issue and ends at 12 o’clock noon on the date any renewal premium is due, subject to the grace period hereinafter provided.
The benefits and provisions stated by the Company on the following pages are expressly made a part of this policy.
sk • * ⅜ * * *
ENTIRE CONTRACT; CHANGES: This policy, including the endorsements and the attached papers, if any, constitutes the entire contract of insurance. No change in. this policy shall be valid until approved by an executive officer of the Company and unless such approval be endorsed hereon or attached hereto. No agent has authority to change this policy or to waive any of its provisions.

In addition to a recitation that the date of issue is 12 14 65, the policy recites that the total initial premium is $15.75; the first renewal date is 1 14 66; and the total monthly renewal premium is $9.75.

Article 3.70-2, Insurance Code, V.A.T.S., provides:

(A) No policy of accident and sickness insurance shall be delivered or issued for delivery to any person in this state unless :
(1) the entire money and other consideration therefor are expressed therein or in the application, if it is made a part of the policy; and
(2) the time at which the insurance takes effect and terminates is expressed therein; and

Article 3.70-3, Insurance Code, provides:

(A) Required Provisions. * * * each such policy delivered or issued for delivery to any person in this state shall contain the provisions specified in this subsection * * *.

(1) A provision as follows:

“ENTIRE CONTRACT; CHANGES: This policy, including the endorsements and the attached papers, if any, constitutes the entire contract of insurance. No change in this policy shall be valid until approved by an executive officer of the insurer and unless such approval be endorsed hereon or attached hereto. No agent has authority to change this policy or to waive any of its provisions.”

In Southland Life Insurance Co. v. Statler, 139 Tex. 496, 163 S.W.2d 623 (Tex.Sup.1942), the Court stated:

Before proceeding further we deem it expedient to announce several well-settled rules of law, which we think must govern the decision of this case:
1. Under the express provisions of Article 5063, R.C.S.1925, any person who solicits applications for life insurance is to be regarded as the agent of the life insurance company, and not as the agent of the applicant; but such soliciting agent has no power to waive, change, or alter any of the terms or conditions of the application or the policy.
2. Under the provisions of Article 4732, R.C.S.1925, no policy of life insurance can be issued or delivered in this State by a life insurance company such as this unless the same contains a provision “That the policy, or policy and application, shall constitute the entire contract between the parties, * *
3. The very wording of the above statutes and of many of our other insurance statutes shows plainly that our laws contemplate that all insurance policies issued by companies of this class must be in writing.
4. It is the settled law of ⅛⅛ State that under the above statutes a mere soliciting agent of a life insurance company has no power or authority to make any contract on behalf of his company, or to waive the terms of the policy or the application therefor. Indianapolis Life Ins. Co. v. Powell, 133 Tex. 547, 127 S.W.2d 172; Southland Life Ins. Co. v. Lawson, 137 Tex. 399, 153 S.W.2d 953, 136 A.L.R. 1212; Great Nat’l Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602; Beaty v. Southland Life Ins. Co., Tex.Civ.App., 28 S.W.2d 895; Guarantee Fund Life Ins. Ass’n v. Barclay, Tex.Civ.App., 11 S.W.2d 231. From the very nature of its business, a life insurance company such as this ought to know what insurance risks it has assumed ; and any rule of law which would permit a mere soliciting agent of such a company to put in force oral contracts of life insurance would result in intolerable conditions, and make it impossible for such companies to conduct their affairs in accordance with the numerous regulatory statutes of this State.
* * * This letter was shown by MacGregor to Mr. Statler on the occasion when Mr. Statler paid to MacGregor the quarterly premium on a $15,000 policy, which MacGregor orally stated to Mr. Statler would be in effect on that date. Such oral agreement was in violation of the statutes and decisions above cited, and therefore beyond the power of Mac-Gregor to make on behalf of this Company. Mr. Statler was charged with knowledge of the above statutes, as well as with knowledge of the contents of his own application. The letter written by the Company last above referred to did not even remotely authorize MacGregor to bind this Company to an oral life insurance contract, or to waive, alter, or change the terms, conditions, or provisions of Mr. Statler’s written application. * * *

While the contract considered in the Statler case was a policy of life insurance, the pertinent laws relied on in that case are substantially the same as those previously quoted applicable to accident and sickness insurance companies, and the reasoning of the Supreme Court in that case is equally applicable in this.

W. L. Beckham signed as a witness to the signature of appellant on the application for insurance executed by appellant. He signed as a licensed resident agent. In his affidavit, appellant states that W. L. Beckham represented himself to be an authorized agent of the Company, and that he had previously sold appellant several policies of insurance, and that on each occasion “he receipted for money and the policy was then later delivered.” Appellant also stated that Beckham told him that he would get the policy in about ten days since there was “no problem about the Company accepting it * * * ”

It is specifically provided in the application that the Company is not bound by any statement made by the agent unless contained in the application, and both the application and receipt contain statements to the effect that the policy applied for would not take effect until issued by the Company and executed by the president and secretary. The application specifically provided that accidents incurred before the date of issue of the policy by the Company are not insured. The receipt provided that in the event the application was declined the entire initial premium would be refunded, and that no other obligation is incurred by the Company. Neither the receipt for the initial premium, the policy subsequently issued, nor the application for the policy, contains any reference to temporary insurance. Appellant points to the statement in the application reading: “I have paid a total of $15.75 with this application for the initial premium to insure me for One (1) months,” and contends that this constitutes a memorandum of the oral contract for temporary insurance. We do not agree. When we construe the application and the receipt for the premium together and give effect to all provisions of each instrument, it is clear that the quoted provision refers to the payment of the initial premium due under the policy of insurance for which application was being made. This is the only reasonable construction of the instruments, and it follows that there is no ambiguity in the provisions thereof. Parol evidence to contradict or add to the contract would not have been admissible at the trial of the case on the merits. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958); Southland Life Ins. Co. v. Gatewood, 135 Tex. 177, 141 S.W.2d 588 (1940); King v. Whatley, 236 S.W.2d 186 (Tex.Civ.App., Eastland 1951, writ ref., n. r. e.).

All of the points of error urged by appellant have been carefully considered, and are denied. Appellant is bound by the terms of the application, receipt for initial premium, and insurance policy. These instruments conclusively negative the existence of a valid agreement for temporary insurance. Southland Life Ins. Co. v. Vela, 217 S.W.2d 660 (Tex.Sup.1949); Mutual Life Ins. Co. of New York v. Anderson, 408 S.W.2d 335 (Tex.Civ.App., Dallas 1966, writ ref., n. r. e.); Debenport v. Great Commonwealth Life Ins. Co., 324 S.W.2d 566 (Tex.Civ.App., Dallas 1959, n. w. h.) ; Southwestern Life Ins. Co. v. Evans, 262 S.W.2d 512 (Tex.Civ.App., Beaumont 1953, writ ref.).

The judgment of the Trial Court is affirmed.


author: BARRON, Justice.

text:
    Patricia Ann CALHOUN, Appellant, v. P. H. RUFFER, Sr., et al., Appellees.
    No. 68.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 28, 1968.

      D. L. McClure, Jim Brannon, Houston, for appellant.
    J. Edwin Smith, Hollis Cordray, Smith, Cordray & Vickers, Houston, for appellees.
   BARRON, Justice.

This is a civil habeas corpus proceeding filed by petitioner, Patricia Ann Calhoun, natural mother of three minor children, against Philip H. Ruffer, Jr. and wife, Len-nie Ruffer, for care, custody and control of the minor children, Robert Gary Ruffer, Jr., age seven; Jessie Leonard Ruffer, age six; and Susan Denice Ruffer, age three. The children, at the time of the filing of this action, were in the actual care, custody and control of the respondents, Mr. and Mrs. Ruffer. Suit was filed by Patricia Ann Calhoun (or Patricia Ann Ruffer) about twelve hours after the death of R. G. Ruffer, the children’s father and the former husband of petitioner, who was fatally injured in an industrial accident on July 7, 1967. For about eighteen months prior to his death, the father had legal custody of the children.

The trial court, without a jury, at the conclusion of the testimony rendered judgment denying the writ of habeas corpus filed by petitioner, appellant here. The court awarded the care, custody and control of the minor children to respondents, Philip H. Ruffer, Jr. and his wife, Lennie Ruffer, and adjudged that Patricia Ann Calhoun was not a proper person to have the care, custody and control of the children. From the judgment of the trial court, appellant has perfected her appeal to this court.

In a suit brought by the natural father of the children, R. G. Ruffer, under date of April 22, 1966, the father was awarded the care, custody and control of the three minor children as against the mother, Patricia Ann, by Honorable Arthur C. Lesher, Jr., the same judge who entered the judgment on habeas corpus in the present proceedings. On Christmas day, 1965, appellant left her children and her husband without giving them any explanation for leaving. About thirty-five days later, on February 1, 1966, appellant moved into a house with Don Calhoun on Eagle Pass Street in the City of Houston. Appellant and Calhoun shared this house with another unmarried couple. The house was next door to the house occupied by appellant’s husband, her children, and her mother. After appellant deserted them, her mother had gone there to help her husband look after the children.

The husband filed suit for divorce against appellant on February 11, 1966, asking in the suit that he be awarded the custody of the children pending and upon final judgment. Appellant executed a waiver to the divorce action, and in the waiver she, under oath, knowingly gave false information concerning her address. During the divorce proceedings she made no effort to obtain custody of the children. During the pendency of the divorce action and while she was still married to Ruffer, appellant was having improper relations with Don Calhoun in the house in which they lived, next door to the house in which her children, husband and mother lived. Calhoun saw nothing wrong with this. Her mother disapproved of her actions and never visited the house where appellant lived with Calhoun, though it was right next door. Although appellant claimed that she and Calhoun had entered into a common-law relationship as man and wife, the claim was not made until the date of the trial; and she stated that she was advised that a common-law marriage was legal on the day of the trial. Calhoun was not present at the trial and his version of the claimed common-law relation was not shown. Appellant and Calhoun did, however, fabricate in minute detail a purported ceremonial marriage, and each of them, in an attempt to carry out the fabrication, knowingly perjured themselves in answer to numerous questions in depositions in this cause. At the trial, appellant admitted her perjury concerning their alleged marriage and admitted that she and Calhoun had never been married. Appellant’s mother testified that appellant visited with the children only four or five times during the five months she lived next door to them. Appellant and Calhoun have never seen fit to be married ceremonially.

Concerning the qualifications of P. H. Ruffer, Jr., and his wife, Lennie Ruffer, to whom care, custody and control of the children was granted by the trial court, Mr. Ruffer is a paternal uncle of the children. He and his wife have been married for thirteen years. For nine years he has been regularly employed by the City of Houston as an electrician. He served honorably in the U. S. Air Force in the Korean War. They own their home and have one daughter ten years of age. They are willing and able to support and care for the children whose custody is in issue. They own a three-bedroom home in addition to a kitchen, dining room and living room about a block and a half from the school the children attend and near Green Valley Park where there is a children’s playground. They work with the Y.W.C.A. and send their daughter there for additional training and recreation. While the children at issue have been with appellees, they have been given good moral and religious training and opportunities. Appellees recognize their obligations to supervise the children, discipline them and give them moral guidance, training and education. It is clear that Mr. and Mrs. Ruffer love the children, and we believe they are able, ready and willing to do their best for them. While Mr. Ruffer’s age was 39 at the time of trial and his wife’s age was 51, the couple have always gotten along well, and the proper inference is that they are well adjusted and maintain a decent, respectable home.

On the basis of the evidence summarized above, the trial court found and decreed that appellant was not a proper person to have the custody of the minor children and that the best interests of the children required that they remain in the custody of appellees, Philip H. Ruffer, Jr. and wife, Lennie Ruffer. Consequently, the basic issue before this court is whether the evidence supports such findings, for a parent’s original right to custody must yield to the best interests of the children, and particularly so when the parent is not a proper person to have the children. Rice v. Rice, 21 Tex. 58; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 168, 116 A.L.R. 1293; Bough v. Bough, 263 S.W.2d 573 (Tex.Civ.App.), no writ hist. There is a presumption that the best interest of the children will be subserved by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the natural parent be proven to be disqualified by immorality or misfortune. Taylor v. Taylor, 42 S.W.2d 455 (Tex.Civ.App.), no writ history; Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787; Speer’s Marital Rights in Texas (4th Ed.), Sec. 117. If the best interests of the children required that the natural parent be deprived of custody, the trial court in its broad discretion in such matters may do so. Greenlaw v. Dilworth, 299 S.W. 875 (Tex.Com.App.); Tavares v. Tavares, 207 S.W.2d 916 (Tex.Civ.App.), writ ref., n. r. e.; Luman v. Luman, 231 S.W.2d 555 (Tex.Civ.App.), no writ hist. The evidence must be clear and convincing to authorize a court to grant custody of children to someone else, as against the claim of a natural parent. Luman v. Luman, supra; Binion v. Mathis, 171 S.W.2d 512 (Tex.Civ.App.), no writ hist.

The evidence in the record authorized the trial court to measure appellant’s future conduct by her recent past conduct in deserting her children for an adulterous relationship and in giving perjured testimony in the present proceeding. In De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (Tex.Sup.), it was said:

“On the other hand, as pointed out in Anderson v. Martin, Tex.Civ.App., 257 S.W.2d 347, 356 (wr. ref., n. r. e.), ‘an adult person’s future conduct may well be measured by his recent deliberate past conduct as it may be related to the same or a similar situation.’ If respondent continues to behave as he did during the marriage, and the trial court was entitled to conclude from the evidence that he will, it is reasonable to believe that he will not give his daughter the affection, care and guidance that are essential to her physical, mental and moral development or provide for her necessities and comforts of life commensurate with her needs and his ability and means.”

From the record in this case we can see no reason to believe that appellant’s morals and her attitude toward her children have necessarily changed since the death of her former husband. As further said in De Llano v. Moran, supra: “A person’s conduct during so brief a period affords no basis for saying with any assurance that there has been a permanent change in his character and habits.”

We have concluded that the trial court was well within its discretion in awarding the care, custody and control of the three minor children involved to Philip H. Ruffer, Jr. and his wife, Lennie Ruffer. The evidence clearly and convincingly shows that appellant deserted the children and her husband for another man, lived in adultery with him openly, showed little interest in the children prior to the death of her former husband, R. G. Ruffer, and conspired with her alleged common-law husband to secrete facts and commit perjury concerning her claimed marriage to Calhoun. The trial court was well within reason and within its discretion in believing that the same or similar conduct would continue in the future. To place children of tender years in an environment of adultery, immorality and instability, regardless of any supposed love shown for the children by the natural mother, is harmful to them and cannot be condoned under any circumstances. The home and the environment offered and given the children by Mr. and Mrs. Ruffer, the present custodians, is good; and it is clear to us that the trial court was authorized under the evidence to award custody of the children to them. Moreover, we believe the trial court’s rulings were just and correct; and his careful decision will not be disturbed by this court. See Silva v. Aranda, 223 S.W.2d 333 (Tex.Civ.App.), no writ hist.; Ex parte Cahill, 286 S.W.2d 210 (Tex.Civ.App.), no writ. As said in Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.):

“It is in situations with such conflicting considerations that the trial judge must be accorded the right to exercise a large measure of discretion in denying a change of custody of a child. He has an opportunity to observe and evaluate the personalities of the contending claimants, to weigh the credibility of their testimony, to assess the physical, mental, moral and emotional needs of the child, and to adjudge from personal observation which of the claimants can best meet the needs of the child. His judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him.”

The judgment of the trial court is affirmed.

Affirmed.


author: RENFRO, Justice.

text:
    Leo F. MALONE, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.
    No. 16896.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 23, 1968.

      Davis &' Foster and Fred W. Davis, Arlington, for appellant.
    Stone, Tilley, Parker, Snakard, Law & Brown and Lawton G. Gambill, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

The plaintiff, Leo F. Malone, sought benefits under the Workmen’s Compensation Law for 401 weeks at the maximum sum of $35.00 per week, plus $399.60 for medical services.

Understandably he was very unhappy and quite disappointed when, as a result of a jury verdict, judgment for $35.00 for one week was entered for him.

He appealed.

The jury’s answers to the first six issues submitted and stipulations of the parties established that plaintiff sustained a personal injury on March 15, 1966, while in the course of employment for General Motors Corporation, that such injury was the producing cause of temporary total disability beginning on March 15, 1966, for a duration of one week, and that the just and fair average weekly wage was $120.00.

Issue No. 7 reads: “Do you find from a preponderance of the evidence that the plaintiff Mr. Malone has sustained, or will sustain, any partial disability as a result of his injury (if any injury you have found)? Answer Yes, or No. Answer Yes.”

The jury in Issues Nos. 8, 9 and 10 found that the injury was a producing cause of plaintiff’s partial disability for a period beginning March 22, 1966, and ending September 1, 1966.

The jury was required in Issue No. 11 to “Find from a preponderance of the evidence the average weekly wage-earning capacity (if any) of plaintiff Mr. Malone during the period of his partial disability (if any).

“Answer in Dollars and Cents, if any, or answer None, as you find the fact to be.”

The jury answered, “One hundred twenty-one dollars & 20 cents ($121.20).”

The jury was instructed, “By the term PARTIAL DISABILITY is meant disability less than total, where an employee, by reason of injuries sustained in the course of his employment, is able to perform part of the usual tasks of a workman and, nevertheless, is able to procure and retain employment reasonably suitable to his physical condition and ability to work; or he is only able to perform labor of a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or reduction of his earning capacity.”

In three points of error plaintiff takes the position that, (1) the answer to No. 11 was against the overwhelming weight and preponderance of the evidence; (2) there was no evidence to support the answer to No. 11; and (3) Issues Nos. 9, 10 and 11 are in irreconcilable conflict with Issue No. 7.

Plaintiff testified: On March 15, 1966 he was hanging a seat-back in a station wagon when his feet went from under him, causing the thirty-five pound seat-back to hit him along the belt line. The floor was concrete. After a few minutes he asked the foreman for a pass to the hospital. He reported the injury and was in the plant hospital within fifteen minutes. He told the doctor he had fallen, was hurting everywhere from groin up and asked for x-rays of back. Doctor x-rayed elbow, which had struck the floor at time of the fall, hut not the back.

From the hospital plaintiff went home, missing two and one-half hours’ work. He returned to work next day. His groin swelled on right side. Subsequently, on June 19, he had a hernia operation. (In his pleadings plaintiff relied on general injury and during trial told the court he was not relying on a specific injury, hernia, but was seeking total permanent recovery under the general injury pleading.) Day after injury he felt pain in area of waist line “down through my hips and back up,” bottom part of rib cage, and in lower lumbar area. Took heat treatments at Chester Clinic. Has continued to have stiff back, has hard time getting around, and at times, when he moves leg, has shooting pains.

He continued to work for General Motors until April 22. His job was to hang car parts on the line so they could be painted. He obtained note from doctor requesting Company not to request plaintiff to handle anything too heavy for him. He left employment of General Motors because they refused to give him lighter work and he could not continue to perform regular duties. As of time of trial did not have full use of left leg and back. In September went to work for Murray Gin Co. at $1.85 per hour, since increased. In meantime had applied for several jobs in Dallas but could not pass physical.

On cross-examination he testified: Has taken no treatment for back except heat treatment. He has not seen his doctor, about his injuries, since the day after the accident. Dr. Maxwell was a doctor of his own choice. Two and a half weeks after the injury he drove his automobile 450 miles to Wichita, Kansas, looking for work. He decided to leave General Motors and go to Kansas because of family trouble. He signed an instrument at time he left General Motors showing that his leaving was voluntarily to go to another job out of the state. He passed the physical when he went to work for the Murray Gin Co., and does a full day’s work at hard labor.

By deposition Dr. Garrett W. Maxwell testified: He is associated with Chester Clinic. He saw plaintiff on March 16, 1966. Plaintiff’s complaint was pain in back, left hip and left elbow. Plaintiff made no complaint as to pain in lower abdomen or groin area. He was treated with muscle relaxants, analgesics, and diathermy, physiotherapy treatment, heat to the involved areas. Recommended bed board at home for back. Plaintiff returned on the 17th and 18th for therapy treatments. He was supposed to take more treatments but never returned.

No complaint was made by plaintiff as to groin pain or lower abdominal pain, and witness’ records reflect no evidence of hernia. Plaintiff returned on May 25, 1966 for treatment for sore throat, flu-like symptoms, muscle aching and diarrhea. There was no mention made by plaintiff at that time as to abdominal or groin pain.

Other evidence was tendered, some of which was contrary to the jury’s answer to issue No. 11 and some of which directly supports the jury’s answer.

The evidence clearly supports the jury’s answer to issue No. 11, and the finding is not against the great preponderance of the evidence.

Having found that issue No. 11 is supported by the evidence, our real problem is to determine whether issues Nos. 9, 10 and 11 conflict with issue No. 7 so as to require a reversal under authority of Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961), or whether the apparent conflict should be reconciled and judgment affirmed under authority of Indemnity Insurance Co. v. Craik, 162 Tex. 260, 346 S.W.2d 830 (1961).

We have set out the court’s definition of “Partial Disability” in the instant case on page 55 of this opinion, and issue No. 7 on page 55. Issues Nos. 8, 9 and 10 all referred to “Plaintiff’s Partial Disability.” In issue No. 11 the term “weekly wage-earning capacity” was used.

We have compared the definition of “Partial Disability” in the Craik case with the definition given in the instant case.

In the Craik case the definition was as follows: “By the term ‘partial disability’ is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity.” In our opinion the two definitions are so similar that they must be construed as substantially identical.

In the instant case, however, the definition of “Partial Disability” is even more in favor of defendant’s position than the definition in Craik, for the reason that in this case the court divided the first and second alternatives with a semicolon rather than a comma as in the Craik case.

The transcript filed in this court shows an “inked in” comma at the crucial point, but our inspection of the original charge, delivered to this court by the District Clerk in obedience to an order issued by this court under Rule 379, shows clearly and unmistakably that a semicolon was indeed used in the original definition submitted to the jury.

In the Craik case the court held: “It is the duty of the court to reconcile apparent conflicts in jury findings if reasonably possible. * * * The apparent conflict in the jury’s answers to special issues Nos. 9 and 13 may reasonably be resolved by a precise interpretation of the definition of ‘partial disability’ by which the jury had to be guided in answering special issue No. 9. It will be observed that under the foregoing definition the jury could find that the plaintiff had suffered a partial disability without finding that he had suffered ‘a depreciation or deduction in his earning capacity’. Under the definition, the jury was authorized to find partial disability if the plaintiff was ‘able to procure and retain employment reasonably suitable to his physical condition and ability to work’ even though he had suffered no depreciation in his earning capacity.” concluding, “It follows that there is no fatal or irreconcilable conflict in the jury’s answers to special issues Nos. 9 and 13, even when considered with the stipulation of the plaintiff’s average weekly wages.”

We think the Craik case is controlling in the case before us. As we construe the Craik case we must hold there is no irreconcilable conflict between the finding that plaintiff sustained partial disability and the finding that he did not sustain any loss in wage-earning capacity.

Believing that, under the record, the Craik case requires an affirmance of the trial court’s judgment, we do affirm.

Affirmed.


author: WALTER, Justice.

text:
    Mrs. Ray B. BISHOP et al., Appellants, v. COMMONWEALTH COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 4202.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1968.
    Rehearing Denied March 1, 1968.

      Frank Scarborough, Scarborough, Black, Tarpley & Scarborough, Abilene, for appellants.
    J. Neil Daniel, Eplen & Daniel, Abilene, for appellee.
   WALTER, Justice.

Ray B. Bishop’s widow and surviving children filed suit against Commonwealth County Mutual Insurance Company on a policy of insurance seeking a judgment for the value of Mr. Bishop’s car. Mr. Bishop was killed in an automobile collision on December 29, 1966, and his automobile was totally destroyed. The parties submitted their case to the court on an agreed statement of facts. Judgment was rendered for the Insurance Company and the plaintiffs have appealed.

Mr. Bishop purchased a policy of insurance from Security Insurance, the designated agent for Commonwealth, on October 18, 1966. Bishop had been purchasing his car insurance from R. I). Hay, a partner in Security since 1959, on a note payment plan. The note for the premiums on the 1966 insurance was $292.00, $73.00 cash, and the balance in monthly installments of $27.99. The note was payable to Floyd West & Company in Dallas, Texas. West & Company were managers for Commonwealth. Security extended Bishop its individual credit for the down payment of $73.00. Bishop paid $60.00 on November 14, 1966 by mailing his check to Security. On November 18, 1966 Bishop’s first monthly installment became due which Bishop did not pay on time. On November 21, 1966 Commonwealth issued Bishop a credit memo, for $72.00 on a rate change because Bishop moved from Dallas to Abilene. Security received a $40.00 check from Bishop on December 1, 1966. Although the $40.00 check was made payable to Security and had a notation on it that it was for payment on insurance, Security held the check and did not apply it on the November monthly installment. On the same day that Security received Bishop’s $40.00 check, it received from Commonwealth a final notice that unless the November installment of $27.99 was paid within ten days cancellation notice would be issued. Security made no effort to pay the November payment of $27.99 out of the $40.00 check and when asked why they did not Mr. Hay answered by saying he wrote Bishop a letter and told him to come to his office because he had some insurance matters to discuss with him.

Hay’s agency agreement with Commonwealth clothed him with authority to collect, receive and receipt for premiums on insurance tendered by the agent to and accepted by the company. The parties stipulated that Security was a designated agent and representative of Commonwealth. At a time when its duly authorized agent had enough money in its possession to pay the November installment, the company on December 15, 1966 elected to cancel the policy at 12:01 A.M. on December 26, 1966 for failure to pay such premium. The fatal accident occurred on December 29th, 1966.

Appellee contends the record is silent on any express agreement by Security or Floyd West to accept checks from Mr. Bishop. It says:

“Counsel frankly admits that there is no doubt but that, if no other problems had existed, Floyd West would have accepted Mr. Bishop’s check. The point is that it did not have to accept same.”

We cannot agree with this contention.

The parties stipulated that Bishop had been a good and valuable customer of Security prior to October 18, 1966; that prior to October 18, 1966 Security cooperated with Bishop and did everything necessary to keep his business; that Security did not receive the $73.00 down payment from Bishop which was not an uncommon practice and Security had done it before; that Security accepted and cashed Bishop’s $60.00 check and forwarded to Floyd West its part; that Security did not present the $40.00 check to the Bank for payment but had no reason to believe it would not have been paid if presented and that it kept the check in its possession from December 1, 1966 until sometime subsequent to the accident on December 29, 1966.

“Premiums may be paid by check where the policy or contract of insurance does not provide otherwise. And where an insurance company invites patrons to transmit premiums by mail by directions in relation thereto, it will be inferred that the company intends to accept as payment checks, bills, and the like, mailed to it, as money in' due course.” 32 Tex.Jur.2d 325. Also see Missouri State Life Ins. Co. v. Compton, Tex.Civ.App., 73 S.W.2d 1079 (writ dism.).

The parties stipulated on the cash market value of the car before and after the collision. The appellants are entitled to recover from the appellee the sum of $2,225.00.

By trial amendment, appellants pleaded estoppel and waiver by custom and the court overruled appellee’s exception to such amendment. Appellee presents a cross point asserting the court erred. The court did not err in overruling the exception. Southern Underwriters v. Hodges, 141 S.W.2d 707, 711 (Tex.Civ.Apps., writ ref.); Jones v. Alvin State Bank, Tex.Civ.App., 332 S.W.2d 124 (no writ history.)

The judgment is reversed and judgment is rendered for appellants for $2,225.00.


author: WILSON, Justice.

text:
    Claud Odell HARCROW, Appellant, v. Jo Harcrow REED, Appellee.
    No. 4685.
    Court of Civil Appeals of Texas. Waco.
    Feb. 15, 1968.
    Rehearing Denied March 7, 1968.

      Bradley & Geren, Groesbeck, for appellant.
    W. A. Keils, Jr., Teague, for appellee.
   OPINION

WILSON, Justice.

Judgment for plaintiff-appellee was rendered against appellant Harcrow in this non-jury trespass-to-try-title case. Har-crow pleaded that conveyances relied on by plaintiff were without consideration, and were void as having been executed in fraud of the rights of creditors. He pleaded limitation. No formal finding or conclusions were filed or requested. We affirm.

Of Harcrow’s twenty-one points, fifteen assert in substance that conveyances in plaintiff’s chain of title were void as having been executed for the purpose of defrauding the grantor’s creditors. The grantor in those conveyances was appellant Harcrow’s deceased father, through whom he claims as heir. He argues that only the legal title was conveyed by these deeds, and that the equitable title remained in his father.

Arts. 3996 and 3997, Vernon’s Ann.Civ.St., in effect during the times material here, makes void as therein provided conveyances given with intent to hinder, delay or defraud creditors, purchasers or others. Such conveyances in fraud of creditors, the Supreme Court has held, pass title to the ven-dee, “defeasible only at the instance of the creditors named in Articles 3996 and 3997,” under the present circumstances. John Hancock Mut. Life Ins. Co. v. Morse, 132 Tex. 534, 124 S.W.2d 330, 332.

The conveyances are valid as against the grantor’s heirs, and will not be held void at the suit of the parties to the conveyance or those holding under them. Ransom v. Ransom, Tex.Civ.App., 252 S.W.2d 212, 213, writ refused; Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555, writ ref. n. r. e.; Hartman v. Hartman, Tex.Civ.App., 217 S.W.2d 872, writ ref. n. r. e.; Harrison v. Davis, Tex.Civ.App., 58 S.W.2d 1025; Davis v. Davis, 44 Tex.Civ.App. 238, 98 S.W. 198; Vratis v. Wilbanks, Tex.Civ.App., 287 S.W. 666.

The equitable title remaining in the grantor, urged by appellant, is for the benefit of creditors for the purpose of satisfying their debts. Texas Sand Company v. Shield, (Tex.Sup.1964) 381 S.W.2d 48, 54. It does not inure to the benefit of third persons.

Harcrow presents one point complaining that the trial court erred in holding that a deed from his father, as his minor sister’s guardian, was valid; and another antithetical point that the court erred in holding the same deed is invalid. An appellate court will not be put to a choice between directly opposite, inconsistent or contradictory positions of appellant, and we would be justified in refusing to consider either of these points. 5 C.J.S. Appeal & Error § 1253, p! 100.

Appellant’s minor sister was grantee in a 1943 conveyance of the property in suit from appellant’s brother. In 1955 appellant’s father qualified as guardian of his minor daughter’s estate. The father, as guardian, then conveyed the land in controversy to a grantee who simultaneously conveyed it back to appellant’s father while he was still guardian of his daughter’s estate.

Probate Code Sec. 352, V.A.C.S. prohibits the personal representative of an estate from “becoming purchaser, directly or indirectly” of the property of the estate. Where no findings of fact are filed or requested it will be presumed on appeal that the trial court impliedly found facts having support in the evidence necessary to sustain the judgment. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, cert. den.; Bradshaw v. Holmes, Tex.Civ.App., 246 S.W.2d 296, writ ref. n. r. e.; Western Management Corp. v. High Crest Realty Co., Tex.Civ.App., 331 S.W.2d 365, writ ref.

The evidence fully supports the implied findings necessary to authorize the conclusion that the guardian became indirect purchaser of the property under circumstances necessary to sustain the judgment. See Wall v. Wall, 143 Tex. 418, 186 S.W.2d 57, 59. Wadsworth v. Cole, Tex.Civ.App., 265 S.W.2d 628; Kreis v. Kreis, Tex.Civ.App., 75 S.W.2d 938; Dilbeck v. Blackwell, Tex.Civ.App., 126 S.W.2d 760, 764. It likewise supports any implied findings required as to validity of the conveyance by appellant’s father under which appellee de-raigns her title.

Appellant’s points have each been fully considered, and are overruled. Affirmed.


author: PARKER, Justice.

text:
    Robert L. FREDERICK, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 6934.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1968.
    Rehearing Denied March 13, 1968.

      Richard W. Fairchild, Vernis Fulmer, Nacogdoches, Adams & Browne, Beaumont, for appellant.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellee.
   PARKER, Justice.

This is a workmen’s compensation case. Robert L. Frederick sued The Travelers Insurance Company for the benefits provided by the Workmen’s Compensation Law of Texas for permanent total incapacity to labor, or, in the alternative, for benefits provided by such law for loss of vision of the left eye, resulting from an injury to his left eye sustained in the course of his employment for Texaco, Inc., on or about September 21, 1962, in Jefferson County, Texas.

Upon a jury verdict, the trial court rendered judgment that the plaintiff take nothing and that the defendant recover all costs. The parties will be designated as in the trial court.

The jury found that plaintiff sustained an injury to his left eye on September 21, 1962. In answer to Special Issue No. 4, the jury found the injury to plaintiff’s left eye was not a producing cause of any loss of vision in plaintiff’s left eye. No party to the suit requested an explanatory instruction or definition of the phrase “loss of vision.” No party objected to Special Issue No. 4 as submitted without any qualifying instruction or definition. Plaintiff contends there is error in overruling his motion for new trial because the answer of the jury to Special Issue No. 4 is contrary to the undisputed evidence, also contending there is insufficent evidence to support the answer of the jury thereto. Plaintiff also contends the trial court erred in decreeing that the plaintiff take nothing because the undisputed evidence establishes as a matter of law that plaintiff sustained compensable loss of vision in his left eye as a result of the injury to such eye, also contending that there is insufficient evidence to support such judgment for the same reason. Plaintiff in no manner complained of the court’s charge to the jury, objected to any issue as submitted, requested no instructions to the jury, and requested no special issues which were refused by the court.

Plaintiff argues that since he was unable to work for certain periods of time when his eye injury was treated and after scar tissue was removed that his points of error should be sustained. We do not agree.

Special Issues Nos. 9 through 21, both inclusive, were issues submitted to the jury in connection with allegations of permanent total incapacity to labor. Plaintiff contended that the injury to the eye had extended to and affected plaintiff’s head and so on. To all of these issues on total incapacity to labor, the jury found against the plaintiff. The first eight issues were submitted to the jury upon the loss of vision to the left eye. The jury found the effects of the injury were confined solely to plaintiff’s left eye. The injury to the plaintiff’s left eye did not produce a functional loss of vision in the left eye as an organ of sight. After the accident, plaintiff retained normal, usual vision in his left eye. This was the testimony of Dr. Charles Walden Folsom and of Dr. Frank Keith. A foreign substance hit the eye of plaintiff in the white of the eye, not in the cornea. He was treated for this by Dr. Frank Keith. On October IS, 1962, Dr. Keith found plaintiff’s vision was 20-20 in each eye, that muscle balance was normal, that he had the use of both eyes normally and that glasses were not recommended. When the eye was injured, it was treated routinely, with plaintiff going to the hospital where he stayed three days. Scar tissue built up from the white of the eye. Before it affected the cornea, the scar tissue was removed. Plaintiff lost time from work from this operation, but, thereafter, on February 5, plaintiff’s eye was 20-20 and clear. On March 11, the vision was 20-20. On April 2, the doctor examined plaintiff and found no complaints, no reoccurrence of difficulties, and that his vision was 20-20.

Loss of time from work is not a loss of vision within the meaning of the Workmen’s Compensation Statute, Article 8306, Section 12, which provides:

For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent (60%) of the average weekly wages of such employee, but not less than Nine Dollars ($9) per week nor exceeding Thirty-Five Dollars ($35) per week, for the respective periods stated herein, to wit:
For the total and permanent loss of the sight of one (1) eye, sixty per cent (60%) of the average weekly wages during one hundred (100) weeks.
(Emphasis ours)

Article 8306, Section 6, would authorize recovery by plaintiff by reason of a general injury, which was the cause of the employee being unable to work. The jury rejected general injury and plaintiff does not contend the jury’s findings thereon are erroneous. If plaintiff had lost his eye, he would have been entitled to compensation for the loss of the eye, even though he did not lose five minutes from work.

Considering the evidence most favorable to the finding of the jury in answer to Special Issue No. 4, plaintiff’s no evidence points are overruled. Considering all of the evidence and the entire record in passing upon the insufficient evidence points of plaintiff, such points of error are overruled. Great American Indemnity Co. v. Stultz, 56 S.W.2d 200 (1932, Tex.Civ.App., error ref.); Aetna Casualty & Surety Co. v. Davis, 196 S.W.2d 35 (1946, Tex.Civ.App., no writ his.); Travelers Insurance Co. v. Richmond, 291 S.W. 1085 (1927, Tex.Com.App., approved by Sup. Ct.).

All points of error of plaintiff are overruled. Judgment of the trial court is affirmed.


author: WILSON, Justice. McDONALD, Chief Justice

text:
    The STANDARD INSURANCE COMPANY, Appellant, v. TEAGUE BRICK & TILE COMPANY et al., Appellees. The STANDARD INSURANCE COMPANY, Appellant, v. Townsend CLARK, Individually and d/b/a Clark & Clark, Appellee.
    Nos. 4661, 4662.
    Court of Civil Appeals of Texas. Waco.
    Feb. 15, 1968.
    Rehearing Denied March 7, 1968.
    Dissenting Opinion March 7, 1968.

      John L. Bates, Waco, for appellant.
    W. A. Keils, Jr., Teague, for appellees.
   OPINION

WILSON, Justice.

Judgment in these non-jury actions was rendered August 16, 1967. There was no motion for new trial. The appeal bond was filed September 7, 1967. No notice of appeal in any manner prescribed by Rule 353, Texas Rules of Civil Procedure was given.

On August 25, 1967 a letter from appellant’s counsel addressed to the district clerk was received by the clerk. It referred to the style and number of the cause and read: “I would appreciate your furnishing me with an estimate of the necessary costs to be used in determining an appeal bond to appeal the above case to the Court of Civil Appeals.” An appeal bond was filed September 14.

The letter inquiring as to an estimate of the amount of costs is not a notice of appeal. We have no jurisdiction. The appeals are dismissed.

ON REHEARING

McDONALD, Chief Justice

(dissenting).

I respectfully dissent. Counsel for appellant addressed to the District Clerk the following letter, which was timely received and filed by the Clerk:

“Law Offices
JOHN L. BATES
Suite 308 Medical Arts Bldg.
Waco, Texas
August 25, 1967
“Clerk
Eighty Seventh Judicial District Court
Fairfield, Texas 75840
RE: Standard Insurance
vs.
Teague Brick & Tile Co. et al
Cause No. 6042 & 6043B
“Dear Sir:
“I would appreciate your furnishing me with an estimate of the necessary costs to be used in determining an appeal bond to appeal the above case to the Court of Civil Appeals.
Very truly yours,
/s/ John L. Bates
John L. Bates”

Rule 353 TRCP authorizes 2 methods of giving notice of appeal: (1) In open court as therein provided, or (2) “filed with the clerk”. A notice of the latter type “shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment.”

Such rule “will be liberally construed in favor of the right of appeal”. Hunt v. Wichita Co. Water Improvement Dist., 147 Tex. 47, 211 S.W.2d 743, 744.

The foregoing letter states the number and style of the cases, the court in which same were pending, and under a liberal construction in favor of the right to appeal, may be reasonably construed as notice of an intention to appeal, or that appellant desires to appeal to the Court of Civil Appeals. And appellant thereafter timely filed its appeal bonds.

I believe this court has jurisdiction.


author: DONNELLY, Judge.

text:
    STATE of Missouri, Respondent, v. Jerry CRONEY, Appellant.
    No. 53001.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Norman H. Anderson, Atty. Gen., Gary G. Sprick, Asst. Atty. Gen., Jefferson City, for respondent.

      Russell T. Keyes, Jefferson City, for appellant.
   DONNELLY, Judge.

Defendant, Jerry Croney, was convicted of escaping from a State institution, in which he was lawfully confined, under § 557.351 (Added Laws 1959, H.B. No. 10, § 1, as amended Laws 1961, p. 331, § 1), by a jury in the Circuit Court of Cole County, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S. (as amended Laws 1959, S.B. 117), was assessed at imprisonment in the custody of the State Department of Corrections for a term of two years and six months. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. We affirm.

According to the evidence, defendant, on July 14, 1965, was sentenced in the Circuit Court of Howell County, Missouri, to serve five years “in an institution to be designated by the Department of Corrections of the State of Missouri in accordance with law * *

Raymond Morgan, an employee at Missouri State Penitentiary, was in charge of the “Auxiliary prison, Church Farm,” on November 12, 1966. He testified that he saw defendant around 8:45 p. m., on said date, “standing by a pool table, him and some more inmates.” Morgan testified that “a head count of all inmates in the dormitory” was taken at 10:45 p. m. the same evening and that defendant was not in his cell and was not in the dormitory. The Church Farm grounds were searched and defendant was not found.

Orval Turner, Transportation Officer for the Department of Corrections, testified that, on December 13, 1966, he was directed to go to West Plains, Missouri, where he found defendant in the Howell County jail. Turner returned defendant to the Department of Corrections.

Defendant testified, in part, as follows:

“Q (by Mr. Kinder) Mr. Croney, you testified on direct examination that you walked out of the Church Farm; is that right sir? A Yes.

“Q Through unlocked doors? A Yes, sir.

“Q That you didn’t break any doors? A Yes.

“Q Is that correct? A Yes.

“Q You were confined at the Church Farm, weren’t you?

“MR. KEYES: I object to that, there is no testimony on his part that he was confined.

“MR. KINDER: I differ with that, Your Honor.

“THE COURT: Overruled.

“THE WITNESS: I was there.

“MR. KINDER: Your Honor, will you instruct the witness to answer my question?

“THE COURT: He said he was there.

“Q (by Mr. Kinder) You had been there, you say, twelve days? A Approximately.

“Q What were you doing there?

“A Serving a sentence.”

* * * * * *

“Q (by Mr. Kinder) You were, in fact, lodged at the Church Farm; were you a prisoner there, and did you walk away from there — didn’t you? A Yes.

“Q And you did make your way from Cole County, Missouri, to Howell County, Missouri; isn’t that a fact? A Yes.”

Defendant first contends that the confinement in the “auxiliary prison” from which he escaped is “not shown by proper evidence in this case to be a lawful confinement under the statute under which the Defendant was charged.” The alleged defect is that there is no evidence of a formal order of commitment of defendant by the Department of Corrections to the Church Farm. A formal act of designation to the Church Farm was not required. State v. Gooch, Mo.Sup., 420 S.W.2d 283, 286, 287 [5]. The evidence shows defendant had not been paroled or discharged and was lawfully confined when he escaped. The point is without merit.

Defendant next contends the information is insufficient because it “does not say where he was imprisoned” and “does not say for what offense or alleged offense or offenses the Defendant was confined.” The information reads, in part, as follows:

“That Jerry Croney was duly convicted in the Circuit Court of Howell County, Missouri, of the crime of Burglary and Larceny (5 charges), an offense punishable by imprisonment in the penitentiary, and in accordance with said conviction, Jerry Croney, on the 14th day of July, 1965, did receive from the said Court ten five-year concurrent sentences, and in accordance with said judgment and sentence, he was duly imprisoned.
“That thereafter on the 12th day of November, 1966, at Cole County, Missouri, the defendant, Jerry Croney, was lawfully confined in the auxiliary prison, an institution under the control of the State Department of Corrections of the State of Missouri, and the said Jerry Croney did on the 12th of November, 1966, unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State.”

We hold the information sufficient. It alleges all essential elements of the crime sought to be charged under § 557.351, supra, and fully informed defendant of the nature of the accusation made against him. State v. Martin, Mo.Sup., 395 S.W.2d 97, 100, 101.

Defendant next contends that the trial court erred with reference to a claimed defense of double jeopardy. He urges that, in failing to instruct as to double jeopardy, the trial court failed to instruct “on the whole law of the case.” The trial court excluded evidence offered by defendant to show that after the escape, and his return to the penitentiary, he was placed in solitary confinement as punishment for the escape. See § 216.450, RSMo 1959, V.A.M.S., and § 216.455, RSMo 1959, V.A.M.S. (As amended Laws 1963, p. 390, § 1). He reasons that, having once been punished for the escape, he is being “ * * * put again in jeopardy of life or liberty for the same offense, * * Art. I, § 19, Const. of Mo., 1945, V.A.M.S. Defendant’s contention is without merit. Punishment by the warden or superintendent of a correctional institution for a violation of its rules involves the exercise of an administrative function, not a judicial function, and does not place a defendant in jeopardy within the constitutional sense. It constitutes no defense to the charge of escape. The trial court did not err. People v. Huntley, 112 Mich. 569, 71 N.W. 178; State v. Cahill, 196 Iowa 486, 194 N.W. 191; People v. Conson, 72 Cal.App. 509, 237 P. 799; State v. Doolittle, 22 Conn.Sup. 32; 158 A.2d 858.

Defendant next contends that the trial court “erred in refusing to strike for cause from the jury panel prospective jurors who upon examination by counsel disclosed that they were employees of the State of Missouri, the plaintiff in this cause.” Art. I, § 18(a), Const, of Mo., 1945, guarantees that in criminal prosecutions the accused shall have the right to trial by an impartial jury of the county.

The first question is whether a prospective juror is disqualified per se because he is an employee of the State. Section 494.031, RSMo 1959, V.A.M.S. (Added Laws of 1959, S.B. No. 246, § 1), provides that any “officer or employee of the executive, legislative or judicial departments of the federal, state, county or city government who is actively engaged in the performance of his duties” is entitled to be excused from jury service. Section 494.020 RSMo 1959, V.A.M.S. (As amended Laws 1959, S.B. No. 246, § 1; Laws 1965, p. 654, § 1), which disqualifies persons from jury service, does not refer to employees of the State. We hold that a prospective juror is not disqualified per se because he is an employee of the State. See 31 Am.Jur., Jury, § 204; and Annotation 93 L.Ed. 203, 204.

The next question is whether the trial judge abused his discretion, under the facts, in refusing to strike from the jury panel prospective jurors who were employees of the State. The record in this regard reads as follows:

“MR. KEYES: I notice that Mr. Young is a Highway Department employee, Mr. Renkemeyer is a retired Highway Department employee, the husband of Mrs. Jones works in the Motor Vehicle Department of the State of Missouri, that Miss Minnie Jones works for Workmen’s Compensation, State of Missouri, Mr. Scott for the Department of Education, Mr. Sundermeyer in construction work at the Capitol, Mr. Stine State Purchasing Office, and that Mrs. Hagner’s husband works at the Missouri State Penitentiary.

“I want to challenge each of these for •cause as being employees of the State of Missouri, the State of Missouri being the plaintiff in this case.

“THE COURT: Overruled, except as to Mrs. Hagner.

“MR. KINDER: I don’t think she ought to sit on the jury if her husband is employed at the Missouri State Penitentiary.

“THE COURT: Mrs. Hagner, you are excused now, until Friday, February 24, at 9:00, a. m.

“Call another juror.”

“The trial court has considerable discretion in ruling on challenges of jurors who are not disqualified as a matter of law, * * State v. Spica, Mo.Sup., 389 S.W.2d 35, 41. We find nothing in the record to support a conclusion that the trial court abused its discretion. The point is without merit.

Defendant next contends that he cannot be found guilty of escape because his confinement was illegal. At the time of trial for escape, there was pending in the Circuit Court of Howell County a motion filed by defendant, under S.Ct. Rule 27.26, to vacate the sentences imposed for burglary and stealing. Defendant urges that the burglary and stealing cases “against him under which he was allegedly sentenced and sent to the penitentiary had not been finally determined, and therefore the imprisonment in the penitentiary under the alleged sentence in such cases was invalid.” The following statement from State v. Hart, Mo.Sup., 411 S.W.2d 143, at 147 and 148, is appropriate here: “ * * While there are authorities indicating that one charged with escape may defend by showing that he was not lawfully imprisoned, we are inclined to approve the statement that ‘where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed, or imprisoned as to justify or require his release on appeal or habeas corpus.’ 70 A.L.R.2d 1437.” See also State v. King, Mo.Sup., 372 S.W.2d 857, 859; and State v. Pace, Mo.Sup., 402 S.W.2d 351. The defendant had no right to determine for himself the validity of the sentences under which he was confined. The point is without merit.

Defendant finally contends that the trial court “erred in admitting copies of judgments of alleged former convictions without there having been admitted the judgment of another alleged former conviction upon which the ones admitted in evidence were predicated.”

The evidence adduced was necessary to show that defendant was lawfully confined before the escape. State v. Martin, supra, 395 S.W.2d 97, 101. The judgments in evidence referred to separate, independent offenses, each sufficient to show a lawful confinement. The point is without merit.

An examination of the record as required by Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author: FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Lloyd GOODMAN, Appellant.
    No. 53066.
    Supreme Court of Missouri, Division No. 2.

    March 11, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Peter J. Maniscalco, Sp. Asst. Atty. Gen., Clayton, for respondent.
    William A. Seibel, Jefferson City, for appellant.
   FINCH, Presiding Judge.

Defendant was charged under the Habitual Criminal Act with felonious assault on Lt. Whitworth, a prison guard, in violation of § 216.460 (all references are to RSMo 1959 and V.A.M.S.). He was found guilty by a jury and the court, having made the necessary findings relative to a prior conviction, sentenced defendant to imprisonment for three years, from which he appeals.

The state’s evidence will support the following statement of facts: Defendant was serving a sentence of three years on a charge of assault with intent to kill with malice. At the time in question he was assigned to the Church Farm in Cole County, which is an auxiliary prison. At night the main building at the Church Farm is locked, but prisoners are not detained in locked cells. The only exception was a place referred to as segregation (or by prisoners as the hole) consisting of six locked cells located on the main floor near the office.

During the day prisoners were checked out of the main building to work at various places. On December 27, 1966, the defendant was assigned to work at the dairy barn. At about 6:30 p. m. the defendant, along with a group of approximately twenty-five other prisoners, was checked back into the main building by Guard Claude Woolery. Woolery noticed that defendant’s face was somewhat red and his eyes bloodshot but said nothing to him. Shortly, two guards who had been at the dairy barn reported to Woolery that the defendant had been drinking that day and was drunk and they would like to have him put in segregation. Woolery contacted Lt. Whitworth, a prison guard, and related this information to him. Shortly thereafter, the two of them went to the floor of the dormitory known as Two Hall, where the defendant’s compartment was located. The guards asked defendant to accompany them and when they got to the foot of the stairs the defendant stopped and asked, “What is this all about?” The guards told him that they had received a report that he had been drinking. Defendant responded, “Do I look like I am drunk? Smell my breath.” Lt. Whitworth responded that he had not said that the defendant was drunk, but rather that he had been reported to be drinking. Lt. Whitworth further testified that he was close enough to detect the odor of home brew or alcoholic beverage on the defendant’s breath. Woolery referred to it as the odor of Tater Water.

The version of Mr. Woolery and Lt. Whitworth as to the conversation with the defendant varies somewhat. Mr.- Woolery testified that he told defendant that they were going to put him in segregation. Lt. Whitworth testified that he told the defendant that they were going to take him up front to see Capt. Tucker, but he recognized that Woolery had mentioned going to segregation. In any event, both testified that defendant began to argue and said that he was not going to go to the hole and they would have to call the goon squad to put him there. Guard Woolery put his hand on the defendant’s arm or shoulder, or possibly started to put it around his head, and the defendant jerked away and ran into what is referred to as the TV Room.

Woolery and Whitworth followed defendant to the TV Room. Woolery went in first and he testified that he had no recollection of anything which occurred after that until he was in the front office later that evening. Lt. Whitworth testified that the defendant turned as Woolery entered the TV Room and struck Woolery, who then fell to the floor and hit his head. Lt. Whitworth went to Woolery’s assistance and tried to assist him. Meanwhile, defendant went to the other end of the room. Shortly, he came back and remarked that he had not intended to hit Woolery. They then started to leave the TV Room with Woolery walking behind Lt. Whitworth. Whitworth turned to see if Woolery was following, and at that time defendant, without warning, struck Lt. Whitworth with' his fist, hitting him to the right of his eye and causing Whitworth to fall across a ping pong table. Woolery then grabbed the defendant and Whitworth got up and also grabbed the defendant’s arms. Woolery stated that he had the defendant and that Lt. Whitworth should go and get Capt. Tucker. He did so, but when he and Capt. Tucker returned the defendant had gotten away from Woolery and had gone into what is designated as Three Hall where the shower room is. Capt. Tucker followed defendant in there and ultimately brought him back. Defendant told Capt. Tucker that he had had a couple of drinks but that he had struck the officers in self-defense.

The defendant also took the stand and testified. He stated that the officers had told him they were going to take him to the hole and that he had asked to see Capt. Tucker. He stated that he had not hit either of the men but had acted only in self-defense and that he had scuffled and shoved when they grabbed him but was simply trying to get away. He denied that he had been drinking.

The defendant also called five other prisoners as witnesses. One gave his version of what occurred in the TV Room. Two testified that they were present when the officers came to Two Hall after the defendant and the officers had told him at that time that they were taking him to the hole because they had received a report he had been drinking. The others were ones who had been with the defendant at the dairy barn on that day and testified that he did not act like he was under the influence of intoxicants.

Defendant first attacks the sufficiency of the information. After alleging the prior conviction under which defendant was then imprisoned, the information was as follows:

“That thereafter on the 27th day of December, 1966, at Cole County, Missouri, the defendant, Lloyd Goodman, was a prisoner lawfully confined in the Auxiliary Prison at Cole County, Missouri, an institution under the control of the Department of Corrections of the State of Missouri, and James Whitworth was a duly appointed and acting officer and guard of the State Department of Corrections, and the defendant did at the said time and place unlawfully and feloni-ously offer violence to the said James Whit-worth by then and there striking him on the face with his fists, against the peace and dignity of the State.”

The defendant asserts that this information is fatally defective (1) because it does not allege a conspiracy and (2) because it does not allege that the assault was done with intent to do great bodily harm. A consideration of these assignments necessitates an examination of § 216.460, upon which the charge herein was based. That section is as follows:

“If several prisoners combine or any single prisoner offers any violence to any officer, guard or employee of the state department of corrections, or to any inmate, or does or attempts to do any injury to any building or workshop, or other property, each of such persons is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in an institution to which he may be assigned by the state department of corrections for not less than two nor more than five years.”

In claiming that § 216.460 requires the allegation and proof of a conspiracy as an essential element of the offense thereunder, the defendant necessarily assumes that § 216.460 may be violated only if two or more prisoners conspire to do any of the prohibited acts, i. e., offer violence to any officer, guard or employee of the department of corrections, or to any inmate, or do or attempt to do injury to any building, workshop, or other property. This necessarily is true because more than one person is required for a conspiracy, which is defined in Webster’s Third New International Dictionary as: “An agreement manifesting itself in words or deeds and made by two or more persons confederating to do an unlawful act or use unlawful means to do an act which is lawful.” This assumption by the defendant is not a valid one because the plain language of § 216.460 proscribes acts by “any single prisoner” as well as by several prisoners who combine or conspire. The section begins, “If several prisoners combine or any single prisoner offers any violence * * (Emphasis added.) This court previously has approved prosecution of a single prisoner, acting alone, for violation of § 216.460. State v. Tull, Mo., 375 S.W.2d 100 (wherein the information was almost identical with the information in this case). We hold that allegation of a conspiracy was not necessary where only a single prisoner is alleged to have violated the statute.

Defendant’s second attack on the information is on the basis that it does not allege that the assault or violence to Lt. Whitworth was done with intent to do great bodily harm. Defendant cites § 559.190 and cases construing that section. They do hold that the information thereunder must charge and prove intent to do great bodily harm. Defendant’s contention, however, overlooks the fact that the legislature, by the enactment of § 216.460, has seen fit to enact a separate section making an assault by a prisoner on a prison officer, guard or employee a felony. The information herein is based on § 216.460, not on § 559.190. Section 216.460 does not contain any language indicating that it is necessary to allege and prove that the assault was done with intent to inflict great bodily harm. The fact that the legislature included damage to property as well as violence to the person as acts which would constitute felonies clearly shows that it did not contemplate that the assault had to be with intent to do great bodily harm. Such a requirement could not possibly apply to a prosecution for doing or attempting to do injury to any building, workshop or other property. To make such a requirement in a prosecution for offering violence to a person would cause the statute to afford greater protection to property than persons.

The reason for the enactment of such a special statute is obvious. The ratio of guards to prisoners is not great and the prison employees go about the premises unarmed. It is essential that order be maintained and the employees protected. An assault (even without intent to> do great bodily harm) or acts to destroy or damage property, might easily provoke more trouble, and possibly a riot, and the legislature determined by the enactment of § 216.460 that the doing of any of these acts would constitute a felony.

We overrule defendant’s attack on the information. What we have said in this regard also disposes of defendant’s assignments of error relating to the giving of Instruction C5, the refusing of Instruction D2, and the denial of defendant’s motion for a directed verdict.

Defendant’s next complaint is based on refusal by the trial court to give Instruction Dl, which was as follows:

“The Court instructs the jury that a prisoner who has violated any rule or regulation of the institution relating to the government and conduct of inmates may, after proper hearing and upon order of the warden or superintendent, be confined in isolation upon short allowance for a period not to exceed ten days. The short allowance of such 'prisoner shall be prescribed by the physician who shall visit the prisoner and make periodic examinations into the state of his health until the prisoner is released from isolation and returned to his work.

“Thus, if you find and believe from the evidence, that at the time, or just prior to the time, of the alleged offense, the defendant Lloyd Goodman, was informed by prison Guard James Whitworth, or prison Guard Claude Woolery, that he was going to be taken to isolation, and that same was being done by said prison guards without any order from the warden or superintendent, and you further find and believe from the evidence that defendant Lloyd Goodman requested a hearing or conference with Capt Tucker, the officer in charge of Church farm, and that said Guards denied him the same and were attempting to use force to take defendant to isolation, if you so find, then said guards were acting beyond their legal authority, and if you further find and believe from the evidence that defendant used only such force as was reasonable and necessary to resist the illegal efforts of the guards to take him to isolation, then you will acquit the defendant.”

The first paragraph of Instruction D1 merely copies § 216.455(1) almost verbatim. The second paragraph of the instruction, in effect, tells the jury that if the guards were taking him to isolation without an order from the warden or superintendent, and denied his request to see Capt. Tucker, he was entitled to resort to self-help and to use such force as was necessary to prevent the guards from taking him to isolation. Such instruction was properly refused. Defendant was committed to Church Farm at the time. The rules of the institution prohibited drinking by prisoners. Defendant was subject to orders by Whit-worth and Woolery, regular guards at the institution. The provisions of § 216.455(1) do apply to the prison but do not entitle prisoners to resort to self-help and to resist the directions of the officers. What was said in State v. King, Mo., 372 S.W.2d 857, 859, is applicable: “Nevertheless, for reasons which need not be repeated here, ‘(n)ot necessarily inconsistent with the rule that escape is justifiable where the imprisonment is “unlawful” are a number of cases holding that where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed or imprisoned as to justify or require his release on appeal or habeas corpus.’ 70 A.L.R.2d 1. c. 1437.” See also State v. Hart, Mo., 411 S.W.2d 143, 147[10], and State v. Croney, Mo., 425 S.W.2d 65.

Finally, defendant complains that his counsel was denied the right to argue to the jury the failure of the state to produce witnesses to substantiate the testimony of Lt. Whitworth with respect to the assault on him in the TV Room. We find no merit in this contention. In the first place, counsel was permitted to argue that Whitworth offered the only evidence of that attack. When defendant started to argue the failure of the state to produce substantiating witnesses, the court sustained an objection on the basis that witnesses were equally available to defendant. It does not clearly appear that there were any other witnesses who did not testify, but if there were, they were other prisoners. No other guard was present when the blow was struck. If other prisoners were present, they were equally available to defendant as witnesses. This is demonstrated by the fact that defendant subpoenaed and used five other prisoners as witnesses. Under such circumstances, defendant was not entitled to comment adversely on the state’s failure to call such persons as witnesses.

There is nothing to indicate that the state deliberately suppressed any evidence or that there was any unfairness or concealment on the part of the state. Defendant’s brief does not contend that there was. This assignment is overruled.

We have examined the record as required by S.Ct. Rule 28.02, V.A.M.R., and find it sufficient with respect to the matters therein specified.

The judgment is affirmed.

All of the Judges concur.