author: CULLEN, Commissioner.

text:
    Ralph RICHARDSON, Appellant, v. C. C. BRUNNER et al., Appellees. Ralph RICHARDSON, Appellant, v. C. C. BRUNNER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Rehearing Denied May 4, 1962.
    Robert Hubbard, Frank E. Haddad, Jr., and H. E. Rose, Louisville, for appellant.
    C. L. Bell, J. B. Gathright, Frances M. Thompson, Louisville, Troy D. Savage, Asst. Atty. Gen., for appellees.
   CULLEN, Commissioner.

These consolidated appeals are from judgments in two separate cases. One appeal is from a judgment overruling a motion by appellant Richardson under CR 60.02 to set aside a previous judgment in an action in which appellee Brunner was plaintiff and Richardson was defendant, involving a tax title to a tract of real estate in Louisville. The other appeal is from a judgment dismissing an action brought by Richardson against Brunner, involving another tract of real estate for which Brunner held a tax deed. For convenience we shall designate the appeals as Case No. 1 and Case No. 2.

Case No. 1

On October 22, 1956, in an action brought by Brunner against Richardson, a default judgment was entered against Richardson, adjudging that Brunner had valid title to a certain tract of land in Louisville by virtue of a deed issued under KRS 91.540 upon a sale of the land for city taxes owed by Richardson. Four successive motions by Richardson under CR 55.02 and 60.02, to set aside that judgment, were overruled by orders of the circuit court and those orders were affirmed by this Court. See Richardson v. Brunner, Ky., 327 S.W.2d 572; Richardson v. Commonwealth, Ky., 328 S.W.2d 154. The instant appeal is from a judgment overruling a fifth motion by Richardson under CR 60.02.

The ground of the fifth motion was that KRS 91.540, under which the tax deed was executed to Brunner, is uncon-stitytional, for which reason, it is claimed, the judgment is void. This ground is without merit because it is the rule in Kentucky, and the virtually unanimous rule of other jurisdictions, that a judgment based upon or rendered under an unconstitutional statute is not void. Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514, 189 S.W.2d 604, 167 A.L.R. 512; 30 Am.Jur., Judgments, sec. 19, p. 172. So Richardson’s motion under CR 60.02 could not put in issue the question of the constitutionality of the statute.

The judgment overruling the motion was proper.

We deem it appropriate to make the comment that there may be some ultimate limit in law upon the number of motions that may be filed to set aside a judgment under CR 60.02.

Case No. 2

The second case concerns a different tract of land from that involved in Case No. 1. In 1958 Brunner received a city tax deed for this tract, under KRS 91.540, following a sale of the tract for delinquent 1956 taxes owed by Richardson. Action was brought by Richardson against Brunner and others, seeking a declaration that KRS 91.540 is unconstitutional and an adjudication that Richardson had title to the tract subject only to a lien in favor of Brunner for the delinquent taxes, penalties and interest. Judgment was entered dismissing the action on the ground that the complaint as amended failed to state a claim on which relief could be granted.

Richardson asserted three grounds of unconstitutionality of the statute: (1) It violates various rights of the taxpayer and various constitutional provisions because it authorizes the city tax receiver to execute a deed conveying absolute fee simple title to the purchaser at the tax sale, without affording the taxpayer a hearing ‘before execution of the deed on the question of whether all of the requirements of the statutes relating to levy, sale and redemption have been complied with; (2) it would permit the tax receiver to convey a fee simple title even though he had given the taxpayer false or misleading information so as to cause the taxpayer to fail to exercise his right of redemption; (3) it authorizes the execution of a tax deed even though the purchase price at the tax sale was considerably less than the value of the land, thus amounting to a taking of property for a public purpose without paying just compensation, in violation of Sections 13 and 242 of the Kentucky Constitution.

It is significant that the pleadings do not allege any actual failure of the tax authorities to comply with the statutory requirements relating to levy, sale and redemption, in regard to Richardson’s tract of land.

It is our opinion that the first ground has no merit, because the firm construction of KRS 91.540 has been that a deed executed under it is not valid unless the proceedings for the sale of the property were in compliance with all statutory requirements. See Interstate Bond Co. v. Williams, 290 Ky. 850, 162 S.W.2d 770; Brunner v. Bell, Ky., 290 S.W.2d 461. Under our decisions the taxpayer is not deprived of an opportunity to question the validity of the proceedings after the deed is executed.

Since the deed does not foreclose all rights of the taxpayer, there is no provision or principle of the Constitution that requires he be given opportunity for a hearing before rather than after the deed is executed.

The cases relied upon by the appellant, such as City of Louisville v. Cochran, 82 Ky. 15, and Maguiar v. Henry, 84 Ky. 1, involved curative statutes which undertook to deprive the taxpayer of substantial defenses and to prevent him ever from raising certain issues concerning the validity of the tax proceedings. There is no such deprivation or prevention here.

Board of Levee Commissioners of Fulton County v. Johnson, 178 Ky. 287, 199 S.W. 8, L.R.A.1918E, 202, also relied upon by the appellant, likewise is not applicable because it dealt only with the right of the taxpayer to be heard before the assessment of a tax. It is no authority for the proposition that the taxpayer must be given a Rearing after sale for delinquency and before execution of.the tax deed.

By way of clarification, we perhaps should point out that the statute here in question does not prevent the taxpayer from questioning in court the validity of the tax sale proceedings either before or after the execution of the tax deed. What Richardson complains of is that the statute does not specifically provide for a hearing before the tax authorities before the deed is executed. In our opinion the Constitution does not require such a provision. The statutes contain adequate provision for notice of the tax sale.

The second ground of attack upon the statute also is without merit. If the tax receiver were guilty of conduct misleading the taxpayer in such a way as to cause him not to exercise his right of redemption the courts would provide appropriate relief. Brunner v. Bell, Ky., 290 S.W.2d 461, relied upon by the appellant, does not suggest otherwise. In fact, in that case the tax deed was held void because of a failure of the tax authorities to comply strictly with the statutes.

The third ground of attack is based upon the premise that a sale of land for delinquent taxes constitutes a taking for a public purpose. This premise obviously is fallacious. The sale is nothing more than a step in the foreclosure of a lien imposed under the taxing power. The statutes call for a public sale, upon adequate notice, thus providing reasonable assurance of the property’s bringing a fair price, and a reasonable redemption period is prescribed. If in fact a particular piece of property is sold for a grossly inadequate price perhaps the taxpayer might be entitled to some form of equitable relief, assuming he could show an adequate excuse for not having exercised his right of redemption. But the possibility that such a sale might occur is not a ground for holding the statute unconstitutional. The statute provides adequate means by which the rights of the taxpayer may be protected.

The judgments on both appeals are affirmed.


source: Caselaw Access Project

author: STANLEY, Commissioner.

license: Public Domain

text:
    Gertrude TARTER, Appellant, v. Ruth MEDLEY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    Rehearing Denied May 4, 1962.
    Fritz Krueger, Don Cooper, Somerset, for appellant.
    Joseph Montgomery, Somerset, Charles. J. Schear, Newport, for appellee.
   STANLEY, Commissioner.

The action was brought by the appellant,. Gertrude Tarter, to quiet her title to real property as the sole heir of her brother,. Kenneth Tarter, who died intestate January 19, 1944. She charged that the defendant* Ruth Medley, was setting up a spurious claim to the property. The judgment appealed is for the defendant on her counterclaim.

The ultimate question is whether the appellee, who, it is admitted, was born when her mother was the wife of another man, is Tarter’s child and entitled to inherit his estate. Under our statutes an illegitimate child (KRS 406.010) inherits only from his or her mother or mother’s kindred, KRS 391.090(2), subject to this condition: “If a man who has had a child by a woman afterward marries her, the child or its descendants, if recognized by him before or after marriage, shall be deemed legitimate.” KRS 391.090(3). The defendant, as coun-terclaimant, assumed the burden of proving three indispensable factors, namely, that (1) she is Tarter’s child, (2) he and her mother were married after she was born, and (3) he recognized her as his child. The plaintiff offered no evidence in rebuttal.

At the beginning of the trial, upon the defendant’s motion and without objection, a jury was impaneled to try the case; but at the end the plaintiff moved the court to withdraw the case from the jury and decide the issues. That motion and the respective motions of both parties for a directed verdict were overruled and the issues submitted to the jury. Its verdict was: “We the jury find Ruth Medley to be Kenneth Tarter’s daughter.” There was no mention of the other questions of marriage and recognition. The motions of both parties for a judgment notwithstanding the verdict were overruled. The judgment was that Mrs. Medley was Tarter’s legitimate child and sole heir at law and dismissed the complaint.

The appellant insists that the case should not have been tried by a jury and that incompetent evidence was admitted and erroneous instructions given.

The adjudication of title to land, such as quieting title, is peculiarly one for a court of equity, and the issues are not triable by a jury. Aluminum Co. of America v. Frazer, Ky., 328 S.W.2d 142. We have other cases of this class where the questions of legitimacy through marriage and recognition were tried by chancellors. Todd v. Bowman, 285 Ky. 117, 147 S.W.2d 75; Dudley’s Adm’r v. Fidelity & Deposit Co. of Maryland, Ky., 240 S.W.2d 76. The appellee insists that under CR 39.03 this case was triable by a jury, and its verdict must be given the same effect as if the trial had been as a matter of right. In any event, the court accepted the verdict, at least as advisory. Under the view we have of the proof we do not think the question of how the verdict is to be regarded is important. In considering the case we eliminate evidence regarded as incompetent. It is, principally, testimony of Mrs. Medley as to numerous occasions on which Kenneth Tarter had acknowledged and introduced her as his daughter. We also pass over the question of error in the instructions. Cf. Aluminum Co. of America v. Frazer, supra. We turn to appellant’s contention that the competent evidence fell short of proving that she, Miss Tarter, is entitled to judgment on the merits.

We summarize the evidence as to the three prerequisites to establishing Ruth’s right to inherit Tarter’s estate. Without any disrespect we may use the given names of the parties for simplicity.

Paternity and Recognition. The appel-lee’s mother’s maiden name was Maggie Phillips. She was brought up by her uncle and aunt, Schyler and Reída Cundiff, who ran a store at Columbia Crossing in Pulaski County. Kenneth Tarter worked in the store. He courted Maggie when she was sixteen or seventeen years old and he about four years older. According to her testimony, she became pregnant by him. She had no sexual intercourse with any other man. Kenneth came to see her when she was sick in bed with the flu, and she told him of her condition. He had little to say except, “I’ll see you,” and left to hop a passing freight train. Later, Kenneth agreed to meet Maggie at her mother’s home in Somerset and go with her to Cincinnati. When it was traintime and he had not shown up, Maggie and her mother and stepfather, Hobert Purcell, went to Cincinnati. Dixie Roberts had a room in the apartment house into which they moved, and, according to Maggie and Purcell, Roberts married her in order to help her and to give her child a name. This was a month before Ruth was born there on August 20, 1920.

While Maggie was not asked whether she had had sexual relations with Roberts before marriage and did not categorically say she had not, it is undisputed that she had not seen him until the time stated. There is evidence of her chastity before her affair with Tarter.

When Ruth was about a month old, Maggie and Roberts moved to Pulaski County and stayed with her uncle and aunt at Columbia Crossing for a while and then moved into Somerset. Maggie testified that one day when she had the baby with her she met up with Kenneth on the street, and he said he wanted to see his daughter and then bought her some things. He came to see them on other occasions. Roberts seemed to object to Kenneth’s coming around, and once shot at him. Hobert Purcell testified to Kenneth’s having come to see the baby over his protest. Convincing testimony was given by several of Kenneth’s old friends and intimates that on numerous occasions he told them he had a daughter and had introduced Ruth as his baby and, when she was growing up, as his daughter. These and other witnesses-testified that Ruth is tall and slim like Kenneth and otherwise bears close resemblance to him. None of the foregoing positive evidence is denied.

The counterplaintiff, Ruth Medley, testified to numerous occasions when Kenneth Tarter had recognized and treated her as his child. The court first admitted several conversations between them but later sustained objections and withdrew the testimony with an admonition to the jury to disregard it. Generally, however, the court admitted testimony of occurrences and transactions between them other than conversations. He permitted her to introduce four letters addressed to her from Kenneth Tarter while he was a prisoner in the penitentiary in 1938. Two similar letters dated in 1940, bearing the postmark of West Somerset, Kentucky, were also introduced. These letters and the envelopes in which they were mailed pretty well show authenticity, as she claimed, but there was no proof that they were in Tarter’s handwriting or that he wrote them, other than Ruth’s testimony. Under the provisions of KRS 421.210(2), formerly § 606 of the Civil Code, Mrs. Medley was disqualified to testify to the occurrences and transactions with the deceased man. Cunningham’s Adm’r v. Speagle, 106 Ky. 278, 50 S.W. 244; Barnett’s Adm’r v. Brand, 165 Ky. 616, 177 S.W. 461; Combs v. Roark’s Adm’r, 221 Ky. 679, 299 S.W. 576; Gibbs v. Terry, Ky., 281 S.W.2d 712. With respect to the letters, the witness was not disqualified from saying she received them through the mail, but she could not testify as to their contents. Ganter’s Adm’r v. Smith, 254 Ky. 654, 72 S.W.2d 58. As stated above, in our determination of the case we will disregard the evidence erroneously admitted.

The plaintiff, as counter-defendant, offered no evidence in rebuttal of the foregoing. She rests her defense on assertion of its insufficiency as proof.

The appellant stresses the presumption that a child born in wedlock is the child of the married couple — in this case of her mother and Roberts. Such presumption exists although the child was conceived before marriage. Though the presumption of paternity and legitimacy is one of the strongest known to the law, it is not conclusive but is rebuttable and may be overcome by factual evidence. Stein’s Adm’r v. Stein, Ky., 106 S.W. 860; Boyers v. Boyers, 283 Ky. 1, 140 S.W.2d 646; Gross v. Gross, Ky., 260 S.W.2d 655.

Two circumstances are pointed to as sustaining the presumption and as support ing the appellant’s contention that the appel-lee was not Tarter’s child.

The appellee’s birth certificate, registered in Hamilton County, Ohio, showed her name as Hester Leona Roberts. In 1943 she had the record legally changed to Hester Ruth Roberts. Her petition in the proceeding stated that there had been a mistake in the original certification and that she had always been known as “Hester Ruth Cleveland, nee Roberts.” She explained in her testimony that she did not have her surname changed to Tarter because she had been married under the name of Ruth to a man named Cleveland, and she thought “it would have seemed a little out of place” to have included the name of Tarter. A birth certificate creates the prima facie evidence, but the presumption may be rebutted or explained. Dudley’s Adm’r v. Fidelity & Deposit Co., Ky., 240 S.W.2d 76.

The other circumstance to which we have alluded does not directly concern the issue but rather relates to the credibility of the appellee’s mother, now Mrs. Maggie Cox. In October, 1923, she filed suit in the Pulaski Circuit Court for a divorce from Kenneth Tarter, alleging a marriage to him on September IS, 1922. The petition (which was not signed by her) states that she had married him under duress and that at the time she was the wife of Dixie Roberts, who was then confined in the penitentiary. The case was stricken from the docket without having been tried. She filed another such suit in that court in 1926 and judgment of divorce from Tarter was granted, and she was restored to her maiden name of Maggie Phillips. The petition for this divorce is not in the record. Maggie testified that in neither suit did she claim to have had a child by Tarter and asked no support for any child. She was not asked the reason, but several reasons suggest themselves. Appellant’s point is that Maggie did not allege she had a child by Kenneth.

We have to consider the totality of the picture and cannot regard these isolated circumstances and their implications as affecting the basic soundness and strength of the definite and positive evidence of the paternity of Kenneth Tarter and his recognition of the appellee as his child.

Marriage, The appellee’s mother, Maggie, testified that one day she met up with Tarter in Cincinnati where she was living. He was drunk, drew a pistol and forced her to go with him to Newport, Kentucky, where they were married. She gave no particulars and filed no record. But this was the marriage referred to in the divorce suits. It may be disregarded, for, in any event, it would have been bigamous and void, and required no judicial decree to nullify it. KRS 402.020(3). Fields v. Commonwealth, 301 Ky. 551, 192 S.W.2d 478. Maggie obtained a divorce from Roberts about two years after their marriage.

The appellee relies on the existence of a subsequent common law marriage of her mother and Tarter. After obtaining the judgment of divorce from Tarter in Pulaski County in 1926, as above related, Maggie returned to Cincinnati and lived with her mother and stepfather, the Purcells. Apparently, Tarter moved in with them. Purcell testified that in his hearing Maggie told Kenneth that her lawyer had said it would be all right to go back to Cincinnati, make up with him and live with him as his common law wife. He wanted to do that and to make a home for her and take care of the baby (Ruth), and she agreed to the arrangement. They set up housekeeping and for four or five months lived together as husband and wife, holding themselves out to the public as married. Maggie testified to the same things. Kenneth went away from home and didn’t come back for two weeks. He was “on a drunk.” She returned to her mother’s apartment. Later she moved to Somerset and did not see Kenneth until a short time before his father died. There is no countervailing evidence.

At common law a mutual agreement between a man and woman, capable of contracting, to become presently husband and wife, when accompanied by cohabitation as such, constitutes a valid marriage, no formal ceremony being required. Nolan v. Giacomini, 250 Ky. 25, 61 S.W.2d 1055. In this case, while the appellant questions the probative force of the evidence of a common law marriage between Maggie and Kenneth, it seems to us the essential elements were satisfactorily proved. In Gatterdam v. Gatterdam, 86 Ohio App. 29, 85 N.E.2d 526, appeal dis. 151 Ohio St. 551, 86 N.E.2d 614, the marital status was established though the parties had held themselves out as husband and wife for only two weeks after the agreement. We have recognized that such marriage in Ohio is valid, although one or both parties moved to Kentucky after the relationship was created. 1 Tryling v. Tryling, 245 Ky. 399, 53 S.W.2d 725; Hoffman v. Hoffman, 285 Ky. 55, 146 S.W.2d 347. That recognition was given in Kennedy v. Damron, Ky., 268 S.W.2d 22, but we held a common law marriage was not established because the parties were but transients in Ohio.

The conclusion of the whole case is that the trial court should have ruled as a matter of law that the appellee is the child of the deceased, Kenneth Tarter, and was legitimatized by virtue of the statute, KRS 391.090(3), and is his sole heir. This conclusion, as indicated earlier in the opinion, renders any trial error immaterial.

The judgment is affirmed.


author: McDowell, judge. STONE, Judge

text:
    Mary Elizabeth CARR, Plaintiff-Respondent, v. John BROOKS and Gladys Brooks, Defendants-Appellants. Earl CARR, Plaintiff-Respondent, v. John BROOKS and Gladys Brooks, Defendants-Appellants.
    Nos. 8080, 8081.
    Springfield Court of Appeals. Missouri.
    April 12, 1962.
    Webster & Dunn, Carthage, Richart, Titus & Martin, Joplin, for appellant.
    Roy Coyne, Emerson Foulke, Joplin, for respondent.
   McDowell, judge.

Mary Elizabeth Carr and husband, Earl Carr, filed separate actions for damages against defendants for injuries sustained by Mrs. Carr in a fall at defendants’ home. The actions were consolidated for trial, tried by the court, and judgments rendered in favor of plaintiffs. Defendants appealed.

In their separate petitions plaintiffs allege that they were invitees of defendants at their home on August 2, 1958, and about 10:15 P.M., as Mrs. Carr was descending the steps at the rear of defendants’ home, which steps they aver were unlighted, she stepped on an old shoe laying at the front of the last step causing her to trip, fall, and be injured. Plaintiffs averred that defendants were negligent by failing to exercise “ordinary care” to furnish a reasonably safe place to walk and a reasonably safe exit from the step, and by either placing the shoe in front of the step or by permitting it to be there such a length of time that defendants knew or in the exercise of “ordinary care” would have known of the likelihood of someone stepping on it and being injured and failure to warn. Plaintiff, Mary Elizabeth Carr, sued for her injuries, pain and suffering. Her husband, Earl Carr, in his derivative claim, sued for medical expenses incurred by his wife, loss of services and consortium.

On October 12, 1961, the court rendered judgment for plaintiff, Earl Carr, in the sum of $871.05, and for plaintiff, Mary Elizabeth Carr, in the sum of $6500.00.

The evidence, briefly stated, is: Defendants, husband and wife, maintain their rural home in Jasper County similar to the home in which plaintiffs live. Defendants’ exhibit (D) is a photograph of their home and shows the concrete steps leading into the rear thereof, the place where Mrs. Carr fell and sustained her injuries. We make this exhibit a part of the statement of facts.

The front of the house faces the east. The rear of the house, the back porch at the west end thereof and the entrance to such back porch is by way of a screen door at the southwest corner. Also, at the southwest corner, on the south side of the house, are two concrete steps and a concrete stoop (making three steps in all) which lead to the back porch. The steps and stoop extend lengthwise east and west (6 feet and a little over 10 inches). About one-third of the stoop and steps are offset beyond the rear of the house so that much of the stoop is west of the west end of the house. The yard is southwest from the house. 34 feet south of the base of the concrete stoop and steps was located a pole which had attached thereto an electric light with a 200 watt bulb and light reflector 20 feet above the ground, which light was burning at the time of the accident. There was a smokehouse located directly to the west of the home with a cellar door, although separated from the residence is in close proximity to the steps and stoop leading to the hack porch.

One of the principal characters involved in these cases is a six or eight month old pup. Before the accident he got to “carrying the clothes off the clothesline”. To stop this habit defendants had given him a man’s old brown shoe to play with in the yard.

On the date of the accident, August 2, 1958, defendants were entertaining in their home with a supper. The affair included unshucked corn on the cob, encased in mud and cooked in the embers of an ashen fire in the back yard. Plaintiffs were invited as social guests to this supper, along with Mr. and Mrs. Hunter, defendants’ son, his wife and child. The testimony is that Mrs. Brooks prepared a nice supper. There was no business involved, purely a social event.

Plaintiffs’ testimony is: That they arrived at defendants’ home about 6:00 or 6:15 P.M. Mr. Hunter and defendant, John Brooks were in the back yard roasting corn. Plaintiffs went around the south side of the house to the place where the corn was being roasted and prepared for the supper. After the corn was cleaned the ears were put on a platter and Mrs. Carr carried the platter into defendants’ home via of the back or kitchen entrance. At this time it was still daylight. She went up the steps from the back yard. She testified that she entered “more to the west” side of the steps but could see the yard and steps very clearly. After partaking of the supper defendants and their guests left the house by the back door and carried their chairs into the south yard where they sat around and visited. The evidence is that it took about a half hour to finish supper and when the parry moved to the back yard to visit it was “not so much” still daylight.

Some time after defendants’ son and daughter left, the remaining women folk, defendant Mrs. John Brooks, Mrs. Carr and Mrs. Hunter, carried their chairs into the house via of the back steps to watch television. They stayed in the house about a half hour. Mr. Hunter, defendant John Brooks and Mr. Carr remained in the yard. It was Mrs. Carr’s testimony that in coming down the back steps after supper and in going up the steps to re-enter the home she used “more to the west end” of the steps than “to the east”.

Around 10:15 P.M. plaintiff, Earl Carr, entered the house and told his wife it was time to go home. Thereupon Mr. Carr and his wife left the house via of the back door, followed by Mrs. Hunter and Mrs. Brooks. Mr. Hunter and Mr. Brooks were still in the back yard. Mrs. Carr testified that in descending the back steps she went down “the east side because there was another lady there and I think Mrs. Brooks was right there, too”. She gave this testimony :

“Q. When you first started down, when you took the first step down could you see it all right? A. Well, yes, I could see the step enough for that.

“Q. And then when you stepped down the second time, could you see the step all right ? A. About that time, Earl said that, when I was just starting down.

“Q. And Earl (Carr) said, ‘Look out for the dog’? A. Yes.

“Q. Where was the dog? A. He was lying at the bottom, right there.”

Mrs. Carr testified that the dog was lying down by the bottom of the steps, about the middle thereof; that when Mr. Carr said “Look out for the dog”, she saw the dog. She said she didn’t have any trouble seeing him. She stated:

“Q. All right. Then you took how many more steps down? A. Well, the next step I took down was when I hit the ground there.”

Her testimony was that the shoe was right up against the steps; that when she stepped down she saw it. She stated “When I stepped down, why I seen it, I seen the shoe and about that time, it flipped me, my foot turned like that. * * * Well, it wasn’t real plain, it wasn’t real plain what I mean I knew it was a shoe, but I couldn’t say what, it was a white shoe or a black shoe.”

Her testimony was that when her husband drew her attention to the dog she was looking at the dog when she made the last step. She gave this testimony:

“Q. Had you ever seen that shoe before you stepped on it? A. No, sir.

“Q. You have no idea how it got there? A. No, sir.”

Plaintiff Carr testified that when he went into defendants’ home via of the back door before supper he noticed the dog and shoe on the ground near the bottom step, over toward the east end; that he said nothing to his wife or anyone about seeing the dog or shoe; that when he and his wife started to leave about 10:00 or 10:15 P.M., they went via of the back door and back steps; that when he came out he saw the dog at the foot of the steps with a shoe; that he stopped about the second step from the bottom and said “Mom, be careful. Don’t step on the dog.” He said the dog was right in front of his wife where she was coming down, lying parallel with the steps, his head to the east and the shoe east of his head; that his wife was looking at the dog when she stepped on the shoe and fell; that Mr. and Mrs. Brooks were right behind Mrs. Carr on the steps. When Mrs. Carr fell, Mr. Carr testified he looked over to Mr. Hunter, “about as far as from here to Roy” (meaning Roy Coyne in the courtroom) and said: “Look here, Walter, this is what Mom fell over, this old shoe right here” and that he looked right at it.

It was Mr. Carr’s testimony that he had seen the shoe when he first entered the house but said nothing about it. He gave this testimony:

“Q. After you came back outside, after eating supper, did you see the shoe? A. I never noticed the shoe then.

“Q. And when you went back in after your wife, did you see the shoe, when she was watching television? A. Never noticed, we came by a different place, see.

“Q. Well, you were using the same set of steps all the time, weren’t you? A. That’s right, but farther over.”

Later witness testified that he saw the dog and shoe when he first went in the house, when it was daylight and that he saw the dog was still lying there chewing on the shoe when he went back into the yard after supper. He stated that when he went inside to get his wife to go home he noticed the dog was still there and he said the shoe had to be there because the dog was. When urged by questioning he said, “Yes, I seen the shoe there”.

Defendant, John Brooks, testified that he had not seen the old shoe any time during the evening before the accident; that neither Mr. Carr nor anyone else had directed his attention to the shoe. He stated that immediately after Mrs. Carr had fallen he looked to see if she fell over anything but saw nothing, including the shoe. He stated, however, that after Mrs. Carr had gone to' the hospital he saw the shoe about two and a half to three feet from the east end of the steps on the ground. His evidence was that he did not hear Mr. Carr make any statement to the effect that the shoe was what caused Mrs. Carr to fall. He testified that the light on the post was sufficient to enable one to see each step and the ground clearly as you walked down the steps; that “it was just as light as day”. Mr. Brooks was sitting on the cellar steps at the time of the accident.

The other guests who were present on the evening of the accident testified they had been up and down the rear steps a number of times and observed nothing, including the shoe in question. Walter Hunter stated that with the aid of the outside light he could see each step clearly and the ground clearly. He did not hear Mr. Carr make the statement “Look here, Walter, this is what caused mama to fall”.

Mrs. Hunter stated that when Mrs. Carr fell she was coming out the back door and heard Mr. Carr say “Something about the dog” to his wife and that after she had fallen, Mrs. Carr said to her husband “If you had not hollered at me, maybe I wouldn’t have fell”.

In our opinion we will refer to appellants as defendants and respondents as plaintiffs, the position occupied by the parties in the lower court.

On appeal we will review these consolidated actions at law, tried by the court, as suits in equity and will give due regard to the trial court’s opportunity to judge credibility of the witnesses and will not set aside the trial court’s judgment unless clearly erroneous, but this court will make independent findings of fact and reach its own conclusions on weight of the evidence. Section 510.310 RSMo 1959, V.A.M.S.; Harry M. Fine Realty Co. v. Stiers, Mo.App., 326 S.W.2d 392, 393 [1, 2]; Magers v. Western & Southern Life Ins. Co., Mo.App., 335 S.W.2d 355, 357 [1]; Burrell v. Kaiser’s Estate, Mo.App., 344 S.W.2d 622, 624 [1],

Defendants assign as error the action of the trial court in refusing their motions for judgment at the close of plaintiffs’ case and in overruling their after-trial motions for judgment in accordance with their motions for judgment at the close of the evidence.

Our review of the submissibility of plaintiffs’ cases on the theory that the evidence offered failed to make a case requires that we review the evidence in the light most favorable to plaintiffs and give plaintiffs the benefit of all reasonable inferences arising therefrom and disregard defendants’ evidence unless it aids plaintiffs’ cases. Kirks v. Waller, Mo.Sup., 341 S.W.2d 860, 863 [2, 3]; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705, 706 [2]; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633 [3, 4],

’ ' Under the evidence it is admitted that .plaintiffs' were social guests in defendants’ home at the time Mrs. Carr fell and was injured. The law governing defendants’ legal obligation to plaintiffs as social guests is, likewise, not in dispute. The parties cite practically the same authorities. In plaintiffs’ argument, they state on page 5 of their brief:

“Since the authorities cited by both appellants and plaintiffs are largely the same, there is no great difference as to the law applicable to this case. The only question for determination is whether the negligence established by the evidence was active or passive. If active, the judgment should be affirmed.”

In Anderson v. Welty, Mo.App., 334 S.W.2d 132, decided by this court, the question as to whether plaintiff made a submissible case was raised. It was contended that plaintiff was a bare licensee. Judge Stone, speaking for the court, stated on page 137 of the opinion:

“ * * * As our Supreme Court put it in Menteer v. V. Scalzo Fruit Co., supra, 240 Mo. [177] loC. cit. 184, 144 S.W. [833] loe. cit. 835, a licensee ‘may complain wanton or intentional injury or active negligence, * * * ’ or, as succinctly stated in Twine v. Norris Grain Co,, 241 Mo.App. 7, 19, 226 S.W.2d 415, 422(7), ‘It is true, of course, that a land occupier is subject to liability for bodily harm caused to a licensee by the active or affirmative negligence of the occupier.’ .* * * So, the familiar statement that a bare licensee takes the premises as he finds them usually has been limited by the equally-familiar exception of ‘wantonness, or some form of intentional wrong or active negligence by the owner or occupier.’

“[7] As these terms may be used in cases involving the liability of á possessor of premises to one injured thereon, ‘active or affirmative negligence’ may be defined broadly as negligence occurring in connection with activities conducted on the premises, and ‘passive negligence’ as- negligence which causes .danger by. reason .of, the physical condition of the premises.” (See cases cited in footnote 3.)

Wolfson v. Chelist, Mo.App., 278 S.W.2d 39 involved an action by a social guest against the host for injuries sustained when guest stepped on a grease spot on host’s porch and fell. The St. Louis Court of Appeals held that the grease spot, caused by feeding a cat on the porch over which social guest passed in entering home and which caused the guest to fall when leaving the home, did not constitute a dangerous condition in the nature of a trap or pitfall nor was it a result of active or affirmative negligence on the part of the host. In this opinion the court declared the law on page 44 [9, 10]:

“ * * * if the plaintiff was a licensee, as urged by defendant, she took the premises as she found them, and barring wantonness or some form of intentional wrong or active negligence on the part of Bernice, cannot recover for injuries sustained on the premises. * * *

“The universal rule seems to be that a social guest is not an invitee as that term is applied to persons in and upon premises where a business is carried on, but is a licensee, and by some eminent authorities is designated a gratuitous licensee. In 65 C.J.S., Negligence, § 32b p. 487, we find this statement: ‘A “gratuitous licensee,” or as sometimes called a “permissive licensee,” is any licensee other than a business visitor, and includes a social guest;’ and in § 32e, p. 489, same authority, we find: ‘It has been held that one who comes on premises by express invitation for purely social purposes, to enjoy hospitality as a guest of the owner or occupant, or a guest who enters merely to receive a gratuitous favor from the owner or occupant, has the rights only of a licensee.’ ” (See authorities cited.)

The Supreme Court in Wolfson v. Chelist, Mo.Sup., 284 S.W.2d 447, 450, stated:

“ * * * The word ‘invitation’ here has been a source of difficulty because of an apparent incongruity in terminology inasmuch as the ‘invited’ social guest is held to be not an invitee but a licensee. * * ” Moss v. Nooter Corporation, Mo.App., 344 S.W.2d 647, 654 [11].

The evidence offered most favorable to plaintiffs revealed that defendants had a dog or pup some six or eight months old; that he had been given a shoe as a pacifier in order to prevent him from carrying clothes off the clothesline. This shoe had been given to him some time prior to the date of accident. On the day of accident plaintiffs were at defendants’ home as social guests for supper and sometime during the evening the pup lay down at the foot of the back steps with the shoe; that Mrs. Carr, in taking her departure from defendants’ home and, while descending the back steps, stepped on the shoe which caused her to trip, fall and be injured. We think the evidence wholly fails to show that the shoe constituted a dangerous condition in the nature of a trap or pitfall. So, the only question presented is, was there sufficient evidence to show active negligence on the part of defendants?

“Active or affirmative negligence”, for which an occupant may be liable to his social guests or licensees, has been defined “as negligence occurring in connection with activities conducted on the premises,” and “passive negligence,” for which an occupant is not liable to his social guests and licensees, is defined “as negligence which causes danger by reason of the physical condition of the premises”. Anderson v. Welty, supra, 334 S.W.2d p. 137 [7]; Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Wolfson v. Chelist, Mo.Sup., supra.

Plaintiffs rely on Anderson v. Welty, supra, Porchey v. Kelling, supra, and Wolf-son v. Chelist, supra, as authorities to sustain their contention that the evidence offered did show active negligence on the part of defendants. An examination of these authorities does not support plaintiffs’ contention. However, in plaintiffs’ argument they contend that a social invitee is owed a greater duty than a bare licensee. They rely on Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1. On page 3 of the opinion it is stated:

“ * * * A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. * * '*

“But the situation, with reference to liability, radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure, and convenience. That change calls into play other rules of law, in order to do full and refined justice. The rule applicable to that change is that a licensee, who goes upon the premises of another by that other’s invitation, and for that other’s purposes, is no longer a bare licensee. He becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for the breach of that duty an action lies.”

Wolfson v. Chelist, supra, Mo.Sup., 284 S.W.2d 447, in passing upon a question of an invitee or licensee, the court re-examined the Glaser case, supra, and disapproved of this very language. So, we think the Glaser case is not the law in Missouri as shown by the quotation from that opinion.

In Wolfson v. Chelist, supra, a guest sustained injuries when she stepped on a grease spot on the host’s porch and fell. The grease spot was caused by feeding a cat and the guest, while entering the home, passed over the spot and fell. The court held that this did not constitute a dangerous condition in the nature of a trap or pitfall and was not affirmative negligence on the part of the host.

Warner v. Lieberman, D.C., 154 F.Supp. 362, involved an action for injuries by plaintiff who was a gratuitous guest at defendants’ home. The defendants had a chaise longue with three missing bolts in one of the legs so that on occasions and given the right impetus, the leg would swing out, and this condition had existed for some two seasons but there had been no previous injury in the use of the longue. Defendants were aware of the condition but notwithstanding such condition they used the longue. Plaintiff was injured by tripping over this leg when it swung out. The court held defendants were not liable.

Page v. Murphy, 194 Minn. 607, 261 N.W. 443 involved a case where the hostess’ children had strewn the floor with beans which they had been shooting about and had tracked in water. An eighty year old social guest, en route to the living room from the bathroom, slipped on the beans and water and was injured. It was held that defendants were not liable to the social guest.

Bogateroff v. Caplan, Sup., 108 N.Y.S.2d 205 involved facts where a child left a regulation soft ball on the rear lawn when the game was over. Thereafter, plaintiff, a social guest, fell on the ball and was denied recovery for the injury. (See similar cases in annotation in 25 A.L.R.2d 600.)

Under the facts in the instant cases the trial court should have sustained defendants’ motion for directed verdict for the reason that plaintiffs failed to make a submissible case. The evidence considered most favorable to plaintiffs docs not show active or affirmative negligence for which defendants may be liable to plaintiffs as their social guests or licensees. The leaving of the shoe by the dog at the foot of the steps was not an act of negligence occurring in connection with activities conducted on the premises. Plaintiff’s injuries were the result of danger by reason of the physical condition of such premises.

Having found that plaintiffs failed to make a submissible case it is unnecessary to pass upon the other alleged errors.

Judgment in each of the above cases is reversed and remanded with directions that the trial court’s judgments be set aside and judgment entered in each of said causes in favor of the defendants.

RUARK, P. J., concurs.

STONE, J., concurs in result.

STONE, Judge

(concurring in result).

I concur in the result reached in the principal opinion. However, after quoting from Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 3, 22 L.R.A.,N.S., 1045 (upon which instant plaintiffs rely), the principal opinion states that, in Wolfson v. Chelist, Mo., 284 S.W.2d 447, “the court re-examined the Glaser case, supra, and disapproved of this very language” and that “we think the Glaser case is not the law in Missouri.” I do not so read or understand the Wolfson opinion. Rather, it appears to me that the court there disagreed with plaintiff’s-respondent’s counsel (as I disagree with counsel for instant plaintiffs-respondents) as to the meaning to be attributed to the quoted language in Glaser, but in no wise indicated any intention to disapprove that language (when read in the light of the facts there involved), to overrule or even criticize Glaser, or to weaken or undermine its established status as a leading case in this jurisdiction. Witness precisely what was said in Wolfson, supra, 284 S.W.2d loc. cit. 449: “We are not inclined to agree that the language of the Glaser opinion * * * is substance for the belief that the author of the opinion and this court had in mind an entrant’s visit with the ‘purpose’ of the enjoyment of the social relationship of host and guest. Nothing in the language of the whole opinion so indicates. And the opinion did not treat with such a factual situation.” I think that Shepard’s Missouri Citations properly and accurately records Glaser as explained by Wolfson. As Shepard’s also demonstrates, exceedingly few cases of Glaser’s vintage continue to be cited so frequently with approval and to remain so favored an authority in this field. With Glaser having been cited in at least nine . cases since Wolfson, I cannot subscribe to any comments suggesting that Glaser has been “disapproved” in any respect or “is not the law in Missouri.”


author: STONE, Judge.

text:
    Petition of UNION ELECTRIC COMPANY, a corporation, Petitioner-Respondent, Charles Jones, Esther Jones, Robert C. Stark and Charles F. Baur, Objectors-Appellants.
    No. 8130.
    Springfield Court of Appeals. Missouri.
    April 11, 1962.

      Robert B. Baker, Ellington, for objectors-appellants.
    Schnapp & Cooper, Fredericktown, Duane A. Patterson, St. Louis, for petitioner-respondent.
   STONE, Judge.

In this proceeding under Chapter 236, Union Electric Company (hereinafter called petitioner) sought and, on June 7, 1961, obtained an order and judgment of the Circuit Court of Reynolds County granting permission and authority to erect a dam across the East Fork of the Black River just below its confluence with Taum Sauk Creek (both streams being non-navigable), upon certain conditions including the requirement “that the entire project, known as the Taum Sauk Project, shall be commenced within one year from the date of this decree and shall be finished and ready for business within three years from the date of this decree.” Sec. 236.180. In the judgment of June 7, 1961, the court also found that Otarles Jones, Esther Jones, Robert C. Stark and Oarles F. Baur (hereinafter called objectors) had not shown cause to quash the proceedings and set aside the verdict of the jury [Sec. 236.130] theretofore impaneled by the sheriff under a writ of ad quod damnum [Secs. 236.060 and 236.070], and the formal objections of the named objectors to the proceedings under such writ [Sec. 236.120] were dismissed with prejudice.

On June 17, 1961, objectors filed their motion for new trial and, on the same date, filed their notice of appeal to this court. Not having been ruled by the circuit court within ninety days after the date of filing, the motion for new trial was deemed denied for all purposes on September IS, 1961 [Rule 78.04; Sec. 510.360]; and the premature notice of appeal was considered filed immediately thereafter on the same date, towit, on September 15, 1961. Rule 82.05 (b).

On December 20, 1961, which was after expiration of the period of ninety days within which the transcript on appeal should have been filed [Rule 82.18; Sec. 512.130], objectors filed in the circuit court a motion for extension of time within which to file the transcript [Rules 82.19 and 44.01, subd. (b) (2); Secs. 512.140 and 506.060, subd. 2(2)]; and thereafter on February 6, 1962, the circuit court entered an order (quoted in its entirety) that “Now on this day the time for filing the transcript on appeal is hereby enlarged by extending the said time for the period ending six months (6) from September 16th, 1961.”

We first heard of this appeal on March 27, 1962 (after expiration of the enlarged period of six months for filing of the transcript), when petitioner’s-respondent’s motion to dismiss the appeal was received by our clerk. Appended to that motion were several certified exhibits reflecting the above-recited facts, notice to objectors’appellants’ attorney that the motion would be filed, and an acknowledgment of service signed by said attorney. By letter dated March 28, 1962, the circuit clerk transmitted to our clerk the notice of appeal and the required docket fee; and finally, on March 29, 1962, the cause was docketed here.

No explanation is offered as to the inordinate delay in forwarding the notice of appeal and docket fee to this court. Assigning that the docket fee was deposited with the notice of appeal (for, if it was not, the notice of appeal should not have been accepted [Rule 82.04; Sec. 512.050] and acceptance sans the fee would not have constituted a valid filing of the notice [Kattering v. Franz, 360 Mo. 854, 857, 231 S.W.2d 148, 150; Alberswerth v. Lohse, Mo.App., 232 S.W.2d 213]), the circuit clerk’s duties with respect thereto, as outlined in Rule 82.08 [Sec. 512.070], were (a) to notify the adverse party by sending a copy of the notice of appeal by registered mail to an attorney of record for such party, (b) “(a)t the same time” to mail a copy of the notice of appeal to the clerk of the appellate court with the docket fee, and (c) to note in a memorandum the names of the parties to whom copies had been mailed, with-date of mailing. Certainly, this rule contemplates, and the even-handed administration of justice demands, that the outlined steps be taken with all reasonable diligence and dispatch, not delayed for weeks or (as in this instance) . for months. Since our records include no less than nine prior appeals in which the same circuit clerk personally has transmitted the notice of appeal and docket fee promptly, certainly we may not attribute the delay of more than six months in this instance to ignorance of or unfamiliarity with proper handling and procedure. All of which may make it not inappropriate for us to suggest that the responsibility for satisfying the procedural requirements of Rule 82.08 [Sec. 512.070] rests squarely upon the circuit clerk, who, from the faithful discharge of that duty, should not be stayed, swayed or dissuaded.

In its motion to dismiss the appeal, petitioner-respondent first insists that the order of the circuit court of February 6, 1962, extending the time for filing of the transcript on appeal, “is void.” As petitioner points out, the transcript should have been filed within ninety days from September 15, 1961 [Rule 82.18; Sec. 512.130], the date on which the premature notice of appeal was considered filed [Rule 82.05(b)]; and, when that period of ninety days expired on December 14, 1961, without the filing of the transcript and without any request by objectors-appellants for enlargement of the period, the circuit court was not authorized thereafter to grant such enlargement except “upon notice and motion” and a showing that “the failure to act was the result of excusable neglect.” Rule 44.01, subd. (b) (2); Sec. 506.060, subd. 2(2).

Instant objectors filed, on December 20, 1961, a motion for enlargement to “a total time of six months from the affective (sic) date of the notice of appéal,” in which it was alleged in meaningless generalities (a) that “many of the issues of law involved in this case are also involved in the case of Union Electric Company v. Charles Jones et al., [Mo., 356 S.W.2d 857], now on appeal and pending before the Supreme Court of Missouri, and will be concluded by the decision there,” (b) that “the possibility of settling this case will be increased by the aforesaid decision, and the expense of one appeal may be avoided,” and (c) that “an extension of time as requested may be sufficient for a decision to be handed down in the above case.” However, there was no allegation in the motion of December 20, 1961, that a transcript in the instant case had been ordered from the court reporter; and we know that, in fact, no order for the transcript had been placed, for in papers filed with us on April 2, 1962, objectors’ counsel conceded that no transcript yet had been ordered. A certificate of the court reporter not only confirms that fact but also informs us that no witnesses appeared- and no testimony was taken upon objectors’ motion [contrast Suburban Bank of Kansas City v. Proposed Jackson Co. State Bank, Mo.App., 326 S.W.2d 420, 424] when on February 6, 1962, the circuit court entered an order purporting to extend the time for filing of the transcript “for the period ending six months (6) from September 16th, 1961.”

Case No. 49093 is identified here as a condemnation proceeding under Chapter 523 tried in another jurisdiction and before another judge, towit, in the Circuit Court of Shannon County before Honorable Gordon Dorris, in which Charles and Esther Jones, owners of certain lands sought to be condemned in that proceeding, have appealed from the judgment entered following trial by jury on exceptions to the award of the commissioners. Even if the primary “reason” assigned in objectors’ motion of December 20, 1961, towit, “many of the issues of law involved in this case are also involved in . No. 49093 . and will be concluded by the decision there,” were a valid and sufficient ground for enlargement of time under Rule 44.01, subd. (b) (2), which we seriously doubt but need not rule, the trial court did not purport to make any finding, either general or special, to that effect, and certainly we could make no such finding upon the record before us. In the admitted and undisputed circumstances of the instant case, the order of February 6, 1962, cannot be sustained on a presumption of right acting on the part of the circuit court. Contrast Stroup v. Radican, Mo.App., 341 S.W.2d 333, 334. With no semblance of showing that their failure to act within the initial period of ninety days (during which the transcript should have been filed) “was the result of excusable neglect” [Rule 44.01, subd. (b) (2); Sec. 506.060, subd. 2(2)], objectors were not entitled to an enlargement of that period and the order of February 6, 1962, should not have been entered. Heard v. Frye, Mo.App., 319 S.W.2d 685, 687(7).

In any event, the six-month period passed and expired as had the initial ninety-day period, i. e., without the transcript having been filed or even ordered. After the case eventually was docketed here on March 29, 1962, and after petitioner’s-respondent’s motion to dismiss the appeal had been served and filed, counsel for objectors-appellants lodged with us on April 2, 1962, a motion for further enlargement of time for filing of the transcript “to 60 days beyond the date of final decision in Case No. 49093 by the Missouri Supreme Court.” This motion and accompanying suggestions follow the same general line as objectors’ motion of December 20, 1961 (which sought enlargement of time in the circuit court), with the added “reasons” that “substantially all of the Jone’s (sic) financial resources are either tied up or have been used in perfecting that appeal and for that reason a transcript on appeal in this case has not been ordered,” that “the appellants (objectors) have not the financial ability to finance all of the costs of two simultaneous appeals except at the expense of the necessities of life,” and that “the respondent? (sic) can suffer no detriment by delay of the filing of the transcript on appeal other than that which their own actions may have caused.”

We observe parenthetically that instant petitioner has stated (with • no- denial of this by objectors) that, in Case No. ■49093, it has paid $12,000 into the registry of the circuit court for Charles and Esther Jones, who are two of the objectors in this proceeding. But,. putting that behind us, we may not rule the motions before us with an eye -to the relative financial worth of the respective parties, for the rules of civil procedure governing appellate practice do not contemplate or permit of a double standard of interpretation and enforcement, with-.one to favor the poor and impecunious and another to penalize the wealthy and affluent. As the Almighty enjoined his chosen people in Mosaic days, even so one of the quickening precepts of the bench in this age still should be, “thou shalt not respect the person of the poor, nor honor the person of the mighty.” Leviticus 19:15.

Nor may we be influenced by objectors’ suggestions that “the possibilty of settling this case will be increased” by appellate determination of Case No. 49093, and that “if the parties (thereafter) cannot agree to a disposition in the trial court, the appeal (in this proceeding) could thén be perfected and heard.” For, as our Supreme Court has pointed out, if the rules of civil procedure governing appellate practice were not followed, the very conditions which those rules sought to remedy would be created anew, and “(p)arties could determine for themselves how long they would take to decide whether they-wanted to appeal and when they should commence to prepare the transcript on appeal.” Kattering v. Franz, supra, 231 S.W.2d loc. cit. 149. “(A)ppeals cannot be both effective and in abeyance at the whim of the prospective appellant.” Kattering v. Franz, supra, 231 S.W.2d loc. cit. 150. So, the instant case may not lurk and linger in a state of legalistic limbo in order that the threat of its emergence, at the fancy and upon the call of objectors-appellants, may be employed either as a club to compel, or as bait to induce, a settlement.

Being wholly without factual merit 'or legal support,‘objectors’-appellants’ motion in this court for enlargement of time to file the transcript on appeal is denied. And, for objectors’ flagrant failure to comply with Rules 82.12(a), 82.14, 82.18, 82.19 and 44.01(b) (2) [Secs. 512.110(1), 512.130, 512.140 and 506.060, subd. 2(2)], petitioner’s-respondent’s motion to dismiss the ap>-peal is sustained.

RUARN, P. J.,. and McDOWELL, J., concur.

      . All references to statutes are to RSMo 1959, Y.A.M.S., and all references to rules are to the Missouri Rules of Civil Procedure, Y.A.M.R.

      . In this connection, note the amendment of Rule 82.19 published in the February 1962 issue of the Journal of the Missouri Bar [18 J.Mo.Bar 81], effective September 1, 1962, specifically directing that the trial court shall grant no such extension “unless the transcript on appeal be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order to the reporter be filed in the case within 15 days thereafter.”


text:
    Donald HAIRE, Plaintiff-Respondent, v. Gilbert STAGNER and Dodds Truck Line, Inc., Defendants-Appellants.
    No. 7973.
    Springfield Court of Appeals. Missouri.
    April 6, 1962.

      L. Clark McNeill, Salem, for defendants-appellants.
    Ford & Ford, Kennett, Dorman L. Steel-man, David C. Harrison, Salem, for plaintiff-respondent.
   STONE, Judge.

This is an appeal by defendants, Dodds Track Line, Inc. (hereinafter referred to as Dodds), and Gilbert Stagner, Dodds’ driver, from a judgment of $2,250 entered upon a jury verdict in favor of plaintiff, Donald Haire, for personal injuries sustained by him on September 16, 1957, at Steelville, Missouri. Plaintiff, then twenty-seven years of age, who had been “in the construction business” for eight years, was employed by Huffman Brothers, the general contractor, as superintendent on a construction project to build a new elementary school building in Steelville.

On the day of accident, a tractor-trailer unit owned by Dodds and driven by defendant Stagner came to the site of the construction project with six cartons of building material consigned to the general contractor. Each carton contained four or five large sheets of heavy one-inch paneling, weighed about 450 to 500 pounds, was approximately eight feet in length, four feet in height, and six inches in width, and “was crated all around, solid crating,” with 1" x 6" or 1" x 8" boards. These six cartons, the only cargo remaining on the Dodds trailer at the time, were standing on edge (i. e., on their six-inch width), side by side on a raised platform “in the very front of the trailer.” As the cartons stood lengthwise of the trailer and “stacked” against one side of it, they occupied about one-third of the width of the trailer bed and were braced in position by 1" x 4" boards between the cartons and the opposite side of the trailer.

Defendant Stagner said (and his was the only testimony on this subject) that Dodds’ over-the-road trucks, such as the one making this delivery, never carried helpers or special unloading equipment, and that “the custom up and down the line” was for the consignee to furnish such equipment and men as might be needed for unloading, all of which was, so defendants asserted, in consonance with “Item No. 40, subpara-graph b,” of the “Interstate Commerce Commission Rules for Midwest Motor Freight Bureau” said to require that the consignor or the consignee, as the case may be, shall furnish needed equipment and men and shall assume responsibility for safe loading and unloading of heavy articles. But, although this rule was offered and received in evidence as a defendants’ exhibit, none of the exhibits were included in or filed with the transcript; and furthermore, as plaintiff’s counsel appropriately point out, nothing in the record before us would justify a finding that this rule was applicable either generally to Dodds’ trucking operation or specifically on the occasion under consideration. Hence, we have considered the case without regard to “Item No. 40.”

However, defendant Stagner was alone on the truck and obviously could not have moved or unloaded the six heavy cartons without assistance. When Dodds had delivered freight to the same construction project on previous dates, there invariably had been only one man on the truck and, as plaintiff stated, “if it was too heavy for him we would always have to help him unload it.” Thus, although we find no evidence that Stagner expressly requested help in unloading on the date of accident, it appears to have been taken for granted that plaintiff would assist as, in fact, he forthwith undertook to do. Both plaintiff and Stagner climbed into the trailer and, as each testified, both of them removed the bracing between the upright cartons and the opposite side of the trailer. Then, in plaintiff’s words, “we attempted to slide them (the cartons) out the back end of the truck, just on the bed of the truck, (but) it was more than two of us could do. Someone suggested to bring a dolly . . which the school had . . . and next we put the dolly under it (a carton) and rolled it to the back of the truck,” where the carton was placed on skids (timbers) laid from the ground to the trailer bed and was moved down. Two workmen on the construction project, Grayson and Gregory by name, who were employees of the general contractor and were directed by plaintiff to help in unloading, remained on the ground at the rear of the truck.

Three of the six cartons were unloaded without incident, before the accident in suit occurred while plaintiff and Stagner were moving the fourth carton. Plaintiff, then on the raised platform behind the fourth carton and facing the rear of the trailer, was pushing on that carton while Stagner, on the other end, was pulling on it. They were moving the carton, in fact already had moved it for a distance of “about half of the length of the carton,” but the carton was still on the raised platform when, as plaintiff said, “the remaining two cartons tilted, knocking the fourth one we were pulling on out of my hands and it fell onto my legs ... I tried to catch it, but it was too much weight for me to hold. I jumped back as far as I could, but I hit the side of the truck.” In his futile attempt to hold the carton upright, plaintiff apparently moved around to the side because, when he went down in “kind of a sitting position,” his back was against the side of the truck opposite that by which the cartons had been stacked, and he was off the raised platform and on the trailer bed itself. No one offered any explanation as to the cause of this unique accident. Plaintiff agreed that Stagner “was about six feet away” from the two cartons which tilted, insisted that neither he (plaintiff) nor Stagner had hit those cartons, and admitted that “I don’t know what caused them to fall.” Neither Grayson nor Gregory, both of whom testified, saw the accident, and nothing in Stag-ner’s testimony indicated that he had any knowledge of the cause of accident.

The first two “points” in defendants’-appellants’ brief assert that “the burden is on plaintiff suing for negligent injury to establish the cause of the accident” and that “plaintiff had the duty of furnishing necessary equipment for unloading [P.S.C. Rules (Tr. 53)]; therefore, by directing the unloading, he assumed the risk.” In language as explicit and demanding as it is plain and unambiguous, sub-division (a) (3) of Rule 83.05, V.A.M.R., directs that “(t)he points relied on . . . shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous”; and, that there may be no reason or opportunity for misunderstanding on the part of those who make a serious and purposeful effort to follow the rule, sub-division (e) repeats the same direction and adds the blunt and unmistakable warning that “(s)etting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.” As our brethren have pointed out, these provisions “are clear and simple and easily followed upon a cursory examination” [Onka v. Butkovich, Mo.App., 294 S.W.2d 357, 359] and “(obedience . . . calls for no cryptic or unique legal discernment or technique.” White v. Nelson, Mo.App., 283 S.W.2d 926, 928. And, as a multitude of recent cases demonstrate, the quoted “points” in instant defendants’ brief are utterly insufficient to preserve and present anything for appellate review, and we well might limit our consideration to the last “point” reflecting a properly-formulated assignment directed to an instruction. But, plaintiff-respondent has made no complaint about defendants’appellants’ brief; and, from the “argument” therein, we gather that defendants’ principal contention is that plaintiff did not make a submissible case, that defendants’ motion for a directed verdict at the close of all of the evidence should have been sustained, and that, failing so to do, the trial court should have set aside the judgment for plaintiff and entered judgment for defendants in accordance with their after-trial motion [Rule 72.02, V.A.M.R.; V.A.M.S. § 510.290], erroneously designated as a motion for judgment notwithstanding the verdict. Rule 81.01, V.A.M.R.; V.A.M.S. § 510.380. Being convinced that defendants’ contention is meritorious, we have concluded that, in the interest of justice, we should consider and rule it. Clemons v. Becker, Mo., 283 S.W.2d 449, 452.

Plaintiff’s petition charged specific negligence in four particulars, but the only negligence submitted in plaintiff’s sole verdict-directing instruction was “that defendants failed to use ordinary care in that they created a dangerous condition in said vehicle by removing said bracing and failed to warn plaintiff of the dangerous condition existing when bracing was removed.” By submitting on the quoted charge of negligence, plaintiff abandoned all others; and, in determining the sufficiency of the evidence to make a prima facie case> we must confine ourselves to the sole ground submitted. Plaintiff’s submission required, and was predicated upon, a preliminary finding that he “was in and upon said (tractor-trailer) unit by invitation, either express or implied, of defendants”; and plaintiff’s counsel insist that this is “an analogous case to a business invitee on premises of the owner” and that the legal status of their client at the time of accident was that of “an invitee.” The case having been submitted, both in the trial court and on appeal, on this theory deliberately adopted -by capable counsel, our review must be upon the same theory. Welch v. McNeely, Mo., 269 S.W.2d 871, 875(3), and cases there cited. Accordingly, we employ the legal principles applicable in inviter-business invitee situations in determining whether defendants owed to plaintiff a duty in the only respect submitted (i. e., to warn of the allegedly dangerous condition created by removal of the bracing) and, if so, whether defendants breached such duty.

The reports abound with Missouri cases approving the principle formulated in 2 Restatement, Torts, § 343, p. 938, which imposes liability upon an inviter for bodily harm to business invitees caused by a natural or artificial condition on the inviter’s premises “if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (1) to make the condition reasonably safe, or (2) to give a warning adequate to enable them to avoid the harm . . And, it is settled beyond doubt by a plethora of authority that the basis of an inviter’s liability, under the foregoing principle, is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Therefore, where the danger is or should be as well known to the invitee as to the inviter, the latter has no duty to warn of such danger and no liability for injury to the invitee resulting therefrom. “ ‘The invitor is not an insurer of the safety of the invitee; neither is the invitee protected against all hazard, nor relieved of all duty to himself for his own safety. And to the extent that the duty of self-protection rests upon the invitee, the duty of the invitor to protect is reduced. The extent of these relative duties depends upon many factors involving the capacity and opportunity of the invitor to protect the invitee and the capacity and opportunity of the invitee to protect himself.’ ” Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 958; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 321, 142 A.L.R. 858; Hammontree v. Edison Bros. Stores, Inc., Mo.App., 270 5.W.2d 117, 125.

In the case at bar, plaintiff charges that “a dangerous condition” was created by removal of the bracing. True, the resulting condition was “dangerous” in the philosophical sense that, if the bracing had not been removed, none of the cartons could have tilted or fallen — and, neither could they have been unloaded. But something more than mere removal of the bracing was required to render the situation sufficiently dangerous to result in injury to plaintiff, for none of the cartons tilted or fell upon removal of the bracing, nor until three of the cartons had been unloaded from the trailer and the fourth carton was being moved. However, it would be vain and useless to indulge in idle speculation (and, indeed, we could do no more than that) as to the precise nature and extent of danger created by removal of the bracing or as to the “something” [cf. Coble v. St. Louis-San Francisco Ry. Co., Mo., 38 S.W.2d 1031; Zimmerman v. Young, Mo.App., 280 S.W.2d 457, 461] which triggered the tilting of the last two cartons. Whatever the danger initially engendered by removal of the bracing, plaintiff actively participated in creating it. Whatever the danger thereafter developed in the course of unloading three cartons and moving the fourth one, plaintiff no less actively participated in fashioning it. Whatever the situation may have been at any given moment from the time plaintiff and defendant Stagner together climbed into the trailer and began to remove the bracing until plaintiff was injured, it was, or in the exercise of ordinary care could and should have been, as clearly and openly visible to one as to the other. And, whatever the risk of harm may have been at any given moment during the same period, it was, or in the exercise of ordinary care certainly could and should have been, as plainly and readily apparent to plaintiff, an adult construction superintendent experienced in handling building materials and (as his testimony disclosed) in unloading heavy freight from Dodds’ trucks, as it was to Stagner. In these circumstances, no duty to warn plaintiff arose and actionable negligence on the part of defendants was not shown. See again the cases collected marginally in notes 6 and 7.

Furthermore, even if (contrary to our conclusion) defendants were charged with a duty to warn, there was no evidence to justify submission of a breach of that duty. Taking plaintiff’s testimony as a whole, as we must do [cf. Batson v. Orms-bee, Mo.App., 304 S.W.2d 680, 682, and cases there cited], it is clear that his knowledge, or more properly stated his lack of knowledge, concerning this subject at the time of trial was summarized fairly at the close of his direct examination when, to the question “had he (Stagner) cautioned you when it (the bracing) was removed they (the cartons) might fall over?” plaintiff answered "I don’t remember ” and to the further inquiry “had he warned you in any way because of their nature, because of their weight, they might tip or fall ? plaintiff responded “I don’t remember whether he did or not.” By the time plaintiff’s witnesses Grayson and Gregory had: reached the trailer, plaintiff and Stagner already had removed the bracing and had' thrown it outside the trailer, so these witnesses could not have known whether a warning had been given before they arrived. For that matter, their examination did not show whether, after they reached the scene, Stagner gave plaintiff any warning of danger or unreasonable risk of harm. E. g., the question to Gregory, wide of the mark, “at any time did you hear Mr. Stag-ner, the driver, caution you or Mr. Grayson or Mr. Haire (plaintiff) in regard to how to handle this material?” elicited a simple “no, sir,” while the next question, limited in scope, “did he warn you (Gregory) of any dangerous conditions that might exist as a result of this material being unbraced?” drew the meaningless response "I don’t recall if he did.” When defendant Stagner was asked whether he had given “any warning or caution to any of the men working there,” the by-now-familiar theme was repeated in the answer, “I don’t recall.” Disclaimers of recollection and knowledge are an unsatisfactory and unacceptable substitute for evidence; and, in this instance, they would not have permitted a finding that defendants did not warn plaintiff, even if there had been such duty. Inman’s Adm’x. v. United Rys. Co. of St. Louis, 157 Mo.App. 171, 137 S.W. 3, 4(1); Globe Automatic Sprinkler Co. v. Laclede Packing Co., Mo.App., 93 S.W.2d 1053, 1056(1); Little v. Manufacturers Ry. Co., Mo.App., 123 S.W.2d 220, 222(2); Reid v. Holcomb, 63 Cal.App. 89, 218 P. 76, 78(3).

Where, as here, the facts have been developed fully, all available witnesses on the material issues have testified, and it is clear that plaintiff is not entitled to recover [Wright v. Kansas City Structural Steel Co., 236 Mo.App. 872, 157 S.W.2d 582, 592 (12); Lappin v. St. Louis Nat. League Baseball Club, Mo.App., 33 S.W.2d 1025, 1027-1028(4)], it becomes our plain duty to dispose of the case finally. Rule 83.13(c), V.A.M.R.; V.A.M.S. § 512.160(3); Shofler v. Jordan, Mo.App., 284 S.W.2d 612, 616 (10); Krueger v. Elder Mfg. Co., Mo.App., 260 S.W.2d 349, 353(5); Trantham v. Gullic, Mo.App., 201 S.W.2d 522, 530(11). Accordingly, the judgment for plaintiff is reversed without remand.

RUARK, P. J., and McDOWELL, J., concur.

      . Hardy v. McNary, Mo., 351 S.W.2d 17, 20(4); Magenheim v. Board of Education of School Dist. of Riverview Gardens, Mo., 340 S.W.2d 619, 621(3); Walker v. Thompson, Mo., 338 S.W.2d 114, 116-117(6, 7); Turner v. Calvert, Mo., 315 S.W.2d 118, 120(2); Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109, 111(2, 3); Mario Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610, 612-613(4, 5); State ex rel. Sisson v. Felker, Mo.App., 336 S.W.2d 419, 420 (1); Wildermuth v. Fred Medart Mfg. Co., Mo.App., 330 S.W.2d 126, 128 (2); Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481.

      . Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 93(1); Crandall v. McGilvray, Mo., 270 S.W.2d 793, 797-798 (1); Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 323(16); Payne v. Smith, Mo., 322 S.W.2d 764, 767(1); Brooks v. Stewart, Mo., 335 S.W.2d 104, 105, 81 A.L.R.2d 508; Johnston v. Owings, Mo.App., 254 S.W.2d 993, 995(1); Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121, 127(1).

      . Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647 (2); Page v. Hamilton, Mo., 329 S.W. 2d 758, 762(5); Evett v. Corbin, Mo., 305 S.W.2d 469, 471; Asher v. Griffin, Mo.App., 342 S.W.2d 255, 257; Fowler v. Gulf, Mobile & Ohio R. Co., Mo.App., 286 S.W.2d 404, 408(1); Edelen v. St. Louis Public Service Co., Mo.App., 279 S.W.2d 188, 191(4); Smoot v. Fischer, Mo.App., 248 S.W.2d 38, 42(8); Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 785-786(3, 4).

      . Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 957(5); Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 228(1), 74 A.L.R.2d 938; Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 628; Dixon v. General Grocery Co.. Mo., 293 S.W.2d 415, 418; Anderson v. Kansas City Baseball Club, Mo., 231 S.W.2d 170, 171; Hudson v. Kansas City Baseball Club, 349 Mo. 1215, 164 S.W.2d 318, 320(3), 142 A.L.E. 858; Willis v. Rivermines I. G. A. Supermarket, Mo.App., 350 S.W.2d 437, 440(1); Heidt v. Lauless, Mo.App., 348 S.W.2d 599, 601(1); Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117, 125(6); McElroy v. S. S. Kresge Co., Mo.App., 244 S.W.2d 425, 428.

      . Gruetzemacher v. Billings, supra, 348 S.W.2d loc. cit. 957; Brown v. Kroger Co., Mo., 344 S.W.2d 80, 83(4); Harbourn v. Katz Drug Co., supra, 318 S.W. 2d loc. cit. 229 (2); Ostresh v. Illinois Terminal R. Co., Mo., 313 SW.2d 19, 22; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55, 57(4); Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468, 473(3); Dixon v. General Grocery Co., supra, 293 S.W.2d loc. cit. 419; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390, 393(1); Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, 371; Dye v. Peterson, Mo.App., 350 S.W.2d 272, 275; Bullock v. Sklar, Mo.App., 349 S.W. 2d 381, 384(1); Miller v. Cracchiola, Mo.App., 321 S.W.2d 18, 21(2); Adkins v. Sutherland Lumber Co., Mo.App., 307 S.W.2d 17, 21(4); Meyer v. St. Louis Public Service Co., 241 Mo.App. 1057, 253 S.W.2d 525, 531; Small v. Ralston-Purina Co., Mo.App., 202 S.W.23 533, 538.

      . In addition to the Brown, Harbourn, Howard, Stafford and Heidt cases, supra, see Harper v. First Nat. Bank of Kansas City, Mo., 196 S.W.2d 265, 268(3); Hudson v. Kansas City Baseball Club, supra, 164 S.W.2d loc. cit. 323 (8); Zimmerman v. Young, Mo.App., 280 S.W.2d 457, 461(8).

      . In addition to the Ostresh, Howard, Wilkins, Stafford, Summa, Paubel, Dye and Meyer cases, supra, see Schmoll v. National Shirt Shops of Missouri, 354 Mo. 1164, 193 S.W.2d 605, 607, and Hoffman v. Kroger Co., Mo.App., 340 S.W.2d 152 155(5).

      . Contrast Behnke v. City of Moberly, Mo.App., 243 S.W.2d 549 (the only case cited in instant plaintiff’s brief on the duty owing to an invitee), where plaintiff taxied his airplane into a muddy trench contiguous to a newly-constructed concrete parking apron at defendant’s airport, when the entire area was covered, with snow, plaintiff had no knowledge of the trench, and defendant had placed no markers and had given no warning. And Reed v. Swift & Co., Mo.App., 117 S.W.2d 636, where plaintiff, an employee of a market assisting in unloading meat from defendant’s delivery truck, stepped through a hole in the rotten wood floor of the truck, when the floor toas covered and concealed by papers and plaintiff had no knowledge, and was given no warning, of its condition. And Ridenour v. International Harvester Co. of America, Mo.App., 205 S.W. 881, in which plaintiff, the driver of a transfer wagon, was injured by a heavy box falling on his leg, tohere he toas in a stooping position, engaged in other work, and wholly unaware of danger when defendant’s employee loaded the box in an insecure, unstable and unusual position on an inclined wagon bed and then negligently jarred the bed by running a hand truck over it.


author: WOODLEY, Presiding Judge.

text:
    Willie T. MEDLOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 34490.
    Court of Criminal Appeals of Texas.
    April 11, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 10 days in’jail and a fine of $100.

The arresting officer testified that he followed the Cadillac automobile driven by appellant on a public street; that he had observed many persons who were drunk, and that in his opinion appellant was intoxicated when the Cadillac came to a stop and he arrested the appellant. His conclusion that appellant was intoxicated was based upon the fact that he was unsteady on his feet and talked with a thick tongue and a slur, that he smelled the odor of alcohol upon his breath, and that appellant, who was driving at a speed of approximately 70 miles per hour in a 35 mile per hour speed zone, and was weaving in and out of traffic and across the center line as he was following him, did not have complete control of the automobile or the normal use of his mental and physical faculties.

Appellant testified and offered witnesses who testified that he had consumed only one bottle of beer, and that he was not intoxicated.

The jury resolved the issue against appellant and the evidence is deemed sufficient to sustain the verdict.

The statement of facts is in narrative form, hence no informal bills are presented therein. Bobbitt v. State, 162 Tex.Cr.R. 206, 283 S.W.2d 946; Patterson v. State, 163 Tex.Cr.R. 482, 293 S.W.2d 656; Owen v. State, Tex.Cr.App., 350 S.W.2d 542.

There are no formal bills of exception.

Objections to the court’s charge were overruled, but no exception to the court’s ruling is shown, hence the complaints to the charge are not before us. Smith v. State, Tex.Cr.App., 353 S.W.2d 854; Stone v. State, Tex.Cr.App., 346 S.W.2d 323; Hanes v. State, Tex.Cr.App., 341 S.W.2d 428; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291; King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501; Kliesing v. State, 165 Tex.Cr.R. 585, 309 S.W.2d 445; Ayres v. State, 162 Tex.Cr.R. 586, 288 S.W.2d 511; Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734.

The same is true as to the refusal of a requested charge; there is no exception to the ruling of the court refusing such charge. Smith v. State, Tex.Cr.App., 353 S.W.2d 854; Mosley v. State, Tex.Cr.App., 352 S.W.2d 847; Carpenter v. State, Tex.Cr.App., 345 S.W.2d 412; Kogan v. State, Tex.Cr.App., 341 S.W.2d 925; Perkinson v. State, Tex.Cr.App., 339 S.W.2d 897; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291; Nichols v. State, 165 Tex.Cr.R. 600, 309 S.W.2d 461; Spivey v. State, 144 Tex.Cr.R. 432, 164 S.W.2d 668; Moore v. State, 163 Tex.Cr.R. 652, 296 S.W.2d 258; Ritchie v. State, 164 Tex.Cr.R. 38, 296 S.W.2d 551; Beaty v. State, Tex.Cr.R., 356 S.W.2d 802; and Leonard v. State, Tex.Cr.R., 356 S.W.2d 926.

The judgment is affirmed.


text:
    Elbert Jasper NEWSOM, Appellant, v. The STATE of Texas, Appellee.
    No. 34396.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    William H. Scott, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is procuring; the punishment assessed by the jury, 30 days in jail and a fine of $50.

The state’s evidence consists of the testimony of Vice Squa°d Officer D. H. Hadley. He testified that he went to the Brazos Hotel about 8:30 P.M. under assignment to make an undercover investigation in regard to alleged prostitution; that he registered under a false name; that appellant brought ice and seven-ups he had ordered to his room, at which time he asked appellant if he had a prostitute he could send to the room and said he wanted a date with one. Appellant said he would get one for him and left the room.

About 15 minutes later Virginia Mitchell, the female named in the complaint and information, came to the room and solicited Hadley for a $20 prostitution date.

Some 5 minutes later Virginia called for a porter and appellant came back to the room. Virginia told him that Hadley wanted another girl to come up, and appellant “said he would have another one right up there”.

Three to five minutes later Mary Ann Keith arrived and solicited Hadley for a $25 date for sexual intercourse. Hadley then called for appellant to send up “some setups”, and when appellant returned to the room Hadley identified himself to appellant and the two girls and placed them under arrest.

The information alleged that appellant procured Virginia Mitchell “to visit and be at a place, to-wit, at a house, room and place commonly known as Brazos Hotel” for the purpose of meeting and having sexual relations with a male person.

Appellant contends that there is a fatal variance because Hadley testified that he later learned that both of the girls who came to his room lived in the Brazos Hotel. No authorities are cited which sustain such contention.

Proof that the named female was procured “to he” at the place named for the purpose of meeting and having sexual intercourse with a male person constituted an offense under the statute, The evidence is deemed sufficient to sustain the allegations of the complaint and information.

The judgment is affirmed.


text:
    Elbert Jasper NEWSOM, Appellant, v. The STATE of Texas, Appellee.
    No. 34395.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    William H. Scott, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is procuring; the punishment, 30 days in jail and a fine of $50.

The complaint and information allege the procuring of Mary Ann Keith and trial was before the court. Otherwise the information, the evidence, and the questions raised are the same as in Newson v. State, Tex.Cr.App., 356 S.W.2d 313, wherein the judgment of conviction of the appellant herein was affirmed. Our opinion therein is here controlling.

The judgment is affirmed.


text:
    Amella Robert BOHLER, Appellant, v. The STATE of Texas, Appellee.
    No. 34512.
    Court of Criminal Appeals of Texas.
    April 11, 1962.

      No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the possession of amphetamine, committed subsequent to a final conviction for unlawful possession of barbiturates ; the punishment, 2 years in the penitentiary.

The indictment was drawn under Art. 726d, Vernon’s Ann.P.C. which provides that the term “dangerous drug” includes amphetamine or compounds or mixtures thereof, except preparations for use in the nose and unfit for internal use, and includes any barbiturate or other hypnotic drug.

Sec. 3(d) of said act declares it to be unlawful to possess such a dangerous drug unless obtained and possessed under the provisions of said act.

Sec. 15 provides the punishment for violation of Art. 726d, V.A.P.C., a second or subsequent violation being punishable by confinement in the penitentiary for not less than two years nor more than ten years.

The record shows that appellant’s previous conviction for the unlawful possession of a barbiturate was proved as well as stipulated.

It also shows that appellant filled out a prescription for 100 dexamyl tablets, signing the name Robert Bohler, the prescription bearing the abbreviation “M. D.”, and the narcotics registry number “1305”, and thereby obtained from the pharmacist, and the pharmacist placed in his hand 100 dexamyl tablets, dexamyl containing amphetamine.

The evidence further shows that appellant said he wanted some of the tablets to carry in his doctor’s bag and had the pharmacist mark the prescription “for doctor’s bag 276”, and it was proved as well as stipulated that appellant was not licensed to practice medicine in this state.

Appellant did not testify or offer evidence in his behalf.

No brief has been filed in appellant’s behalf.

The informal bills of exception shown in the statement of facts have been examined and are overruled.

The evidence admitted without objection and by stipulation of appellant and his counsel is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Gladys GUNISHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 34375.
    Court of Criminal Appeals of Texas.
    March 14, 1962.

      T. D. Wells, Paris, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder without malice; the punishment, one year.

The injured party and her brother lived across the street from the appellant. Immediately before the shooting, they had returned from a grocery store in a car with appellant’s stepson. After the car stopped near appellant’s home, without saying anything the appellant shot the injured party from a distance of about three feet with a .22 rifle while she was still in the car. The injured party was shot five times in the left side of the body. She was hospitalized for 12 days, and still limped as a result of these injuries.

The appellant told the officers to whom she surrendered that she had shot a girl. In answer to why she did it, she told the officer that she had told the girl the last time to stay out of her yard. They returned to the scene, and she showed the officers the .22 rifle she had used.

Testifying in her own behalf, the appellant stated that she had talked to the injured party about going with her husband; that she had seen him in a car in front of the injured party’s house; that she had asked her to stay out of her yard, and when she came into her yard on the night in question she got her gun and shot twice to warn her to stay out of her yard; and that she never intended to kill her.

The jury resolved the issues of fact against the appellant, and the evidence is sufficient to sustain the conviction.

Appellant insists that if she shot the injured party without a specific intent to kill, she was entitled to an acquittal of assault to murder, and that the trial court erred in failing to so charge the jury.

There are no objections to the court’s charge, and no requested charges are shown in the record. However, the court in the charge required the jury, in order to convict, to find the existence of an intent to kill on the part of the appellant. This was sufficient, and no error is shown. Woods v. State, Tex.Cr.App., 213 S.W.2d 685.

Appellant complains of certain remarks of the attorney representing the state in his closing argument to the jury.

The bills of exception show that the appellant did not object to such remarks when made. No request was made for the jury to be instructed not to consider them, and no motion was made for a mistrial. According to the record, the trial court was not made aware of any objection to the argument until the appellant complained thereof in his first amended motion for a new trial.

The complained of remarks violated no mandatory statute, and they were not so obviously harmful that an instruction to disregard would not have removed any error therein. 5 Tex.Jur.2d 75, Sec. 44; Thomas v. State, Tex.Cr.App., 330 S.W.2d 201; Leath v. State, Tex.Cr.App., 346 S.W.2d 346.

The judgment is affirmed.

Opinion approved by the Court