author: PRESLAR, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. John Smith CASSELMAN, Jr., and Odie Lavoy Morris, Appellees.
    Nos. 5842, 5843.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 21, 1966.
    Rehearing Denied Jan. 18, 1967.
    Clint Starr, County Atty., Willie E. Du-Bose, Asst. County Atty., Midland, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., Midland, for appellees.
   OPINION

PRESLAR, Justice.

Each of the above numbered and styled causes presents identical legal questions, and the parties to both appeals have heretofore requested that the causes be consolidated for purposes of briefing and argument. This opinion will dispose of both cases.

Each of the appellees filed suit in the County Court of Midland County, Texas, under the provisions of Article 6687b, section 22, Vernon’s Ann.Tex.St, for a trial de novo appeal from an affirmative finding of a justice of the peace court that each was “an habitual violator” of the traffic laws of the State of Texas and that his driving privileges should be suspended for a stated period of time. Both the Department of Public Safety and each ap-pellee moved for summary judgment; and from judgments denying the motions of the Department and granting summary judgment to each appellee, the Department brings these appeals.

In each case the Department of Public Safety moved for summary judgment (under the provisions of Rule 166-A, Texas Rules of Civil Procedure) in reliance upon four notices of convictions of moving traffic violations properly placed before the court by an affidavit of the Deputy Custodian of Records of the Department of Public Safety. The “notices of conviction” are certifications to the Department by corporation or justice courts of convictions for moving traffic violations. Four such convictions in a twelve-month period makes a driver an “habitual violator” by definition under section 22(b) of Article 6687b and entitles the Department to take the action here taken. The notices of conviction in all instances in the cases before us show that the driver entered a plea of guilty and was found guilty. This showing is made by a check mark in the appropriate place on a printed form. Appellees did not attack the form of these notices, but each attacked the convictions themselves, by affidavit stating that he did not appear in person or through an attorney at the trial. In his affidavit each appellee made statements as to each of three of the alleged convictions in language similar to the following :

“On September 30, 1964,1 was charged with speeding in the Corporation Court of the City of Odessa, Ector County, Texas, and on October 19, 1964, a purported judgment of conviction was entered against me in Cause No. 73958; I was not personally present, nor did any attorney appear for me at the time of the purported trial, and I did not appear in person or through an attorney at law at the time of the purported trial or at the time the purported plea of guilty was entered.”

The truth of these statements is not controverted, so that it stands established that appellees did not appear personally or by attorney. The Department of Public Safety relies on its Notices of Conviction as being abstracts of judgments not subject to collateral attack. The question for determination, then, is whether the non-appearance renders the convictions void. We are of the opinion that the convictions are void because of the provisions of Articles 580 and 581, Texas Code of Criminal Procedure, which were in force at the time of the alleged convictions, and which have been brought forward in the new Code of Criminal Procedure, so far as applicable here, in Articles 33.03 and 33.04. Article 580 provides:

“In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.”

The construction given to Article 580 by our courts is that the failure of the defendant to appear and plead, in a misdemeanor case where the punishment can be imprisonment in jail, renders the trial void. Washington v. State, 52 Tex.Cr.R. 323, 106 S.W. 361; Stewart v. State, 137 Tex.Cr.R. 39, 127 S.W.2d 903; Henderson v. State, 137 Tex.Cr.R. 18, 127 S.W.2d 902; Padillo v. State, 159 Tex.Cr.R. 435, 264 S.W.2d 715.

Under the state of the record in the cases before us, the above authorities require a holding that the prior convictions of appellees are void. The question remains as to whether they could be collaterally attacked in this civil action.

In Padillo v. State, cited above, a prior misdemeanor conviction was used for enhancement of punishment, and it was stipulated that the defendant did not personally appear and plead at the prior misdemeanor trial. Because of the stipulation, it was held that the prior conviction was void and could not be used for enhancement in another case. Thus, a collateral attack was permitted on the prior judgment of conviction.

Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.1964) is a case identical to the one before us in every material respect. After noting that the notices of conviction were, in effect, abstracts of judgments which, it must be presumed, reflected the provisions of the respective judgments, the court held that a judgment of conviction for a traffic violation may not be collaterally attacked. The court said:

“Unless the invalidity of these judgments is proclaimed upon the face of the judgments themselves, such judgments in this proceeding are to be afforded verity until set aside by a court having jurisdiction to do so.”

In Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.1964), it was again held that collateral attack could not be made on the judgments of conviction by affidavit of the accused that he did not personally appear. The Richardson case was cited as controlling. Crowe v. Texas Department of Public Safety, 406 S.W.2d 201 (Tex. July 1966) (rehearing denied Oct. 1966) is like the cases before us and the Richardson and Miller cases, in that it was a summary judgment case in which the Department relied on notices of conviction. It differs in that Crowe relied on an affidavit of the Judge of the Corporation Court in attacking the notices of conviction. The affidavit was to the effect that the cases were disposed of by a clerk of the court rather than a judge; that the affiant was one of the judges of the Corporation Court of the City of Amarillo, and that the traffic tickets would have the court’s signature or initials on them had they been disposed of by a judge. It was held that the suspension orders of the Department must fall, since it affirmatively appears there were no judgments of conviction in the supporting traffic violation transactions. We view the Crowe case as permitting a collateral attack upon the judgments of conviction. It was not an action taken in the convicting court to set aside its judgment, nor was it an appeal from the judgment of the convicting court. It was an attack upon a final judgment in another forum, in exactly the same manner and proceedings as in Richardson and Miller. It differs from those cases only as to the author of the affidavits in the summary judgment proceedings.

We are of the opinion that the cases before us are controlled by the Crowe case, it being a later expression of the controlling law than Richardson and Miller. It is not unlike ours, because it allows collateral attack to show no judgment, while the cases before us allow collateral attack to show a void judgment.

Appellant’s points of error are overruled.

The judgments of the trial court sustaining the motions for summary judgment of the appellees herein are affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Olin SCURLOCK et al., Appellants, v. Martin C. LOVVORN, Appellee.
    No. 16842.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 30, 1966.

      A. B. Conant, Jr., of Shank, Irwin & Conant, Dallas, for appellants.
    Clarence Bentley, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Summary judgment proceeding. Rule 166-A, Vernon’s Texas Rules of Civil Procedure. Martin C. Lovvorn brought this action against Olin Scurlock and wife, Mary Scurlock, and H. Gilson Scurlock, seeking judgment for an alleged breach of a written instrument. Plaintiff moved for summary judgment against all defendants and the defendant H. Gilson Scurlock moved for summary judgment against plaintiff. The trial court sustained plaintiff’s motion for summary judgment against defendants Olin Scurlock and wife, Mary Scurlock, and proceeded to render judgment against said defendants. The court denied plaintiff’s motion as to H. Gilson Scur-lock and sustained this defendant’s motion for summary judgment against plaintiff. This appeal has been perfected by Olin Scurlock and wife, Mary Scurlock, from that portion of the judgment granting plaintiff recovery against them for $30,000 plus interest. Plaintiff does not' appeal from that part of the judgment denying him relief against defendant H. Gilson Scurlock.

Appellants, in four points of error, attack the trial court’s action in granting appellee’s motion for summary judgment against them because they contend that there were at least four genuine and material issues of fact presented by the record and therefore summary judgment was improper. Our judicial review of the problems here presented is governed by well established guidelines which were re-announced by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965), as follows: (1) summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; (2) the burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him; (3) the evidence must be viewed in the light most favorable to the party opposing the motion; (4) if the motion involves the credibility of affiants or deponents the motion should not be granted; (5) all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true; (6) if there is uncon-tradicted evidence from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no •circumstances in evidence tending to discredit or impeach such testimony, this being especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.

By appellants’ first point of error it is contended that there is a controverted question of fact on the issue of whether there was any consideration for the agreement upon which appellee sues. The written instrument, made the basis of appellee’s cause of action against appellants, is as follows:

“June 29, 1959
“Mr. Martin Lovvorn, President
“Lovvorn-Davison, Inc.
“Meadows Building
“Dallas, Texas
“Dear Mr. Lovvorn:
“Upon your acceptance this letter shall constitute our agreement in connection with the loans which are due to you by Suburban Business Centers, Incorporated:
“The Corporation shall pay you the sum of $84,000 plus any interest which is accrued to date of payment. In consideration for services rendered and hereby acknowledged, we personally promise to pay to you the amount of $25,000.00 in accordance with the following provisions:
“a. You will be paid the above amount before either Gilson or myself receive from Suburban Business Centers, Incorporated any profits for our own use, whether these profits be in the form of dividends, bonuses or any salaries in the excess of those provided by my agreement of June 19, 1958 with W. H. Hudson. This provision should not prevent, however, the employment of Gilson Scurlock by the corporation at a reasonable salary for services rendered. For purposes of this paragraph, my agreement with W. H. Hudson provides that I shall receive $750.00 per month for three years and $300.00 per month thereafter.
“b. In the event of a pending sale of any of my interest in the corporation or any of Gilson’s interest in the corporation, you shall be notified and the above amount shall be paid to you upon sale of all of our interests in the corporation. In the event of a sale of part of our interests, your claim shall be considered a prior claim to be paid before Gilson Scurlock or I receive any proceeds from such a sale.
“c. The $25,000.00 shall become due and payable, however, not later than January 2, 1964. If payment of $25,000.00 is not made by January 2, 1964, it is agreed that the amount due hereunder shall become $30,000.00 and shall be paid by July 2,1964.
“This is a full settlement of all claims, contingent or otherwise, which may exist between any of the parties to this agreement on account of prior contracts or otherwise, and no action shall be brought on any obligation other than set out herein.
“It is agreed and understood that Howard Busby will remain an officer of the corporation and will determine the availability of profits for the benefit of Martin Lovvorn.
“/s/ Martin C. Lovvorn, Pres.
“MARTIN LOVVORN
/s/ Olin Scurlock
OLIN SCURLOCK
“ACKNOWLEDGED:
“/s/ H. Gilson Scurlock
“H. GILSON SCURLOCK
/s/ Mary Scurlock
MARY SCURLOCK.”

Appellants, by verified answer, expressly denied that the instrument sued upon was supported by consideration. Appellee sought to overcome this verified defense by introducing, through his affidavits in support of his motions for summary judgment, a note, a deed of trust and a contract, the release of such instruments, he contended, being the consideration for the agreement. Thus we are required to examine the terms of the various instruments to determine whether their release has the effect of creating a legal consideration for the execution of the basic instrument sued upon.

An examination of the documents and affidavits presented to the trial court in connection with the motion for summary judgment reveals a most complex course of dealings between the parties to this litigation, as well as between corporations which are not parties. It would serve no useful purpose to detail the elaborate and complicated transactions carried on between the parties and the corporations involved and we will therefore attempt to confine our recitation of the antecedent facts to those which are relevant to the issue here presented.

Prior to June 29, 1959 Martin C. Lov-vorn was president and a substantial stockholder in a corporation known as Lovvorn-Davison, Inc. According to Lovvorn’s affidavit Lovvorn-Davison, Inc. arranged financing and provided consultation services for a corporation known as Suburban Business Centers, Incorporated, which was engaged in the building of a shopping center and which said corporation was largely owned and controlled by Olin Scur-lock and his wife Mary. Lovvorn-Davison, Inc. owned a note and a contract entered into and executed by Suburban Business Centers, Incorporated, and that “on and before June 29,1959 Lovvorn-Davison, Inc. had a substantial and considerable claim against said corporation partially owned and controlled by the said Olin Scurlock and that there was considerable discussion between this affiant and Olin Scurlock concerning the liquidation of such claim.” According to Lovvorn he, as assignee of Lovvorn-Davison, Inc., and Olin Scurlock, Mary Scurlock and H. Gilson Scurlock, entered into the agreement of June 29, 1959 for the purpose of settling various disputed claims and clarifying the indebtedness between Lovvorn-Davison, Inc. on one hand and Suburban Business Centers, Incorporated and Olin Scurlock on the other hand. He alleged that on such occasion Lovvorn-Davison, Inc. surrendered a secured note in the amount of $100,000, a deed of trust, and a contract, which it had with “Olin Scurlock and the said corporation, Suburban Business Centers, Incorporated”, to defendant Olin Scurlock in consideration for and upon the execution of the agreement. Lovvorn further said that “Lovvorn-Davison, Inc., had fully performed all of its obligations under Exhibit C (the deed of trust).”

The note in question is dated May 28, 1957 and in the principal sum of $100,000 executed by Suburban Business Centers, Inc. by Olin Scurlock, President and “Cosigner: Olin Scurlock”. Said note is payable to one Howard Busby and shows to have been assigned by Busby to Lovvorn-Davison, Inc., without recourse. The note provides that:

“This note is due and payable as follows, to-wit:
“The principal balance, together with interest at the rate of 6% per annum from the completion date of the improvements on the property known as the ‘NORTH TRACT’ * * *.” (Emphasis ours.)

The deed of trust is executed by Suburban Business Centers, Incorporated, by Olin Scurlock, President and is given to secure the payment of the above described note.

The contract, dated May 17, 1957, shows to have been executed by Lovvorn-Davison, Inc. by Martin C. Lovvorn and Suburban Business Centers, Inc. by Olin Scurlock, President. In Paragraph 9 of the contract it is provided that:

“The term ‘Scurlock’ shall be construed to mean: ‘Suburban Business Centers, Inc.’, a Texas Corporation, and the instruments executed hereunder shall specify such corporation instead of Scur-lock. Scurlock shall endorse the notes herein to the extent of $90,000.00.”

The contract provides that for services rendered by Lovvorn-Davison, Inc. in connection with the shopping center known as “Irving Shopping Village” “Scurlock” agrees to execute a note in the principal amount of $180,000, secured by first lien on the north and south tracts of land in question, said amount being divided (a) $80,000 due on or before one year from date of note and (b) the balance of $100,-000 payable together with interest at the rate of six per cent from the completion date of the north tract.

In opposition to the summary judgment motion Olin Scurlock made an affidavit in which he states that there was “absolutely no consideration for the $100,000.00 note payable to Howard Busby” and “furthermore, the note on its face shows that it was not to become payable until the completion of the improvements on the north tract of the shopping center. The north tract was never actually completed.” He further stated:

“The sole purpose of the note was to be the profit which Lovvorn-Davison, Inc. would realize from the completion oí the entire project. Lovvorn-Davison did not pay anything of value, either money or anything else for the assignment of the note by Howard Busby.”

He further stated that:

“ * * * any claims referred to in the contract set out as Exhibit A to Mr. Lov-vorn’s Affidavit and as Exhibit No. 7 attached to my deposition were claims against Suburban Business Centers, Inc. and not against myself or Mary Scur-lock personally.”

Howard Busby executed an affidavit in opposition to the motion for summary judgment in which he stated that as payee of the $100,000 note, which was co-signed by Olin Scurlock, that he did not give any money or anything else of value to Suburban Business Centers, Inc. or to Olin Scur-lock in consideration for the execution of this note. He said:

“Neither did I receive any money or anything else of value from Lovvorn-Davi-son, Inc. or Martin Lovvorn, in consideration for the transfer and assignment of this note to Lovvorn-Davison, Inc.”

He also said:

“The $100,000.00 was to be in payment of expected profits upon the completion of the north tract of the Irving Shopping Village and payment was not to begin on the note until the completion of the north tract as is stated in the note. The reason the note was made payable to me rather than directly to Lovvorn-Davison, Inc. was, as I recall, an effort to avoid a subsequent claim by Suburban Business Centers, Inc. or Olin Scurlock, that there was no consideration for the execution of the note by Suburban Business Centers, Inc. and Olin Scurlock.”

In this state of the record, when viewed in the light of the rules established and recited above, there can be no escape from the fact that the question of lack of consideration of the written instrument sued upon is adequately raised and should have been submitted to a trier of fact for resolution. Numerous questions are presented concerning the personal liability of Scurlock and wife as opposed to the liability of the corporation controlled by them and which is not a party to this litigation. Appellee makes no effort to refute the fact that the $100,000 note is not due, according to its own terms. No effort is made to refute the fact that the improvements on the north tract, referred to in the note, were never completed. It was not the duty of the trial court, nor is it our duty, to resolve the issues presented. We find from a reading of this record that the existence of a valid legal consideration for the instrument sued upon is not established as a matter of law and therefore summary judgment should not have been rendered.

By their second point of error appellants contend that the record reveals the controverted question of fact on the issue whether the agreement upon which appellee sues was signed by appellants under duress of property.

In his affidavit in opposition to the motion for summary judgment appellant Olin Scurlock stated that appellee had already attempted to foreclose the deed of trust and that:

“He was threatening to pull another foreclosure which, of course, he had no right to do, since the $100,000.00 note for which the deed of trust he was threatening to foreclose was given to secure, was not payable until the completion of all of the north tract * * *. Mary Scurlock and I signed the contract of June 29, 1959 personally, rather than as officers of Suburban Business Centers, Inc. solely as a result of these threats and duress asserted and exerted by Martin C. Lovvorn. We felt that this was the only hope we had of salvaging the shopping center project and Suburban Busi-nes Centers, Inc., the corporation in which we had a large interest.”

Appellant Scurlock also testified in his deposition that appellee had “held the threat” of foreclosure to compel payment by him personally of the corporation’s indebtedness. Appellee made no effort to controvert this portion of appellant Scur-lock’s affidavit and deposition testimony, except by extensive cross-examination of Olin Scurlock.

The doctrine of duress of property is well recognized in Texas law. That there may be duress of property as well as of person is now thoroughly established. McGowen v. Bush, 17 Tex. 195, 196, 201; Oliphant v. Markham, 79 Tex. 543, 15 S.W. 569, 23 Am.St.Rep. 363. Our courts have held that duress of property cannot exist without there being a threat to do some act which the threatening party has no legal right to do, some illegal exaction or some fraud or deception. The restraint must be imminent and such as to destroy free agency without present means of protection. Ward v. Scarborough, Tex.Com.App., 236 S.W. 434; Dale v. Simon, Tex.Com.App., 267 S.W. 467. This rule of law, established many years ago, has been consistently followed. Outlaw v. Settegast, Tex.Civ.App., 338 S.W.2d 291; Lawrence v. J. M. Huber Corp., Tex.Civ.App., 347 S.W.2d 5; and Daugherty v. Gower, Tex.Civ.App., 403 S.W.2d 535.

The facts testified to by appellant Olin Scurlock by affidavit and deposition clearly raise the issue of duress of property which should not have been summarily decided by the trial court.

By appellants’ third point contention is made that there was a controverted question of fact upon the issue of whether the obligation sued upon was for the payment of usurious interest.

Rule 93, T.R.C.P., provides inter alia that a defense of usury must be raised by verified pleadings. The question of usury was not presented by appellants’ pleadings and is brought forward here for the first time. Appellants’ point is overruled.

By their fourth and final point of error appellants contend that the record demonstrates the controverted question of fact of whether the additional $5,000 required under the agreement upon which appellee sues was a penalty or was interest at a usurious rate. The contract sued upon provides that if the sum of $25,000 is not paid by January 2, 1964 the amount due shall become $30,000 and shall be paid by July 2, 1964. The instrument is silent as to the nature of this added amount and appellants contend that there are only two possibilities: (1) the $5,000 was a penalty for failure to pay $25,000 by January 2, 1964, or (2) it was interest on $25,000 for its use for a period of six months, and therefore usurious. As we have stated in connection with our disposition of appellants’ point 3 there were no pleadings relating to usurious interest pursuant to Rule 93, T.R.C.P.

However, the specific terms of the contract sued upon clearly present a ■question of construction of the meaning of the $5,000 additional sum therein provided. Such amount is either to be considered liquidated damages or a penalty. The answer to the question depends upon the “true intention of the parties which is to be ascertained by the terms of the instrument itself, if possible. Whenever there is a doubt in regard to such a matter the law will declare the sum reserved to be a penalty rather than liquidated damages. Kellam v. Hampton, 58 Tex.Civ.App. 484, 124 S.W. 970; Durst v. Swift, 11 Tex. 273; Hall v. York, 16 Tex. 18.

In Sanders Nursery Co. v. J. C. Engelman, Inc., Tex.Civ.App., 109 S.W.2d 1131 the court, relying upon previous Supreme Court decisions, said:

“The inclination of the court is to construe the amount named as a penalty, unless the evident intention of the parties clearly appears to the contrary, Eakin v. Scott, 70 Tex. 442, 444, 7 S.W. 777; and the courts seem to have placed the burden upon the party claiming it to be liquidated to show that such was the intention of the parties, Farrar v. Beeman, 63 Tex. 175, 180; and that, where doubt appears, it will be resolved in favor of a penalty, Kellam et al v. Hampton, 58 Tex.Civ.App. 484, 124 S.W. 970.”

The court in this instance obviously and by implication resolved the question without the benefit of testimony revealing the true intention of the parties with reference to such added amount. We think that the record presented an issue of fact which should have been resolved by a trier of fact. Appellee, in his brief, impliedly concedes there may be a question as to this issue and says that if we reverse the case it should only be limited to the single matter. We cannot agree. For the reasons stated the entire case must be reversed so that all controverted issues raised by the pleadings and evidence may be submitted to the court or a jury for determination.

The judgment of the trial court is

Reversed and remanded.


author: DIXON, Chief Justice.

text:
    STANLEY, HARRIS, RICE & ASSOCIATES et al., Appellants, v. Marvin LEWIS, Appellee.
    No. 16836.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1966.
    Charles Ben Howell of Howell & Pan-taze, Dallas, for appellants.
    Marvin Lewis, Dallas, for appellee.
   DIXON, Chief Justice.

This suit was filed pursuant to the permissive joinder provisions of Rule 40, Vernon’s Texas Rules of Civil Procedure.

Stanley, Harris, Rice & Associates sued appellee Lewis on sworn account for services rendered in shorthand reporting for the sum of $222.32 plus $232.22 as attorney’s-fees.

Bobby Py Pinkston & Associates sued ap-pellee Lewis for services rendered for the sum of $35.00 plus $35.00 as attorney’s fees.

In their verified petition appellants pleaded that appellee had acknowledged the justness of their claims, had promised to pay, had asked for additional time and had been granted an extension of time to pay.

In his amended verified answer appellee pleaded that three of the four items making up the account were barred by limitations.

Appellants filed a motion for summary judgment for the full amount sued for including attorney’s fees. Attached to the motion is the affidavit of appellants’ attorney that a fair and reasonable fee for his-services is the sum of $257.32.

At the hearing on appellants’ motion the court rendered judgment for Stanley, Harris, Rice & Associates for $53.90 plus $25.-00 as attorney’s fees, and that appellants take nothing on all their other claims.

Appellee did not file a brief on appeal.

We agree with appellants when they say that the court erred in holding that three of the four items were barred by limitations and in finding that $25.00 was a reasonable attorney’s fee. Himes v. American Home Fence Co., 379 S.W.2d 290 (Tex.Sup.Ct.).

In their verified petition appellants do not plead that the alleged extensions of time for payment were in writing pursuant to Art. 5539, Vernon’s Ann.Civ.St., nor do they allege the dates of said alleged extensions, or the periods of time for which said extensions were granted.

The pleadings of appellants and appellee on the issue of limitations though verified, do not meet the requirements of Rule 166-A, T.R.C.P., as to the sufficiency of affidavits and they are not supported by proper affidavits or other evidence meeting the requirements of the rule. Such pleadings alone are not evidence of the truth of their allegations and will not support a summary judgment. Texas State Board of Registration for Professional Engineers v. Trimble, Tex.Civ.App., 366 S.W.2d 124 (no writ hist.); Television Broadcasters, Inc. v. Motion Pictures for Television, Inc., Tex.Civ.App., 368 S.W.2d 851 (no writ hist.); Alexander v. Houston Oil Field Material Co., Tex.Civ.App., 386 S.W.2d 540 (ref. n. r. e.); Wilson v. Mitchell, Tex.Civ.App., 299 S.W.2d 406 (no writ hist.).

In rendering judgment for only $25.00 the court doubtless took into consideration its implied finding that most of appellants’ claims were barred by limitations. Thus the court undertook to make a fact finding that $25.00 was a reasonable fee under the circumstances. But there is no evidence by affidavit or otherwise that $25.00 is a reasonable fee.

The practical effect of the court’s judgment was to reject and overrule appellants’ motion for summary judgment and to render a judgment necessarily based on the court’s implied findings on fact issues in regard to limitations and attorney’s fees.

The judgment of the court is reversed and the cause remanded to the trial court for another trial.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    Edward Lee HICKS, d/b/a Hicks Rubber Company, Appellant, v. Mary Dell HOOVER, Appellee.
    No. 16838.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1966.

      Jack C. Wessler and Ira Butler, Jr., of Cantey, Hanger, Gooch, Cravens & Scarborough, Ft. Worth, for appellant.
    William Woodburn & Houston E. Holmes, Jr., of Worsham, Forsythe & Woodburn, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Edward Lee Hicks appeals from an order overruling his plea of privilege to be sued in Tarrant County, where he resides. In her suit against him, the appel-lee Mary Dell Hoover alleged that State Tire Company, Inc. (hereinafter called State Tire) owed her for unpaid rents due under a lease agreement in writing between her and that company, and that appellant purchased from State Tire its inventory of tires and like goods, wares and merchandise and equipment without complying with the provisions of Vernon’s Ann.Civ.St, Art. 4001, commonly known as the Bulk Sales Law, in that he did not demand of and receive from the seller a sworn list of its creditors and did not give such creditors notice of such sale or transfer, by reason of which failures he became liable and accountable to her as a receiver of all such merchandise and fixtures. She prayed for judgment declaring and adjudging the sale or transfer to appellant to be in violation of the Bulk Sales Law, that appellant be adjudged to be a receiver or trustee by virtue of such statute and required to account as such.

In appellee’s controverting affidavit to appellant’s plea of privilege she alleged that appellant’s failure to comply with Art. 4001, V.A.C.S., constituted a fraud upon the creditors of State Tire occurring in Dallas County within the meaning of subdivision 7, and a trespass in Dallas County within the meaning of subdivision 9, of Art. 1995, V.A. C.S. After proper notice and hearing, the court overruled appellant’s plea of privilege.

Appellant presents three points of error on appeal asserting error in the overruling of his plea of privilege because (1) there is no competent evidence, or insufficient evidence, of the existence of the essential venue facts to bring the case within either of the exceptions to the general rule of venue relied upon by appellee; (2) there is no competent evidence of the basis of ap-pellee’s cause of action, which basis appellee sought to establish by introducing in evidence the lease agreement in question; and (3) the lease agreement, the basis of appel-lee’s cause of action, was erroneously received in evidence over appellant’s objections that the identity and position of the person executing the lease on behalf of State Tire were not established. These points of error are presented together in appellant’s brief, and we shall consider and dispose of them together.

In his testimony appellant concedes that he did not demand of or receive from State Tire a sworn list of its creditors or notify appellee of the purchase. He urges reversal on the sole proposition that, since appellee’s cause of action is based upon the existence of a written lease agreement between her and State Tire, and this lease was improperly admitted in evidence, ap-pellee did not even prove that she was a creditor of State Tire, making it unnecessary to brief the questions of whether his violation of the Bulk Sales Law actually constituted either a trespass or a fraud. If these latter questions may be considered raised by any of the points, they are not argued in the briefs and whatever rights appellant might have had with respect thereto may be deemed to have been waived. Rule 418, Vernon’s Texas Rules of Civil Procedure; Thigpen v. Locke, Tex.Sup., 363 S.W.2d 247, 249; Lane v. Security Title & Trust Co., Tex.Civ.App., 382 S.W.2d 326, 331; Luby v. City of Dallas, Tex.Civ.App., 396 S.W.2d 192, 198.

The question of whether the trial court erred in admitting the lease in evidence is not determinative of this appeal. Appellant contends it was inadmissible because appel-lee failed to prove that one Sullivan, who signed the lease as president of State Tire, actually was its president and duly authorized to execute the lease for it. However, the witness Peter Baldwin, the real estate broker who negotiated the lease, testified that he negotiated the lease with Sullivan, who purported to act as president of the company and that State Tire took possession of the premises about the middle of June, 1960 and occupied them more than two years and paid the rental due under the written lease until it vacated the premises in August, 1962; that after State Tire vacated the premises there were certain repairs which appellee paid to have made, and that she then rented the property to two different tenants, paying him a commission for finding the new tenants, and that the total of unpaid rent, the repairs and commission was $24,972, against which State Tire was entitled to a credit of $18,000 on account of rents paid by the new tenants; that he made attempts to collect this balance of rental due but that the amount stated remained unpaid after such attempts.

This uncontradicted testimony established a set of circumstances sufficient to show that the corporation executed the lease, making it admissible. Abeel v. Weil, 115 Tex. 490, 283 S.W. 769, 775.

Moreover, such testimony was amply sufficient to support the court’s implied finding that appellee was a creditor of State Tire, regardless of whether the lease itself was admitted in evidence. Therefore, any error there may have been in admitting the lease agreement in evidence was harmless. Rule 434, T.R.C.P.

The order overruling appellant’s plea of privilege is

Affirmed.


author: ANDERSON, Judge. RUDDY, Judge

text:
    James HARTLEY, Plaintiff-Appellant, v. Kenneth E. OIDTMAN, Defendant-Respondent.
    No. 32421.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.
    Motions for Rehearing or to Transfer to Supreme Court or to Modify Denied Dec. 12, 1966.
    Application to Transfer Denied Feb. 13, 1967.

      John O. Bond, Jefferson City, for plaintiff-appellant.
    Hendren & Andrae, Henry Andrae, John E. Burruss, Jr., Jefferson City, for defendant-respondent.
   ANDERSON, Judge.

This is an action to recover $15,000 actual damages and $10,000 punitive damages for an alleged assault on plaintiff, the trial of which resulted in a jury verdict in favor of defendant. Plaintiff has appealed. In his argument, plaintiff’s counsel told the jury, “I would say in all that this young man has suffered actual damages of $5,000.” Plaintiff having adopted a trial theory that he was only entitled to $5,000 actual damages and $10,000 punitive damages, the jurisdiction of this appeal is in this court. Beasley v. Athens, 365 Mo. 158, 277 S.W.2d 538.

Plaintiff presents four points for our consideration. Three of the points are based on the contention that defendant’s evidence conclusively shows that defendant was the aggressor in that he first assaulted plaintiff, and for that reason the trial court erred in overruling plaintiff’s motion to direct a verdict for plaintiff on the issue of liability; in giving Instruction No. 7, which submitted self-defense; and in giving Instruction No. 2, which was on the burden of proof. In his other point, plaintiff presents the contention that the trial court erred in admitting evidence of other altercations between plaintiff and others which was not connected with the occurrence in question.

Defendant was the owner and operator of a tavern known as the Sunset Lake Lounge in or near Jefferson City, Missouri. At the time of the incident in question his age was twenty-two years. On the evening of February 9, 1963, plaintiff, twenty-two years of age, was a participant in a basketball game. After the game, plaintiff and his girl friend, who at the time of the trial was plaintiff’s wife, together with Jack Casteel and his girl friend and Don Roark went to defendant’s tavern, arriving there at approximately 10:30 P.M. At the time of their arrival, there were a number of patrons present. Among them was a group of high school seniors. In this group, among others, were Jerry Tellman, his girl friend Martha Preuss, Tom Debruck, and a brother of defendant. The tavern was equipped with facilities for a shuffleboard game and plaintiff and Debruck engaged in a game. It seems there was an understanding between them that the loser of the game would buy a pitcher of beer or pay the winner $1.00 in cash. After playing for some time, plaintiff and Debruck had an argument about the payment of the $1.00. Witnesses said that loud and vile language was used by the two participants which could be heard by all of the patrons in the tavern. Defendant, who was the bartender that evening, tried to stop the argument, and when he learned it concerned the payment of $1.00, he got a one dollar bill out of his cash register and offered it to plaintiff. Plaintiff refused to take the money saying, “ * * * we want De-bruck’s dollar.” It seems that the quarrel subsided for a short period of time but thereafter began again. Defendant returned to the participants in the argument and on this occasion he carried a blackjack in his hand. According to plaintiff’s testimony, he pounded the blackjack on the bar, at the same time using vile language, and told plaintiff that if he did not get out of the tavern he would hit him in the head with the blackjack. Defendant did not remember beating the blackjack on the bar but admitted having it in his possession. He denied threatening to hit plaintiff over the head with it. He said he told plaintiff, “Either you’re going to have to leave or I’m going to have to call the police.” Plaintiff told him that he and his group would leave. One of plaintiff’s own witnesses said that defendant did not pound the blackjack on the bar and a witness for the defendant said that defendant did ask plaintiff to leave and said that if he did not he (defendant) was going to call the police. Thereafter, plaintiff and his group left the tavern and defendant followed them. However, before following plaintiff and his group to the outside of the tavern, defendant hung the blackjack behind the bar. When plaintiff and defendant were outside, defendant put his arm around plaintiff’s shoulder and said, “ ‘Jim, we have been friends for a long time, let’s not have any hard feelings.’ ” Plaintiff said, “ ‘No, everything is all right.’ ” Plaintiff then asked defendant if he could go back into the tavern and use the toilet. Defendant gave his consent. Plaintiff then re-entered the tavern for that purpose.

The testimony further shows that in order to get to the toilet it was necessary to go through a large archway between the tavern and a room adjacent to it, the toilet being somewhere beyond this other room. Plaintiff, after entering the tavern through the front door, headed for the archway. To reach this objective, it was necessary for him to pass the other group of young people, heretofore mentioned, who were in the vicinity of the archway preparing to leave the premises. According to plaintiff’s testimony, Martha Preuss “said a few words to me and I just told her right back * * * and she slapped me right here on the face and I pushed her hack like this. I didn’t knock her down or anything, just pushed her back and that’s when her boyfriend came at me and I swung and hit him in the eye.” Plaintiff then walked through the archway to the men’s toilet. .

Jerry Tellman was the person plaintiff struck. He was knocked down and was severely injured by the blow. He received a cut under the eye and was later taken to the hospital where the wound was sutured. According to defendant’s evidence, Tellman did nothing to provoke the assault. Defendant testified that he entered the tavern after plaintiff returned to go to the toilet, and as he entered through the door, he saw plaintiff strike Tellman. He testified: “ * * * Well, Martha Preuss was saying something. * * * And I never actually heard what Martha had said. * * * but the next thing I knew Jerry Tellman was walking up to Jim (plaintiff) and I never saw Jerry take a swing; I swear to God, I never saw that at all. And he had his arms down at his side and before I knew it Jim had hit him and he cut this part of his eye. The only thing I saw was the white of his eye. I thought he might have hit him hard enough to put it out. So I went and got a wet bar rag. * * * Q. You say Tell-man was walking toward him and he had his arms down? A. That’s the only way I can remember it, walking with his hands at his side. I cannot remember him making a pass at all.” Tellman was not a witness in the case. He was killed in an automobile accident prior to the date of the trial.

Joan Lee Gerlach, a witness for defendant, testified she was in the tavern with Martha Preuss. She stated that prior to being struck, Tellman was “just standing there;” that he did not have his hands up, threatening; and that she was standing next to him. “Q. And then what happened? A. Jim Hartley hit him and he cut his eye open right underneath here and it looked awful. Q. Did Hartley have anything offered toward him in the way of any threats at all by Tellman? A. No. Q. You mean he just hauled off and hit Tellman? A. Yes, he did * * * I was standing right next to Jerry when he hit him and he fell. He fell flat on his back and we didn’t know whether he was hurt — . Q. Did he give him any warning that he was going to hit him in the eye? A. No, sir. Q. I’m talking about plaintiff, here. A. No, he didn’t do anything, he just hauled off and slugged him one in the eye.”

Edward Goodin testified on behalf of defendant concerning the Tellman incident. He stated that prior to plaintiff striking Tellman, the latter and Martha Preuss were at a coat rack near the door putting on their coats when plaintiff and Miss Preuss got into an argument and Miss Preuss slapped plaintiff; that when this occurred, plaintiff stepped back, and Tellman moved beside Miss Preuss; that plaintiff then hit Tell-man; thaf when Tellman moved toward Miss Preuss he did not threaten plaintiff in any way; that Tellman had been turned a little sideways getting coats and “just kind of turned around;” that he did not offer any violence, threats or force to plaintiff; that plaintiff gave Tellman no warning “that he was going to deck him.” There was no testimony as to what was said either by Martha Preuss or plaintiff prior to plaintiff striking Tellman.

When defendant was asked what this incident did toward his attitude, he answered :

“A. Well, it kind of got your hair all up again. I mean you just got one thing all over with and you started all over again.
“Q. Did it upset you? A. Well, yes, sir, it would.
“Q. Did you have any knowledge as to any duty you may have had to protect your customers as the proprietor of a tavern ?
“A. Well, I wasn’t going to let anybody else get hit. I knew that.”

Before plaintiff returned from the toilet, defendant took up a position in the archway. He stood with his hands over the top of the door and slightly to the right hand side, leaving ample room, however, for plaintiff to pass between where he was standing and the door jamb. Plaintiff’s wife, who was outside the tavern sensed trouble when she saw Tellman being taken out and ran back into the tavern. She saw defendant standing in the archway and asked him what was going on. According to her testimony, defendant grabbed her by the arm and said, “ ‘Get out of here, you’re going to get hurt.’ ” About that time, plaintiff approached the archway on his way back from the toilet. Defendant testified: “Well, he came out of there and he still looked like he was still a little bit mad anyway, and so I — I don’t know, I kind of took a swing at him, more or less. I didn’t want him getting next to me because I didn’t want to get hit at all. And I didn’t hit him. Or he blocked it. And so then he hit me and knocked me up against a table. And so I got up — more or less holding on to him, and then I hit him and he fell back, not too very far from that planter. And he fell back on his back and the first thing he did, he put his hands to his face and he said, ‘Oh, my jaw.’ And that’s all he said.”

Defendant further testified:

“Q. When you saw Hartley coming toward you from out of the restroom did you have any apprehension or fear that he might assault you ?
“A. I thought if he had done it once he could do it again.
“Q. Was this why you struck him or struck at him?
“A. Struck at him, yes sir.
“Q. You wanted to ward him off ?
“A. Yes, sir.
“Q. And he was coming toward you ?
“A. * * * Yes, sir.
“Q. But there was room for him to go—
“A. Pass by.”

Defendant further testified that nothing was said between them before the blows were struck. Afterwards while plaintiff was down, plaintiff said he had had enough. Defendant then helped plaintiff up and applied a wet towel to his face. Plaintiff then left the premises with the assistance of his friends.

On cross-examination, defendant testified that when he exhibited the blackjack on the occasion of the argument between plaintiff and Debruck, he was angry. When asked whether plaintiff, as he approached the archway door, was walking along naturally, replied, “Oh, I guess he was. Still kind of mad * * * I couldn’t tell you if he was walking slow, fast or normally. I would say he was just on his way. My way.” He stated he was standing in archway door because he did not want any more of his customers hit; that he already had one hit and sent to the hospital; that he never saw Tellman strike at plaintiff, but that when he saw Tellman the latter was talking to plaintiff with his hands down at his sides; that he struck at plaintiff to keep someone else from being hurt. He admitted that as plaintiff came through the archway, plaintiff asked, “ ‘What’s going on ?’ ” and then he “swung at him.” Two witnesses for defendant testified they saw Martha Preuss slap plaintiff; that Tellman did nothing and said nothing to plaintiff; and that plaintiff without warning struck Tellman.

It is plaintiff’s contention on this appeal that the trial court erred in overruling his motion for a directed verdict on the issue of liability, and in giving and reading to the jury, defendant’s self-defense instruction. In support of these assignments, it is urged that defendant’s own evidence shows he was the aggressor in the encounter, having first struck at plaintiff, without provocation, while angry and after lying in wait for plaintiff to return through the archway into the tavern. It is urged that plaintiff committed no overt act which indicated he was angry at defendant, or intended to assault defendant or any of his customers. As a further argument, plaintiff in his brief states that the evidence showed that the altercation between Martha Preuss and her escort had completely terminated; that defendant was angry and for that reason assaulted plaintiff. It seems to be plaintiff’s contention that the testimony concerning his violent and disgraceful conduct that evening prior to his encounter with defendant at the archway should not be considered in determining whether defendant at the time he struck at plaintiff had reasonable grounds to believe he was in danger of receiving bodily harm or that other customers would likely be attacked.

Defendant takes the view that it was for the jury to determine from all the facts and circumstances, including plaintiff’s previous turbulent behavior that evening, whether defendant was legally justified in his actions on the ground he acted in self-defense, and to protect his customers from probable bodily harm.

The rule of law to be applied to the fact in this case is stated in Restatement, Second, Torts Sec. 63, p. 98.

“(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
“(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself.
“(a) by retreating or otherwise giving up a right or privilege, or
⅜ * ⅝ * * *

In Section 76 of the same work, the rule applicable to the defense of third persons is stated as follows:

“The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that
“(a) the circumstances are such as to give the third person a privilege of self-defense, and
“(b) his intervention is necessary for the protection of the third person.”

In the reporter’s notes to this section, after pointing out that while originally the right of defense of others was restricted to members of the actor’s family or household, such narrow application under modern law has been abandoned. It is said:

“(e) * * *
“The restriction of the privilege to intervene on behalf of third persons to those who are members of the actor’s family or household was founded upon conditions long since past. Such a restriction is inconsistent with the duties which the law imposes upon persons standing in many relations to others, which require them to protect such others from the invasion of their interests of personality. Obviously it is impossible that liability should be imposed as a penalty for doing that which there is a legal duty to do.
“(f) But even though there is no relation which imposes a legal duty to act for the protection of another, the restriction of the privilege to intervene for the protection of third persons, even from harm less than death or serious injury, to members of the same family or household is opposed to the settled usages of modern society. The same policy which permits intervention to prevent a breach of the peace, stated in § 141, justifies one human being in the use of reasonable force to protect the safety of another, without regard to any relation between them; and in the ordinary case the two privileges are so merged that it is impossible to distinguish them. As stated in Salmond, Torts, (11th ed. 1953) 375, ‘It may safely be assumed that at the present day all such distinctions are obsolete, and that every man has the right of defending any man by reasonable force against unlawful force.’ ”

Where a person has reasonable grounds to believe, and does believe that another is about to assault him, or do bodily harm to one to whom he owes a duty to protect, he need not wait until the other person actually strikes or makes an assault before resorting to the application of reasonable force to repel the expected attack. State v. Daugherty, Mo., 196 S.W.2d 627. And it has been held that where the person does not use a deadly weapon, fear of bodily harm only is sufficient to support a justification by self-defense in a civil action. See 6 Am.Jur. 2d, Assault and Battery, § 159, p. 134. It is also our belief that in considering the plea of self-defense, the time, place and surrounding circumstances must be considered together with the actor’s knowledge of previous acts and the reputation of the person believed to be threatening bodily harm.

The evidence shows that plaintiff during his stay at the tavern and for some period of time that evening engaged in a violent argument with another customer, using vile and obscene language which could be heard by everyone in the tavern, including several teenage girls who were present. It could be found from the evidence that the argument was of such a nature as to lead one situated as was defendant to believe that physical violence was likely to occur unless stopped. Defendant attempted to stop the argument by offering plaintiff the sum of money over which the argument raged, but said offer was refused. There was a lull in this disturbance for a short period of time but the argument was resumed and on account of its quarrelsome and vile nature, defendant was forced to order the disputants and the group with them out of the tavern. Plaintiff, thereafter, re-entered the tavern and immediately engaged in an argument with Martha Preuss. The record does not show what was said during the argument, but it does appear that Martha slapped plaintiff in the face. The slap was administered in retaliation for something said by plaintiff, which was, no doubt, of a vile and insulting nature. Plaintiff then gave Martha a violent shove, and when her escort, Tellman, turned to see what had occurred, plaintiff without provocation, knocked him down.

As a result of this blow, Tellman suffered a severe cut under the eye and had to be taken to a hospital where the wound was sutured. Defendant witnessed this episode as he was returning through the tavern door from the outside where he had previously gone in an attempt to pacify plaintiff. A few minutes later, plaintiff, returning from the toilet, approached the archway. He had an angry look on his face and came toward defendant although it was not necessary for him to do so, since defendant was not blocking the archway, but stood at one side leaving ample room for plaintiff to pass between defendant and the door jamb. Defendant, in effect, testified he was at that time apprehensive and in fear that plaintiff might assault him, his testimony being that he swung at plaintiff because he did not want plaintiff to get next to him — that he did not want to get hurt. He also stated he was standing in the archway at the time because he did not want any more of his customers hit. A finding that defendant was in fear for the safety of his customers is fortified by the fact that he told Linda Cartwell, who had returned to the tavern from the outside, to “get out of here, you’re going to get hurt.” It also appears that plaintiff had a turbulent disposition, and had engaged in previous fights of which defendant was aware. From this evidence and the testimony of the violence exhibited by plaintiff just prior to the alleged assault and the manner of his approach toward defendant who stood in the archway, a jury would be justified in believing that on the occasion in question plaintiff ran amuck, and exhibited such violence as would put a person situated as defendant was, in reasonable fear for his safety and that of his customers. This exhibition of violence which plaintiff apparently enjoyed ceased only after he was knocked to the floor after striking defendant, as evidenced by his remark that he had had enough.

It is true that in this case different inferences concerning the ultimate fact issues could be drawn from the testimony introduced at the trial. This made the determination of those facts a question for the jury. We would be usurping the province of the jury were we to hold otherwise, and rule that as a matter of law plaintiff was entitled to a directed verdict on the issue of liability, or that the court erred in submitting the issue of self-defense.

The court of its own initiative gave Instruction No. 2 which was a burden of proof instruction, being MAI No. 3.01:

“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.”

Appellant’s first complaint against this instruction is that it is erroneous for the reason that it places on plaintiff the burden of proving that defendant assaulted him, when defendant by his own testimony admitted he was the aggressor and first assaulted plaintiff. There is no merit to this contention. Defendant did not admit that he was the aggressor and assaulted plaintiff without provocation. His testimony tends to show that he acted in self-defense, which we have heretofore held was substantial evidence and sufficient to authorize the submission of said issue to the jury.

Plaintiff, at the trial, made no objection, either general or specific, to the giving of Instruction No. 2. However, in his motion for new trial, plaintiff complained that the instruction was erroneous because it did not charge the jury that the burden of proof on the issue of self-defense was on the defendant. On this appeal this same objection is urged.

Defendant takes the position that the instruction was not erroneous because it did not specifically place the burden of disproving the propositions necessary to support said affirmative defense, but merely placed the burden on plaintiff of proving the propositions submitted in his verdict directing instruction. Plaintiff’s verdict directing instruction was the approved MAI No. 23.02 and was as follows:

“Your verdict must be for plaintiff if you believe:
“First, defendant intentionally struck plaintiff, and
“Second, defendant thereby caused plaintiff bodily harm unless you believe that plaintiff is not entitled to recover by reason of Instruction No. 7.”

Instruction No. 7 was the approved form, MAI No. 28.07 for submission of the issue of self-defense in an assault case. It contained no reference to the burden of proof on said issue. In reading Instruction No. 4 and Instruction No. 7, it appears that one of the elements necessary for plaintiff to recover was a belief that defendant was not acting in self-defense. Instruction No. 2 charged the jury that “ * * * The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. * * * ” Therefore, in logic, it would seem that by said instruction, the court charged the jury that the burden of proving that defendant did not act in self-defense rested on plaintiff. This was error. The plea of self-defense in a civil action for damages for an assault is an affirmative defense, and the burden of proof of such defense rests upon the person asserting it. Such direction should have been contained in Instruction No. 2. This is recognized by the committee that drafted the instruction, for in a note with reference to its use, it is stated that if a defendant submits an affirmative defense the instruction should be altered to fit the situation; giving as an example a case where contributory negligence is submitted as a defense. It also states that the instruction must be given in every case. (See Vernon’s Missouri Approved Instructions)

But defendant says that plaintiff cannot complain because he had the opportunity and the duty to request such an amendment before the case was submitted to the jury. If we should sustain such contention and rule that plaintiff was under a duty to object to the instruction on the ground that the matter of self-defense was not included therein, we would run counter to Civil Rule 70.02, V.A.M.R., which reads:

“Counsel need not object to any instructions to be given at the request of any other party or by the court on its own motion or to the refusal of any instruction requested by such party. Specific objections to instructions shall be required in motions for new trial unless made at trial. The making of objections during trial shall not preclude making additional objections to the same or other instructions in the motion for a new trial.”

This rule was in effect at the time this case was tried. We find no merit to the point urged. The court erred in giving Instruction No. 2 for the reason it did not properly cover all the issues in the case.

Finally it is urged that the trial court erred in permitting defendant to show, by cross-examination of plaintiff, and by testimony of other witnesses, that plaintiff had two other altercations at the tavern. It was shown that on one occasion, an argument ensued between plaintiff and a highway patrolman where plaintiff, according to his testimony, was merely trying to stop a fight between two others. No blows were struck on this occasion. Defendant subsequently learned of this encounter. The other incident occurred inside the tavern when plaintiff and his companion violently and without warning attacked another customer as he was leaving the tavern. Defendant witnessed this incident. Both incidents occurred shortly before the one here in question.

Plaintiff contends that the foregoing evidence was not admissible for any purpose; that plaintiff’s turbulent disposition in an assault case may be shown by proof of general reputation, but not by evidence of specific acts of violence.

There can be no doubt that the evidence complained of was relevant to show defendant’s state of mind; that he had reasonable grounds to apprehend danger to his person and the safety of his customers. State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556; State v. Goode, 271 Mo. 43, 195 S.W. 1006. The evidence could be excluded only upon principles of policy, particularly those of Confusion of Issues, Unfair Surprise, or Undue Prejudice. And whether such principles should be applied rests within the sound discretion of the trial court. See State v. Wilson, 250 Mo. 323, 157 S.W. 313; Mortimore v. State, 24 Wyo. 452, 161 P. 766; Mendez v. State, 27 Ariz. 82, 229 P. 1032. We have examined the record with reference to this matter and have reached the conclusion that there was no abuse of discretion in the admission of the testimony of these previous acts of violence.

The judgment is reversed and the cause is remanded for new trial.

WOLFE, P. J., concurs.

RUDDY, J., dissents in separate opinion.

RUDDY, Judge

(dissenting).

I respectfully dissent from the majority opinion because I believe plaintiff is correct in his contention that there was no evidence to support the submission of self defense. Plaintiff contends that the evidence showed that defendant was the aggressor and struck the first blow and that plaintiff had committed no overt act when defendant, lying and waiting, struck at him and injured plaintiff. Plaintiff contends that defendant’s own evidence shows conclusively that he was the aggressor and that there was no evidence in plaintiff’s case to support defendant’s self defense instruction. After a close analysis of the evidence in the case as shown in the majority opinion and other record evidence which I shall refer to, I must agree with plaintiff’s contention.

I do not disagree with the principles of law relied on in the majority opinion. My disagreement is with the application of the law to the facts of this case. The rule to be applied as given to us in the Missouri cases is that found in Duncan v. Moore, 219 Mo.App. 374, 271 S.W. 847, l.c. 849, where the court said (quoting from 2 R.C.L. 549, § 27):

“An assault and battery cannot be justified on the ground of self-defense unless the person assaulted had at least done some overt act or made a hostile demonstration of a character to give the assailant reasonable ground to suppose himself in imminent danger.”

The overt act or hostile display of force must be under such circumstances as to cause defendant reasonably to suspect and fear injury and must be reasonably calculated to create apprehension of present violence. Any movement, however threatening, which does not produce such fear of physical harm will not justify an assault. 6 C.J.S. Assault and Battery § 5c(l), p. 799. From what I have said it will be noted that it is essential, in order to justify a submission of self defense, that defendant’s proof show that there was an overt act of attack and that defendant at the time had reasonable grounds to suppose that he was in imminent danger. There must be evidence that defendant had just cause to believe that plaintiff was about to assault him in order to justify defendant’s act in first striking plaintiff. What I have said finds support, either directly or inferentially, in the following cases: Cunningham v. Reagan, Mo., 273 S.W.2d 174; Lehman v. Lambert, 329 Mo. 1147, 49 S.W.2d 65, 67; Lawrence v. Womack, Mo.App., 23 S.W.2d 190. In all of the cases cited by the parties, which I have examined, where the principle of self defense is discussed, it is clearly shown that the person assaulted must be found to be doing something which will reasonably cause and does cause the other party to believe that an assault is about to be committed upon his person and in order to repel that assault he strikes the first blow.

In order for defendant to avail himself of the right of self defense it is also essential for him to show that his fear of physical injury be reasonable or such as a reasonable person would entertain under the circumstances at the time of the assault. However, the mere belief of a person using force to repel an assault is not alone sufficient to make it a case of self defense, unless the facts justify such belief. 6 C.J.S. Assault and Battery § 18b(l), p. 811; and Lehman v. Lambert, supra. It is evident to me upon a perusal of the evidence in this case that plaintiff did not commit any overt act at the time defendant swung on plaintiff or prior thereto which should have reasonably caused defendant to fear an injury to his person; nor did plaintiff make any hostile demonstration toward defendant at any time of a character to give the defendant reasonable grounds to suppose that he was in imminent danger. I find no evidence from which the jury could find that plaintiff was about to attack defendant and as said in Lawrence v. Womack, supra, 1. c. 192: “ * * * One cannot attack without first being attacked. * * * ”

Defendant’s testimony shows that he took the first swing at plaintiff and it becomes clear as I read his testimony that at the time he swung at plaintiff he was under no apprehension or fear of physical harm to himself or to any of his customers at the hands of plaintiff. He waited for plaintiff at the archway where plaintiff had to pass through and when plaintiff’s wife sought information as to what was going on defendant grabbed her by the arm and told her to get out of there, that she was going to get hurt. From this statement it may reasonably be inferred that he expected violence to occur and it may reasonably be inferred that he intended to initiate it. I do not agree with the majority opinion in the finding that defendant was in fear for the safety of his customers when he made this remark to Linda Cartwell, the girl friend of plaintiff and later to become his wife. Certainly defendant did not think at the time that plaintiff was about to injure his girl friend. I think the proper and reasonable inference that must be taken from this statement of defendant to Linda Cartwell is that defendant expected violence to occur and that he would start that violence. Defendant admitted that when plaintiff left the restroom he walked toward the archway “naturally,” however, saying, that plaintiff looked like he was still “ * * * a little bit mad anyway * * There is nothing in this description to show that plaintiff might have been mad at defendant and even if he was it would have been insufficient to support a plea of self defense. Duncan v. Moore, supra.

Defendant’s own testimony reveals his reason for attacking plaintiff. It does not demonstrate or indicate that he had any fear of an attack by plaintiff on his person or on the person of any customer at that time. When he was asked what his attitude was toward plaintiff, after the incident between Tellman and plaintiff, he said, “ * * * it kind of got your hair all up again.” He admitted that the incident upset him and he was determined that plaintiff was not going to hit anybody else in the tavern. He admitted that he waited in the doorway or archway for plaintiff to come out of the restroom. This was a place where plaintiff had to come in very close proximity to defendant in order to pass through the archway. With his “ * * * hair all up again * * * ” he waited there for plaintiff with his hands up over the top of the archway. This was not the kind of conduct or attitude of a person about to be assaulted or who entertains fear of bodily injury to his person. Rather, it was an attitude of belligerence and of one who is about to do battle.

Defendant’s testimony clearly indicates that he started the fisticuffs. When plaintiff left the restroom he had to come in the direction of the archway where defendant was standing in order to get through. Defendant admitted that plaintiff asked “What’s going on?” and immediately thereafter he swung at plaintiff. This inquiry of plaintiff certainly was not an overt act or hostile demonstration on the part of plaintiff toward defendant and could not, under the circumstances, cause defendant to apprehend that plaintiff was about to inflict physical injury on his person or on any other person. When defendant was asked if he had any apprehension or fear that plaintiff might assault him, he answered, “I thought if he had done it once he could do it again.” This was an evasive answer and did not indicate that he possessed any apprehension or fear that he might be assaulted by plaintiff. As we have pointed out heretofore, defendant’s fear of injury at the hands of plaintiff must have been a reasonable one or such as a reasonable person would entertain under the circumstances. Defendant’s testimony shows no circumstances that would cause him to apprehend or to fear injury at the hands of plaintiff. I think the only reason shown by defendant’s evidence, and for that matter by all the evidence in the record, for his assault on plaintiff, was summed up in his answer, when he said, that he “took a sock” at plaintiff to keep somebody else from being hurt. It may well be that the “Code of the street” would approve and tolerate such conduct on the part of defendant in view of the happenings and the conduct of the plaintiff that evening. But as said in Lehman v. Lambert, supra, l. c. 67 (quoting from 2 R.C.L. 554): “* * * ‘Peace and good order and the rules for civilized society forbid that individuals shall right their own wrongs. * * * ’ ” Where one prepares himself for an encounter in which he intends to wreak his malice, he is not entitled to the plea of self defense. Lawrence v. Womack, supra, l. c. 192.

Defendant’s testimony clearly shows that he was the aggressor and struck the first blow and that he assaulted plaintiff without any legal justification or excuse. The evidence clearly shows that Tellman and his group had left the tavern and were gone at the time plaintiff came out of the restroom. There was no other customer present that plaintiff had threatened that evening; nor was there any customer present that was threatened at the time or about to ^be assaulted by plaintiff at the time.

The evidence shows that plaintiff had to be hospitalized and at some time following the described occurrence, defendant visited plaintiff’s home to discuss the affair. He told plaintiff that we have been good friends and that he did not know why he had hit plaintiff. Defendant invited plaintiff to return to the tavern as a customer in his place of business. It is true that this evidence was given by plaintiff, but I think it sums up defendant’s conduct on the evening in question — that he did not know why he hit plaintiff. Obviously, such a statement on the part of defendant excludes any apprehension of fear or of physical violence to defendant at the hand of plaintiff.

The majority opinion holds that the slap administered on plaintiff by Martha Preuss was no doubt in retaliation for vile and insulting remarks by plaintiff. There is not one bit of evidence in the record to show the nature of these remarks or what was said; nor is there anything in the record to show what Martha Preuss said to the plaintiff. All witnesses agree that Martha Preuss was the first to engage plaintiff in an argument. No mention is made in the majority opinion about defendant’s aggressive and belligerent action in shoving and causing injury to Don Roark immediately following his encounter with the plaintiff. Don Roark, without having made any protest to the defendant or any threatening or hostile act, was shoved to the floor and injured by the defendant, immediately after his encounter with the plaintiff, which in my opinion is evidence of defendant’s continued belligerent and aggressive conduct.

The majority opinion cites Restatement, Second, Torts Sec. 76 to the effect that where a person has reasonable grounds to believe, and does believe that another is about to assault or do bodily harm to one he owes a duty to protect, he need not wait until the other person actually strikes or makes an assault before resorting to the application of reasonable force to repel the expected attack. I would not quarrel with this statement of the law. I do contend that there is not one bit of evidence to show that anyone to whom defendant owed the duty to protect was about to be assaulted. The only previous assault of the evening perpetrated by plaintiff had been on the person of Tellman who at the time of the encounter forming the basis of this law suit had left the premises together with his associates. No other person had been attacked that evening nor was any other person in the tavern threatened by plaintiff with physical violence. As said in 6 C.J.S. Assault and Battery § 19, p. 815: “ * * * When the danger is over, justification for the use of violence is at an end.” Therefore, this principle of law relied on in the majority opinion has no application to the instant case.

Turning attention to the contention of plaintiff that the court erred in admitting evidence of other altercations of plaintiff which were disassociated from the occurrence in question, I must agree that this was error. During the trial defendant sought to cross-examine plaintiff about pri- or specific acts wherein plaintiff had been engaged in altercations. Plaintiff objected to this cross-examination and in the colloquy that followed between the attorneys and the court, defendant’s attorney informed the court that he proposed to bring in witnesses to show that plaintiff “ * * * has picked fights with other persons * * * » Defendant sought this cross-examination and the right to make this proof on the ground that defendant had pleaded self defense and that in such a case proof of these acts and defendant’s knowledge of the turbulent and violent disposition of the plaintiff were proper matters of evidence and said that the proof of specific acts was an exception to the rule that permitted only proof of reputation. The court sustained plaintiff’s objection to the cross-examination and proof of the specific acts. Despite the court’s ruling cross-examination regarding and proof supporting plaintiff’s engagement in other altercations were permitted by the court and plaintiff, as stated, now says this constitutes prejudicial error. The rule, as I find it, is that such evidence, if not remote, is admissible in a proper case, but is not competent to sustain the plea of self defense, unless proof is first given that there was an overt act of attack by the plaintiff or some threatening demonstration to inflict bodily harm on the defendant by plaintiff and that defendant at the time had reasonable grounds to suppose that he was in imminent danger. Duncan v. Moore, supra, Mendez v. State, 27 Ariz. 82, 229 P. 1032. Inasmuch as I have found that there was no evidence to support defendant’s plea of self defense this evidence of other altercations of plaintiff, not associated with the one in question, was inadmissible. Such a rule is sound and logical. Of course, if defendant’s only evidence of self defense was proof of other altercations, obviously, no submissible case would be made for the jury. Therefore, these prior altercations are inadmissible until there is evidence of an overt act of attack by the plaintiff or some threatening demonstration to inflict bodily harm on defendant by plaintiff and that defendant at the time of the assault that forms the basis of the law suit had reasonable grounds to suppose that he (defendant) was in imminent danger. As I have said defendant’s evidence and all other evidence in the case showed that defendant was the aggressor and assaulted plaintiff without any legal justification or excuse. Therefore, the trial court erred in admitting evidence of other altercations.

I would find that the trial court erred in failing to direct the jury to find the issue of liability in favor of the plaintiff and against defendant and the jury should have been instructed that the only question for it was the amount of damages sustained by plaintiff. I would reverse the judgment and remand the cause for a new trial on the issue of damages only.