author: MASSEY, Chief Justice.

text:
    GREYHOUND LINES, INC., Appellant, v. BOARD OF EQUALIZATION FOR the CITY OF FORT WORTH et al., Appellees.
    No. 16800.
    Court of Civil Appeals of Texas. Port Worth.
    Feb. 17, 1967.
    Rehearing Denied March 10, 1967.

      Stone, Parker, Snakard & Brown, R. F. Snakard and Richard Lee Brown, Fort Worth, for appellant.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellees.
   MASSEY, Chief Justice.

Taxation case.

The questions involved do not appear to have heretofore been directly decided by any appellate court of this state. We therefore have concluded that a rather brief opinion would be proper.

FIRST HOLDING: Tangible personal property of a foreign corporation, to wit: passenger motor busses, physically present within the state for such substantial period of time as to endow it with characteristics of permanency pursuant to the owner’s transaction of business in interstate commerce acquires a tax situs within the state, and an ad valorem tax may be imposed thereon on basis of an equitable apportionment fairly and in good faith calculated in consideration of presence or use within as compared with presence or use both within and without the state.

SECOND HOLDING: Subdivisions of the state having authority to levy ad valorem taxes upon such passenger motor busses as acquire a tax situs within the jurisdiction of the subdivision are authorized only to impose such character of tax on basis of an equitable apportionment fairly and in good faith calculated in consideration of presence or use within the subdivision as compared with presence or use both within and without the subdivision. (Of course an ad valorem tax calculated on the basis of use without the subdivision as well as within the same would be avoidable, as excessive, in the event the amount thereof would exceed that fairly calculable on the basis of presence or use wholly within the subdivision.)

THIRD HOLDING: In instances where there is an exchange of passenger motor busses within the state or taxing subdivision thereof, because of shifts of the rolling stock, an average fair taxable value may be arrived at by calculation of average number and value of motor busses thus maintained, used and employed at the tax situs and ad valorem tax based thereupon is valid and collectible.

Section 11, Article 8, of Vernon’s Ann. Tex.Constitution, Vernon’s Ann.St. provides that: “All property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated * *

Vernon’s Ann.Tex.St. Art. 7153, “(Property Subject to Taxation) — Where rendered”, provides: “All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated; and all personal property, subject to taxation and temporarily removed from the State or county, shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.”

As between various taxing districts within the state the Legislature may fix a situs for taxation, and it has done so in a number of instances. See V.A.T.S. Arts. 7169a, 7155, 7157 and 7165. It has not done so in respect to passenger motor busses. It is of interest to note that the Constitution (Art. 8, sec. 8) fixes the situs of rolling stock of railroads.

The location of the administrative offices and principal place of business of the Greyhound Lines, Incorporated in Fort Worth, Tarrant County, Texas, is without significance in respect to the questions here posed, it being a foreign corporation. The law discussed in City of Fort Worth v. Southland Greyhound Lines, 123 Tex. 13, 67 S.W.2d 354 (Fort Worth Civ.App., 1931), and in City of Fort Worth v. Southland Greyhound Lines, 123 Tex. 13, 67 S.W.2d 361, answering certified questions and approving the Court of Civil Appeals opinion, is of aid, but does not answer the taxation questions in this case. Questions settled by the opinion had relation to the right to tax personal property of a domestic corporation, not that of a foreign corporation.

The questions presently posed relate to an exception to the common law rule of mobilia sequuntur personam recognized in Texas. It has been held since Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 (1922) that as between different towns and taxing districts certain classes of tangible personal property have a taxable situs where employed in business, regardless of the domicile of the owner. In City of Dallas v. Overton, 363 S.W.2d 821 (Dallas Civ.App., 1962, writ ref. n. r. e.) the court wrote: “ * * * tangible personal property acquires a tax situs in a jurisdiction apart from its owner if it is kept there with sufficient permanency that it may fairly be regarded as being a part of the general mass of property within the jurisdiction.” See also State v. Crown Central Petroleum Corp., 242 S.W.2d 457 (San Antonio Civ.App., 1951, error refused).

In connection with our holding of propriety to arrive at “an average” for purposes of taxation it is of importance to note that we are not advocating an “average number” rule, but rather are averring that it is that certain number which has attained the necessary degree of “permanency” as to situs which makes personal property of a non-resident taxable. The question seems not to have been written upon by an appellate court of this state, but was the subject of an opinion by the Attorney General of Texas. Reference is made to Opinion No. C-432, under date of May 6, 1965 to the Honorable W. E. Coats, Jr., Criminal District Attorney of Smith County.

Among authorities leading to our conclusions we have found particular aid in the following: 49 A.L.R. 1099, Annotation: “Taxation of foreign-owned railroad rolling stock temporarily within the taxing state”; Flying Tiger Line v. County of Los Angeles, 51 Cal.2d 314, 333 P.2d 323 (1958), certiorari denied; Reeves v. Island Creek Fuel & Transportation Co., 230 S.W.2d 924 (Court of Appeals of Kentucky, 1950), certiorari denied; City of Covington v. Pullman Co., 121 Ky. 218, 89 S.W. 116 (Court of Appeals of Kentucky, 1905).

The proceeding in the trial court was upon motions of all parties for summary judgment. We have concluded that it would not have been proper to grant either motion. The defendant taxing agencies were in error in contending for as great an amount of tax as was sought and collected,—and the taxpayer who was suing for a return of tax paid under protest was in error in contending that it owed no tax on any of its motor busses. Taxes were owed. Proper amount thereof remains to be determined.

Judgment is reversed and the cause is remanded for trial on the merits.


source: Caselaw Access Project

license: Public Domain

text:
    FINGER CONTRACT SUPPLY COMPANY, Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS et al., Appellees.
    No. 16791.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 27, 1967.
    Rehearing Denied March 3, 1967.

      Knight, Prappas, Rowland & Caldwell, and Ellis F. Morris, Houston, for appellant.
    Locke, Purnell, Boren, Laney & Neely, Dallas, Brown, Herman, Scott, Young & Dean, and Garrett & Garrett, and Rufus Garrett, Jr., Fort Worth, for appellees, Republic Nat. Bank of Dallas and Warren Donaldson.
    Simon, Crowley, Wright, Ratliff & Miller, and Wayne A. Rohne, Fort Worth, for appellee, Arlington Independent School Dist.
    Mitchell Rogovin, Asst. Atty. Gen., Washington, D. C., Melvin M. Diggs, U. S. Atty., Northern Dist. of Texas, and Claude D. Brown, Asst. U. S. Atty., Fort Worth, for appellee, United States.
    Waggoner Carr, Atty. Gen. of Texas, John F. Pettit, Asst. Atty. Gen., Austin, for appellee, the State.
   MASSEY, Chief Justice.

The action is one to determine priority in rights to monies coming into the hands of a receiver of specific corporate assets pursuant to the operation of a motel by the receiver. There was no receivership of any corporation as such. The trial court’s judgment was an award of first priority in settlement of various tax claims of the United States, the State of Texas, and the Arlington Independent School District; and next to the mortgagee, Republic National Bank of Dallas and its assignee Warren Donaldson. All of the aforesaid parties are appellees. In consequence the appellant, Finger Contract Supply Company, was left with nothing to acquire out of the profits realized during receivership of the subject property in satisfaction of a deficiency judgment it had obtained against Admiral Motor Hotel of Texas, Incorporated. Because thereof said appellant perfected its appeal to this court.

Judgment affirmed in part and in part reformed and affirmed.

At the outset of our hearing the appellant conceded upon the matter of tax claim priority except as to the priority of the ad valorem tax claims of the State of Texas and the Arlington Independent School District. These'taxes accrued upon the receivership property beginning long prior thereto. The appellant’s position is grounded upon the contention that as a “lien” upon the property taxed the claims of the governmental agencies would be sound, but that such lien would not extend to profits realized from the operation of the receivership property, as to which a lien could only attach after a judgment for taxes and after a levy made under authority of the judgment. There has been neither judgment nor levy.

After the appointment of a receiver of the specific corporate assets in question, to-wit: a particular motel premises owned and operated by the greater corporate entity, Admiral Motor Hotel of Texas, Incorporated, an order was entered setting a date by which all claims to funds remaining in the hands of the receiver must be filed. Claims were filed by the governmental agencies predicated upon tax liabilities accrued.

Public policy demands that taxes owing by everyone against whom they are assessed, including corporations and receivers, must be paid. There is no contention in this case that the taxes in question are not justly owed. They were properly assessed and due notice was given.

Applicable Constitutional and statutory provisions are:

“Article VIII, § 15, Texas Constitution. Lien of assessment; seizure and sale of property
“Sec. 15. The annual assessment made-upon landed property shall be a special lien thereon; and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all the taxes and penalties due by such delinquent; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature may provide.”
“Art. 7172. Lien for taxes
“All taxes upon real property shall be a lien upon such property until the same shall have been paid. * * * ”
“Art. 7269. Tax lien superior
“In all cases where a taxpayer makes an assignment of his property for the payment of his debts, or where his property is levied upon by creditors, by writs of attachments or otherwise, or where the estate of a decedent is or becomes insolvent, and the taxes assessed against such person or property, or against any of his estate remain unpaid in part or in whole, the amount of such unpaid taxes shall be a first lien upon all such property; provided, that when taxes are due by an estate of a deceased person, the lien herein provided for shall be subject to the allowances to widows and minors, funeral expenses, and expenses of last sickness. Such unpaid taxes shall be paid by the assignee, when said property has been seized by the sheriff, out of the proceeds of sale in case such property has been seized under attachment or other writ, and by the administrator or other legal representative of decedents; and, if said taxes shall not be paid, all said property may be levied on by the tax collector and sold for such taxes in whomsoever’s hands it may be found."
“Art. 7048. County ad valorem, etc.
“ * * * In all cases where any dealer in merchandise, wares or goods of any kind, subject to ad valorem or occupation taxes, or both, under the provisions of this law, who shall after the rendition of said merchandise, wares or goods for taxation, or after becoming liable for any occupation tax, become bankrupt or make assignment of said merchandise, wares or goods, then the tax collector shall at once demand of the receiver or assignee of said dealer payment of the amount due for said taxes by said dealer; and in case of failure of said receiver or assignee to at once pay the amount of said taxes, the said collector shall levy upon, seize and sell from the said merchandise, wares or goods, enough to satisfy the amount of said taxes, and said taxes, until paid, shall constitute a prior lien on said merchandise, goods and wares in default of said taxes.”
“Art. 1.07 Lien and Recording; Failure to Withhold Taxes; Penalties; Fines, etc., Cumulative
“(1) All taxes, fines, penalties and interest due by an individual, firm, association, joint stock company, syndicate, co-partnership, corporation, agency, trustee or receiver to the State of Texas, by virtue of this Title, shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, subject, however, to the modification hereinafter contained, upon all the property of any individual, firm, association, joint stock company, syndicate, co-partnership, corporation, agency, trustee, or receiver. This lien shall be cumulative, and in addition to the liens for taxes, fines, penalties, and interest now provided by law, and shall attach as of the date such tax or taxes are due and payable. Provided, however, before the taxes provided for in this law shall become a lien on real estate, notice thereof must be filed in the county where the real estate is located on which the lien is desired as provided in Article 1.07A of this Act. Such lien shall not be valid or effective as against any mortgagee, holder of a deed of trust, purchaser, pledgee, or judgment creditor acquiring title, lien or other right or interest before such notice has been so filed and recorded.”
“Art. 7343. Similar proceedings by cities and independent school districts
<( * * *
“All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in so far as such laws are applicable.”

As a general rule, a school district has no specific statutory tax lien on personal property. Only when certain facts exist bringing into operation the provisions of Articles 7269 and 7048, Vernon’s Ann.Tex.Civ.St. quoted in material part above, are specific tax liens created thereon. See City of San Marcos v. Zimmerman, 361 S.W.2d 929 (Austin Civ.App., 1962, writ ref., n. r. e.). However, the fact which created such a lien in this case was the receivership proceeding in which liens were suffered to be filed and asserted against the property. With the property so held and preserved, as in custodia legis, there would obviously be no sound reason for requiring any taxing agency to prosecute any claim for taxes to judgment and to obtain a levy based thereon, absent contention before the receiver that there was impropriety in the tax assessment. Otherwise expressed, we believe the mere filing of claim therefor would in law be treated as satisfying any prerequisite and otherwise bring about the application of Articles 7048 and 7269, V.A.T.S.

The very property upon which appellant had its mortgage and because of the foreclosure upon which it had deficiency judgment was a part of the property upon which the governmental agencies had assessed taxes.

A receivership proceeding such as here involved, i.e. of specific corporate assets, would be within the scope of Article 7269, supra, if not by its express terms by implication. The monies coming into the hands of the receiver pursuant to the operation of specific assets (the motel) would for tax purposes have the same status and be considered and treated as though it was personal property in receivership.

All claims of the State of Texas for taxes enjoy a first priority under V.A. T.S. Art. 1.07, Title 122A, “Taxation— General”. Article 7343, supra, makes available to independent school districts all laws of the State for the purpose of collecting delinquent taxes, when invoked. In our opinion they have been invoked. We hold that the claims of all governmental agencies are first and prior to the claim of appellant, and that they extend to and include the funds in the hands of the receiver accumulated through operation of the receivership property.

This leaves $5,162.60 in dispute as between appellant and the appellee bank and its assignee. Such is the amount of receivership profits remaining after the taxes are paid.

We are of the opinion that the claim of the mortgagee Republic National Bank of Dallas and its assignee Warren Donaldson is not prior to the claim of the appellant. We hold that these claims have the same status.

Appellant bases its claim to the funds in question upon two statutes, V.A.T.S. Art. 2316, “Preference claims”, and Art. 2299, ■“Application of funds”, both under Title 42, Chapter 13, as applicable to “Receivers”.

Undoubtedly Art. 2316 has application to receiverships of the most harsh character, those in which corporations in toto are in receivership. Texas Power & Light Co. v. Clark, 121 S.W.2d 395 (El Paso Civ.App., 1938, error refused). The instant receivership is the least harsh of those for which provision has been made by law as applied to corporations. It is one wherein the corporation has been left intact, but where only specific assets belonging to it are made the subject matter of the receivership. V.A.T.S. Business Corporation Act, Art. 7.04, “Appointment of Receiver for Specific Corporate Assets”.

We hold that under the circumstances of this case appellant may not claim any benefit of the provisions made in Art. 2316. Its contention is that said article applies to receivership of any part of the whole of the property of a corporation not placed in receivership. While we agree that the decision in Texas Power & Light Co. v. Clark is not precisely to such effect we believe that the contention is without merit and that the propriety of our holding necessarily follows. The language of the statute is clear and unmistakable—through words necessarily implied—that it is the corporation’s earnings when the entire corporation is the subject of receivership which are contemplated rather than earnings of any particular property placed in receivership. To such the statute is without application.

Article 2299 contains six classes of claims listed in respect to priority of right to monies coming into the hands of the receiver. Without doubt the first five (5) so listed have relation to obligations incurred through the receivership proceeding itself and the obligations accruing against the receiver pursuant to operation of properties in receivership and during the period thereof. There is a material question relative to the provision of the sixth (6th) class. We quote the article: “Art. 2299, Application of funds. All moneys that come into the hands of a receiver as such receiver shall be applied as follows, to the payment: * * * 6. Of all judgments recovered against persons or corporations in suits brought before the receiver in the action.”

There seems to be no case defining what is meant by the language above quoted. Appellant contends that said language means the same thing as, or includes, “All judgments recovered against any corporation pursuant to suits brought before the appointment of a receiver * * If such be its meaning then the provision would differ only slightly from the provision made by Art. 2316, which we have held to be without application to the particular kind of receivership under consideration. The difference, however, is material in that—unlike Art. 2316 in the case of receivership as to an entire corporation —there is no provision for the distribution of funds “to the exclusion of mortgage action”.

We have concluded that the proper construction of the language in subsection 6 of Art. 2299 is in accord with the appellant’s contention.

Apparently the first statute enacted upon the subject matter was by the Twentieth Legislature, Regular Session, General Laws, 1887, page 119 et seq., as Chapter 131. What may be treated as Sec. 6 thereof provided for all monies coming into the hands of a receiver, as such, to be distributed in manner like unto that of the first five subsections of the present Art. 2299, — then with the provision that said monies to be applied to “all judgments recovered against the person or persons or corporations in suits brought before the appointment of a receiver in the action”, to be a lien on the funds in his hands.

This statute was amended by the Twenty-first Legislature, Regular Session, General Laws, 1889, page 55 et seq., as Chapter 59. Unchanged therein is the provision that said monies were to be applied to “all judgments recovered against the person or persons or corporations in suits brought before the appointment of a receiver in the action”. Added was this language: “And said claims shall have a preference lien on all of the moneys coming into the hands of the receiver which are the earnings of the property * *

When the Texas Statutes were revised in 1925 the Commission, pursuant to H.B. No.690, Ch. 159, General Laws of Texas as enacted by the 38th Legislature of 1923, clarified the aforesaid (then existent as Art. 2135, and renumbered as Art. 2299 of the Revised Statutes of 1925) under legislative instructions. H.B.No.690, in setting up the Commission, provided in Section 2 thereof as follows: “They shall omit from all statutes useless, contradictory, and confusing language, and express the purpose of the law in simple language; they shall harmonize conflicting statutes, or parts thereof, by rewriting, omissions, or additions, and shall generally make such changes, additions, or omissions as they may deem necessary to reduce in volume the general statutes of the State and make them harmonious, plain, concise and complete.”

Pursuant to such legislative intent, the Commission rewrote the last provision of Art. 2299 so as to cause it to read as heretofore indicated, and which we repeat: “All moneys that come into the hands of a receiver as such receiver shall be applied as follows, to the payment: * * * 6. Of all judgments recovered against persons or corporations in suits brought before the receiver in the action. As to all money coming into the hands of a receiver which are the earnings of the property in his hands, said claims shall have a preference lien on the same * * *.”

In concluding that a proper construction should be in accord with appellant’s contention, we have applied the rules of statutory construction discussed in 53 Tex.Jur. 2d 168, et seq., “Statutes”, the sections under Part XII, “Construction”. We forego discussion, though noting particularly Secs. 119, 122, 125 and 166.

To so construe Art. 2299, however, does not mean that appellant shall take the full amount remaining of the monies which came into the hands of the receiver as earnings of the receivership property. Appellee Republic National Bank of Dallas brought its suit on February 22, 1965. In the same suit it made application for the appointment of a receiver on May 20, 1965. The receiver was appointed by order signed and entered June 1, 1965. Though the said appellee bank’s suit was “a mortgage action” there is nothing to be found in Art. 2299 which provides that payment and distribution of the earnings of the property in the hands of the receiver during receivership should be to the exclusion of any mortgage action. True, there is such a provision in Art. 2316 applicable to instances where a corporation as an entirety is in receivership and perhaps reason might exist justifying legislative action to make the same provision as to subsection 6 of Art. 2299. See First Nat. Bank of Houston v. J. I. Campbell Co., 104 Tex. 457, 140 S.W. 430 (1911). The fact remains that no legislature has seen fit to so provide. Therefore, since appellee Republic National Bank of Dallas filed its suit before the appointment of a receiver for the subject property of the Admiral Motor Hotel of Texas, Incorporated, and since the amount owing on the judgment it obtained pursuant to said action, after foreclosure and sale of the mortgage property, left a deficiency owing, its deficiency judgment has the same status as the deficiency judgment of the appellant, after payment of taxes. The resulting amount in controversy is $5,162.60. Of this, appellant is entitled to $118.74 and the bank and its assignee to $5,043.86. The figures result from our calculation of a proper apportionment.

It is only by reason of the provisions of Art. 2299 that appellant is entitled to share with appellee bank in the fund. But for its provisions general rules would apply. Under general rules the profits would stand in the same category as the mortgaged premises, and the bank, as senior mortgagee initiating the appointment of the receiver, would have a primary right thereto. Texas Power & Light Co. v. Clark, supra, 121 S.W.2d at p. 397.

As applied to that portion of the judgment of the trial court relating to the priority of tax claims of those appellees which are the interested governmental agencies the same is affirmed.

As applied to that portion of the judgment of the trial court relating to the priority of claims of the appellees Republic National Bank of Dallas and its assignee Warren Donaldson, as against the appellant Finger Contract Supply Company, the same is reformed and as reformed affirmed. Judgment is here rendered that of $5,162.60 in the registry of the trial court as the remainder of monies earned by the receivership property during receivership, Finger Contract Supply Company shall have and receive the sum of $118.74. Judgment is here rendered that Republic National Bank of Dallas and Warren Donaldson shall have and receive the sum of $5,043.86. Cost of the appeal is adjudged against Finger Contract Supply Company and those in the trial court adjudged as decreed therein.


author: MOORE, Justice.

text:
    LeBLANC, INC., Appellant, v. GULF BITULITHIC COMPANY et al., Appellees.
    No. 245.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 9, 1967.
    Rehearing Denied March 9, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, St. John Garwood, Jr., Houston, for appellant.
    Vinson, Elkins, Weems, & Searls, John T. Golden, Houston, for Gulf Bitulithic Co.
    Baker, Botts, Shepherd & Coates, Ralph S. Carrigan, Houston, for Atlas Air Conditioning Co.
    Fouts, Moore, Caldwell & Coleman, Joe E. Coleman, Houston, for Muhl Electric, Ltd.
   MOORE, Justice.

This is a suit by a subcontractor against a prime contractor wherein the prime contractor filed a cross-action and a third party action against other subcontractors. Appellant, LeBlanc, Inc., the prime contractor, contracted to construct a maintenance base for Eastern Airlines at Houston International Airport. The work consisted of the erection of a base building, together with a concrete apron or runway surrounding the building. As general contractor, LeBlanc entered into a subcontract with appellee, Atlas Air Conditioning, for the plumbing and air conditioning work. The paving work was subcontracted to appellee, Gulf Bitulithic Company, and the electrical work was subcontracted to Muhl Electric Ltd. As a part of its contract, Atlas was required to lay a three-quarter inch underground pipeline to carry a chemical known as “var-sol.” Approximately four months after the line had been laid, it was discovered that there was a leak in the line and that the escaping varsol had seriously damaged the insulation on certain electrical lines which had also been laid underground nearby. Eastern Airlines demanded that LeBlanc replace the damaged cables. Before proceeding to replace the damaged electrical cables, LeBlanc called upon Atlas to make good the damages caused by the leak in the line, taking the position that Atlas was obligated to do so under its subcontract. LeBlanc also called upon Gulf to make the repairs to the damaged electrical cables on the ground that the break in the varsol line was caused by the negligence of Gulf. Atlas acknowledged its responsibility to repair the defect in the varsol line and made the necessary repairs, but refused to make good the damages to the electrical cables. Gulf denied responsibility for breaking the varsol line and likewise refused to make good the damages to the electrical cables. The electrical system had previously been installed by Muhl under a subcontract. When Atlas and Gulf refused to repair the damages, LeBlanc again employed Muhl to re-lay the lines at a cost of $26,000.00. LeBlanc refused to pay Gulf the balance due upon the paving contract, and Gulf originated this litigation by suing LeBlanc for the balance due. Le-Blanc filed a cross-action against Gulf alleging that the damage to the electrical cables was proximately caused by Gulf’s negligence, thus claiming an offset. Le-Blanc also filed a third party action against Atlas for damages for breach of its subcontract and alternatively alleged that the damages were caused by the negligence on the part of Atlas in constructing the lines. Atlas answered with a general denial and a cross-action against LeBlanc for the amount due and owing upon its subcontract.

The case was tried before a jury. There being no dispute as to the balance due and ■owing upon each of the appellees’ subcontracts, the cause was submitted only upon LeBlanc’s cause of action for damages against appellees Atlas and Gulf. The jury returned a verdict exonerating both Atlas and Gulf of liability for the damages to the electrical cables.

Based upon the jury verdict, the trial court entered a take-nothing judgment against LeBlanc and rendered judgment for Atlas and Gulf for the amounts due and owing them upon their subcontracts. Judgment was also rendered in favor of Muhl Electric.

Prior to entry of the judgment, LeBlanc filed a motion for judgment non obstante veredicto, contending that the evidence showed as a matter of law (1) that Atlas had breached its contract; (2) that Atlas was guilty of negligence proximately causing the damages, and (3) that Gulf was guilty of negligence proximately causing the damages. The trial court overruled the motion, as well as the motion for new trial, and appellant duly perfected this appeal. Appellant has subsequently stated to the court in the brief that appellant did not desire to further prosecute this appeal against Muhl and therefore the appeal insofar as it affects Muhl Electric Ltd. will be dismissed.

In order to properly understand the appellant’s points of error, a review of the record will be necessary. In so doing, we shall follow the familiar rule that the evidence must be viewed in a light most favorable to the parties obtaining the verdict and judgment. Biggers v. Continental Bus System, Inc., 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

The record shows that LeBlanc entered into the contract with Eastern on May 13, 1960. Shortly thereafter, LeBlanc entered into subcontracts with appellees Atlas, Gulf and Muhl. In July, 1960, Gulf commenced its work and poured a 13-inch cement airport apron slab and a 6-inch parking slab. At that time a 20-foot unpaved strip was left adjoining the maintenance building so that the pipeline trenches for the plumbing could be dug by the plumbing contractors. Gulf left the job about August 15th; thereafter, Atlas commenced upon the plumbing contract. Under the terms of the subcontract, Atlas had the duty of laying three underground pipelines on the west and north sides of the maintenance building. These lines consisted of a water line, an air line and a three-fourths inch galvanized varsol line. The trench was dug and the lines were laid along the west side of the building running north. At the northwest corner of the building, the lines turned east and ran along the north side of the building. At the northwest corner of the building, the lines crossed over electrical cables which had previously been installed and it therefore became necessary at this point to elevate the plumbing lines approximately one foot. This was accomplished by what is known as a “riser.” An elbow was installed at the bottom and at the top of the riser. After the varsol line had been installed, it was tested under pressure and found to be satisfactory by the architect. After the plumbing lines had been laid, Atlas backfilled the trench except for a distance of 30 feet on each side of the corner of the building, which was left open for the purpose of allowing the gas and sprinkler contractor to lay their lines in the trench. During the four to six weeks’ period in which the trench was left open, there was considerable work activity in the vicinity of the northwest corner of the building by various contractors, i. e., Atlas, LeBlanc, Gulf, the masonry subcontractor, the gas company, and the sprinkler contractor. There was no evidence as to who actually backfilled the ditch at the corner of the building, or when it was done. Gulf returned to the job on November 7, 1960, to complete the paving. At that time the trench had been completely filled; however, Gulf had to clean out a portion of the ditch, inasmuch as it was filled with water and mud, in order to re-make the subgrade in the 20-foot strip previously referred to. The ditch was “mucked out” by Gulf, whose employees used a large piece of heavy equipment known as a backhoe. The removal of the wet dirt and mud from the ditch was done on November 11, 12 and 14, 1960, and was backfilled at that time with cement stabilized sand. Prior to the time Gulf removed the wet dirt and mud from the ditch, there had been heavy rains and the soil over the pipe had settled. At that time, the ditch at the northwest corner of the building had already been backfilled. It was highly disputed in the evidence as to whether Gulf removed any mud from the northwest comer, the Gulf employees taking the position that this particular corner was in good condition and did not need cleaning out and therefore Gulf did not use the backhoe at this particular place; however, they admitted Gulf refilled the remainder of the trench with cement stabilized sand and paved the entire 20-foot strip around the north and west sides of the building.

On February 15, 1961, some three months after Gulf had paved over the line, the break in the riser of the varsol line at the northwest corner of the building was discovered. It was then determined that the varsol had seeped into the electrical manholes, ran down the electrical conduits between the manholes, and had destroyed the insulation on the underground electrical wiring system.

The testimony shows that the break occurred just below the upper elbow on the riser at the point where the pipe had been threaded. The break was at the outer side of the elbow and ran horizontal with the threads. While none of the witnesses purported to know what caused the break, they all seemed to agree that the break was caused by the application of some external force. According to Atlas’s witnesses, the break was probably caused by the application of some external force applied from above the riser. There is nothing in the testimony to suggest that the break was caused by a defect in the pipe or by the quality of the material, nor is there anything in the evidence to suggest that the break was caused by defective workmanship in preparing the pipe and laying the line.

Upon being notified of the break in the line, Atlas repaired the defect but declined to assume any responsibility for the damages to the electrical system. Gulf likewise denied that it was responsible for the damages.

In response to the special issues submitted by the court, the jury found: (1) that Atlas failed to backfill the trench at the northwest comer of the building within such time as it would have been backfilled by a person of ordinary prudence in the exercise of ordinary care; (2) but that such failure was not a proximate cause of the damages; (3) that Atlas failed to cover the pipe at the northwest corner with cement stabilized sand; (4) but that such failure was not negligence; (5) nor was it the proximate cause of the damages to the electrical cables; (6) that prior to the break in the varsol line, Atlas failed to place fill under and around the northwest corner of the varsol line in question and tamp it by hand or mechanical device in layers six inches deep; (7) that such failure was negligence; (8) but that such negligence was not a proximate cause of the damages to the electrical system; (9) that Atlas’s employee in backfilling the varsol trench filled same with a machine only without using a helper; (10) that such conduct was negligence; (11) but was not the proximate cause of the damages to the electrical system; (12) that Atlas’s employee in back-filling the trench on the north side of the building failed to cover the varsol line with cement stabilized sand; (13) that such was negligence; (14) but such negligence was not a proximate cause of the damages; (15) that Atlas retained the right to control the method and details of the backfilling work done by Hildebrand who was employed by Atlas for the purpose of backfilling the varsol trench on the north side of the building; (16) that the use of a backhoe by Gulf to excavate the north side of the varsol trench was not negligence; (18) that Gulf’s backhoe operator, in excavating the trench, failed to use a helper in the trench; (19) that such failure was negligence; (20) but that such negligence was not a proximate cause of the damages to the electrical system; (21) that Gulf compacted the fill by driving the tires of a front-end loader directly onto the fill over the varsol line; (22) that such compacting was not negligence; (24) that after LeBlanc became aware of the backhoe operation, LeBlanc permitted the backhoe work to continue; (25) that permitting the backhoe to operate in the trench was negligence; (26) but such negligence was not a proximate cause of the break in the line; (27) that LeBlanc did not fail to properly coordinate the work of the various contractors as would have been done by a person of ordinary prudence; (29) that Gulf’s backhoe operations were not the sole proximate cause of the break in the varsol line; (30) that the architect authorized the use of stabilized sand as an alternative to the contract’s specifications; (31) that LeBlanc did not fail to use stabilized sand in backfilling the west trench; (33) that LeBlanc did not do the backfilling in the trench where the varsol line broke; and (35) that the reasonable and necessary cost of repair and replacement, as a result of the damage to the electrical system, amounted to the sum of $26,532.00.

Under the first point of error, LeBlanc contends that the evidence, as a matter of law, shows Atlas breached its contract proximately causing the damages, and therefore the trial court should have disregarded the jury’s adverse findings on proximate cause and should have entered a judgment non obstante veredicto for appellant.

Under this point, appellant takes the position that Atlas’s subcontract had the effect of incorporating by reference the provisions of LeBlanc’s prime contract wherein Le-Blanc guaranteed to repair all damages caused by defects in the work for a period o‘f one year; consequently Atlas breached the contract by refusing to live up to its agreement and since LeBlanc was required to make the repairs to the electrical system, it is entitled to reimbursement therefor in the amount of $26,532.00. Atlas, on the other hand, contends that the provisions of LeBlanc’s prime contract guaranteeing the owner against all damages were not incorporated by reference and that under the terms of the subcontract, Atlas was obligated to make good any defect in workmanship or material and any damages to the plumbing work as a result thereof.

The subcontract provided as follows:

« * * sjc
“The SUB-CONTRACTOR AGREES:
“ ⅛ * *
“II. To be bound by the Contractor by the terms of the general conditions, drawings, specifications, addenda and alternates and to assume toward the Contractor all the obligations and responsibilities that the Contractor assumed in and by the aforesaid documents toward the Owner, insofar as they are applicable to this Sub-Contractor. (Emphasis supplied).
‡ ‡ *
“XI. To repair and make good any damages, defects, or faults in Sub-Contractor’s work or materials, including materials or equipment covered by Manufacturer’s guarantee, together with work of other trades disturbed or damaged as a result of such repairs, that may appear within one year, or longer if required by specifications, after date of final acceptance of the owners, Sub-Contractor shall also, within guarantee period, make any corrections or adjustments to meet specified performance results.”

The prime contract between LeBlanc and Eastern contained these provisions:

Section 2-04, Special Conditions.
“Contractor hereby guarantees, for á period of one year from date of final acceptance, work called for in various divisions of specifications, when such work is performed by subcontractors. Where special guarantees are required of subcontractors, contractor shall secure warranties and deliver copies to Architect upon completion of work. Contractor warrants all work performed by him directly for a period of one year from date of final acceptance.”
Article 24, General Conditions.
“Neither the final certificate, payment, nor any provisions in the contract documents shall relieve the Contractor from responsibility for negligence, faulty materials, or workmanship within one (1) year from date of final acceptance; and upon written notice he shall remedy any defects resulting therefrom. Therefore, the Contractor hereby guarantees for a period of one year from date of final acceptance work called for in the various Divisions of the specifications and on the drawings when such work is performed by sub-contractors. * * * Any question arising under this article may be resolved by the Architect’s decision or by arbitration. Owner shall promptly advise the Contractor of observed defects.”
Article 27, General Conditions.
“The Contractor shall protect each and every Contractor on the work against damage earned by the Contractor and shall indemnify and protect the Owner on account of any such damage; and if the Owner is sued on account thereof, the Contractor shall, at his expense, defend said suit and satisfy the costs incident to said suit and also any judgment which may be the result thereof.” (Emphasis supplied).
Article 29, General Conditions.
“The Contractor shall at all times maintain adequate protection of all his work from damage and shall protect the Owner’s and adjacent property from injury arising in connection with the Contractor’s performance of this contract. He shall, at his own expense, remove and replace work damaged by his failure to provide protections required except such as may be directly due either to the act or omissions of the agents or employees of the Owner or to errors in the contract documents.”

Section 63-44 of the plumbing specifications provided as follows:

“a. This Contractor shall and hereby does warrant, and the General Contractor shall and hereby does guarantee, that all work executed under this Division will be free from defects of materials and workmanship for a period of one year from the date of final acceptance, of this work.
“b. The above parties further agree that they will, at their own expense, repair and replace all such defective work, and all other work damaged thereby which becomes defective during the term of the Guarantee Warranty.”

Upon completion of the work, LeBlanc demanded and received from Atlas a written warranty as follows:

“We further guarantee that we will, at our expense, repair and replace all such defective work, and all other work damaged thereby which becomes defective duiing the term of this guarantee, except the work of others.” (Emphasis supplied.)

The solution to the controversy will require a construction of the contract. No authorities are necessary to establish the well-known rule that an entire contract should he looked to in undertaking to interpret or construe a portion thereof. The whole contract may he considered as reflecting the general intentions of the parties which may give light upon the particular part of the contract that is in controversy.

It is significant, we think, to note that the last clause in Section II of the subcontract quoted above specifically provides that the provisions of the prime contract were to be incorporated in the subcontract only, “insofar as they are applicable to this Sub-Contractor.” Thus, the clear inference is that the parties did not intend to incorporate all provisions of the prime contract. Our task is to determine which provisions, if any, of the prime contract did the parties intend to incorporate in the subcontract.

As we view the provisions of the prime contract as set forth in Section 2-04 and Sections 24 and 27, the parties never intended such provisions to be incorporated into the subcontract, because those provisions, by their own terms, were obviously meant to apply only to the general contractor. We likewise believe that the provisions of Article 29 were not intended to be incorporated into the subcontract. Any question, however, in connection with this provision is rendered immaterial because of appellant’s failure to request and obtain any findings upon the question of whether the failure to protect the work proximately caused the damages. Rule 279, Texas Rules of Civil Procedure.

The remaining provision of the prime contract, which appellant contends was incorporated into the subcontract, is Section 63-44 of the plumbing specifications. Obviously the parties intended that this provision was to be incorporated and made a part of the subcontract. Consequently the liability of Atlas for damages, if any, must be determined upon the basis of the language used in the subcontract and the provisions of Section 63-44 incorporated therein by reference. The inquiry thus becomes a question of whether, as a matter of law, Atlas can be said to have breached the terms of its subcontract when same is construed together with the terms and conditions as set forth in Section 63-44. We have concluded that it did not.

An examination of the provisions of Paragraph XI of the subcontract shows that Atlas agreed only to repair defects or faults in its own work or materials and to make good the work of others which was damaged or disturbed while in the process of repairing its own defective work or materials. Under the provisions of Section 63-44, Atlas warranted that all work was to be free from defects in the material or workmanship for a period of one year, but liability was limited to the repair of the defect and to the repair of any other plumbing work damaged by reason thereof. We fail to find anything in either the subcontract or Section 63-44 showing that Atlas agreed to repair any and all damages which might flow from defective workmanship or material or from other causes.

Moreover, we think the intent of the parties in this respect was made apparent by the terms of the separate warranty agreement which LeBlanc required of Atlas upon the completion of the work. The warranty specifically provided that Atlas was to repair its own work and any damages resulting to its own work, but further provided in the last sentence thereof that Atlas would not be responsible for any damages to the work of others.

Our conclusion is that Atlas did not breach the terms of the contract, because under the terms of the contract Atlas did not agree to repair all damage resulting from defective work or material.

Appellant further contends that if it is not entitled to damages for breach of contract as a matter of law, appellant is entitled to damages for breach of the contract based upon the jury’s verdict finding that Atlas violated certain specifications of the plumbing contract, irrespective of the fact that the jury failed to find any of the violations proximately caused the damages. In this connection, appellant contends that a finding of causation was unnecessary, or if necessary, causation was shown as a matter of law and therefore the trial court erred in refusing appellant’s motion for judgment notwithstanding the verdict. We think the contention is without merit.

It is fundamental in contract actions that there must be a causal connection between the alleged breach and the alleged damages resulting therefrom. As stated by the writer in 25 C.J.S. Damages § 18, p. 647-649:

“The legal concept of proximity is applicable to ascertain and measure damages. It may be stated as a broad general rule that a wrongdoer is liable to the person injured in compensatory damages for all of the natural and direct or proximate-consequences of his wrongful act or omission, * * * ”

In discussing damages under breach of contract, 17 Tex.Jur.2d 358-359 announces the same fundamental rule with regard to a charge to a jury:

“ * * * The substance of the charge should be that if the jury find that the contract was breached as alleged in the petition, they should award to the plaintiff such damages as were the natural, direct, and proximate result of the breach and that were within the contemplation of the parties at the time of the making of the contract. * * * ”

Since it is basic that there must be a causal connection established between the alleged breach of contract and the alleged damages resulting therefrom, it appears that LeBlanc either did not submit proximate cause issues with regard to breach of contract, which issues must be deemed to be found against it under Rule 279, T.R.C.P., or the proximate cause findings as submitted serve the dual purpose of proximate cause issues for both negligence and breach of contract which the jury determined against LeBlanc. Because of this basic failure to connect the violations of specifications to the break in the pipeline, appellant failed to sustain the burden of proof and therefore was not entitled to damages for breach of contract in this respect.

Under points two through eleven, appellant contends that it was entitled to judgment against Atlas notwithstanding the verdict upon the theory of negligence. As noted above, the jury found Atlas negligent in several respects, but failed to find such negligence to be a proximate cause of the damages. Appellant contends that the trial court erred in refusing to set aside the proximate cause issues and in rendering judgment for Atlas based upon such issues, asserting that the evidence was such that the court should have found proximate cause against Atlas as a matter of law, or in the alternative, that the jury’s findings on proximate cause were contrary to the overwhelming weight and preponderance of the evidence.

It would serve no useful purpose to further review the more than 1,000 pages of testimony in the record. Every facet of the question of causation seems to have been fully explored. In some instances the witnesses were permitted to express an opinion as to what caused the break in the varsol line. For example, Mr. LeBlanc testified:

“My opinion is that the break was caused by a backhoe digging in the ditch, hitting the pipe or displacing the pipe, setting up a great leverage at the point of the riser as described, causing the bend as described by Mr. Waldrop, causing the break at the lower ‘L’ juncture of the rise and the ‘L’ at the lower level.”

When asked for his reasons for this opinion, he further stated:

“A force to break a pipe like this would be more than a man stepping on the pipe. It would have to be a substantial blow. There is no question in my mind but what this pipe sustained a blow during the digging with the backhoe.”

It is without dispute that there was no direct proof of how the pipe was broken, when it was broken, or who broke it.

It is fundamental in negligence cases that liability must be predicated upon a causal connection between the negligence alleged and the injury complained of, and the proof must be such as to establish causal connection beyond the point of conjecture. 40 Tex.Jur.2d 464; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; Thomas v. Beckering, (Tex.Civ.App.) 391 S.W.2d 771.

Where the evidence upon the question of causation is conflicting and circumstantial as it is in this instance, the issue of proximate cause is for the jury. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982; Biggers v. Continental Bus System, Inc., supra.

Undoubtedly, facts might exist where the appellate court might be justified in concluding that proximate cause was established as a matter of law but such cases are rare indeed, and those in which the facts have been so interpreted make it clear that the facts must be such that reasonable minds could not arrive at a different conclusion. Liberty Film Lines v. Porter, supra; Cave v. Texas & Pacific Railway Company, (Tex.Civ.App.) 296 S.W.2d 558.

In our view, the record before us does not justify the conclusion that proximate cause was established as a matter of law. It is apparent, we think, that the evidence raised only a question of fact for the jury. The verdict makes it apparent that the jury felt that none of the acts or omissions alleged against Atlas proximately caused the damages to the electrical cables. Conceivably the jury believed that the break was caused by other contractors on the job or that some act or omission of Atlas not alleged against it proximately caused the damages. The assignments of error in this respect are accordingly overruled.

Nor are we able to agree with the contention that the jury’s findings on proximate cause are against the overwhelming weight and preponderance of the evidence. Big-gers v. Continental Bus System, Inc., supra.

Appellant makes no complaint of the findings by the jury exonerating Gulf from liability.

By points 12-15, appellant contends that the court erred in refusing its requested special issues by which appellant sought to have the cause submitted to the jury on the theory of res ipsa loquitur. Appellant requested a general issue of negligence against Atlas and also a similar but separate issue against Gulf, followed by the usual issues on proximate cause. In this connection, appellant argues that Atlas and Gulf, either jointly or in necessary rotation with each other, had exclusive control over the trench in which the varsol line lay and over all instrumen-talities which could have come in contact with the line and that the break in the line was such that it would not have normally occurred in the absence of negligence. Therefore, appellant says the doctrine of res ipsa loquitur was applicable.

The law is well settled in Texas that in order for the doctrine of res ipsa loquitur to apply, it must be shown that the negligent cause or instrumentality which produced the injury was under the exclusive control or management of the defendant. Where the evidence shows that an accident may have happened as a result of two or more causes, and it is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the rule of res ipsa loquitur does not apply. Davis v. Castile, (Tex.Com.App.) 1924, 257 S.W. 870; Johnson v. Texas & Pac. Ry. Co., (Tex.Civ.App.) 117 S.W.2d 864; Worth Steel Corporation v. Gartman, (Tex.Civ.App.) 361 S.W.2d 426.

As we view the record, the trial court properly refused to submit the case upon the theory of res ipsa loquitur. The evidence shows that neither Atlas nor Gulf were on the construction project continuously after the line was laid and tested. In their absence, other contractors such as the sprinkler contractor, brick masons, the gas company and LeBlanc’s own employees were working in and near the place where the line was broken. Moreover, as general contractor, LeBlanc had general control over the entire construction project. There was testimony by LeBlanc’s superintendent that LeBlanc’s own employees could have caused the break and other testimony by Mr. LeBlanc showing that Gulf could have caused the break. As we see it, the evidence not only fails to show exclusive control by either Atlas or Gulf, but shows that the accident could have happened as a result of one or two or more different causes. Furthermore, we do not believe the evidence shows joint control by Atlas and Gulf. In order to prove joint control, it must be shown that exclusive control of all instru-mentalities which could have produced the damage was at all times in the defendants. Worden v. Union Gas System, 182 Kan. 686, 324 P.2d 501.

Appellant next contends that regardless of whether or not the doctrine of res ipsa loquitur was applicable, appellant was nevertheless entitled to have the case submitted upon the general issue of negligence as requested in that respect. We do not agree. It has long been the rule in this state that the submission of negligence generally without confining the issue to particular acts of negligence is reversible error. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Clary v. Morgan Motor Co., (Tex.Civ.App.) 246 S.W.2d 936.

By the final point of error, appellant contends that there was an irreconcilable conflict between special issue No. 16 and special issues Nos. 24 and 25. The conflict, if any, appears to be immaterial, and in any event would not be fatal under the rule announced by the Supreme Court in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

The judgment of the trial court is affirmed, and the appeal as to appellee, Muhl Electric Ltd. is dismissed.

      . Hereinafter referred to as “Atlas.”

      . Hereinafter referred to as “Gulf.”

      .Hereinafter referred to as “Muhl.”


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Joseph Henry DARABCSEK, Appellant.
    No. 52349.
    Supreme Court of Missouri, Division No. 2.
    March 13, 1967.

      Vincent J. Cavanaugh, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Bruce Normile, Special Asst. Atty. Gen., Edina, for respondent.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of the unlawful possession of a stimulant drug, and a fine of $300 was imposed. The offense is a violation of § 195.240, Laws 1963, Cum.Supp.1965, V.A.M.S. The crime is one of the character sometimes referred to as a “mixed felony,” with possible imprisonment up to ten years (Laws 1963, p. 363, § 1). Consequently, we have jurisdiction.

The principal errors alleged are the overruling of defendant’s motion to suppress “all evidence pertaining to five (5) white pills” found by police in a search of his person, and the admission of such pills in evidence. He further claims that his arrest yras unlawful.

The narrative begins at 6:22 a. m. on December 11, 1965, at a point on Interstate 70 about one and one-half miles east of the St. Charles Bridge. Two St. Louis County patrolmen then received a radio call of an accident at that location; they arrived there about 6:30. It was raining and, of course, it was dark. They found defendant’s car crossways on the south shoulder of the westbound lanes with the front end extending on to the pavement, the rear end more or less in a ditch, and the bumper caught in a median cable; the two left tires were flat, and that there was damage to the left side of the car, in front and at the rear. Defendant was seated under the wheel, racing the motor and manipulating the controls; the car was vibrating and moving slightly, but not making forward progress. One of the officers asked defendant what he was doing and he replied that he was “trying to get the damned thing out of the ditch.” At that point defendant got out, raised the hood, shut it, got back into the car, raced the motor some more, and again operated the controls. The radiator was boiling. It seems obvious that defendant was trying to “rock” the car.

Other officers of the St. Louis County police were also there; one officer left to direct traffic into the other lane. Officer Schmidt directed defendant to get out of his car and get into the police car so that he could take a report. This officer testified that defendant’s breath smelled strongly of liquor, that he was excited, was running around, staggered, that his eyes were bloodshot, his clothes in disorder and somewhat dirty and that he was incoherent. In the police car defendant was told that he was under arrest and a summons was issued and given to him for driving while under the influence of intoxicating liquor. At the time one of the officers “patted” defendant’s outer clothing to ascertain whether he had any “large weapons.” There was no warrant for his arrest and no search warrant. After these occurrences, Officer Schmidt drove defendant to the No. 1 District Station on Lindbergh Boulevard and there turned him over to Officer Boedy in the assembly room; this occurred at about 7:00 a. m., or a little later; a roll call of officers was in progress but defendant proceeded to jump up and down, and generally interrupted the proceedings, until he was reprimanded and told to stay in his chair. He was not searched there. Defendant remained at all times under Boedy’s surveillance until he was taken, at about 7:30, to Police Headquarters in Clayton. He was taken there by Boedy and another officer in a police car, along with another prisoner and a robbery victim. They arrived after 8:00 a. m., and defendant was taken promptly to the booking desk. He was instructed to empty his pockets (which he apparently did with one exception) and to take off his necktie, belt and shoelaces. Thereupon Officer Boedy searched his pockets and found in his left trousers pocket five white pills “double scored” with X’s, a little larger than aspirin tablets. The evidence showed that the procedure thus followed at the booking desk was strictly in accordance with the required booking procedure.

The foregoing was the evidence introduced at the hearing on defendant’s motion to suppress evidence. Substantially the same evidence was offered and received at the trial, with such additions as we now note. At the scene on the highway defendant appeared to be intoxicated; the officers felt that they had reason to suspect that he had been driving while intoxicated. Defendant and the officers left the District Station at about 7:30 and arrived at Headquarters about 8:20, that time being consumed in the necessary travel. When Officer Boedy found the five tablets he asked defendant what they were and defendant said that they were “bennies.” Boedy then called an officer of the Narcotics Squad who took the tablets and tested them, later taking them to the laboratory of the City of St. Louis Police Department where they were tested further. The evidence disclosed that they contained amphetamine sulfate, one of the drugs shown on the list of those specifically proscribed. Defendant had become somewhat more coherent by the time he reached headquarters and the officers understood the term “bennies,” without any difficulty. One of the officers recalled that •defendant was taken to headquarters in the front seat of the car, with the other prisoner and victim in the back seat.

Defendant slept most of the day of his arrest but was interviewed late in the day by an officer. That officer testified that after defendant was told that he did not have to talk, that what he said might be used against him, and that he could contact a friend, relative or attorney, the defendant said that he did not want to contact anybody, and related certain occurrences on the night preceding his arrest. These were, in substance: that he had gone to a tavern about 5 :30 p. m. and there met a man from whom he had previously bought “bennies”; that he then bought 30 of the pills from that man and, during the night, went to six or seven other taverns taking five or six of the “bennies”; that he did not know what happened to the others.

Defendant testified that he had been treated at the St. Louis State Hospital with drugs, psychotherapy and electro shock treatments; that he had had nine shock treatments from some time in November to and including the morning of December 10, 1965; that he remembered going to the hospital on that morning, but nothing which occurred thereafter for several days; on cross-examination he sought to explain his nervous condition in some detail; that evidence is not really relevant here. He thought that his father took him home from the hospital on the morning of December 10. He testified that he knew the musicians in certain taverns, that he played the drums occasionally himself, and had heard one or more of his musician friends speak of “bennies.” He testified that he did not know how his car got into the described location on Highway 70. He lived at home with his parents, and had worked at Wagner Electric for a few months in 1965.

The Clinical Director of the St. Louis State Hospital, Dr. Maarten Nieuwenhui-zen, testified that defendant had been under treatment since October 18, 1965, for “obsessive neurosis, with depressive reactions,” that nine shock treatments had been administered (the last on the morning of December 10) and that he had also received medication and psychotherapy. All such treatments were given to him as an outpatient. He further testified: that the electro shock treatments are administered after one is rendered unconscious by medication; that he regains consciousness slowly (probably in 10-30 minutes), but that he will remain confused for a longer time, with his memory for recent events substantially affected; that he may need physical support for a short time; that the confusion of the patient is likely to be cumulative from a number of shock treatments; that he saw and talked with defendant on December 13, and that defendant recognized him and talked readily but did not recognize the officer; that alcohol, taken after such treatments, increases the confusion of the patient; that defendant needs further treatment; that defendant was being released to his family after each shock treatment and that he should not have been permitted to drive a car; that no amphetamine was ever prescribed for him, and that if such had been used by defendant for a long period it could have caused his trouble. A psychologist at the same institution, Alphonse Menotti, testified also, but his evidence was generally corroboratory of the preceding medical witness, in so far as a layman could corroborate it. He had talked with defendant in the jail at about 7:00 p. m. on December 11, and testified that he seemed to be “still drunk or in a stupor”; that defendant didn’t know what had happened ; that on Monday, the 13th, he looked better and could answer questions.

We have concluded that the motion of defendant to suppress the evidence was properly overruled. As the Court said in Harris v. United States, 331 U.S. 145, at loc. cit. 150, 67 S.Ct. 1098, loc. cit. 1101, 91 L.Ed. 1399: “This Court has also pointed out that it is only unreasonable searches and seizures which come within the constitutional interdict. The test of reasonableness cannot be stated in rigid and absolute terms. ‘Each case is to be decided on its own facts and circumstances.’ Go-Bart Importing Company v. United States, 1931, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.” The defendant claims here that the search at Police Headquarters occurred after such a lapse of time that it was not “incident” to the arrest. As a corollary to our further discussion we also hold that on the evidence adduced at the hearing on the motion (certainly not negated by the evidence adduced at the trial) the arrest was lawful. The defendant was in such a condition that he reasonably appeared to be intoxicated; he was then trying to operate his car back on to the roadway of one of the most heavily traveled highways in Missouri; he and his car had very obviously just come off of that highway, and somewhere along the line substantial damage had been caused to his car. It was not necessary that the officers should actually see him driving on the pavement of the highway, nor that they then have the names of witnesses who had so seen him. State v. Kissinger, 343 Mo. 781, 123 S.W.2d 81, 83. A subsequent investigation might (and so far as we know may) have disclosed the names of witnesses who had seen him driving on the highway. Driving on a public highway while intoxicated or under the influence of drugs is an offense under our state laws. Section 564.440, RSMo 1959, as amended, Laws 1963; Sections 564.445, 564.460, as enacted in Laws 1963. It is immaterial that the officer may have issued a summons under a County Ordinance. The facts and circumstances seen by the officers very definitely afforded them reasonable cause to believe that defendant had thus violated the law, and the arrest was lawful. See State v. Cantrell, Mo., 310 S.W.2d 866; State v. Jefferson, Mo., 391 S.W.2d 885; State v. Witt, Mo., 371 S.W.2d 215.

It is fundamental law that a reasonable search may be made as an incident of a lawful arrest. State v. Green, Mo., 292 S.W.2d 283; State v. Edwards, Mo., 317 S.W.2d 441; Arwine v. Bannan (CA 6), 346 F.2d 458; Harris v. United States, supra; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743; State v. Brookshire, Mo., 353 S.W.2d 681, certiorari denied 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119; State v. Jefferson, supra; State v. Wiley, Mo., 412 S.W.2d 485, opinion filed February 13, 1967; State v. Witt, supra. In Green, supra, certain persons reasonably suspected of shoplifting had been stopped in a car on a Springfield street, and various pieces of luggage were then found in the car; the driver was searched for weapons at the time. All four occupants and the luggage were taken to the police station where the luggage was taken into the station and opened; the articles stolen from the complainant were found in the luggage, along with sundry others. A motion to suppress the evidence was overruled, and the articles were admitted in evidence. On appeal the Court said, in part, loc. cit. 286-287 of 292 S.W.2d: “Defendant contends further that the arrest and the search must he one transaction and contemporaneous, citing among other authorities State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743. * * * The question here involved is whether there was a lapse between the arrest and the search that would preclude the search being an incident of the arrest. Delaying the search of the automobile and the bags until arrival at police headquarters would not be an abandonment or interruption that would prevent the search being an incident of the arrest since they were in the continuous possession of the police department. We have carefully considered the evidence in this regard and there is no showing that the defendant’s rights were disregarded or prejudiced in admitting the suits in evidence.” To the same effect, generally, see State v. Edwards, Banc, Mo., 317 S.W.2d 441, where the Court held lawful the search of defendant’s car for narcotics after it was parked in the street at police headquarters, and following defendant’s arrest on suspicion of a narcotics violation.

In State v. Camper, Mo., 353 S.W.2d 676, the search of the trunk of a car at police headquarters, approximately an hour after defendant was arrested in it, and following inspection of the place where a burglary had been committed, was held to be a part of the “continuous flow of events” and “not unreasonable under these circumstances, * * * as an incident to a lawful arrest.” The Court there said, further, loc. cit. 680: “The interval of approximately an hour between the time of the arrest and the time of the search did not break the continuity of events. State v. Green, Mo.Sup., 292 S.W.2d 283, 1. c. 287. The disclosure, by the search, of evidence of the commission of another offense than that for which the arrest was made did not invalidate the search and seizure or render the evidence obtained therein inadmissible when defendant was placed on trial for the other offense.” See also State v. Foster, Mo., 349 S.W.2d 922; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. In Arwine v. Bannan (CA 6), 346 F.2d 458, the search of defendant’s car at police headquarters more than three hours after his arrest was held to be reasonable and lawful; there the defendant had been left in the car for approximately three hours as a “decoy,” while the officers waited for an accomplice to return to the car. The Court said in part, loc. cit. 470-471: “We are of the view that the arrest and search, in this case, were units of an integrated incident, and, regardless of hairsplitting distinctions of contemporaneity, were incident to the lawful arrest. Under these circumstances, we conclude that the search was not an unreasonable search, and was not unlawful in contravention of the Fourth Amendment; and that the evidence obtained as a result of the search was admissible on appellant’s trial.”

Defendant cites: State v. Cuezze, Mo., 249 S.W.2d 373; State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743; State v. Brookshire, Mo., 353 S.W.2d 681; State v. Sprout, Mo., 365 S.W.2d 572; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. We cannot see that Carenza or Brookshire aid defendant in any manner; in fact, they appear to have the very opposite effect by holding delayed searches to have been reasonable and lawful. The others are distinguishable, as we view them. In Cuezze the Court held that there was no reasonable ground for the arrest of defendant in the first place and it followed that the search of the car was unlawful. In Sprout, defendant had been arrested at his abode for first degree murder; the premises were searched on the afternoon of the arrest for approximately an hour and a half, and much blood and a pair of bloodstained trousers were found. On the next day one officer went back and took a shirt which he found on a chair. The Court held that the search had been abandoned and that the taking of the shirt was not part of a search made as an incident of the arrest. The Court there distinguished the Carenza and Brookshire cases upon the theory that the officers had remained continuously in possession of the premises until the search was completed. The facts in Agnello render it wholly inapplicable. As to Preston, we quote from the opinion in Arwine, supra, at loe. cit. 470 of 346 F.2d: “The distinction between the search in the Preston case and in the instant case is between a search in the absence of the defendant, made after the arresting police officers have turned over possession of the car to others, and a search in the presence of the defendant where the arresting police officers have retained continued possession of the car from the time of the arrest to the time of the search.”

The search of defendant’s pockets was made here as a part of the “booking” procedure, preparatory to defendant’s incarceration. It was a reasonable procedure for the protection of other prisoners, attendants, of the defendant himself, and for the further purpose of preventing a possible escape or the introduction of obnoxious material into the jail. It was, in fact, a continuation of the process of the arrest, a unit of the “integrated incident.” It is obvious that the district stations were not prepared to take and keep the property of prisoners, and that the earlier search was made only for the discovery of weapons. The custody of defendant was continuous at all times.

Under these circumstances, it is of no consequence that the drug so discovered was not necessarily relevant to the charge for which the defendant was arrested. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; State v. Camper, Mo., 353 S.W.2d 676. In possessing the drug defendant rendered himself chargeable with a continuing offense in the very presence of the officers. The pills, as exhibits, and the testimony concerning them were properly admitted in evidence.

The remaining point consists of defendant’s contention that his motion for a judgment of acquittal should have been sustained; the point is not adequately stated within our rules, but we have nevertheless examined the argument. The first matter urged is that the State did not prove that defendant had the drug in his possession at the time of his arrest. If that be essential, which we doubt (for he certainly was in possession of the drug at headquarters which would equally constitute a crime), all the inferences from the evidence fairly indicated that he did. He was at all times after 6:30 under the direct surveillance of police officers, even in going to the toilet at the District Station. At the time of the arrest defendant was only “patted” for weapons, and it is obvious that five pills which were loose in his pocket would not have been discovered. On the trip to headquarters, the officer who recalled where the different persons sat testified that the defendant was seated in front with one or both officers. The search at headquarters was made approximately an hour and a half after defendant’s initial arrest, with no delay thereafter except in the necessary transportation and the very brief wait at the District Station. There was no reasonable opportunity for defendant to have acquired the drug after his arrest, and as pointed out later, he admitted buying 30 of the pills on the previous evening. The point is not worthy of further discussion. Secondly, counsel say that in view of appellant’s demonstrated condition at the time of the arrest the State failed to prove that he knowingly or willfully then had the drug in his possession. The statute, Section 195.240, requires no specific intent, but we shall assume that the possession must be with knowledge. There was evidence at the trial that defendant was, on the morning of his arrest, excited, that he appeared confused, that he staggered and that he appeared to be intoxicated; that he was somewhat more coherent by the time he reached headquarters. There was also evidence that at the booking desk he said that the pills were “bennies,” this statement being heard and understood by two of the witnesses, and that, when he supposedly emptied his pockets, he did not bring out the pills, justifying an inference of guilty knowledge. There was further evidence from Officer Woerther, admitted without obj ection and not questioned here, that in an interview with defendant late in the afternoon following his arrest, and after defendant had slept practically all day, defendant told him that he had purchased 30 of the tablets at about 5:30 on the preceding evening at a tavern, from a man who had previously sold “ben-nies” to him; also, that he had taken five or six of them. Defendant’s own statements thus furnished ample grounds for an inference of knowledge and, if need be, of “willfulness.” Defendant in his own testimony said that he had frequented taverns and that he had heard of “bennies” from his tavern musician friends; he made no claim that he was intoxicated or otherwise incompetent when he purchased the drug, nor would intoxication constitute any defense to this or any other crime. He has not at any time raised the existence of “mental disease or defect.” Ch. 552, RS Mo., Laws 1963, and particularly § 552.030. There was ample and substantial evidence from which all elements of the offense could be found, and “beyond a reasonable doubt.”

It is obvious that the jury was somewhat sympathetic with defendant, in view of the extremely light penalty imposed, but that does not detract from its finding of guilt. We find no error in those parts of the record which we consider under Criminal Rule 28.02, V.A.M.R., and indeed no other error. The judgment is affirmed.

All of the Judges concur.