author: BARROW, Justice.

text:
    Jordan S. POPPER, Appellant, v. Irene Lee POPPER, Appellee.
    No. 14361.
    Court of Civil Appeals of Texas. San Antonio.
    March 11, 1965.
    Rehearing Denied April 7, 1965.

      Glosserman, Alter, Smith & Rosenheim, San Antonio, for appellant.
    M. M. Pena, Jr., San Antonio, for appel-lee.
   BARROW, Justice.

This is an appeal by Jordan S. Popper from a judgment rendered after a non-jury trial denying him a divorce from appellee, Irene Lee Popper. Mrs. Popper was not present, but was represented by a guardian ad litem. The trial court found that appel-lee committed acts of harsh and cruel treatment which rendered the parties’ further living together insupportable, but denied the divorce because of her mental condition at the time the acts were committed.

The principal question raised by appellant on this appeal is, what degree of mental illnes or emotional disturbance will constitute a defense to an action for divorce based upon excesses, cruel treatment or outrages toward the other spouse. It is undisputed that Mrs. Popper, although suffering from a mental illness at all material times, was never adjudicated insane.

There is very little Texas authority directly on this question, but the subject has been considered several times by courts of other jurisdictions. See 19 A.L.R.2d 144; Fuemmeler v. Fuemmeler, St. Louis Court of Appeals, 381 S.W.2d 27; Bryce v. Bryce, 229 Md. 16, 181 A.2d 455, 98 A.L.R.2d 917; Nelson v. Nelson, 221 Or. 117, 350 P.2d 702; Jaikins v. Jaikins, 370 Mich. 488, 122 N.W.2d 673; Barnes v. Barnes, 181 Pa.Super. 427, 124 A.2d 646; Nelson v. Nelson, 108 Ohio App. 365, 154 N.E.2d 653. It is seen that the majority of these jurisdictions apply the common law “right and wrong” tests, or, in any event, require the indignities complained of to have been the result of or produced by the mental illness or disease, in order to constitute a defense to said wrongful acts. An important consideration in these cases is whether or not wilfulness is an element of the ground for divorce.

Texas authorities have uniformly held that a divorce may be granted from an insane spouse represented by a guardian ad litem where the acts constituting the statutory grounds were committed by said spouse prior to her becoming insane. Wilemon v. Wilemon, 112 Tex. 586, 250 S.W. 1010; Gaines v. Gaines, Tex.Civ.App., 234 S.W.2d 250; Powell v. Powell, Tex.Civ.App., 199 S.W.2d 285; Robinson v. Robinson, Tex.Civ.App., 199 S.W.2d 256. These cases, by implication, bring Texas within the general rule that insanity of the spouse at the time of the commission of the acts relied upon as the ground for divorce is a defense to the action.

In the second appeal of McNabb v. McNabb, Tex.Civ.App., 250 S.W. 434, no writ history, the question was raised as to whether the physical and mental condition of the defendant was such as to render her irresponsible for acts which rendered the parties’ further living together insupportable. The medical evidence was conflicting. A doctor called by defendant testified that she had pellagra; was mentally sick; could not control herself, and was not responsible for her acts. Another doctor contradicted this testimony and testified that defendant’s trouble was entirely domestic. The majority of the Court of Civil Appeals found that the defendant’s lack of responsibility was not so conclusive as to warrant their setting aside the jury’s verdict. Chief Justice Hall dissented and said that the conduct complained of was involuntary and the necessary element of wilfulness was lacking.

Other Texas authorities involving divorce actions have treated “insanity” as an end result without a discussion of varying degrees of mental illness. In Gaines v. Gaines, supra, the husband was granted a divorce for occurrences “prior to the separation, adjudication and commitment.” In Wilemon v. Wilemon, supra, after a careful analysis of the history of the statutory grounds for divorce, it was held that an action for divorce could be maintained where the acts were committed by the defendant “prior to his becoming insane.” In Powell v. Powell, supra, the acts of cruelty for which the divorce was granted occurred “prior to the date of adjudication of Defendant’s insanity.”

Appellant urges that there is no evidence to support a judgment denying him a divorce, and that under the findings of the court appellee was legally responsible for her conduct and he is conclusively entitled to a divorce. The trial court did not expressly find that Mrs. Popper was legally insane, but did find that her conduct was the result of her mental illness and emotional instability. It further found that there was no evidence of her acts of harsh and cruel treatment prior to the onset of her mental illness. It concluded that her conduct was not wilful, studied or deliberate. It refused to find, as requested by appellant, that the evidence did not establish that appellee was not legally insane or mentally incompetent. These findings are supported by sufficient evidence when the record is viewed, as required under appellant’s assignments, in the most favorable light in support of the trial court’s findings.

Appellant testified to several acts of physical and verbal abuse committed by appellee against him between December 1962, and their separation on April 29, 1963. The trial court found that these acts were committed and that they rendered the parties’ further living together insupportable. It is not disputed that these acts were sufficient to justify a divorce under Subd. (1) of Art. 4629, Vernon’s Ann.Civ.Stats., and therefore no useful purpose would be served by setting them forth. The dispute, both in the trial court and on appeal, relates to whether appellee’s mental condition at the time these acts were committed constitutes a defense to her acts of cruel treatment.

Appellant testified that the parties were married in 1956 and in 1959 his wife started having emotional difficulties. In 1959 she was treated for several months as an outpatient at Walter Reed General Hospital for what appellant described as neurotic problems. He further testified that appel-lee was confined in the psychiatric ward at Brooke General Hospital from July through October, 1961, for an emotional disturbance. During this confinement appellee received a series of twenty electroshock wave treatments. From October, 1961, until the couple’s separation, Mrs. Popper received psychiatric treatment as an out-patient of this hospital. Appellant testified, however, that during this latter period appellee passed the Texas Driver’s License test, drove a car, handled a joint checking account, and took care of the home and their small son. After their separation, Mrs. Popper returned to her family in upper New York. From the middle of May until December she was confined in a State hospital for the mentally ill and at the time of the trial, on May 25, 1964, was still under treatment as an out-patient.

Col. Bailey, head of the Brooke General Hospital Department of Psychiatry and Neurology, testified that from January 2, 1962, until he last saw Mrs. Popper on March 4, 1963, she was suffering from a serious mental disorder, namely, schizophrenia, which had vacilated in severity from week to week and month to month. He described schizophrenia as a chronic mental illness which has a tendency to be manifested by exacerbations and remission. Col. Bailey was unable to testify as to whether or not any specific act of cruelty was caused by her mental illness, but during the time the acts occurred “she was very, very ill.”

Appellant was required to establish his grounds for divorce by full and satisfactory evidence. Art. 4632, Vernon’s Ann.Civ.Stats. In McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, it was held that cruel treatment within Sec. (1) of Art. 4629, supra, is not confined to physical violence, but may consist of studied and deliberate insults and provocations. This element of wilfulness has been consistently recognized by the authorities. See, Alexander v. Alexander, Tex.Civ.App., 373 S.W.2d 800; Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709; Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957; Resendez v. Resendez, Tex.Civ.App., 282 S.W.2d 318; Golden v. Golden, Tex.Civ.App., 238 S.W.2d 619; Norvell v. Norvell, Tex.Civ.App., 194 S.W.2d 270; McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129; 20 Tex.Jur.2d, Divorce & Separation, § 13.

It is our opinion, from a review of the record, that the trial court did not abuse its discretion in finding that Mrs. Popper did not commit any acts of cruelty prior to her becoming afflicted with the mental illness of schizophrenia, and that the effect of this illness was such that she was not responsible for the acts resulting from same. The divorce sought under Subd. (1), of Art. 4629, supra, was therefore properly denied.

The judgment is affirmed.

      . “CONCLUSIONS OB' LAW
      “Plaintiff's, Jordan S. Popper, petition for a divorce from Defendant, Irene Lee Popper, is in all things denied on the grounds that during the time of the acts of harsh and cruel treatment by Defendant, she, the Defendant, was emotionally disturbed and mentally ill, and the acts committed by her lacked the intent and malice to injure the Plaintiff and were involuntarily done and were induced by her mental condition, and her conduct was not wilful, studied or deliberate, but was the result of her mental illness and emotional instability.”


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Nixon McNIEL, d/b/a McNiel Construction Company, Appellant, v. Randolph V. WILLIAMS et ux., (Virginia Mae Williams), Appellees.
    No. 110.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 18, 1965.

      Richard A. Hall, of Branscomb, Gary, Thomasson & Hall, Corpus Christi, for appellant.
    Neal Dancer, Corpus Christi, John H. Flinn, Sinton, for appellees.
   SHARPE, Justice.

This is an appeal from a judgment overruling appellant’s (McNiel’s) plea of privilege. The parties will sometimes be referred to as in the trial court, i. e., Virginia Mae Williams, joined by her husband Randolph V. Williams, as plaintiffs, and Nixon McNiel, d/b/a McNiel Construction Company, as defendant.

Mr. and Mrs. Williams sued McNiel in the district court of San Patricio County, Texas, to recover damages for injuries allegedly suffered when Virginia Mae Williams fell in the home of Mr. and Mrs. Ben E. Ivey at Taft, Texas, where she was employed as a maid. McNiel had contracted with the Iveys to do a general remodeling of their home, including carpentering, painting and papering of same, and his employees were engaged in that work at the time of plaintiff’s fall. Defendant filed a plea of privilege to be sued in Nueces County, Texas, and plaintiffs filed a controverting affidavit placing reliance upon Subdivision 9a of Article 1995, Vernon’s Ann.Tex.Civ.St, reading as follows:

“Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

By two points McNiel contends that the trial court erred in overruling his plea of privilege because the plaintiff failed to prove (1) that the defendant committed a negligent act or omission, or (2) that the act or omission alleged to have constituted negligence was that of the defendant or of his employee.

In the absence of findings of fact and conclusions of law, we must review the judgment under the assumption that the trial court found every issuable fact in support of the judgment; and in determining the sufficiency of evidence to support the implied findings of the trial court we must follow the rule that if, discarding all adverse evidence, and giving credit to all evidence favorable to the successful party, and indulging every legitimate conclusion favorable to him which might have been drawn from the facts proved, the trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. Every reasonable intendment must be resolved in favor of the judgment and it should be affirmed if there is any evidence to support it upon any theory authorized by law. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App., 1964, n. w. h.).

Plaintiff’s evidence, in substance, shows the following: Virginia Mae Williams came to work on the day of the accident about 9:00 a. m. Four employees of the defendant were working when she arrived. About an hour later, she walked toward a stairway to go upstairs and slipped on a nail (which she did not see until afterward), falling into the rail. A 16-penny galvanized nail was identified and admitted into evidence. Mrs. Williams sustained injuries on account of said fall, was treated by doctors on the date of the fall and thereafter, and was walking on crutches at the time of the hearing in the lower court.

The evidence adduced on the hearing of the plea of privilege is sufficient to support implied findings of the trial court for venue purposes that defendant’s employees put the nail, on which Mrs. Williams slipped and fell, on the floor near the stairway in the Ivey home, and, that under the existing conditions such conduct amounted to negligence which proximately caused injury to her, thus satisfying the requirements of the above-quoted statute.

This case is not in the same category as H. E. Butt Grocery Company v. Kirkwood, 384 S.W.2d 790 (Tex.Civ.App., 1964, n. w. h.), recently decided by us. In that case the evidence was wholly insufficient to support findings that the defendant was connected with the act or omission alleged to be the basis of negligent conduct, i. e., causing or permitting a puddle of water on the floor. The instant case is more in line with Ice Service Co. v. Scruggs, 284 S.W.2d 185 (Tex.Civ.App., 1955, wr. ref., n. r. e.), which decision we discussed and distinguished in H. E. Butt Grocery Co. v. Kirkwood, supra. In the Scruggs case the offending object (ice, which melted on the floor) was brought in by a third party who had contracted with the store owner to furnish ice, and injury was caused to an employee of the store who was allowed to recover because he fell on a slick place on the floor caused by ice particles dropped thereon. In the instant case, the record shows that defendant furnished all the labor and materials in connection with the remodeling of the Ivey home, and it is not shown that anyone else was doing carpenter or construction work near the place where the plaintiff fell on the nail. The trial judge was authorized to draw a proper inference that defendant’s employees placed the nail near the stairs where Mrs. Williams fell, and that, under the conditions, such conduct constituted negligence and the proximate cause of her injuries. Venue facts, as others, may be proved by circumstantial evidence. Johnson Testers v. Kirby, 3S9 S.W.2d 553 (Tex.Civ.App., 1962, wr. dism.). Questions of contributory negligence are not reached in this type of hearing. Perry Construction Co. v. Watkins, 367 S.W.2d 913 (Tex.Civ.App., 1963, n.w.h.). McNiel relies on the cases of Lewis-Kures v. Edward R. Walsh & Co., 102 F.2d 42, (2 Cir. 1939), and Lunsford v. Childs, 107 Ga.App. 210, 129 S.E.2d 398 (1963), which, as we read them, do not preclude the conclusions we have reached.

Affirmed.


author: MASSEY, Chief Justice.

text:
    TRANSPORT INSURANCE COMPANY, Appellant, v. A. L. POLK et ux., Appellees.
    No. 16613.
    Court of Civil Appeals of Texas. Fort Worth.
    March 5, 1965.
    Rehearing Denied April 2, 1965.

      Leachman, Gardere, Akin, Porter & DeHay, J. Carlisle DeHay, Jr., and Henry D. Akin, Dallas, for appellant.
    Jacobs & Lipscomb, and Cue Lipscomb, Fort Worth, for appellees.
   MASSEY, Chief Justice.

Suit was to recover of the Workmen’s Compensation insurer, Transport Insurance Company, the value of nursing services rendered A. L. Polk following date of the settlement of his original claim for compensation under the Texas Workmen’s Compensation Act. These services were rendered by Bonnie O. Polk, wife (not a nurse), after rejection of the demand made upon the insurer to provide them. Polk was at all materia! times a helpless, or near helpless, quadriplegic case. Such condition resulted from a severance of spinal nerves at the level of the sixth cervical vertebra.

Since the amendment of 1957, Art. 8306, § 7, “Medical services” (of the Texas Act, Vernon’s Ann.Tex.St., Title 130, “Workmen’s Compensation Law”, Art. 8306 et seq.), insurers are obliged to furnish “medical aid, hospital services, nursing, chiropractic services, and medicines as may reasonably be required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury ” (Emphasis supplied.)

Further provision of said section 7 is that “If the association fails to so furnish reasonable * * * nursing * * * as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said * * * nursing * * * at the cost and expense of the association. The employee shall not be entitled to recover any amount expended or incurred by him for said * * * nursing * * nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury, and shall have refused, failed or neglected to furnish it or them within a reasonable time.”

The Polks were careful to lay a predicate for the litigation of the exact question. On January 24, 1961, Mr. Polk was injured in the scope and course of his employment. On account thereof he claimed right to compensation benefits. October 3, 1963, a judgment of a district court of this state was entered, based upon a compromise settlement agreement. By the terms of said judgment Polk’s rights were settled and disposed of to the date of the award of the Industrial Accident Board of April 9, 1963. The judgment specifically provided that all claims of A. L. Polk arising under the Workmen’s Compensation Law of the State of Texas after April 9, 1963, should in no way be affected. Indeed, as the parties have stipulated, both Mr. and Mrs. Poik made demand upon the insurer before April 9, 1963, and down to the time trial was begun, that it furnish Polk additional nursing services above and in addition to those services which it has at all material times furnished and which it continues to furnish. The Polks’ demands were rejected. Mrs. Polk provided the services to her husband.

In one sense the dispute is over the amount of nursing services the insurer is obliged to furnish A. L. Polk under the provisions of Art. 8306, § 7, and has been obliged to furnish since April 9,1963.

The insurer has at all material times furnished to Polk the nursing services of one Gilbert Tejada, a Licensed Vocational Nurse. Pie is in attendance upon Mr. Polk in the Polk home some eight or ten hours per day, save Sundays, when he is in attendance an average of four hours per day. The insurer contends that this amount of nursing service has at all times been the maximum which it is obliged to provide. The Polks contend the contrary. Under their theory, nursing service is required at all hours, twenty-four hours per day. This was their demand of the insurer, on and after April 9, 1963. Upon its refusal Mrs. Polk furnished those services which both Mr. and Mrs. Polk contend constituted compensable “nursing services” under the Act.

We believe, and hold, that all fact issues necessary to be determined in this case were resolved by jury findings which were supported by evidence, and which findings were not against the great weight and preponderance of the evidence. The issue of whether Mrs. Polk’s services were gratuitous would in our opinion be defensive had it been raised by pleading and evidence. No issue thereon was submitted to the jury and the insurer did not seek to have a specially requested issue thereon submitted.

By the jury findings it was established that (1) the insurer did fail to furnish A. L. Polk with reasonable and necessary nursing services between April 9, 1963 and April 26, 1964 (said date being that upon which the cause went to trial); (2) Mrs. Bonnie Polk did furnish reasonable and necessary nursing services between said dates; (3) the reasonable charge for such nursing services so rendered between April 9, 1963 and December 17, 1963 was $4,200.00; and (4) the reasonable charge for such nursing services rendered from December 18, 1963 to April 26, 1964 was $2,300.00.

Based upon the stipulations of the parties and the verdict aforesaid, the trial court rendered judgment in behalf of the Polks and against the insurer for the sum of $6,500.00, plus interest at 4%, compounded annually, from April 27, 1964.

Our holding: Recovery may be had under Art. 8306, § 7, for necessary nursing services, and in the amount representing the reasonable value thereof, though they be rendered by the spouse of the injured employee to which the article and section has application, when the insurer shall have refused, failed or neglected to furnish them.

The parties to the appeal agree that our decision is to be the first in Texas upon the question. Decisions in other jurisdictions are persuasive, though in no way determinative. Of aid in this respect were California Casualty Ind. Exch. v. Industrial Acc. Comm., 84 Cal.App.2d 417, 190 P.2d 990 (1948), and Daugherty v. City of Monett, 238 Mo.App. 924, 192 S.W.2d 51 (1946).

Of course, Mr. Polk could not enter into an enforceable contract with his wife to render the services which were requisite. But the insurer could have done so, most certainly with the consent of Polk. The nursing services being necessary, it was the obligation of the insurer to furnish them. Of course where, as here, there is a bona fide dispute as to the necessity of such services, there occurs a consequent delay incident to resolving the question by litigation. What of a helpless individual, such as was Mr. Polk in the instant case? If, indeed, nursing services were essential and within the provisions of the statute, he would be entitled to secure them at the ultimate cost of the insurer. This the insurer does not deny. The insurer does deny, however, the right of Mrs. Polk to supply such services at its ultimate cost. Premise for such contention is the existence of the matrimonial relationship between the Polks in this a community property state. Mrs. Polk could not recover from her husband whether her claim be founded in contractual or .quasi contractual principles. It necessarily follows, claims the insurer, that she could not recover from the insurance carrier. Furthermore, it is averred, a one-half interest in any such recovery would inure to Mr. Polk, thus allowing him a recovery in excess of that provided by the ■ Workmen’s Compensation Act,— with corresponding deprivation of the insurer’s property rights in violation of the State and Federal Constitutions.

We do not believe that recovery is inhibited. Of interest in connection therewith are the principles considered in Restatement of the Law, Restitution, Ch. 2, “Mistake, Including Fraud”, § 40, “When Restitution for Services is Granted”,- — to be found under subsection (d) relating to one’s entitlement to restitution for services performed in the discharge of a duty of the other. The statute under consideration provides in substance the same thing that the subsection indicates as proper under principles of common law. That Polk would indirectly obtain a profit from the insurer’s payment for services rendered to him by his wife would not inhibit the imposition of liability on the insurer.

Other than the California and Missouri cases already mentioned as persuasive, the Polks’ counsel cited the following as bearing upon the question: A. G. Crunkleton Electric Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252 (1962); Bushnell v. City of Duluth, 241 Minn. 189, 62 N.W.2d 813 (1954); and Oolite Rock Company v. Deese, 134 So.2d 241 (Fla., 1961). The insurer has cited the following cases: Bituminous Casualty Corp. v. Wilbanks, 60 Ga.App. 620, 4 S.E.2d 916 (1939); Claus v. De Vere, 120 Neb. 812, 235 N.W. 450 (1931); Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152, 73 A.L.R. 1512 (1931); Graf v. Montgomery Ward & Co., 234 Minn. 485, 49 N.W.2d 797 (1951); and Los Angeles County v. Industrial Accident Commission, 8 Cal.App.2d 492, 48 P.2d 97 (1935).

The insurer contends that under the provisions of Art. 8306, § 7, nursing services as prescribed thereby to be provided by insurers are such as are required to “cure and relieve” from the effects naturally resulting from the injury. The language of the provision is made in the conjunctive, and the insurer contends that under the undisputed evidence in the instant situation Mr. Polk cannot be “cured” but can only be “relieved” from the effects which naturally resulted from his injury. Hence, its claims that there is no liability.

Under principles of statutory construction, and with consideration given to the purposes intended in the enactment of the Texas Workmen’s Compensation Act generally, and of Art. 8306, § 7 in particular, we hold that said provision imposes liability upon the insurer for such services to an injured employee as therein specified, including nursing, where the services will effect relief from the effects naturally resulting from injury, irrespective of whether any curative effect might flow therefrom.

In connection with the trial of the case below the parties stipulated that all the relief sought by the Polks for the period from April 9, 1963 to December 17, 1963, was presented to the Industrial Accident Board of Texas; but that all the relief sought from December 18, 1963 to April 26, 1964 (when the parties went to trial) had never been presented to nor passed upon by such Board. The Polks litigated the right of Mrs. Polk to be compensated for services rendered up to the time of the trial. This was over the objection of the insurer that the court did not have jurisdiction of the controversy existing between the parties after December 17, 1963, and that no court could have jurisdiction thereof until it had been presented to and acted upon by the Board, with appeal thereafter taken from the Board’s award into an appropriate court.

The action of the trial court in holding that it had jurisdiction to try and decide the controversy, as it existed up to the time of trial, is made the subject of a group of points of error.

The points of error are overruled. Common-sense construction of V. A. T. S., Art. 8307, § 5, “Determination of questions; suit to set aside final ruling and decision; * * * ”, would demonstrate the fallacy of the insurer’s contention when one views the exact question posed but under the hypothesis that the state of the trial court’s docket is such that trial could not be reached for a year or two after appeal from the Board’s award is perfected. In any event, however, it necessarily follows from the interpretation of law by the Supreme Court of Texas in Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936), that a case such as that before us has the same status for its de novo trial after appeal has been perfected from an award of the Beard, as though it were being presented for the first time to the Board itself. The court would properly have complete jurisdiction to try issues existent at the very time trial was begun (including issues which were not existent at the time of the award of the Board, but were when the case was called for trial).

Finally, the insurer has presented two points of error which contend that the jury findings were excessive upon the amount constituting a reasonable charge for nursing services between April 9, 1963 and December 17, 1963 ($4,200.00), and the amount constituting a reasonable charge for nursing services between December 18, 1963 and April 26, 1964 ($2,300.00).

Calculations indicate that the jury was allowing $1.25 per hour when it found $4,200.00 and was allowing $1.18 per hour when it found $2,300.00. Under the evidence the hourly rate allowed would not be excessive. The jury deducted the number of hours worked by the regularly employed nurse, Mr. Gilbert Tejada, from the total amount of nursing time as such would be calculable on the basis of the requisite nursing being 24 hours each day. Thus, if Mr. Tejada worked 10 hours, leaving 14 hours of nursing time in a single calendar day, the jury considered it proper to multiply 14 by whichever of the two different hourly rates it wished to apply, in order to determine the proper amount to be charged per day. Adding the proper daily or weekly charge for each period as to which a charge was calculable resulted in the amounts found by the jury in its answers.

Although we might not agree that the jury should have calculated requisite nursing periods upon a 24 hour per day basis, we do not doubt that the jury was authorized to do so by the evidence. Since it was so authorized we cannot say that the amounts found were excessive. Points of error so contending are overruled.

Judgment is affirmed.


author: PARKER, Justice.

text:
    TUMBLEWOOD BOWLING CORPORATION, Appellant, v. P. T. MATISE, Appellee.
    No. 6733.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 25, 1965.
    Rehearing Denied March 24, 1965.

      John P. Blair, Beaumont, for appellant.
    Ernest L. Sample, Beaumont, for appel-lee.
   PARKER, Justice.

Appellee P. T. Matise filed suit against the appellant Tumblewood Bowling Corporation to recover $15,000.00 for services rendered by appellee to appellant. Among other services performed, appellee sold approximately $150,000.00 worth of the common stock of Tumblewood Bowling Corporation to various people in the Beaumont area, claiming a fee or commission of 10%. Relying upon the provisions of The Texas Securities Act, appellant denied liability on the grounds that (a) appellee was not a licensed securities dealer or salesman and (b) that appellee used “public solicitation” or “advertising” in selling the common stock of appellant corporation. Judgment was rendered for appellee upon the jury verdict.

In answer to special issues, the jury found that the sale of stock of appellant corporation was accomplished without the use of advertisements and without any form of public solicitation; that the commission or fee of appellee for the sale of stock was to be 10% of the stock sold. It is appellee’s contention that although he did not have a license under The Securities Act as a dealer or salesman that he was exempt from the provisions of The Securities Act because the stockholders did. not exceed thirty-five and that the actual sale of stock was made without the use of advertisements or any form of public solicitation.

This suit involved the violation of a statute passed for the protection of the public. If appellee did not violate the statute, he was entitled to recover his commission. We are not dealing with equitable principles here. This court is not dealing with whether or not stock in the corporation was a good investment. One who claims an exemption from registration under The Securities Act has the burden of proving such exemption. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956). If exempt therefrom, appellee was entitled to recover.

The Texas Securities Act, Art. 581, R.C. S., as it existed at the time this cause arose, provided that a small, closely held corporation could sell stock without being required to register its stock with the State Securities Board. This type of sale is considered an exempt transaction under Section 5 of The Securities Act. Article 581— 5(1.), R.C.S., provided that:

“Except as hereinafter in this Act specifically provided, the provisions of this Act shall not apply to the sale of any security when made in any of the following transactions and under any of the following conditions, and the company or person engaged therein shall not be deemed a dealer within the meaning of this Act; that is to say, the provisions of this Act shall not apply to any sale, offer for sale, solicitation subscription, dealing in or delivery of any security under any of the following transactions or conditions:
“I. The sale by any corporation of its securities * * *, where the total membership or stockholders will not thereafter exceed thirty-five (35), and where the sale is made without the use of advertisements or any form of public solicitation.” (Emphasis added)

The word “sale” is defined in The Texas Securities Act, Art. 581-4, Subdiv. E, as follows: (The Securities Act in effect in 1960 controls.)

“E. The terms ‘sale’ or ‘offer for sale’ or ‘sell’ shall include every disposition, or attempt to dispose of a security for value. The term ‘sale’ means and includes contracts and agreements whereby securities are sold, traded or exchanged for money, property or other things of value, or any transfer or agreement to transfer, in trust or otherwise. Any security given or delivered with or as a bonus on account of any purchase of securities or other thing of value, shall be conclusively presumed to constitute a part of the subject of such purchase and to have been sold for value. The term ‘sell’ means any act by which a sale is made, and the term ‘sale’ or ‘offer for sale’ shall include a subscription, an option for sale, a solicitation of sale, a solicitation of an offer to buy, an attempt to sell, or an offer to sell, directly or by an agent or salesman, by a circular, letter, or advertisement or otherwise, including the deposit in a United States Post Office or mail box or in any manner in the United States mails within this state of a letter, circular or other advertising matter. Nothing herein shall limit or diminish the full meaning of the terms ‘sale,’ ‘sell’ or ‘offer for sale’ as used by or accepted in courts of law or equity. The sale of a security under conditions which entitle the purchaser or subsequent holder to exchange the same for, or to purchase some other security, shall not be deemed a sale or offer for sale of such other security; but no exchange for or sale of such other security shall ever be made unless and until the sale thereof shall have been first authorized in Texas under this Act, if not exempt hereunder, or by other provisions of law. Provided, however, advertising when made in compliance with Section 22 shall not be deemed a sale.” (Emphasis added)

Appellee contends in its brief with reference to a brochure prepared by him:

“It is the contention of the Appellee, on the other hand, that this fact does not constitute a defense, unless it is shown that stock was actually sold by the use of such a brochure, and also that the brochure in question comes within the meaning of the term ‘advertisement’ as used in Art. 581, VATS.”

It will be noted that under the definition of the word “sale” as used in The Securities Act, that “sale” includes an attempt to sell the stock.

The term “public solicitation” is not defined in The Texas Securities Act. The term “solicitation” is defined in Black’s Law Dictionary, 4th Ed., page 1564, as “Asking: enticing: urgent request: Any action which the relation of the parties justifies in construing into a serious request.” (Emphasis added)

“Public solicitation” does not mean that the offer must be made to the whole world. In Securities and Exchange Commission v. Ralston Purina Co., 346 U.S. 119, at p. 123, 73 S.Ct. 981, at p. 983, 97 L.Ed. 1494 (1953), the court said:

“Decisions under comparable exemptions in the English Companies Act and state ‘blue sky’ laws, the statutory antecedents of federal securities legislation, have made one thing clear — to be public, an offer need not be open to the whole world.” (Emphasis added)

It is considered that a sale of securities is offered to the public when several people are asked if they will not buy and are urged to buy such stock. Link, Petter & Co. v. Pollie, 241 Mich. 356, 217 N.W. 60 (Mich.Sup.Ct., 1928).

The evidence is as follows: In 1960 appellee prepared brochures to sell the stock of Tumblewood Bowling Corporation, stating that his compensation was to be a commission of 10% of total stock sold. The brochures contained the usual data as to proposed capital stock, nature of project, estimated income and amounted to a detailed prospectus. In soliciting the sale of stock to some 250 persons, appellee exhibited said brochures to such prospective purchasers of stock. Appellee was not a registered dealer or licensed salesman. Through his efforts, approximately $150,-000 worth of common stock of Tumble-wood Bowling Corporation was sold. On direct examination appellee testified that he approached many individuals in regard to purchasing stock in the corporation, naming them. Then he testified as follows:

“Q. Now, without question, you solicited or you asked or requested Mr. A. L. and Nathan Reynolds to purchase stock, didn’t you?
“A. Yes, sir.
“Q. You showed them the brochure in interesting them?
“A. Yes, sir.
“Q. Likewise, you asked Mr. Bean ?
“A. Yes, sir.
“Q. You, I believe you explained to me awhile ago, that you left him a brochure for him to study, didn’t you? That was your testimony just a few minutes ago.
“A. He asked for one and I gave it to them.
“Q. Surely. You solicited or requested Mr. Hudson Guillory in the interest of selling him stock, did you not?
“A. Yes, sir.
“Q. The same goes for the two Basharas, isn’t that right?
“A. Yes, sir.
“Q. You showed them the brochure in asking them to buy, didn’t you?
“A. Yes, sir.”

Also, Mr. Matise testified further he contacted people to sell stock that he did not know before he contacted them. Appellee further testified:

“Q. Did you talk to other people, Mr. Matise, in regard to purchasing stock in the corporation other than these we have mentioned ?
“A. Yes, sir.
“Q. Do you know whether or not they purchased any stock in the company or not?
“A. That is the only list that I have, Mr. Sample, but I spoke to over 250 people.
“Q. All right, did you intend to sell stock to 250 people, or were you simply talking to that many so you could get the number you needed ?
“A. I was talking to as many people as it took until we sold $150,000 worth of stock.
“Q. All right, did you plan to have less than thirty-five stockholders?
“A. Yes, sir, we had to have less than thirty-five.”

As to the brochure, appellee testified as follows:

“Q. Now, as to the exhibit that has been marked as D-l, being the brochure which was previously identified, you showed that to any number of people, didn’t you ?
“A. Yes, sir.
“Q. You, as I understood your testimony this morning, that you contacted some 250 people?
“A. Yes.
“Q. That in accordance with this contacting the people, why, you showed them the booklet?
“A. Yes, sir.
“Q. You invited them to purchase the stock?
“A. It was offered to them.
“Q. And while you were talking to them, so that they would have an interest in the proposed corporation, why, you would show them the AMF figures of what the net yield was supposed to be?
“A. I showed them the Brunswick books, the complete books we had. We had two of them.”
“Q. We’ll move on to something else. You had an agreement, did you not, or something, setting forth as to what you were supposed to receive as your commission, isn’t that right?
“A. Yes, sir.
“Q. And in exchange for the sale of the stock and perhaps these other matters that you have mentioned about, were you to receive 10% of the stock that you sold?
“A. I was supposed to receive 10% of the total amount of stock, of the $150,000.00.”

Appellee’s admissions of fact when testifying during the trial were not subsequently modified or explained by him. The above admissions are conclusively binding on him so as to eliminate any need for proving the above facts otherwise. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 133 S.W.2d 767, 145 S.W.2d 569 (S.Ct.1940) and cases cited.

Although some 250 people were approached by appellee in his efforts to sell such stock, less than 35 persons did purchase stock. One who talked to some 250 people about purchasing stock in a corporation, some of whom he did not know beforehand, and testified that he was going to talk to as many people as necessary to sell $150,000 worth of stock cannot be heard to say that he did not engage in public solicitation in the sale of securities. The appellee engaged in such conduct.

Appellant objected to the submission of an issue inquiring as to whether or not appellee sold the stock without public solicitation because appellee Matise admitted in his testimony that he used public solicitation in selling the stock. Appellant’s point of error directed thereto is sustained.

The Texas Securities Act does not define the term “advertisement”, but Section 22 (A.) of the Act provides:

“It shall be unlawful and punishable with the penalties set forth in Section 29 of this Act for any person * * * to issue, distribute, or publish, within this State, any circular, advertisement, pamphlet, prospectus, program or other matter, as to any security, unless such advertising complies with the requirements hereinafter set forth in Section 22; * * (Emphasis added)

Clearly, the provisions of Section 22(A.) indicate that a pamphlet or brochure used to aid in the sale of securities would be advertising within the meaning of that term as used in The Securities Act. One who is engaged in selling securities is not entitled to an exemption under Section 5 (I.) of The Securities Act if he uses such a brochure to aid in the sale of such securities as appellee used and admitted that he used to aid him in selling stock. Appellant’s point of error objecting to the submission of such issue is sustained.

Each and all of appellant’s points of error are sustained in which it urges (a) the court erred in overruling appellant’s motion for an instructed verdict, (b) the court erred in overruling appellant’s motion for judgment non obstante veredicto, (c) the court erred in overruling appellant’s motion to disregard the jury’s finding that the sale of stock was accomplished without the use of advertisement and in refusing to enter judgment for appellant, and (d) the court erred in overruling appellant’s motion to disregard the jury’s finding that the sale of stock was accomplished without any form of public solicitation and in refusing to enter judgment for appellant.

Having violated such provisions of The Securities Act, appellee may not base any suit against appellant to recover a commission for the sale of stock. Art. 581-34, R.C.S.

By reason of the foregoing, appellant’s other points of error are immaterial and are not passed on herein.

Judgment of the trial court is reversed and judgment rendered in favor of appellant.


author: McDONALD, Chief Justice.

text:
    Loyd C. MAPLES, Appellant, v. Ethel M. PENN, Appellee.
    No. 4338.
    Court of Civil Appeals of Texas. Waco.
    March 18, 1965.
    Rehearing Denied April 1, 1965.
    Smith & Lehmann, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Wayne Fisher and David C. Mus-slewhite, Houston, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment that plaintiff take nothing. Plaintiff Maples brought this suit for damages for personal injuries sustained in a collision while riding as an occupant in the automobile owned and driven by defendant Penn. Plaintiff alleged that defendant was guilty of ordinary negligence proximately causing his injuries and damages. Defendant answered that plaintiff was a “guest” within the meaning of Article 6701b Vernon’s Ann.Tex.Civ.St., and therefore barred from recovery against defendant on the basis of ordinary negligence.

Defendant filed motion for summary judgment asserting that, under the undisputed evidence plaintiff was, as a matter of law, a “guest” within the meaning of Article 6701b. Plaintiff refused and declined to amend his petition to allege gross negligence; and the trial court granted defendant’s motion, and entered judgment that plaintiff take nothing.

Plaintiff appeals, contending that under the evidence, plaintiff was as a matter of law a passenger and not a guest within the meaning of Article 6701b V.A.T.S.; or in the alternative that a jury issue was made as to whether plaintiff was a passenger or a guest; for which reasons the Trial Court erred in granting summary judgment for defendant.

Article 6701b V.A.T.S. provides in substance that a guest cannot assert a cause of action against the owner or operator of a vehicle for ordinary negligence.

The record reflects defendant was a member of the Building Committee of the Episcopal Church, and plaintiff was a member of the Finance Committee. Defendant knew of a building for sale which might be suitable for purchase by the Church. She called plaintiff and asked him to go with her to see the building because of his membership on the Finance Committee. The collision occurred while plaintiff and defendant were on their way in defendant’s car to see the building. There was no discussion prior to leaving on the trip whose car would be taken; no agreement concerning sharing of expenses or of plaintiff’s paying any part of same, and he did not pay any part of same; and plaintiff had no intention to or right to exercise any control over defendant’s car. The only purpose of the trip was to look at the building to see if it was suitable for purpose of their Church, and both plaintiff and defendant made the trip solely because of their mutual interest in helping their Church.

Under such situation plaintiff was the guest of defendant within the meaning of Article 6701b V.A.T.S., and cannot assert a cause of action for ordinary negligence. Henry v. Henson, Tex.Civ.App., Er.Ref., 174 S.W.2d 270; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, Bruton v. Shinault, Tex.Civ.App., n. w. h., 314 S.W.2d 143; Choisser v. Ramey, Tex.Civ.App. (n. w. h.) 314 S.W.2d 664; Hough v. McMillan, Tex.Civ.App., n. r. e., 351 S.W.2d 609.

The Trial Court properly entered Summary Judgment that plaintiff take nothing. Ray v. Zackey, Tex.Civ.App. (n. w. h.), 329 S.W.2d 350.

Plaintiff’s contentions are overruled.

Affirmed.


author: COLEMAN, Justice.

text:
    Vann C. WILSON, Appellant, v. TIDELANDS CLUB, Garnishee, et al., Appellees.
    No. 14510.
    Court of Civil Appeals of Texas. Houston.
    March 18, 1965.

      Edward R. Baird, Houston, for appellant.
    Lew W. Harpold, Hofheinz & James, Houston, for appellee Gene Austin.
   COLEMAN, Justice.

This is an appeal from a summary judgment quashing a writ of garnishment. The motion for summary judgment was based on a plea of res adjudicata by reason of the quashing of a previous writ ancillary to the same suit between the same parties.

Appellant is the plaintiff in a pending suit for debt naming Gene Austin as defendant. This is the second of two ancillary garnishment proceedings. By judgment entered January 31, 1964, the first writ of garnishment was quashed. None of the pleadings in this proceeding have been included in the transcript before us. The . judgment entered in that cause, No. 632,000-A, was attached to the motion for summary judgment and reflects that the writ issued in Cause No. 632,000-A was addressed to Tidelands Motor Inn, garnishee. It reflects that Tidelands Motor Inn, a proprietorship and garnishee therein, presented a motion to quash the writ of garnishment. The judgment further recites: “* * * and came Tidelands Club, a corporation, appearing herein as garnishee and as a stakeholder of impounded funds in the sum of $1,206.97 and by its attorney for the purpose of presenting its motion to quash said writ of garnishment. * * * ” The judgment also recites that Lew W. Harpold, an attorney, appearing specially in the main suit under Rule 120a in behalf of Gene Austin, defendant intervened in Cause No. 632,000-A to present a motion to quash the writ of garnishment.

The judgment further shows that appellant and all of these parties appeared for a hearing and that after considering the pleadings, evidence and arguments of counsel, the court was of the opinion that all of the motions to quash should be granted and that the writ of garnishment addressed to Tidelands Motor Inn, garnishee, should be quashed; that Tidelands Club and Tidelands Motor Inn, garnishees, should be discharged from said garnishment; that the suit should be dismissed; and that the money temporarily impounded by virtue of the issuance and notice of the writ of garnishment should be released to Gene Austin.

The judgment continued:

“It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that all said motions filed herein to quash plaintiff’s writ of garnishment issuing from this Court on November 22, 1963, and addressed to Tidelands Motor Inn, garnishee, be, and the same are hereby in all respects granted.
“It is accordingly ORDERED; ADJUDGED AND DECREED that said writ of garnishment be and it is hereby quashed and stricken; that Tidelands Club and Tidelands Motor Inn, garnishees, be, and they are hereby, discharged from said garnishment; that the above styled and numbered cause be, and the same is hereby, in all things dismissed as to Tidelands Motor Inn and Tidelands Club, garnishees, and garnishees’ attorney’s fees in the sum of $100.00 for representation of both garnishees are adjudged against plaintiff together with all other costs in this cause incurred.”

It is generally true that a judgment in a garnishment proceeding can be rendered only against the party named in the summons. Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039.

Appellant contends that this rule is not applicable here because the judgment shows that Tidelands Club appeared voluntarily and subjected itself to the jurisdiction of the court. In Harrell v. Mexico Cattle Company, 73 Tex. 612, 11 S.W. 863, the court said:

“In ordinary actions, courts acquire jurisdiction over the persons of defendants, so as to render binding judgments against them by the service of process in the manner provided by law. Service may be waived by express stipulation in writing, or by the voluntary appearance of the party, either in person or by attorney. But we know of no authority for holding in any case that actual knowledge of the existence of a suit or the issuance of a writ will supply the want of service. A defendant may know that a suit has been brought against him, yet he is not bound to take action until he has been duly served with process. * * * A proceeding under a writ of garnishment is not an exception to the rule. On the contrary, the garnishee cannot accept service or voluntarily answer so as to affect the right of the defendant in the original suit or judgment, or that of his creditors. The writ of garnishment takes effect so as to fix a prior claim upon the fund which is sought to be reached, only by the service of the writ in the manner prescribed by law. Until this is done the garnishee cannot be in any manner affected by the suit.”

It does not clearly appear from the judgment that Gene Austin, defendant in the main suit, intervened in Cause No. 632,000-A. The recitation that Lew W. Harpold intervened and presented a motion to quash is equivocal since it states that he appeared specially under Rule 120a Texas Rules of Civil Procedure for Gene Austin in the main suit, and does not state that Gene Austin intervened. If in fact Gene Austin intervened in Cause No. 632,000-A, or if the action of his attorney in filing in that action a motion to quash constituted an appearance in the cause, nevertheless it appears on the face of the judgment that the court lacked jurisdiction of the subject matter insofar as it purports to adjudicate questions affecting the fund in the hands of Tidelands Club.

No writ was addressed to or served on Tidelands Club. Appellant could have had no right to the fund in the hands of Tidelands Club belonging to Gene Austin unless the procedure required by the statute granting such a right was followed. Insurance Company of North America v. Friedman, 74 Tex. 56, 11 S.W. 1046; First National Bank v. Guaranty Bond State Bank of Athens, Tex.Com.App., 23 S.W.2d 312.

The question of the exempt nature of the fund held by Tidelands Club could not have been adjudicated in that action since it would have been material only on a showing of a right in the fund on the part of appellant.

In City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411, the Supreme Court said:

“It is only where essential issues of fact have or could have been determined and adjudicated in a former suit, between the same parties, that the judgment entered therein will estop the parties from relitigating the same issues in a subsequent suit between the same parties. See Kirby Lumber Corp. v. Southern Lumber Co., Tex.Civ.App., 192 S.W.2d 460, affirmed 145 Tex. 151, 196 S.W.2d 387 [169 A.L.R. 174]; Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526.”

The voluntary appearance of Tidelands Club in the cause does not make it a garnishee, and the fact that Tidelands Club is designated as a garnishee in the judgment is not conclusive as to its status in the case since the judgment recited that the writ was addressed to Tidelands Motor Inn. The judgment does not recite that Tidelands Club was served with process of any sort, and there is no question of misnomer or idem sonans. Tidelands Motor Inn, a proprietorship, was served, and there is nothing in the record to indicate that it was not the party against which it was intended that the proceedings be instituted.

Reversed and remanded.


author: DOERNER, Commissioner.

text:
    Mildred S. O’DONNELL, Plaintiff-Appellant, v. CHASE HOTEL, INC., a Corporation, Defendant-Respondent.
    No. 31814.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.
    Motion for Kehearing or to Transfer to Supreme Court Denied March 18, 1965.

      Charles M. Shaw, Claude Hanks, Leonard L. Bornschein, Clayton, for plaintiff-appellant.
    Morris A. Shenker, Frank B. Green, Jr., St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

By this action plaintiff sought to recover actual and punitive damages of $50,000 for the alleged malicious prosecution'by defendant of a charge of peace disturbance. A verdict for plaintiff for $1500 was returned, upon which judgment was entered. Thereafter the court set aside the judgment and entered judgment for defendant in accordance with its motion for a directed verdict at the close of all the evidence, and, alternatively, overruled defendant’s motion for a new trial. Plaintiff brings this appeal.

On March 5, 1960 plaintiff, together with her husband, James Thomas O’Donnell, her son, Frank O’Donnell, and a Miss Rita Taylor, attended a private party held in the hotel operated by the defendant in the City of St. Louis. Upon their arrival about 9:00 P.M. they turned their automobile over to one of defendant’s attendants to be parked. When they sought to leave around 12:30 P.M., they requested their car from the same attendant. After a search and some delay he informed them that he was unable to locate their car, and after a further period had elapsed, denied that he had parked it for them. An argument ensued, primarily between Frank O’Donnell, on the one hand, and John Nelson, defendant’s desk clerk, and Harry Price, its security officer, on the other, which developed into a scuffle between Frank O’Donnell and Price. Plaintiff testified that in attempting to pull Frank away she was knocked to the floor in the melee. She stated that when she looked up she saw Price, who was also on the floor; that he had his gun in his hand and was pointing it at her, and was directing foul language at her. At the suggestion of the Metropolitan Police who arrived on the scene all of the members of plaintiff’s party as well as Price, went to the district police station. Interrogated by her counsel, plaintiff testified:

“Q. What did the (Police) Captain say?
“A. Well, the Captain asked me if I wanted to charge Mr. Price, and I said yes, for pulling a gun; and then he asked Mr. Price if he wanted to cross-charge me or put a charge against me.
“Q. Now what did Mr. Price say?
“A. He said yes.”

Plaintiff related that she was charged with disturbance of the peace and stood ■ trial in the Municipal Court of St. Louis. She was found guilty, fined $300, and appealed to the Court of Criminal Correction. After a trial in that court, she was acquitted. This suit followed.

Error is assigned on the action of the court in setting aside the judgment for plaintiff and entering a judgment for defendant in accordance with defendant’s motion for a directed verdict presented at the close of all of the evidence. As grounds therefor the trial court stated that the plaintiff’s conviction in the Police Court was prima facie evidence of probable cause for the instigation of the prosecution and that the burden was on plaintiff to show that such conviction had been obtained by fraud or perjured testimony; and that plaintiff failed to show that the conviction had been obtained by such means. Much of plaintiff’s brief is devoted to an attack upon the view expressed in the court’s order, but as was said under similar circumstances in Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, 955:

“ * * * we are not particularly concerned with the reasons assigned by the court for its order setting the verdict and judgment aside and entering judgment for defendants, because, if the judgment entered was for the proper parties, it will not be set aside on appeal even if the court gave a wrong or insufficient reason for entering it. Spiking School Dist. No. 71, DeKalb County v. Purported ‘Enlarged School Dist. R-11, DeKalb County, Mo.’, 362 Mo. 848, 245 S.W.2d 13, 17; Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, 1062.”

And see in accord City of St. Louis v. Evans, Mo., 337 S.W.2d 948, 954; Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166, 170.

The constitutive elements of an action for malicious prosecution are: (1) the commencement or prosecution of the original proceedings against the present plaintiff; (2) its legal causation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such proceedings; (5) the presence of malice therein; and (6) damage to plaintiff by reason thereof. Huffstutler v. Coates, Mo., 335 S.W.2d 70; Hughes v. Aetna Insurance Co., Mo., 261 S.W.2d 942; Coleman v. Ziegler, Mo., 248 S.W.2d 610. Regarding the fourth element, absence of probable cause, it is the general rule in Missouri that evidence that plaintiff was convicted in the original proceedings creates a presumption that there was probable cause for its instigation; and that plaintiff to prevail must overcome such presumption by proof that the conviction was obtained by false or fraudulent testimony, or other improper means, or that the defendant himself did not believe the facts alleged in support of the prosecution. This general rule applies even though the plaintiff shows that the conviction was subsequently reversed or set aside on appeal. Boogher v. Hough, 99 Mo. 183, 12 S.W. 524; Wilkerson v. McGhee, 265 Mo. 574, 178 S.W. 471; Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961; Bonzo v. Kroger Grocery & Baking Co., 344 Mo. 127, 125 S.W.2d 75; Hughes v. Aetna Insurance Co., supra; La Chance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693. With the necessary changes in points of detail, the same principles determine the issue of probable cause when the original proceeding was a civil suit and a judgment was rendered against the present plaintiff at the first stage of the original proceeding. Wilcox v. Gilmore, supra; Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92; Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861; McMahon v. May Dept. Stores Co., Mo., 374 S.W.2d 82. In this respect our rules are in accord with the great weight of authority. Wilcox v. Gilmore, supra; Restatement, Torts, Sec. 667, p. 421 and Sec. 675, Comment b., p. 447 ; 54 C.J.S. Malicious Prosecution §§ 24b and 37; 34 Amer.Jur., Malicious Prosecution, Secs. 55 and 57.

The general rule has been extended to include not only convictions as prima facie evidence of the existence of probable cause, but also an indictment voted by a grand jury and a commitment by an examining magistrate. Wilkerson v. McGhee, supra; Higgins v. Knickmeyer-Fleer Rlty. & Invest. Co., 335 Mo. 1010, 74 S.W.2d 805; Huffstutler v. Coates, Mo., 335 S.W.2d 70. However, it appears that a conviction in a police court which is reversed on appeal, at least after a trial de novo, is not prima facie evidence of probable cause in a- subsequent action for malicious prosecution. This exception to the general rule had its genesis in Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68, and appears to have ripened to fruition in Randol v. Kline’s Inc., 322 Mo. 746, 18 S.W.2d 500, which reached the court on a second appeal, 330 Mo. 343, 49 S.W.2d 112. In Hanser v. Bieber, supra, it was shown that the plaintiff had been arrested on complaint of defendants and charged with disturbance of the peace. He was tried, convicted and fined in the Police Court of the City of St. Louis and appealed to the Court of Criminal Correction, where he was found not guilty and discharged. Plaintiff thereafter sued the defendants, alleging false imprisonment in one count of his petition and malicious prosecution in the other. Cast on demurrer at the close of his evidence, plaintiff took a nonsuit and appealed when the trial court refused to set it aside. In what may be regarded as the controlling opinion, written by Judge Walker, it was conceded that according to the weight of authority elsewhere a judgment of conviction in a criminal case was conclusive evidence of probable cause in an action for malicious prosecution, although the conviction was reversed on appeal. But Judge Walker, after noting the distinguishing characteristics between a criminal prosecution and a proceeding for the violation of a municipal ordinance, said (197 S.W. 68, 72) :

“In accord, however, with what we deem to be a right application of the cases reviewed, we conclude that a showing of probable cause conclusive in its nature was not made, under all of the facts in this case, by the defensive interposition of the judgment of former conviction. To hold otherwise would be to deny a right of redress to one who perhaps had been illegally arrested and unlawfully detained simply because in a hurried and perfunctory hearing before a police court following such arrest he had been convicted, although upon a trial de novo the judgment of conviction has been held for naught.
“This holding is not to be understood as precluding the showing of a1 former conviction as prima facie evidence of probable cause subject to rebuttal by proof of the reversal of the judgment of conviction in an appellate court after a full and fair hearing of all of the facts and any other relevant evidence, thus making the question of probable cause, as it should be where disputed, one of fact for the jury upon all of the evidence in the case. * * * ”

Stating that he was not urging it as determinative of the case, but only expressing a personal opinion, the writer remarked (197 S.W. 68, 72):

“ * * * A judgment upon reversal becomes not only nonexistent, but as though it has never been. This is true in regard to every relation sustained by a reversed judgment except in actions for malicious prosecution. Where, upon appeal, there is simply a review of the record in cases of this character, reason may exist for the propriety of the plea of probable cause, although based on a reversed judgment of conviction; but where, as here, there has been a full and fair hearing upon the merits in the appellate court, there exists no reason why the general rule should not be applied and the record or judgment of conviction held to have no evidentiary force.”

Judge Walker’s opinion was concurred in, but only as to result, by Judges Blair and Williams. Chief Justice Graves concurred in a separate opinion, joined in by Judge Woodson, in which he held that (197 S.W. 68, 73):

“ * * * The judgment of the police court was nullified and destroyed for all purposes by the judgment on appeal from such police judgment. Having been so destroyed, it was no evidence of probable cause.”

In a vigorous dissenting opinion written by Judge Bond, joined in by Judge Faris, it was contended (197 S.W. 68, 77) “* * * that in reason and upon the great weight of recent authority, a conviction before a justice or inferior tribunal obtained without fraud or perjury, although reversed upon appeal, is conclusive evidence of probable cause, and defeats an action for malicious prosecution. * * * ”

The principle voiced as a personal opinion by Judge Walker, and asserted by Chief Justice Graves, that a judgment upon reversal has no evidentiary value to show probable cause in a suit for malicious prosecution was expressly repudiated in the later case of Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, 963, where, after stating the general rule, it was said:

“The reason of this rule is apparent. If probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence in the same situation, then proof of a judgment, whether based on the verdict of a jury or the finding of the trial judge, stands as undisputed evidence of the existence of probable cause, unless it be further shown that the judgment was procured by fraud, corruption, false testimony, or other improper means, or that those responsible, for the prosecution did not themselves believe the facts and circumstances alleged and brought forward to induce the judgment. Nor does such a judgment cease to be evidence of the existence of probable cause merely because it is subsequently reversed on appeal. While a contrary view was expressed by Graves, C. J., in a separate concurring opinion, concurred in only by Woodson, J., in Hanser v. Bieber, 271 Mo. loc. cit. 344, 197 S.W. 68, such view is clearly beyond the holding of the majority opinion and not controlling. As a matter of fact, no opinion in the Bieber Case received the full concurrence of a majority of the court.” (Emphasis ours.)

But in the first appeal in Randol v. Kline’s Inc., 322 Mo. 746, 18 S.W.2d 500, decided subsequent to Wilcox, the Supreme Court adopted the view expressed by Judges Walker and Graves that a police court judgment, reversed on a trial de novo in an appeal to a higher court, is not such a judgment as invokes the general rule. There plaintiff was arrested, charged with theft and other violations, and convicted in the Police Court of Kansas City. She appealed to the Circuit Court, and upon a trial before a jury was found not guilty and discharged. The court held (18 S.W.2d 500, loc.cit. 505):

“ * * * From a conviction in the police court an appeal lies and the cause is triable de novo in an appellate court before a judge and a jury. The judgment of conviction in the police court, if not attacked, is generally conclusive, but, where an appeal is taken, the trial de novo in the appellate court and an acquittal so acts upon the judgment of the police court that the acquittal of the accused renders the police court judgment merely a circumstance to be considered by the jury. The conclusion is based upon the hypothesis that a police court judgment cannot be conclusive unless it is a final judgment, and a judgment of conviction in the police court, nullified by a judgment of acquittal in the appellate court, is not a judgment forestalling the establishment of want of probable cause. In an able discussion by Walker, J., in Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68 as to the effect of a conviction in the police court and an acquittal on appeal, this court held that the defensive interposition of the judgment of former conviction is not conclusive showing of probable cause, but that the former conviction in the police court is admissible as prima facie evidence of probable cause, subject to rebuttal by proof of the reversal of the judgment of conviction in the appellate court, after a full and fair hearing of all the facts and any other relevant evidence, thus making the question of probable cause, as it should be where disputed, one of fact for the jury upon all the evidence in the case.”

And further (18 S.W.2d 500, loc.cit. 507):

“The subsequent acquittal of plaintiff in the appellate court, on appeal from a conviction in the police court, rendered the question of probable cause a matter for the jury to decide, as we have determined. And, in connection with other circumstances in the case, plaintiff’s acquittal in the appellate court was evidentiary of the want of probable cause. * * * ”

In the second appeal in Randol v. Kline’s Inc., 330 Mo. 343, 49 S.W.2d 112, the court reaffirmed the exception laid down in the first.

The contention of Judge Walker in Hanser v. Bieber, supra, that “ * * * A judgment upon reversal becomes not only nonexistent, but as though it has never been * * * ” would seem to be as applicable to all convictions or judgments reversed on appeal as to that of a conviction obtained in a police court. Nevertheless, as we have pointed out, the Supreme Court in the first appeal in Randol v. Kline’s. Inc., supra, has differentiated, on the issue of probable cause, between the evidentiary effect of a police court conviction reversed on appeal and that of a conviction or judgment rendered in any other court subsequently set aside or reversed on appeal. Plaintiff’s only citation was to Hanser v. Bieber, supra. The holding in Randol v. Kline’s Inc., supra, is the last decision of the Supreme Court on the evidentiary effect of a police court conviction which is reversed on appeal, and so far as our own research has disclosed has never been reversed or distinguished. As the last controlling case in point we are required to follow it. Mo.Const., Art. V, Sec. 2, V.A. M.S. We cannot, therefore, agree with the learned trial court as to thé evidentiary effect of the evidence of plaintiff’s conviction in the Police Court inasmuch as she was acquitted on appeal after a trial de novo.

But though the wrong reason for its action may have been assigned, it does not necessarily follow that the court erred in setting aside the verdict and judgment for plaintiff and entering judgment for defendant in accordance with defendant’s motion for a directed verdict presented at the close of all the evidence. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; City of St. Louis v. Evans, Mo., 337 S.W.2d 948; Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166. An action for malicious prosecution is no favorite of the law, and the burden is on the plaintiff to strictly and clearly prove all of the necessary elements of his cause of action. Harper v. St. Joseph Lead Co., Mo., 233 S.W.2d 835; Higgins v. Knickmeyer-Fleer Rlty. & Inv. Co., 335 Mo. 1010, 74 S.W.2d 805. Among those elements, as has been stated, is that the defendant instigated the prosecution of the original proceeding against plaintiff. It is apparent from the most casual perusal of the record in this case that the plaintiff wholly failed to prove that element of her cause of action. All that plaintiff’s evidence showed on that score was that after the Police Captain had inquired of her whether she desired to prosecute Price, and she had answered that she did, a similar question was directed to Price, who replied that he wanted to cross-charge plaintiff. That evidence may have been sufficient to show causation in an action against Price, but plaintiff is suing defendant, not Price. Plaintiff attempted to predicate the defendant’s liability, if any, upon Price’s agency. An employer is liable for a malicious prosecution instigated by an employee if the employer previously authorized or subsequently ratified the employee’s action, or if it was done within the scope of the employee’s employment. Harper v. St. Joseph Lead Co., supra. But there is not a scintilla of evidence in the record that defendant directed or authorized Price to institute the prosecution against plaintiff, nor is there the merest shred of proof that defendant subsequently ratified Price’s action. Indeed, plaintiff developed on her cross-examination of Price that “the Chase Hotel” had neither insisted on the prosecution of plaintiff nor even discussed it with him after it was instituted. Price was not the defendant’s general agent, and the only evidence as to his duties was that he was employed to protect the defendant’s property. As was said in Harper v. St. Joseph Lead Co., supra: “* * * We may not imply an authority upon a plant guard to procure the institution of a prosecution by a prosecuting attorney or a grand jury. Evidence is required to thus extend his authority, and it may not rest in judicial notice. * * * ” And see Milton v. Missouri Pac. R. Co., 193 Mo. 46, 91 S.W. 949, 4 L.R.A.,N.S., 282; Alexander v. Emmke, Mo.App., 15 S.W.2d 868. In the light of plaintiff’s own testimony of the circumstances under which Price instigated the prosecution against plaintiff, we are of the opinion that all that plaintiff’s evidence showed is that Price’s action in that regard was a purely personal one, undertaken solely by him in retaliation for the charge which plaintiff had lodged against him. It follows that the court did not err in setting aside the judgment for plaintiff and entering judgment in favor of defendant.

The judgment should therefore be affirmed, and the Commissioner so recommends.

PER CURIAM:

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

RUDDY, P. J., ANDERSON, J., and FRANK CONNETT, Jr., Special Judge, concur.