author: PHILLIPS, Justice.

text:
    W. J. VESMIROVSKY, Independent Executor, and First National Bank of Harlingen, Administrator, Appellants, v. Annie Lou BEACH, Appellee.
    No. 11094.
    Court of Civil Appeals of Texas. Austin.
    May 22, 1963.
    Rehearing Denied June 13, 1963.

      Carter, Stiernberg, Skaggs & Koppel, Franklin T. Graham, Jr., Harlingen, for W. J. Vesmirovsky.
    Gibbon & Harper, Harlingen, for First Nat. Bank of Harlingen, Adm’r.
    Orrin W. Johnson, Harlingen, for ap-pellee.
   PHILLIPS, Justice.

This is an appeal from a summary judgment granted the appellee herein, Annie Lou Beach in a suit brought by the Southwestern Life Insurance Company, the plaintiff below, to determine the rightful beneficiary to the proceeds of an annuity pension fund contract. The life insurance company placed the proceeds $3,607.93 in the registry of the Court.

The Southwestern Life Insurance Company brought this action in the Trial Court against W. J. Vesmirovsky, Independent Executor of the estate of Riley B. Vesmirovsky, deceased, the First National Bank of Harlingen, as administrator with the will annexed of the estate of Vivian Vesmirovsky, deceased, Louise Dodson, H. V. Richards, and John Lyman as trustees of the Hygeia Employees Pension Trust, defendants, alleging that all the defendants were claiming, or had an interest in the proceeds of a retirement annuity contract issued by the Southwestern Life Insurance Company in January of 1947 and thereafter in 1949 in behalf of Vivian Vesmirov-sky, now deceased. The contract between Hygeia and Southwestern Life Insurance Company insured the pension fund trust established by Hygeia for their employees.

The defendants, W. J. Vesmirovsky, as Independent Executor, the First National Bank of Harlingen, Administrator, and Annie Lou Beach, filed answers claiming the proceeds of the fund in question and the defendant trustees of the Hygeia Employees Pension Trust, filed an answer disclaiming any right to the proceeds in question. In their answer the trustees of the pension trust did, however, direct the Southwestern Life Insurance Company to pay the proceeds of the annuity contract to appellee, Annie Lou Beach, in compliance with the provisions of the trust agreement.

Appellee, Annie Lou Beach, and appellant, First National Bank of Harlingen, Administrator, made motions for summary judgment, which were contested by appellant, W. J. Vesmirovsky, Executor. As stated above, the Court sustained the motion of Annie Lou Beach for summary judgment and the bank and W. J. Vesmirovsky have appealed to this Court.

We hold that the judgment of the Trial Court is correct.

The issue before this Court is whether or not the deceased Vivian Vesmirovsky, had the right to change the beneficiary under the abovementioned pension trust contract and insurance contract from her husband, whom she had divorced, to her mother Annie Lou Beach.

On January 1, 1947, the Southwestern Life Insurance Company entered into a Pension Trust Retirement Annuity Contract with the Hygeia Milk Products Company. Vivian Vesmirovsky was employed by the Hygeia Dairy Company in 1949 and became eligible for the benefits provided for in the policy issued by the life insurance company. From time to time, the trustees of the pension trust purchased a retirement annuity coverage from the abovementioned life insurance company on the life of Vivian Vesmirovsky, and at the time each of the coverages were purchased, the trustees designated Riley B. Vesmirovsky, Vivian Ves-mirovsky’s husband, as beneficiary to the proceeds of the pension fund in case of Vivian’s death.

During July of 1961, Vivian Vesmirovsky had Lynn Kerr, who was then secretary to the trustees of the pension fund and herself a trustee, arrange to have her beneficiary to the proceeds from the trust fund changed from her husband Riley Vesmir-ovsky to her mother Annie Lou Beach. There is some dispute as to the exact manner in which this change of beneficiaries was accomplished, however there is no dispute that Vivian Vesmirovsky signed the application to change beneficiaries and desired to make such a change.

In October of 1961, Vivian Vesmirovsky was divorced from Riley B. Vesmirovsky.

In November of 1961, Vivian Vesmir-ovsky died. Riley B. Vesmirovsky is also now dead.

W. J. Vesmirovsky, Independent Executor of the Estate of Riley B. Vesmirovsky, deceased, maintains that when the two contracts are construed, Riley B. Vesmiro-sky, Vivian’s deceased husband would still be the beneficiary and the proceeds of the annuity contract would pass to his estate. Under the construction urged by the First National Bank of Harlingen, the proceeds would pass to the estate of Vivian Vesmir-ovsky. Annie Lou Beach, Vivian Vesmir-ovsky’s mother maintains that Vivian changed beneficiaries before her death and that such change was done in accordance with the provisions of the two contracts.

The Hygeia Company’s insurance contract with the Southwestern Life Insurance Company contains the following provisions in paragraph 2:

Change of Beneficiary:

“The Annuitant may have any beneficiary of this Contract changed and a new beneficiary designated by endorsement hereon, at any time while the contract is in force and not assigned, upon making written application for such change at the Home Office of the Company. The change shall take effect and all interests of the former beneficiary shall seize, only upon the making of such endorsement by the Company.”

Paragraph 6 — Policy and Application Entire Contract:

“This Contract and the written and printed application therefore constitute the entire contract between the parties thereto. A copy of the application is attached hereto. All statements of the Annuitant shall, in the absence of fraud, be deemed representations and not warranties. No change or modification of this Contract can be made, and no waiver of conditions or extension of the time for premium payments shall be valid, unless made in writing in the Home Office and signed by the President, Vice President, Secretary, Actuary, Assistant Actuary or Assistant Secretary; and the Company shall not be bound by any information possessed by any other person nor by any promise or statement made by or to any other person at any time heretofore or hereafter.”

Paragraph 7 — Control of Benefits:

“Anything contained in this Contract, to the contrary notwithstanding, the control and all incidents of ownership in and to said contract shall be and are hereby vested in the Trustees of the Hygeia Employees Pension Trust and their successor Trustees instead of in the Annuitant herein named, and said Trustee shall have each and every right and receive each and every benefit given and reserved in said contract to the Annuitant and without the consent of the Annuitant may exercise any such right and receive any such benefit and may agree with the Company to change or amend said contract. The Company shall be under no duty or obligation to determine the existence or extent of the powers and authorities of the Trustees of the aforesaid Pension Trust, or of any one of said Trustees, and shall incur no liability to the Annuitant or to any other person by reason of any transaction had by and with the Trustees, or any one of them, in respect to this Contract. The Company shall be under no duty or obligation to see to the proper use and application of any monies paid to said Trustees, or any of them under the terms hereof, but upon making payment as herein provided shall be fully discharged as to all amounts so paid.”

The appellants contend that Vivian Ves-mirovsky had no right to change the designation of her beneficiary under the provisions of the abovementioned contract and that even if she had such a right the change was not properly effected under the provisions of the contract.

Vivian Vesmirovsky had been an employee of the Hygeia Dairy Company for a number of years and was a participant in original Hygeia Employees Pension Trust. The trust fund in question provided that upon death of the participant Southwestern Life Insurance Company would pay to the designated beneficiary the amount of money that the deceased employee was entitled to under the contract.

At the time that Vivian Vesmirovsky changed her beneficiary, the abovementioned Lynn Kerr was a trustee of the pension trust. She acted as secretary of the trustees and was in charge of the administrative details in creating a new agreement with the same insurance company known as the Hygeia Employees Retirement Trust. The same trustees continued to function for the Pension Trust as did for the Retirement Trust. These included Lynn Kerr.

In November of 1960, the trustees executed and forwarded to Southwestern Life Insurance Company a written power of attorney in favor of Lynn Kerr, stating that she had been duly authorized to perform the duties imposed upon the trustees in the administration of the trust and was further empowered to perform the duties without the necessity of joinder of any of the other trustees.

The trust agreement authorized the trustees under Section 9 to act as follows:

“The Trustees shall certify to the insurance company, by a majority vote or action as provided for in Section 8 hereof, the name of one or more of their number, authorized to act for them.”

Thus in July of 1961, Lynn Kerr was acting trustee of the Hygeia Employees Pension Trust. She was secretary of the trustees, the trust authorizing the appointment of a secretary by the following language in Section 9:

“Section 9. The Trustees shall appoint a secretary, who may or may not be a Trustee, and such other agents or representatives as they may deem advisable, who need not be Trustees, to keep their records and to assist them in doing any other acts or things to be performed by the Trustees.”

Lynn Kerr was empowered to perform the duties imposed upon all three of the trustees in the administration of the trust without the necessity of the joinder of the other trustees.

The change in beneficiary form bearing Vivian Vesmirovsky’s signature and that of Lynn Kerr was forwarded to the Southwestern Life Insurance Company. The fact that Lynn Kerr had not written “trustee” after her name on the application to change beneficiaries is not important. The insurance company already had notice of her authorization to act for the remaining trustees. Thereafter, Southwestern acknowledged receipt of the form, stating that they had marked the record to show the beneficiary was changed to “Annie Lou Beach, Mother.”

There is testimony that the change of beneficiaries as effected above was a matter of routine. Section 29 of the pension trust provides:

“Each participant shall have the privilege of designating the beneficiary who shall, in case of the participant’s death, be entitled to the benefits specified in Section 27, and each participant shall have the further privilege from time.to time of changing such beneficiary without his consent. * * * Any such designation of beneficiary or election shall be made by written instrument executed by the participant and delivered to the Trustees.”

The absolute right of the participant to demand the change of beneficiary is further illustrated by Section 54 of the trust which reads as follows:

“Unless and until required to be delivered in accordance with the terms hereof, the control of trust assets, including all incidents of ownership in and to any contract issued pursuant to this agreement, shall be in the Trustees, except only the right to make and from time to time change or cause to be changed the beneficiary designation * * * such rights being and remaining vested in the respective participants subject to exercise in the manner provided by this agreement.”

The Southwestern Life Insurance Company was not only directed by the trustees to change the beneficiary under the above-mentioned contract to the appellee by the notice mailed by Lynn Kerr, but in their answer filed in this suit, the trustees again directed the company to pay the proceeds to appellee.

In their briefs appellants have quoted at length various parts of the insurance and trust contracts. It would serve no purpose to unduly lengthen this opinion by inserting these provisions herein. They are not at variance with the provisions of either of the contracts quoted above. Nor can we find any instance where the trust created conflicts with the provisions of the Texas Trust Act, Articles 7425a through 7425d, Vernons Civil Statutes.

Vivian Vesmirovsky did all that she could have possibly done to effect a change in beneficiary. She had this right under the pension contract and the trustees of the pension fund merely had the obligation of ratifying this right under the insurance contract. This they did. Lynn Kerr as a trustee and acting for the trustees of the fund changed the beneficiary according to instructions. The insurer accepted the change and so notified the interested parties prior to Vivian Vesmirovsky’s death. See Fidelity Union Life Insurance Company v. Methven, 162 Tex. 323, 346 S.W.2d 797.

There are no material facts in dispute here. The Trial Court ruled correctly on the question of law and the judgment should be affirmed. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

The judgment of the Trial Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    SOUTH FALLS CORPORATION et al., Relators, v. Honorable F. B. DAVENPORT, Judge, 116th Judicial District Court, et al., Respondents.
    No. 16288.
    Court of Civil Appeals of Texas. Dallas.
    June 14, 1963.

      Marcus & Lewis, Dallas, for relators.
    Lane, Savage, Counts & Winn, William V. Counts, Dallas, for respondents.
   DIXON, Chief Justice.

Petitioners, South Falls Corporation, et al., have applied for a writ of prohibition to stay Honorable F. B. Davenport from requiring petitioners to answer oral interrogatories in accordance with an order of discovery issued pursuant to Rule 737, Texas Rules of Civil Procedure.

On April 3, 1963, Di-Deb of Texas, Inc. recovered a judgment in a Dallas District Court for $69,642.97 against South Falls Corporation. A writ of execution was issued in an effort to collect the judgment, but was returned by the Sheriff unsatisfied.

On April 25, 1963 plaintiff Di-Deb of Texas, Inc. filed a suit in the nature of a bill of discovery as provided by Rule 737, T.R.C.P. naming South Falls Corporation, its President, James Cash, and its Vice-President, Billy W. Morris, as defendants. Plaintiff alleges that the defendant corporation has sufficient assets subject to execution to pay all or a portion of the judgment against it, but that plaintiff has been unable to obtain sufficient information concerning such assets to effect collection of its judgment. Plaintiff further alleges that the corporation defendant is a closed corporation substantially owned in its entirety by James Cash and Billy W. Morris.

Thereafter defendants were ordered to appear on May 31, 1963 to show cause why discovery should not be granted as prayed for, and subpoenas duces tecum were issued to Billy W. Morris and James Cash to bring with them to the hearing certain named documents.

On May 31, 1963 the court entered its order for discovery, requiring defendants to appear at a designated place to answer oral interrogatories and to bring certain documents with them. Billy W. Morris appeared on the day named, but declined to answer the interrogatories. James Cash did not appear because of illness.

The court thereupon ordered Billy W. Morris to appear in court on June 6, 1963 to answer oral interrogatories bringing with him certain records. James Cash was ordered to appear on June 7, 1963 then and there to comply with the court’s order. Defendants gave notice of appeal to this court.

On June 5, 1963 the defendants in the discovery suit, petitioners here, filed their application for a writ of prohibition to stay enforcement of the trial court’s order of discovery.

There are two types of discovery. One is made in aid of a pending suit and is sometimes referred to as a pure bill of discovery. Such an order is interlocutory in nature and is not appealable.

The other type is in the aid of a final judgment. It is a separate suit and is often referred to as a suit in the nature of a bill of discovery. This type of order is itself a final judgment and is appealable. Dallas Joint Stock Land Bank of Dallas v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993; Dallas Joint Stock Land Bank v. Rawlins, Tex.Civ.App., 129 S.W.2d 485; Indemnity Ins. Co. v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553; Clark et al. v. Employers Casualty Co., Tex.Civ.App., 68 S.W.2d 226; Montague County v. White, Tex.Civ.App., 250 S.W. 736. We hold that South Falls Corporation, James Cash and Billy W. Morris, petitioners here, have a right of appeal from the judgment of discovery entered against them in the trial court

However we have concluded that we should deny the writ of prohibition, since petitioners have an adequate remedy by the filing of a supersedeas bond. Boothe v. Nelson, Tex.Civ.App., 321 S.W.2d 321; Cashion v. Cashion, Tex.Civ.App., 239 S.W.2d 742.

In oral argument petitioners contended that under Rule 627 T.R.C.P. the judgment of discovery, being a final judgment, cannot be enforced before the expiration of twenty days from the date of the judgment; that therefore the action of the court is a premature effort to enforce its judgment; and that it would be a violation of their rights to require petitioners to file a super-sedeas bond to stay proceedings before the expiration of the twenty days.

We see no merit in petitioners’ contention. It has often been held that a writ of execution prematurely issued is not void, but is voidable only. It may not be collaterally attacked and must be respected until it is vacated in a direct proceeding instituted in the court which ordered it to be issued. Interstate Life Ins. Co. v. Arrington, Tex.Civ.App., 307 S.W.2d 146; Morris v. Hastings, 70 Tex. 26, 7 S.W. 649; Boggess v. Howard, 40 Tex. 153; Sydnor v. Roberts, 13 Tex. 598, 600.

The temporary stay order heretofore granted is dissolved. The writ of prohibition is denied.


author: BATEMAN, Justice.

text:
    M. V. WATSON, Appellant, v. E. O. PREWITT, Adm. Estate of Mrs. W. F. Allison, dec’d., Appellee.
    No. 16163.
    Court of Civil Appeals of Texas. Dallas.
    May 3, 1963.
    Rehearing Denied May 31, 1963.

      Kenner W. Clay, Dallas, for appellant.
    Spafford, Freedman, Hamlin, Gay & Whithan, Dallas, for appellee.
   BATEMAN, Justice.

Our former opinion in this case is -withdrawn and the following substituted therefor :

This is a suit brought by E. O. Prewitt as Guardian of the person and estate of Mrs. W. F. Allison, alleged to be a person of unsound mind, for the cancellation of a deed executed by the said Mrs. Allison in favor of the appellant M. V. Watson dated April 23, 1955. Prewitt alleged the deed to be void because at the time of the execution of same his ward was mentally incapable of transacting business affairs and of selling and conveying real property, and that appellant had knowledge of her alleged mental condition. He offered to do such equity “as the court may, from the facts adduced herein, deem to be required of him.” Appellant answered by general denial and by special plea that he purchased the land in good faith, without committing any fraud or imposition on Mrs. Allison, and without notice of her mental infirmity and further, that the plaintiff should not be permitted to recover the land until the defendant was restored to his original position by the refund of the $3,000 he paid for the land, as provided by Sec. 7 of Art. 5561a, Vernon’s Ann.Tex.St.

This is the second appeal of this case. On the first trial the jury found that Mrs. Allison had sufficient mental capacity to understand the nature and effect of her act in making the deed, and also that Watson paid her $3,000 for the land. Judgment was rendered for Watson, and Prewitt obtained a reversal in the Amarillo Court of Civil Appeals, 317 S.W.2d 954, which court remanded the case for another trial. Application for writ of error was refused, no reversible error, Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815.

On the second trial the jury found (1) that Mrs. Allison did not have sufficient mental capacity to understand the nature and effect of her act in executing the deed, (2) that Watson was without notice of such lack of mental capacity, (3) that Watson acted in good faith in accepting the deed, and (4) that he paid Mrs. Allison $3,000 for the land. In the meantime, Mrs. Allison died and Prewitt became administrator of her estate and substituted himself as plaintiff in that capacity. In the judgment appealed from the court accepted the jury’s answer to Special Issue No. 1, that Mrs. Allison did not have sufficient mental capacity to execute the deed, and decreed that the deed should be can-celled and held for naught; but the court held that the jury’s answers to Special Issues numbered 2 and 3, that Watson was without notice of the mental incapacity and that he acted in good faith, were against the great weight and preponderance of the testimony and should be disregarded and the court held that the jury’s answer to Special Issue number 4, wherein it was found that Watson had paid Mrs. Allison $3,000 for the land, finds no support in the evidence and should be disregarded. The judgment was therefore in favor of Prewitt cancelling the deed, and also that Watson take nothing.

Of course, the court was unauthorized to disregard the answers to Special Issues numbered 2 and 3. If they were in truth so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, all the court could properly have done was to set them aside and order a new trial. Gulf Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Apparently recognizing this, counsel for ap-pellee have filed in this court the following stipulation:

"Appellee, E. O. Prewitt, Administrator of the Estate of Mrs. W. F. Allison, Deceased, admits, for the purpose of this appeal, that the lower Court erred in disregarding the jury’s answers to Special Issue No. 2, (Notice) and Special Issue No. 3 (Good Faith) and admits, and stipulates that Special Issue No. 2, and Special Issue No. 3 should both stand as found by the Jury in this cause, in the same manner as if no attack had been made thereon.”

Appellant does not complain of the finding of mental incapacity or of that part of the judgment cancelling the deed. Therefore, the problem confronting us is narrowed down to this: Did the court err in disregarding the jury finding in answer to Special Issue No. 4, that appellant paid Mrs. Allison $3,000 for the land, on the ground that there was no evidence to support it? If there was any evidence, more than a scintilla, to support the finding, the trial court was unauthorized to disregard it. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933. We do find that there was some evidence, more than a scintilla, to support the jury finding in question, necessitating a reversal of that part of the judgment which denied appellant a refund of the $3,000.

The statement of facts filed in this court is admittedly only a partial record of -the evidence but is sufficient to establish the following facts: Watson prepared the deed in question for Mrs. Allison’s signature, and it recited a consideration of $3,000. When he went to her home to present it for her signature he took with him one George D. Hogan, to act as notary public in taking her acknowledgment. Hogan, testified that Watson gave the deed to him and that he read it to Mrs. Allison and that she then read it for herself and seemed satisfied with it; that Watson tried to get her to reduce the price four or five hundred dollars and that she said, “No, that it was $3,000, and they had already agreed, cash money, and she wouldn’t have nothing to do with it, so he gave her the money.” He further testified that he did not count the money but that Watson handed her two or three bundles of currency; that he did not recollect seeing any $1 or $50 bills in the bundles, “but there were a bunch of 5’s, 10’s and 20’s in the one I saw open”; that the bundles of money were an inch and a half or two inches high; that Mrs. Allison started to count one of them while on the porch with Hogan and Watson, but then went into her house and left them on the porch; that she was in there quite some time, and they went over and “pecked on the door” and Mrs. Allison said “Don’t come in, I will be right out.” He further testified that “in a couple of minutes more she came out and came over and sat down, and I gave her the paper back and said, 'are you satisfied?’ and she said ‘yes’ and sat down and signed it.”

Appellee takes the position here that because of the unchallenged finding of mental incompetency, the recitation of the $3,000 consideration in the face of the deed cannot be received as any evidence at all of the payment of the $3,000. It is our view, however, that the mere finding that Mrs. Allison did not have sufficient mental capacity to understand the nature and effect of her act in signing the deed is not tantamount to a finding that she had no. mind or mental capacity whatever. We take judicial notice of the well known fact that there are many kinds and degrees of mental incapacity; and although Mrs. Allison may not have sufficient mental capacity to understand the nature and effect of her act in signing the deed, as found by the jury, she still may have had sufficient mental capacity to count several bundles of currency and determine the monetary value thereof. She evidently had sufficient mental capacity to recall that her agreement with Mr. Watson was for a price of $3,000 and to resist his effort to wheedle her into accepting less. She may also have had sufficient mental capacity to understand the meaning of the recitation of the $3,000 consideration in the deed. In any event those were questions which the jury had a right to consider in determining whether $3,000 was paid by appellant for the land, and the trial court had no authority under the law to disregard their finding in that respect.

Accordingly, that portion of the judgment which adjudges that appellant take nothing is reversed; and that portion which decrees the cancellation of the deed in question is reformed and modified to provide that such cancellation shall be conditional upon payment by appellee to appellant of the sum of $3,000, and as so reformed and modified is affirmed. All costs in this court and the court below are taxed against appellee.

Reversed in part and modified and affirmed in part.


text:
    Daniel GEVINSON et al., Appellants, v. STEPHEN-LEEDOM CARPET CO., Inc., Appellee.
    No. 16173.
    Court of Civil Appeals of Texas. Dallas.
    May 17, 1963.

      Stone, Parker, Snakard, Friedman & Brown and Lawton G. Gambill, Fort Worth, for appellants.
    Goldberg & Alexander and B. G. Compton, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from an order overruling pleas of privilege of appellants West-chester House, Inc. and Daniel Gevinson, individually and doing business as Gevinson Equipment Company, who seek to have suit as to them transferred from Dallas County to Tarrant County.

Appellee Stephen-Leedom Carpet Company, Inc., seeks to retain venue in Dallas County under subd. 4 of Art. 1995, Vernon’s Ann.Civ.St. One of the defendants is Vaughan Wood, a resident of Dallas County, who does business under the name of Village Carpets.

To maintain venue in Dallas County under subd. 4 it is necessary for appellants (1) to plead and prove a cause of action against Vaughan Wood, the resident of Dallas County; and (2) to plead a cause of action against the non-resident defendants of such nature that it constitutes either a joint cause of action against the resident and non-residents, or an action against the nonresidents so intimately connected with the cause of action against the resident defendant that the two causes of action may be joined under the rule intended to avoid a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

We have concluded that appellee has complied with requirement No. (1) as stated above, but that it has failed to comply with requirement No. (2). Consequently the judgment must be reversed as to appellants.

Appellee rests its suit in part on a sworn account of $15,386. covering the sale of carpeting. Appellants assert that appellee’s petition cannot be given effect as a sworn account because (1) the affidavit fails to disclose the total amount due; and (2) defendant Vaughan Wood filed a sworn answer denying the indebtedness on the grounds that the carpeting was not fit and suitable for the purposes for which it was manufactured and sold.

We believe the sworn account made out a case for appellee against Vaughan Wood. Though the affidavit itself fails to name the amount due, the statement and supporting invoices, which are referred to in the affidavit and are annexed to it, do show the total amount due. Wood’s sworn denial was not introduced in evidence and there is no showing that it was brought to the attention of the trial court.

But appellee need not rely on the sworn account to make out its case against Wood. In the record there is a purchase order signed by Wood, and stipulations entered into, together with Wood’s answers to request for admissions, make it clear that the carpeting in question was sold to Wood and delivered at Wood’s order to West-chester House, Inc., and that though Wood thereafter received statements and invoices from appellee he has not paid anything on the indebtedness. No evidence was introduced in support of Wood’s pleadings that the carpeting was unfit and unsuited for the purposes for which it was manufactured and sold. Irrespective of appellee’s sworn affidavit a case was made out against Wood for merchandise sold, delivered and accepted. The second point on appeal of each appellant is overruled.

Appellant Gevinson and two other persons own the real estate on which West-chester House is located. Westchester House, Inc. is the lessee. The carpeting in question was to be installed, or perhaps has been installed by Wood in Westchester House.

Appellee’s cause of action against Gevin-son is based on two documents, both dated August 22, 1962. The first is an assignment by Wood to appellee of Wood’s claim for debt against Gevinson Equipment Company. The second is an agreement signed by Gev-inson as follows:

“Upon completion of installation of corridor carpet in Westchester House and subject to acceptance of satisfactory installation I agree to pay to Stephen-Leedom Carpet Company and Village Carpets the contract sum of $19,152.00 by notes to First National Bank of Fort Worth to issue check in this amount payable to Stephen-Leedom and Village Carpets jointly.” (Emphasis ours)

It will be observed that the above document is not an unqualified agreement by Gevinson to pay $19,152, Wood’s contract price for installing the carpeting in West-chester House. Gevinson promises to pay “upon completion of installation of corridor carpet” and “subject to acceptance of satisfactory installation.” Since appellee bases its cause of action against Gevinson on the quoted instrument it was necessary for appellee in order to plead a cause of action against Gevinson to allege that Wood has fully performed his contract, that is, that Wood had completed installation of the corridor carpeting and the installation has been accepted. Appellee’s petition contains no such allegation. For that reason appellee did not plead a cause of action against Gevinson.

Appellee seeks to fix a mechanic’s and materialman’s lien against the real property owned by Gevinson and two other persons who were made defendants but did not file pleas of privilege or appeal. We agree with appellants that appellee has not pled grounds which support its claim for liens. There is no basis for a constitutional lien, for it is not alleged that the material or work was done for the owners, or that there was any privity of contract between the owners and Wood, appellee’s assignor.

There is no basis for a statutory lien, for the affidavit for a lien is fatally defective. The affidavit is copied in appellee’s petition. It does not contain the phrase “after allowing all just and lawful offsets, payments and credits known to affiant” nor any words of similar import as required by Art. 5456 V.A.C.S. before the Article was amended. The contract between Wood and Gevinson was entered into on June 15, 1961 before the Statute was amended, so the amended Statute cannot control. See Vernon’s Texas Session Law Service, 57th Legislature, Vol. 5, p. 871, §§ 11 and 12, and Lebo v. Dochen, Tex.Civ.App., 310 S.W.2d 715.

We also point out that since appellee failed to allege a cause of action for debt against Gevinson its claim of a lien must fall. Appellee’s pleadings do not allege a valid lien. Appellants’ first and third points on appeal are sustained.

The conclusions expressed are only as to venue facts. Before trial on the merits amended pleadings may possibly be filed and additional evidence may possibly be adduced which would support different conclusions in a trial on the merits.

The judgment of the trial court is reversed and remanded with directions to sustain the pleas of privilege of appellants Westchester House, Inc. and Gevinson, individually and doing business as Gevinson Equipment Company and to cause the suit as to said appellants to be transferred to Tarrant County, Texas.


author: ARCHER, Chief Justice.

text:
    Kenneth G. PHILLIPS, Appellant, v. TEMPLE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 11104.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1963.

      Joe Everton, Temple, for appellant.
    Joe Carroll, Temple, for appellee.
   ARCHER, Chief Justice.

This is an appeal from an order dissolving a temporary restraining order theretofore granted in a suit brought by appellant, as a tax-paying qualified voter against the Trustees of the Temple Independent School Board to prevent the Board from purchasing a tract of land on which to construct a high school.

The Board was authorized by voters of the District in a bond election to purchase the "American Legion site consisting of 48 acres more or less.”

The voters authorized the issuance of bonds and the purchase of the Legion site, which on a survey was found to contain only 39.6 acres.

The case was tried by the Court without a jury and after a hearing at which evidence was adduced, the temporary restraining order was dissolved.

The appeal is founded on seven points assigned as error and are to the effect that the Court erred in dissolving the restraining order because the Board did not have power to change from the purchase of a 48 acre tract to a 39.6 acre tract, and to purchase the other tracts, one of which was not well drained and not sanitary.

Appellant contends that the 10 acre tract is used as a dump ground, that it is 10 to 20 feet higher than the Legion site and water drains to such site, which is not well drained and would not be a sanitary place.

Appellant testified that the tract was not well drained and that he had seen “elephants stuck down there at circuses.” The witness stated that he did not charge the members of the Board with illegal or fraudulent acts, only of making a mistake; that he was interested in the school system, had served seven years as a trustee and was not questioning the bond issue in any manner.

Other witnesses testified that the 10 acre tract was a dump ground, but did not know who used it, and that it was full of or covered with trash and junk.

Vale Logsdon, an architect employed to design and supervise the construction of the school plant, testified that he had gone over the Legion site and the 10 acre tract, had drilled test holes for foundations, had examined the logs with the construction engineer, found rock at a depth of 10 to 12 feet; that it was possible and feasible to plan and build a high school such as is contemplated by Temple; that the property is well drained, and the drainage from the 10 acre tract to the Legion tract would not constitute a health hazard; that excavation problems would not be greater than if built near the ball park and that taking into consideration modern engineering, architecture and building technique the land can be restored and drained and a good job had without any health hazard.

The case was fully developed and the testimony was conflicting and was heard by the Trial Judge, who resolved the fact issues in favor of appellees, and we believe properly. There is no showing that the Trial Judge abused his discretion in entering the order appealed from.

Appellee says that subsequent to the granting of the motion to dissolve, the Board purchased the 39.6 acre tract, and the reversionary interest in the 2.2 acre tract, presently occupied by the County buildings, received a deed and has paid the consideration and has located the high school plant at the American Legion site and employed an architect to plan, supervise and accomplish the construction of the school. This is verified by the affidavit of John F. Sammons, President of the School Board. Appellee contends that the issues in this case are moot and the cause should be dismissed.

We believe that the issues as concern the purchase of the Legion tract and the 2.2 acre tract are moot and that the cause should be dismissed. In any event the Trial Court did not abuse its discretion in entering the order appealed from. Rudd v. Wallace et al., Tex.Civ.App., 232 S.W.2d 121; Weinberg v. Molder, Tex.Civ.App., 312 S.W.2d 393, er. ref., n. r. e.

The judgment of the Trial Court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    L. J. SCHARLACK et al., Appellants, v. GULF OIL CORPORATION, Appellee.
    No. 14101.
    Court of Civil Appeals of Texas. San Antonio.
    May 29, 1963.
    Rehearings Denied June 19, 1963.

      Glosserman, Alter & Smith', Mitchell S. Rosenheim, San Antonio, for appellants.
    William F. Erwin, Jr., Houston, for appellee.
   BARROW, Justice.

This is an appeal from a take-nothing summary judgment. Appellants filed suit to recover damages and for a mandatory injunction to require appellee to remove a billboard which was erected near appel-lee’s north property line in such manner as to practically cover a billboard previously erected by appellants near its south property line. Each sign is located entirely on the property of its respective owner.

Appellee’s motion for summary judgment was made on the ground that the pleadings show that there is no genuine issue as to any material facts and appellee was entitled to judgment as a matter of law under the two-year statute of limitations, Art. 5526, Vernon’s Ann.Civ.Stats., and by reason of laches in appellants’ not filing their suit for nearly four years. Appellants concede that their claim for damages is barred by the two-year statute of limitations, but urge that the erection and continued maintenance of appellee’s billboard constitute a private nuisance under the facts alleged in their petition.

The rights governing adjoining property owners was stated by this Court in Harrison v. Langlinais, Tex.Civ.App., 312 S.W.2d 286, wherein it was said:

“The rule of law in Texas is well established, that the owner of real estate may, in the absence of building restrictions or building regulations against his land, erect a building, wall, fence or other obstruction thereon and on any part thereof, within his sole discretion, and his action in so doing is lawful as one of the incidents of fee simple ownership, notwithstanding it obstructs light, air and vision from his neighbor; notwithstanding it depreciates the value of the neighbor’s property, and notwithstanding the motive for erecting the structure.” Citing authorities.

This rule is modified to create a cause of action when one’s property is used in such a way as to constitute a nuisance. Johnson v. Dallas Power & Light Co., Tex.Civ.App., 271 S.W.2d 443; Columbian Carbon Co. v. Tholen, Tex.Civ.App., 199 S.W.2d 825. We must, therefore, examine appellants’ petition to determine if there are facts alleged which constitute a private nuisance.

It is alleged that appellants and appellee own adjoining lots on the north side of a busy intersection in the City of San Antonio, known as Romana Plaza. The common boundary line of these two lots is 93.31 feet long between San Pedro Avenue and Main Avenue, which streets converge at the south end of appellee’s lot. In 1948 appellants erected a commercial advertising billboard near its south boundary line, with dimensions 45' by 20’ and approximately twenty-five feet above the ground. This billboard was located so as to be visible to heavy northbound traffic on these two streets. In April, 1957, appellee erected a billboard near its north boundary line, which covers a substantial part of appellants’ advertising sign, so as to render the appellants’ sign useless for advertising purposes. It is further alleged that the continued maintenance of appellee’s sign obstructs and works injury and damage to appellants’ reasonable use and enjoyment of their property, and therefore constitutes a private nuisance. That the act of ap-pellee in placing its sign in front of appellants’ sign and blocking and obstructing it from use was and is an unreasonable use and exercise of the dominion which appellee has by virtue of its ownership of said property, having regard for all interests affected. This suit was filed by appellants on March 17, 1961.

There is no allegation that the appellee’s sign was unlawfully erected, or that it was erected for any purpose other than in lawful and gainful pursuit of appellee’s affairs. Appellants cite Rogers v. Scaling, Tex.Civ.App., 298 S.W.2d 877, to support their position. That case is distinguishable, however, in that there it was determined that the sign sought to be removed was erected in such manner that it completely blocked the view of the adjoining property owned by complainant. In affirming the permanent injunction prohibiting the maintenance of the sign, the Court emphasized that the trial court’s order merely prohibited the maintenance of the sign in its present location. It did not prohibit the use of the same sign in another location or prohibit the owner from using a different type sign in the same location.

It is our opinion that the appellants have alleged nothing more than an interference with their view. The English rule of “ancient lights” was repudiated in this State in the early case of Klein v. Gehrung, 25 Tex.Supp. 232. Under the rule recognized in this State, a building or structure cannot be complained of as a nuisance merely because it obstructs the view of neighboring property. Boys Town, Inc. v. Garrett, Tex.Civ.App., 283 S.W.2d 416; Dallas Land & Loan Co. v. Garrett, Tex.Civ.App., 276 S.W. 471. See also Campbell v. Hammack, 212 Ga. 90, 90 S.E.2d 415; Vol. 66 C.J.S. Nuisances § 25.

The trial court did not err in sustaining appellee’s motion for summary judgment. The judgment is affirmed.


author: FRASER, Justice.

text:
    WOOTEN PROPERTIES, INC., a corporation, Appellant, v. Frankie Lou SMITH, Independent Executrix of the Estate of Houston Smith, Jr., Deceased, Appellee.
    No. 5584.
    Court of Civil Appeals of Texas. El Paso.
    May 22, 1963.
    Rehearing Denied June 19, 1963.

      T. J. McMahon, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellant.
    Stubbeman, McRae, Sealy & Laughlin, Rush Moody, Jr., Midland, for appellee.
   FRASER, Justice.

This action was filed in the court below by the appellee against the appellant (defendant in the court below) to recover the sum of $11,600.00, which appellee contended in the court below represented the balance of the purchase price of certain real property located'in Wichita County, Texas, which property was the subject of an option contract between Houston Smith, Jr., predecessor in title to the appellee, and the appellant, the controversy arising over the consideration to be paid by appellant for said property upon the exercise by it of its option to purchase the same.

Both parties filed motions for summary judgment, and upon the hearing of these motions the court sustained that of the plaintiff in the court below (appellee here), and denied the motion of appellant.

The contract provisions with which we are here concerned are as follows:

“2.
“The agreed consideration to be paid for the above described property and improvements located therein is Three Hundred Ninety Thousand ($390,000.-00) Dollars if such option is exercised during the first year of this agreement.
“Thereafter, the consideration for said property shall be the said sum of Three Hundred Ninety Thousand ($390,000.00) Dollars less annual depreciation on the improvements located thereon on an agreed schedule of Eleven Thousand Six Hundred ($11,600.00) Dollars per year. Such agreed annual depreciation shall be pro-rated to the exact date that Buyer so elects to purchase the premises.”

Both parties agree that the contract is unambiguous and clear and that the above provisions are all that need be considered in this lawsuit. The plaintiff here appears as executrix of the estate of her deceased husband, who was party to the original contract.

Inasmuch as both parties agree that there is no fact question involved, it is obvious that this is a clear case where a summary judgment is called for.

Both parties further agree, in context and by authority, that in a case such as this, where the wording of a contract is unambiguous, we do not have to deal with or concern ourselves with what intention existed in the minds of the parties, but must interpret such contract with respect to its intention and effect solely from the language used. 17 C.J.S. Contracts § 296, p. 695 et seq. It is also well established that an unambiguous contract which does not conflict with the policy of the law shall be enforced as it is written, according to the ordinary meaning and usage of the words or terms involved, regardless of whether one or more of the parties contracted wisely or foolishly, or created a hardship for himself. 13 Tex.Jur.2d 306 et seq., and p. 312; Climatic Air Sales, Inc. v. Climatic Air Distributors, Tex.Civ.App., 336 S.W.2d 461; Magnolia Warehouse & Storage Co. v. Davis & Blackwell, 108 Tex. 422, 195 S.W. 184; Southwest Texas & International Flying Club, Inc. v. City of Del Rio, Tex.Civ.App., 324 S.W.2d 40; State Nat. Bank of Corpus Christi v. Morgan, 135 Tex. 509, 143 S.W.2d 757.

With regard to the controversy here involved, the record reveals that the contract was entered into April 26, 1956, and that defendant (appellant) bought the property January 26, 1961, at which time said defendant tendered the sum of $334,900.00 as purchase price for the property. Plaintiff contends that the proper purchase price is $346,500.00, the difference in the two figures being that defendant claims that the terms of the contract provide for the subtraction of the depreciation payment from the date of the contract, while plaintiff’s contention is that the annual depreciation sum of $11,600.00 does not begin until the expiration of the first year of the contract. There being no fact issues, the trial court was confronted with only the interpretation of this contract, and we think his interpretation is correct. We think the language clearly establishes that if the property was purchased under the option contract during the first year of the contract, same being the year between April, 1956 and April, 1957, then the defendant would have had to pay $390,000.00; that if defendant purchased at any time subsequent to the first year of the option contract, he would then pay, as provided, the sum of $390,000.-00 minus an annual depreciation of $11,600.-00, pro rated to the date of purchase. This is the trial court’s interpretation, and this is the plaintiff’s contention. We think the terms of the contract are clear and unambiguous, and the normal meaning of the words and terms used therein leave but one construction possible — namely, that given it by the trial court, which is that defendant is entitled only to three and three-fourths years depreciation allowance.

Finding as we do that the trial court was entirely correct in his interpretation, it is our holding that appellant’s points are all overruled, and the judgment of the trial court is in all things affirmed.


author: RENFRO, Justice.

text:
    Mary Odessa BARRETT, Appellant, v. Earl Maurice BARRETT, Appellee.
    No. 16431.
    Court of Civil Appeals of Texas. Fort Worth.
    May 24, 1963.
    Rehearing Denied June 21, 1963.

      Spence, Martin & Richie and Howard L. Martin, Wichita Falls, for appellant.
    Charlye O. Farris, Wichita Falls, for appellee.
   RENFRO, Justice.

Appellant Mary Odessa Barrett was defendant in a divorce suit brought by ap-pellee Earl Maurice Barrett.

The parties were married January 2, 1962, and separated March 10, 1962. Suit was filed March 23, and a divorce granted appellee on August 27.

When asked the reasons for the final separation, appellee answered “cruelty”. In answer to the question, “And what did this cruelty consist of?”, he answered, “Well she failed to do her duties as a housewife plus she nagged all the time for money plus she wanted to know if I had any money plus she talked about my parents, and that’s it.” Because of the acts “alleged” he did not think he would be able to live with his wife again.

In answer to specific questions appellee testified his wife asked him one time if he had a bank account. The question did not bother him. Just prior to the separation she asked for some money. He did not give her any, but the request made him mad. There were no other requests for money.

One time she referred to appellee’s mother in an uncomplimentary manner and once she used a derogatory word in reference to his grandmother. He did not remember the time or the occasion or circumstances of the above remarks.

He did the cooking. Appellant was pregnant during all the marriage and their baby was born on July 25.

Mental cruelty or suffering, intentionally inflicted, and grievous and lasting, may be ground for divorce, if it makes living together insupportable. 20 Tex.Jur.2d 365, § 17. The reaction to the alleged acts and conduct of a spouse, however, is strictly a personal matter to an alleged aggrieved spouse. Such reaction of feeling is peculiarly and exclusively within the aggrieved person’s own knowledge. It is within the personal province of such aggrieved spouse to condone a marital offense. Ivy v. Ivy, Tex.Civ.App., 177 S.W.2d 237.

Appellee did not testify to any personal reactions or feelings concerning appellant’s conduct except that on the one occasion when she asked for money the request made him mad. The conduct of an 18 year old pregnant wife in asking her husband for money on one occasion is not the type of conduct contemplated by the statutes and recognized by the courts as cruelty.

Appellee did not testify that any of the acts to which he testified endangered his health, outraged his feelings or inflicted any mental pain or anguish, except the one instance when he became mad over a request for money.

To justify a divorce the evidence must not only be full and satisfactory to the trial judge, but also full and satisfactory to an appellate court in order to permit a decree to stand. Lohmuller v. Lohmuller, Tex.Civ.App., 135 S.W. 751; Blake v. Blake, Tex.Civ.App., 263 S.W. 1075; Parks v. Parks, Tex.Civ.App., 55 S.W.2d 242; McDonald v. McDonald, Tex.Civ.App., 316 S.W.2d 780.

The evidence is not full and satisfactory to this court.

Reversed and remanded.


text:
    Billie D. WILSON, Appellant, v. Otha H. MORRIS et ux., Appellees.
    No. 16432.
    Court of Civil Appeals of Texas. Fort Worth.
    May 31, 1963.
    Lewis Carroll Fielden, Houston, for appellant.
    Coleman & Whitten, and Royce Whitten, Denton, for appellees.
   RENFRO, Justice.

Appellees, Otha H. Morris and wife Allie, petitioned the court for leave to adopt their four year old granddaughter, Lynelle Wilson. The mother of the child was deceased. By intervention the child’s father, Billie D. Wilson, opposed the adoption.

The adoption was granted. Intervener appealed.

Appellant contends the report of the investigators should not have been received by the court because the manner of conducting the investigation and the preparation of the report thereof were irregular and not in compliance with the adoption statutes.

The adoption statutes were strictly complied with by appellees, and the court followed the statute in appointing Lee Holt, an attorney, and Marie Beck to investigate and in writing fully report to the court concerning the environment, former environment, and antecedents of the minor child for the purpose of the court’s ascertainment whether she was a proper subject for adoption, and also concerning the home of petitioners in order to enable the court to determine whether it was a suitable home for such child.

The investigators duly filed their report, under oath, concerning all the matters required under Art. 46a, § 2, Vernon’s Ann.Tex.Civ.St.

Mr. Holt testified at the hearing. He testified that the report contained two errors. The trial court filed exhaustive findings of fact, which occupy thirteen pages of the transcript. In finding No. 31 the court found that “The information contained in the Investigators Report is substantially true and correct and any error in such Investigators’ report was brought out before the Court in this cause of action.” The record fully supports the finding. Mr. Holt’s testimony reveals that he and Mrs. Beck made a thorough, independent and conscientious investigation, and they signed and swore to the report. The fact that it inadvertently contained two errors did not make it inadmissible.

The appellant also contends the findings that appellees were suitable and proper persons to adopt the child and that their home was a suitable home for the child are against the great weight and preponderance of the evidence.

We will not burden the opinion with the testimony of the individual witnesses. It will suffice to say there is an abundance of evidence from the several witnesses who testified, in addition to the investigators’ report, to uphold the said findings.

Judgment affirmed.


author: STOCKARD,' Commissioner. STORCKMAN, Judge

text:
    Elizabeth FESTE, Appellant-Respondent, v. Billy M. NEWMAN, Respondent, and Jean Denton, Appellant.
    No. 49143.
    Supreme Court of Missouri, En Banc.
    June 4, 1963.

      David G. Dempsey, Richard' B. Dempsey, Ealcer, Dempsey, Heath &' Dempsey, Clayton, for plaintiff-appellant.
    Derrick & Holderle, St.. Louis, for defendant-appellant.
    Gray & Jeans, Charles E. Gray, St. Louis, for defendant-respondent, Billy M. Newman.
   STOCKARD,' Commissioner.

In Elizabeth Feste’s suit against Jean Denton and Billy M. Newman, wherein she sought $50,000 for personal injuries arising out of an automobile accident, 'the jury verdict was in favor of plaintiff and against her host driver, Jean Denton, in the sum of $10,000, but in favor of defendant Billy Newman, the operator of. .the other automobile. Jean Denton appealed to th.e St. Louis Court of Appeals “from the verdict and judgment” against her, and plaintiff appealed to this court “from the verdict and judgment entered in this action.” When the transcript was filed in the St. Louis Court of Appeals and it was noted that plaintiff’s appeal had been taken here the Court of Appeals properly transferred the appeal of Jean Denton to this court.

Jean Denton contends that the trial court erred in giving two instructions, one of which was Instruction No. 5, and in refusing an instruction requested by her. The one and only point in plaintiff’s brief is as follows: “Plaintiff’s sole ground for reversal of. the judgment of the trial court in favor of defendant Newman is conditioned on this Court’s reversal of the judgment in favor of plaintiff against defendant Denton for alleged error in the giving of Instruction Number 5, a sole cause instruction, on behalf of defendant Newman. Plaintiff submits that Instruction Number 5 properly states the law and requires findings of all facts necessary to the verdict. But if this Court should decide, contrary to the position of plaintiff and defendant Newman, that the trial court erred in giving Instruction Number 5, then plaintiff submits that because of any such error the judgment of the trial court should be reversed and she should be granted a new trial of the issues between her and defendant Newman.”

In her point plaintiff sets forth no action or ruling of the trial court which is contended to be erroneous. In fact, in the argument she states that she “is frankly and openly arguing that she should lose her appeal.” She only contends, as stated in her point, that if Jean Denton prevails on her appeal, there should be a new trial of the issues not only between her and Jean Denton but also between her and Billy Newman.' However, she is entitled to such new trial only for error prejudicial to her, and after she has properly preserved and presented her contention of error for appellate review. A contention of error not preserved for appellate review in the appellant’s brief must be regarded as abandoned. Heuer v. Ulmer, Mo., 273 S.W.2d 169; Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 172 A.L.R. 344. We conclude that plaintiff has presented no assignment of error in the point in her brief for appellate review. Billy Newman has filed a motion to dismiss the appeal of plaintiff for the reason that her brief fails to comply with Civil Rule 83.05, V.A.M.R., in that it presents no assignment of error for appellate review. For the reasons previously set forth we agree and conclude that the appeal should be dismissed. See Turner v. Calvert, Mo., 315 S.W.2d 118; Walker v. Thompson, Mo., 338 S.W.2d 114. This leaves for decision only the issues presented by the appeal of Jean Denton, but if this court has jurisdiction of that appeal it is only because it is an appeal from a judgment from which another appeal has been taken which involves more than the minimum jurisdictional amount. See Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831, and Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390, which hold that the same case cannot be pending on appeal in two appellate courts through appeals of different parties to the action, and that where more than one party appeals and the amount in dispute in either appeal gives this court jurisdiction, both appeals should be sent to this court for final determination. This presents the question whether appellate jurisdiction is irrevocably established as of the time the appeal is taken, or whether if jurisdiction in a court of limited jurisdiction is established by the record at the time of taking the appeal it may subsequently be lost by failure to preserve or present for appellate review an issue within the scope of the limited jurisdiction.

This court has exclusive appellate jurisdiction in all cases, among others, “involving the construction of the Constitution of the United States or of this state, * * * the title to real estate, * * * and * * * in all cases where the amount in dispute, exclusive of costs, exceeds the sum” of $15,000. Section 3, Article V, Constitution of Missouri V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S. Cases may be found in which it is stated that “appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted and that nothing subsequently occurring will defeat or confer jurisdiction on this court.” Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300. For similar statements see Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390; Little River Drainage Dist. v. Houck, 282 Mo. 458, 222 S.W. 384; Hardt v. City Ice & Fuel Co., 340 Mo. 721, 102 S.W.2d 592; Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745; State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W.2d 760; McGregory v. Gaskill, 317 Mo. 122, 296 S.W. 123. However, as stated in Hunter v. Hunter, supra, 197 S.W.2d at p. 300, “This statement of the rule may be too broad if taken literally.” A correct statement, as evidenced by the rulings of this court, is that appellate jurisdiction of this court of a case must exist at the time of taking the appeal, Trokey v. United States Cartridge Co., Mo., 214 S.W.2d 526; Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390; Paisley v. Liebowits, Mo., 347 S.W.2d 178, and if it does not then exist nothing occurring subsequently will result in this court acquiring jurisdiction. Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390. However, even though the record indicates that appellate jurisdiction exists in this court at the time the appeal is taken, the failure to preserve and keep alive for appellate review issues essential to the exercise of jurisdiction will result in the lack of jurisdiction of this court to rule the case on appeal.

It has repeatedly been held that in order to vest this court with jurisdiction on the basis that the case involves the construction of the Constitution the question must be raised at the first available opportunity, the sections of the Constitution claimed to have been violated must be specified, the point must be presented in. the motion for new trial, if any, and it must be briefed on appeal. City of St. Louis v. Butler, 358 Mo. 1221, 219 S.W.2d 372; McGuire v. Hutchison, 356 Mo. 203, 201 S.W.2d 322, 327; Mooney v. County of St. Louis, Mo., 286 S.W.2d 763; State ex rel. Barnett v. Sappington, Mo., 260 S.W.2d 669. It is thus apparent that if there is compliance with the first three requirements at the time the appeal is taken jurisdiction of the case would appear to be in this court, but by the subsequent failure to comply with the fourth requirement jurisdiction in this court to rule the case is lost. In Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900, it was stated that the “jurisdiction * * * [of this court] depends upon live issues being presented on matters within [its] jurisdiction.”

The same result is reached when jurisdiction in this court is dependent only on the basis of the amount in dispute. In Heuer v. Ulmer, Mo., 273 S.W.2d 169, the plaintiff’s petition involved an amount less than the minimum amount necessary to vest this court with appellate jurisdiction, but the counterclaim of defendant involved a sufficient amount. The judgment was for the defendant on the petition and for the plaintiff on the counterclaim and both appealed. At the time the appeal was taken the amount in dispute appeared to be within the jurisdiction of this court. However, there was no point in defendant’s brief presenting for appellate review any issue as to the counterclaim. In that case, the contention of the defendant was that “the trial was properly conducted and that no error was committed,” but that “in the event the court should find some prejudicial error in the conduct of the trial and require that another trial be held, * * * defendant feels that if there should be any prejudicial error discovered * * * such error would require a retrial of the counterclaim, also.” This court held that for the purposes of determining jurisdiction of the appeal “ ‘The amount in dispute * * * is determined by the amount that actually remains in dispute between the parties on the appeal, and subject to the determination by the appellate court of the legal question raised by the record.’ ” Heuer v. Ulmer, Supra at p. 170. This rule is applicable to the pending case.

• Mention must be made of Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, because it may appear to present a different rule. In that case the plaintiff sought specific performance of a contract to convey real estate upon the payment of $2,400, but he also sought a credit of $1,320 on the aforesaid consideration. The trial court “decreed specific performance, conditioned upon the payment of $1,350.55 by plaintiff.” It was stated in the opinion that on appeal the defendant presented only issues questioning the propriety of the credits allowed the plaintiff, and from that statement alone it might appear that title to real estate was •not involved. However, the decree of specific performance was conditioned upon the payment of what was determined to be the correct amount, and the judgment of this court was that “The judgment is reversed and the cause remanded with directions to condition the decree of specific performance upon a credit to plaintiff of $40 only * * Thus the judgment of the trial court from which the appeal was taken, and which was subject to affirmance or reversal, operated directly on the title to real estate. The statement in that opinion that “appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted” is correct as far as it goes, but it is subject to the observations previously made.

The factual situation of this case falls precisely within the rule announced in Heuer v. Ulmer, supra, that “Issues involving amounts in excess of [minimum jurisdictional amount of the Supreme Court] which stand abandoned on appeal have been considered colorable and meritless, and insufficient to vest appellate jurisdiction here.” There are no issues pending between plaintiff and Billy Newman because they were abandoned by plaintiff and her appeal is dismissed. The only issues for decision are those presented by the appeal of Jean Denton and they involve less than $15,000.

The appeal of plaintiff is dismissed, and since this court does not have jurisdiction of the appeal of Jean Denton it is transferred to the St. Louis Court of Appeals.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court en Banc.

All of the Judges concur except STORCKMAN, J., who dissents in separate opinion filed.

STORCKMAN, Judge

(dissenting).

There are two principal reasons why I cannot concur in the adoption of the divisional opinion as the opinion of the court en banc.

First, this procedure overlooks and fails to consider and dispose of the plaintiff-appellant’s point to be argued as restated in her supplemental brief filed and presented to the court en banc for decision.

Second, multiple appeals in the same case do not make separate cases in the appellate court and the appeals must be considered as “one case”. The result of dismissing one of the appeals (once well vested in this court) and of transferring the other is the fragmentation of the “one case on appeal” and a piecemeal disposition which is not necessary under the law and is not desirable in that it is likely to result in injustices that the “one case on appeal” rule was designed to avoid.

The two appeals here involved were taken in the same case from the Circuit Court of the City of St. Louis. One was lodged in this court initially; it was taken by the plaintiff from an adverse judgment in her suit for $50,000 against the defendant Newman. The other defendant, a Mrs. Den-ton, appealed to the St. Louis Court of Appeals from the $10,000 judgment against her and in favor of the plaintiff. The Den-ton appeal was properly transferred to this court by the St. Louis Court of Appeals. The appeals were briefed, argued and submitted first in Division Two then on transfer in the court en banc where the plaintiff filed a supplemental brief as appellant. For brief and convenient distinction, we will sometimes refer to plaintiff’s appeal as the $50,000 judgment or appeal and the defendant Denton’s appeal as the $10,000 judgment or appeal.

The majority opinion in Division Two as originally written held that plaintiff’s assignment of error (which was conditional or in the alternative) must be considered abandoned because it was defectively briefed. In transferring the case however, the opinion made no specific disposition of the $50,000 appeal. A dissenting opinion was filed pointing out that there was no such disposition of a case on appeal known as “abandonment”, but that appeals could only be disposed of in accordance with Civil Rule 83.13(c), V.A.M.R., and § 512.160, subd. 3, RSMo 1959, V.A.M.S., or Civil Rule 83.09. The dissenting opinion also opposed the transfer on the ground that any disposition of the $50,000 appeal was in effect an affirmance of the judgment, was a partial exercise of this court’s jurisdiction, and that this court should dispose of the entire case on appeal. Thereafter, without granting a rehearing, the divisional opinion was modified in several respects and concluded with the dismissal of the $50,000 appeal and the transfer of the $10,000 appeal to the St. Louis Court of Appeals. The case was then transferred to the court en banc.

In the court en banc, as she had a right to do, the plaintiff filed a supplemental brief and argument as appellant. She restated the point which had been held defective in Division Two and cited authorities. As presented in the court en banc, plaintiff’s point reads as follows: “In the event that this Court should find that the trial court erred in giving Instruction No. 5, a sole cause Instruction, offered by defendant Denton [Newman], for the reason that this Instruction was erroneous in: (1) failing to hypothesize the relative positions of the two automobiles and defendant Den-ton’s ability to see the Newman automobile, and (2) enlarging Denton’s duty to yield the right of way by requiring her to yield the right of way regardless of whether she saw or could have seen the Newman automobile, then in that event it necessarily follows that Instruction No. 5 was prejudicially erroneous not only as to defendant Denton, but also as to plaintiff, and for these same reasons plaintiff should be granted a new trial on her claim against Newman. Snider v. King, Mo.App., 344 S.W.2d 265; Happy v. Blanton, Mo., 303 S.W.2d 633; Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918.” Thereafter the respondent Newman also filed a supplemental brief in the court en banc.

The plaintiff’s assignment of error in the form presented in Division Two is set out in the second paragraph of the majority-opinion. This is the point relied on which the majority opinion says “sets forth no action or ruling of the trial court which is contended to be erroneous”, which is the requirement of Civil Rule 83.05(a) (3). The restatement of the point as presented in the court en banc has not been ruled.

Both statements of the point are sufficient in my opinion to tell the court what relief the plaintiff seeks and why. This is not an unusual practice; it has been recognized in numerous cases. For instance, in the recent case of Nuchols v. Andrews Investment Co., Mo.App., 364 S.W.2d 128, 131, the court states that “plaintiffs, admittedly solely as a precautionary measure, and only in the event of success in this appeal by Andrews Investment Company, seek to have the judgment amended or modified so as to make it a joint judgment against all the defendants or in the alternative seek a new’ trial as to defendants Johnson on the question of liability alone.” Italics added.

Civil Rule 41.03 provides: “These rules shall be construed to secure simplicity and uniformity in civil procedure, fairness in the administration of justice, and the elimination of unjustifiable expense and delay.” Civil Rule 83.24 provides: “These rules shall be liberally construed to promote justice, to minimize the number of cases disposed of on procedural questions and to facilitate and increase the disposition of cases on their merits.” Contrary to the letter and spirit of these rules, the majority opinion places an unusually strict construction on plaintiff’s statement of her point which prevents a review on the merits and produces far-reaching, disorders. The appellate courts of this state have encouraged compliance with the rules in briefing appellate cases, but if the strictness applied in the majority opinion were to be enforced in all cases before this court few of them would be disposed of on the merits.

Plaintiff’s restatement of her point for the hearing by the court en banc is a decided improvement and about as good as can be done with the alternative or conditional plea that plaintiff is making. It is certainly understandable and is consistent with our rules and decisions that permit statements of claims and relief to be made “alternately and hypothetically.” Civil Rules 55.06 and 55.12, V.A.M.R.; Gomillia v. Missouri Pacific R. Co., Mo., 345 S.W.2d 202, 209 [4].

The divisional opinion which the court en banc adopted is unsuited for the determination of the case presented in the court en banc. Thus, the opinion of the court en banc is erroneous in that it overlooks and fails to consider plaintiff’s point as restated in her supplemental brief filed and presented in the court en banc. Civil Rule 83.16.

If the majority opinion stands, there will be two mandates issued with respect to a single judgment of the trial court and at different times. One will issue from the supreme court on the dismissal of the $50,-000 appeal and the other at some future time from the court of appeals on its action with respect to the $10,000 appeal. This will be contrary to a long-established practice hitherto considered satisfactory.

In an action there can be only one final judgment which must dispose of the case as to all parties and the same case cannot be pending on appeal in different appellate courts. Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831, 833 [1]. Where more than one party appeals and the amount in dispute in either appeal gives the supreme court jurisdiction, both appeals should be sent to that court for final determination in order to avoid inconsistent judgments in the same case. Morton v. Southwestern Telegraph & Telephone Co., supra.

The rule has heretofore been well settled that separate appeals must be disposed of by one appellate court since they constitute but one case on appeal. Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839, 840 [2]; Ruehling v. Pickwick-Greyhound Lines, 337 Mo. 196, 85 S.W.2d 602 [1]; Punch v. Hipolite Co., 340 Mo. 53, 100 S.W.2d 878, 880 [1]; Flynn v. First National Safe Deposit Co., Mo., 284 S.W.2d 593, 597 [12]; Coonce v. Missouri Pacific R. Co., Mo.App., 347 S.W.2d 242, 243 [2]. The Flynn case states, 284 S.W.2d loc. cit. 597: “No provision exists for a party to ‘split’ a judgment and to take separate appeals from each part.”

In order to preserve the integrity of the one-case rule and maintain orderly procedure in the disposition of cases, the propriety of defendant Newman’s Instruction No. 5 should have been considered and the result applied to the Denton appeal and plaintiff’s appeal in accordance with the determination made. At that point there could have been a dismissal of the plaintiff’s appeal if the court considered that appropriate. Civil Rule 83.13(c), V.A.M.R., and § 512.160, subd. 3, RSMo 1959, V.A.M.S. Civil Rule 83.09 provides that if an appellant fails to comply with certain rules required to perfect the appeal, the court may “dismiss the appeal or affirm the judgment” at the time “the cause is called for hearing.” A dismissal is usually employed where there is a total failure, such as not filing a transcript. In the present case a judicial determination was necessary.

The opinion relies on Heuer v. Ulmer, Mo., 273 S.W.2d 169, which case was transferred on a somewhat similar set of facts without a dismissal. I think Heuer is subject to the same criticism as the present case and should not be followed. Nor can I agree with the distinction attempted to be made regarding Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745. It could have been as logically said in Tant that there was no live issue in this court regarding that part of the decree which granted specific performance of a contract to sell real estate; that the only issue remaining for decision was the amount of the credits on the purchase price; and that such issue should be transferred since the amount thereof did not exceed the jurisdiction of the court of appeals.

The majority opinion discloses what appears to be two lines of authority as to when appellate jurisdiction is determined. One is that appellate jurisdiction is determined upon the record in the trial court at the time the notice of appeal is filed and that nothing occurring subsequently will defeat or confer jurisdiction. The other is that jurisdiction may be lost or shifted by reason of appellant’s failure to brief the issues which vested the supreme court with jurisdiction at the time the appeal was taken or by briefing such issues defectively. This decision creates further jurisdictional problems by placing the imprimatur of the court en banc upon the fragmentation of an appellate case with consequent exposure to gross injustices due to piecemeal decisions by different appellate courts. This is not only contrary to well-established principles, but it also is an unnecessary waste of manpower that could better be spent writing the case on the merits.

The problems connected with appellate jurisdiction have been of concern to the Bench and Bar for some time. Judges of the appellate courts are acutely aware of the waste of manpower and delay arising under present constitutional provisions relating to appellate jurisdiction. The chief concern of lawyers is the expeditious disposition of their appeals rather than which appellate court decides them. Changes in the constitutional provisions relating to appellate jurisdiction are perhaps the most satisfactory solution; but the possibility of changes are matters for the distant future. In the meantime the decisions of the appellate courts can be clarified and simplified so as to alleviate somewhat the duplication of effort and delay now involved.

For these reasons I respectfully dissent.


author: MAUGHMER, Commissioner.

text:
    Dwight SCHANK and Joanna Schank, Appellants, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Respondent. R. P. CARROLL, Appellant, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Respondent. F. J. MANEY, Appellant, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Respondent. J. H. MANEY, Appellant, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Respondent. Mrs. C. C. HESS, Appellant, v. CLARKSON CONSTRUCTION COMPANY, a corporation, Respondent.
    Nos. 23473-23477.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellants.
    Morrison, Hecker, Cozad & Morrison, Karl F. Schmidt, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Plaintiffs, Dwight and Joanna Schank, were lessees of a 240 acre Missouri River bottom farm located in Holt County, Missouri. The other plaintiffs were the owners of the farm and lessors under a share-crop rental lease. They brought five separate lawsuits against the defendant Clarkson Construction Company, alleging that it negligently performed some water control construction work which caused flooding of the farm with consequent damage to their crops and to the utility of the farm for crop production. These five lawsuits were consolidated for trial by the circuit court and are consolidated on this appeal. The trial resulted in verdicts and judgments for defendant and plaintiffs have appealed.

Pursuant to authority duly vested, the United States Government, through its United States Corps of Engineers, entered into a contract dated November 12, 1957, with defendant under which defendant was to do certain construction, including building of channels, levees and flood control structures in the vicinity of Napier, Missouri, and along a new proposed channel for the Tarkio-Squaw Creek Drainage. This project was located near and over a part of plaintiffs’ land. Its purpose and plan was to improve the drainage in the area and control or lessen the havoc wrought on these bottom lands by flash floods and river overflows.

Actually, only 200 acres are involved in this controversy. This tract is bounded on the east by Squaw Creek, which is the only water outlet from the 8,000 acre Squaw Creek Migratory Waterfowl Refuge, the south part of which lies about one mile north. The drainage in the whole area is generally south. The farm is bounded on the west by Five Mile Road, along the west side of which lies Five Mile Ditch. Plaintiffs had placed two drainage tubes in their northwest corner emptying into Five Mile Ditch and had built levees along the north and south sides of the 200 acres with these levee ditches discharging into Squaw Creek on the east.

One of the charges of negligence is that defendant removed the two drainage tubes on the north side of plaintiff’s property, causing water to pile up, thereby raising the water level on the 200 acres. A second charge is that defendant closed the ditch along the north; third, defendant opened up the levee on the south, and fourth, that defendant plugged up the drainage from Penny Lake on the north to Five Mile Ditch. However, plaintiffs joined and approved this project and signed an agreement releasing 32 acres of the farm lying along Five Mile Road to Clarkson Construction Company for use in building a levee. The two steel tubes removed were located on these 32 acres.

Although the damages sought were allegedly caused by flooding during the year 1958, our acquaintance with this farm under the evidence begins in 1933, when it was owned by a Mrs. Mariey. She died in 1943 and the present owners are her sons and daughters — natural and in-law. It appears that no farming operations were carried out on this land from 1938 to 1955. During this period the buildings were taken away or destroyed and the whole area grew up in willows.

From 1955 on, the plaintiffs Mr. and Mrs. Schank were lessees. They embarked on a program to reclaim the land. Bulldozers pushed out the trees, a levee was dug along the north and south line and drainage tubes were installed. Dr. Carroll, one of the plaintiffs and a son-in-law of Mrs. Maney, said he had advanced $9,000 for this work. Some crops were harvested in 1955 and 1956, but none in 1957 and 1958, except some corn was salvaged after the 1958 floodings of February and May.

This Schank farm, according to the.Department of Agriculture and University of Missouri survey map, is located in an area formerly described as “Impassable Lake”. Soil maps describe its soil as “swamp” and “salt marsh”. The Holt County Agricultural Extension agent said the soil was predominantly “Wabash Clay, ponded phase”, which means the soil holds water on top rather than allowing it to sink in. The soil survey map, supra, gives the following description of “Wabash Clay, pond-ed phase”: “This phase, one of the most extensive bottom land soils in the county, occupies iihe lowest position in the flood plain along the Missouri and Nodaway rivers. The largest area is in a marsh formerly known as Impassable Lake”. Beginning in 1955, Mr. Schank leased a part of the farm to duck hunters, who dug a well, installed a pump and flooded a few acres to attract ducks.

Defendant began work under the contract on November 22, 1957. It began south of plaintiffs’ farm and worked north. Five Mile Ditch was widened and deepened. The two tubes of plaintiffs running into Five Mile Ditch were removed but temporary smaller ones under the road were inserted. The contract and over-all plan provided that after construction of the levee a drainage structure was to be built in the northwest corner of the Schank farm consisting of a 36-inch pipe with a concrete controlling gate which could be shut off during high water and opened by gravity flow during low water. The Corps of Engineers’ work schedule called for starting this concrete work in June, 1958. Work on the whole project continued — subject to stoppages due to inclement weather — until March 25, 1958, when the government issued its “Stop Order”, which directed immediate suspension of all work under the contract. No further work was done until May 9, 1958, when a “Restoration Order” was issued under which the whole project was to be restored to the same condition as it was in prior to November 22, 1957. It was conceded that restoration was completed in due time thereafter. However, the farm flooded again in 1959 after the restoration. There was a heavy snowfall in January or February, 1958, exceeding 10 inches which melted in late February. The spring was unusually wet. The farm flooded in late February or March and again in May, 1958.

On appeal plaintiffs make two assignments of error. First, that the court erred in refusing to admit into evidence before the jury Section 9.06 of the contract between defendant and the United States Corps of Engineers as follows: “Diversion of Water. Full responsibility for the diversion and care of water, during the entire construction time, shall be borne by the contractor”. Second, the court erred in giving Instruction No. 5, because it "was misleading and confusing because it singled out and commented on defendant’s duties under its contract with the Corps of Engineers when said contract was not before the jury; that it was confusing and misleading in that it directed the jury to find the terms of a contract not in evidence before them; that said instruction amounted to a direction on the part of the court that defendant could not be liable if it performed its contract, when the test for the jury was the negligence of the defendant”. We set forth Instruction No. 5:

“The Court instructs the jury that if you find and believe from the evidence that defendant removed a drainage tube from the northwest corner of plaintiffs’ farm and plugged up the drainage from Penny Lake to Five Mile Ditch at that point, if so, and that defendant dug an opening in the levee at the southwest corner of said farm, if so, yet if you further find and believe from the evidence that defendant Clarkson Construction Company on November 12, 1957, entered into Contract No. DA-23-028CIVENG-58-160 with the United States Corps of Engineers providing for the construction of the drainage ditch and levees referred to in the evidence and said contract, if so, and that said contract was entered into pursuant to validly conferred governmental authority, if so, and if you find that the removal of the drainage tube from the northwest corner of plaintiffs’ farm, the plugging up of the drainage from Penny Lake to Five Mile Ditch at that point and the digging of the opening in a levee at the southwest corner of said farm was performed by Clarkson Construction Company in accordance with said government contract, if so, and at the direction of the United States Corps of Engineers, if so, and if you further find and believe that all of the work done pursuant to the performance of the aforesaid contract was completed without negligence on the part of defendant Clarkson Construction Company, if so, then your verdict will be for the defendant, Clarkson Construction Company, even though you also find and believe that the performance of said contract resulted in incidental or consequential damage to any or all of the plaintiffs”.

The Supreme Court of Missouri in Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924, 930, 931, declared certain legal principles which are applicable to this type of litigation. In that case plaintiff, a farmer, sought damages against a contractor for overflow allegedly caused by defendant’s negligence in construction of a dike which was built in a river, under a contract between defendant and the United States Government or Corps of Engineers. The judgment for plaintiff was affirmed by this court, but reversed outright by the Supreme Court. We quote in part from that opinion:

“There is no evidence at all in this case that the defendant extended the dike in question beyond the point designated by the United States engineers and government inspectors. The contract, par. 34 (Modifications) and Art. 3 (Changes) authorized the government to make changes in the specifications and in the execution of the work. Therefore, even though no screen or fender mat was specifically provided for in this contract as written, yet since such a mat was put on this dike and accepted and paid for by the government, it stands admitted that the government either ordered and directed the screen mat to be put there before it was actually placed there, or that the government approved its installation afterwards by inspecting, accepting and paying for it. In either instance, the placing of the screen mat was not done in violation of the contract between the government and the defendant. Crisp County, Georgia et al. v. S. J. Groves & Sons Co., 5 Cir., 73 F.2d 327, 96 A.L.R. 391; City of St. Louis v. Ruecking, 232 Mo. 325, 134 S.W. 657. There is no evidence at all tending to prove that the defendant was in any way negligent in the actual construction or installation of the screen mat. Therefore, whatever effect the length of the dike or the screen mat had on the water of the river at this dike or above or below it was not chargeable to the defendant but was a matter for which the government alone is answerable, (citing authorities).
* * * * * *
“The government had a right to improve the river and the government had a right to hire somebody to do the work for it and any errors or mistakes made by the government in the plans or in the direction of the work to be done by the defendant thereunder cannot afford.a basis for plaintiff’s recovery from the defendant. Salliotte v. King Bridge Co., 6 Cir., 122 F. 378, 65 L.R.A. 620; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414. The defendant took the plans as handed to him and proceeded to execute them under the direction of the United States engineers, which he did to the total satisfaction of the government and the government paid him in full for his contract. We, therefore, conclude that there was a total failure of any substantial evidence in the case from which a jury could find negligence on the part of the defendant in the performance of his contract with the government and that the plaintiff, therefore, failed to carry the burden of proving an essential element of his case.
******
“This is not a case of concurrent negligence because the government is not liable to plaintiff for anything that it did and the defendant is not chargeable with any negligence or bad planning on the part of the government, so the question here is simply one of singular negligence, and unless the evidence shows that defendant’s negligence is responsible for the damage, then defendant must be released. It is not at all similar to the cases where two parties are negligent in causing a damage and in which event either or both of the tort-feasors are liable to the injured party.”

Paragraph One of plaintiffs’ petitions contains this allegation: “that at all times herein mentioned defendant was engaged in the performance of a certain contract with the United States Corps of Engineers building a levee adjacent and adjoining the east side of plaintiffs’ farm lands herein mentioned; that all of the negligent acts and omissions hereinafter complained of were committed by defendant’s agents, servants and employees, acting within the course and scope of their employment * * * This allegation was admitted under defendant’s pleadings.

Plaintiffs rely upon Rector et al. v. Tobin Const. Co., Inc., Mo.App., 351 S.W.2d 816. In that case plaintiff’s claim for damage was based upon flooding allegedly caused by defendant contractor’s construction of a “fill”. The appellate court (Syllabus 6) merely held that — ’“State sovereignty did not immunize contractor from liability for flood damage from fill placed across river bed by contractor working under contract with State Highway Commission, where fill was not called for by the contract, nor directed by Commission or paid for by it”. We quote (pp. 820-821 of 351 S.W.2d) from this opinion:

“These cases follow the rule generally accepted that the contractor shares the immunity of the sovereign when his work is done at and within the direction of the sovereign’s agent, such as the Highway Department.” (Italics ours).

If it were not already understood that the sovereign or government is not liable for damages incurred by construction of dikes, levees and dams, the above quotations make it abundantly clear. From these opinions we understand too, that a contractor who carries out such a plan under contract with the Corps of Engineers is likewise immune unless guilty of singular negligence or careless performance in the construction itself. This is true so long as the contractor adheres to and abides by the contract and his construction activities are held to be in conformity with the contract if (a) what he does is spelled out in the original contract; (b) if what he does is later approved by the engineers and (c) if it is paid for by the government.

As to plaintiff’s -first assignment, the contract was in evidence before the court. We would, if necessary, take judicial notice of the fact that it is a lengthy, technical document couched in engineering and legal phraseology. It would serve no useful purpose and might confuse if the particular excerpt were given to the jury for interpretation and application.

Mr. Charles Perry, area engineer and supervisor of this particular project, testified that defendant’s construction activities were provided for by the contract, were approved by him, were paid for by the government and that defendant performed as directed, including obeying the “Stop Order” and proceeding under the “Restoration Order”. Instruction No. 5 embraces the law in this type of case and submits the issue of singular negligence to the jury. As stated by the court in Johnson v. Thompson, 241 Mo.App. 1008, 236 S.W.2d 1, 9:

“It is the duty of the court to interpret the rights of the parties under this contract of employment as a matter of law and to tell the jury what facts they should find in determining whether or not any of the causes mentioned in the contract had been shown by the defendant in its evidence”.

We hold that the court did not commit reversible error in refusing to submit Section 9.06 to the jury or in giving Instruction No. 5.

Respondent urges that its motion for directed verdict should have been sustained because plaintiffs offered no substantial evidence that the negligence, if any, of Clark-son was the proximate cause of the alleged damage. It is evident from the pleadings and from the evidence that the alleged acts of negligence complained of were done by defendant acting under its contract with the government or at least not in violation of it. While the defendant and Schank opened a “plug” from Penny Lake which was outside the actual confines of the project and defendant built a road on the south for the convenience of residents in that area and this road was off the right of way, those acts had at least the tacit approval of the project engineer and there is no proof that such acts were the proximate cause of the flooding of March or May, 1958, or of the 1959 flooding. The fact that in 1959, after the drainage conditions had been restored as they existed prior to November, 1957, (which was conceded by plaintiff Schank) would raise grave doubt that the government work was the proximate cause of the flooding in 1958 or in 1959.

However, we need not rule as to whether or not defendant’s motion for directed verdict should have been sustained. The issue of singular negligence was submitted to the jury and the verdicts were for defendant. The judgments entered thereon should stand.

The judgments for defendant as entered in each of the five cases are affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.

      . “Under the provisions of the referenced paragraph, you are hereby directed to suspend all operations in connection with work under the contract as of the beginning of business this date. J. P. Barnes, Major Corps of Engineers, Accounting Officer”.