author: WOLFE, Judge.

text:
    STATE of Missouri, (Plaintiff) Respondent, v. Frank D. BELLEVILLE, (Defendant) Appellant.
    No. 31060.
    St. Louis Court of Appeals. Missouri.
    Nov. 20, 1962.

      John T. Sluggett III, Clayton, for appellant.
    William J. Geekie, Pros. Atty., Robert W. Van Dillen, Asst. Pros. Atty., St. Louis, for respondent.
   WOLFE, Judge.

By an information filed in the St. Louis Court of Criminal Correction the defendant was charged with common assault. On trial to the court he was found guilty, and his punishment was assessed at six months in the city jail. From the judgment and sentence the defendant has appealed.

The defendant has filed no brief, so we look to his motion for a new trial and consider such assignments as are sufficient to present matters for review. We also examine the essential portions of the record. Supreme Court Rules 27.20 and 28.02, V.A.M.R.; State v. Richardson, Mo.Sup., 343 S.W.2d 51; State v. Bryant, Mo.Sup., 319 S.W.2d 635; State v. Richardson, Mo. Sup., 315 S.W.2d 139.

Most of the assignments in the motion for a new trial which are sufficient to present any matter for review relate generally to the refusal of the court to grant a continuance of the case. We therefore set out below all of the record upon this and other points. The case was called for trial on July 5, 1961, and at that time the defendant was represented by Mr. O’Hanlon and the following occurred:

“MR. O’HANLON: Your Honor, this defendant requests a two weeks’ continuance if the Court will do that.
“THE COURT: What is that, Mr. O’Hanlon?
“MR. O’HANLON: May we have a two weeks’ continuance, Your Honor?
“THE COURT: Why? I have already continued it once.
“MR. O’HANLON: This defendant requested it this morning. He said he has some witnesses out of town that he can’t get hold of.
“THE COURT: We have got the witnesses here. I have continued this matter before.
“MR. O’HANLON: That is right. Your Honor, I am requesting it for Frank Belleville. May I have permission to withdraw, Your Honor? I think we are entered.
“THE COURT: You have entered your appearance.
“MR. O’HANLON: May we have permission to withdraw ? He is talking about a jury trial and the witnesses that are out of town. He hasn’t paid me a fee. I certainly wouldn’t be in position to try this case. I can’t properly represent him-under the circumstances.
“THE COURT: Well, I am reluctant to permit you to withdraw at this late date, Mr. O’Hanlon. This case is up for trial. You continued it once before. You continued it on April 27th, three months ago, almost three months ago. He has had ample time for you and the defendant to find out where you were, and if you weren’t going to represent him to come in before this so that he would have an opportunity to get another lawyer. I am going to pass it down to give you an opportunity to consult with your client further, but I am not going to continue it, and I don’t know whether I will permit you to withdraw, Mr. O’Hanlon.
“MR. O’HANLON: You will not, Your Honor?
“THE COURT: I don’t think' so.
“MR. O’HANLON: Then I have got this problem, Your Honor. I talked to this man this morning, today. He may want a trial by jury, so I have got that problem with him this morning.
“THE COURT: All right. You better take him out and talk to him and get up to date because I want to get to trial in this case.
“MR. O’HANLON: Well, I am sure that I just couldn’t adequately represent him. I would be derelict in my duty if I tried it on the spur of the moment like that.
“THE COURT: Certainly, Mr. O’Hanlon, you can’t walk out and leave this man that way. I don’t want to continue it. I have continued it once before. This matter has been pending since the 4th of January, six months, so I am going to have to insist on trial.
“MR. O’HANLON: Could the defendant try his own case, Your Honor ?
“THE COURT: I don’t want to do that.
“MR. O’HANLON: Well, of course, you are the boss, Your Honor. I will do whatever you say. What else can I do? If I try it, he has all kinds of requests and orders for me to follow. It is very difficult. If the Court insists that I do, I will.
“THE COURT: Mr. O’Hanlon, if you weren’t going to represent this man, you should have come in before this to give him an opportunity to get another lawyer. The witnesses are here today. You wait until today. I am going to insist on going to trial. I am going to deny your request.
“MR. O’HANLON: Okay. Will you pass it down, Your Honor?
“THE COURT: Pass it down”. Mr. O’Hanlon and the defendant left the courtroom. They reappeared together later in the morning, and the following announcement was made by Mr. O’Hanlon in the presence of the defendant.
“THE COURT: Mr. O’Hanlon, what about your matter ?
“MR. O’HANLON: We are ready, Your Honor.”

The trial then proceeded.

The state’s evidence consisted of the testimony of the complaining witness, who positively identified the defendant as one of two men who had pulled him from his automobile and beat him severely. The police officer who arrested the defendant in the vicinity of the assault also testified. He stated that the defendant admitted being in the vicinity and that he had heard about the affair but denied that he was involved in it.

The defendant moved for a “judgment of acquittal”, which was overruled. The defendant put on no evidence.

The first two assignments of error in the defendant’s motion for a new trial charged in substance that he was forced to trial without counsel of his own choice. There is nothing in the record to support this. Apparently counsel had a client who was not of his choice, but there is nothing to support the statement that the client was not satisfied.

The third charge is that counsel was not adequately prepared for trial and that the court erred in refusing a continuance. It has been so often held that the granting or refusal of an application for continuance is within the discretion of the trial court that we deem it sufficient to cite 9 Missouri Digest, Criminal Law, @=>586, on that subject. As far as a continuance on the ground that counsel is not adequately prepared for trial is concerned, this in itself offers no grounds if counsel had adequate opportunity to prepare. State v. Le Beau, Mo.Sup., 306 S.W.2d 482; State v. Clary, Mo.Sup., 350 S.W.2d 809.

Here counsel had over two months at least in which to prepare the defense of a simple common assault case. It should also be noted that after consulting with his client, he announced ready for trial.

It is asserted that the court erred in denying a trial by jury. There was never a request for a trial by jury. Where the defendant in a misdemeanor case is present and represented by counsel, as he was here, and there was no request for a jury, his consent to be tried by the court is presumed. Section 546.050 RSMo 1949, V.A.M.S.; State v. Shapiro, Mo.App., 248 S.W.2d 62; State v. Williams, Mo.App., 349 S.W.2d 375.

We have fully examined the record and find no error therein. The record fully supports the judgment of the court, and the judgment is affirmed.

ANDERSON, P. J., and RUDDY, J., concur.


source: Caselaw Access Project

author: WOLFE, Acting Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, (Plaintiff) Respondent, v. KATZ DRUG COMPANY, a Corporation, (Defendant) Appellant.
    No. 31232.
    St. Louis Court of Appeals. Missouri.
    Nov. 20, 1962.

      Orville Richardson, Hullverson, Richardson & Hullverson, St. Louis, for appellant.
    William J. Geekie, Pros. Atty., Sidney Faber, Asst. Pros. Atty., St. Louis, for respondent.
   WOLFE, Acting Presiding Judge.

The appealing defendant was convicted of exposing to sale goods, wares and merchandise on Sunday, in violation of Section 563.720 and Section 563.730, RSMo 1949, V.A.M.S., in the Court of Criminal Correction. A fine of $50.00 was assessed.

The statutes under which the defendant was convicted are as follows:

“Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.” (Section 563.720, RSMo 1949, V.A.M.S.)
“Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.” (Section 563.730, RSMo 1949, V.A.M.S.)

An appeal was taken to the Supreme Court because the defendant asserted that the statutes were unconstitutional. That court, having decided the same point in State v. Katz Drug Company, Mo.Sup., 352 S.W.2d 678, held that a constitutional question was no longer in the case and transferred it to this court.

The evidence presented by the State consisted of testimony of three members of the Meat Cutters Union. They testified that on Sunday, February 22, 1959, four of them went to a drug store, belonging to the Katz Drug Company, located at 6101 Easton Avenue, in the City of St. Louis. There they each made a purchase, and these purchases consisted of various items of merchandise. They bought 60 ballpoint pens and refills, a pair of child’s pajamas, grass seed, and an electric frying pan. When all four had completed their purchases, they called a police officer and took the items that they had purchased to the police station.

One witness testified that the reason the Meat Cutters Union members did this was, “ * * * we didn’t want to work on Sunday. We seen what was coming up.”

The defendant moved for a directed verdict at the close of the state’s evidence, and upon it being overruled offered no evidence.

The first point urged here is that the statute is unconstitutional. This, despite the fact that the Supreme Court has stated that the statute is constitutional in an identical case against the same defendant. State v. Katz Drug Company, 352 S. W.2d 678, supra. As we stated, this case comes to us by transfer after the Supreme Court found that no constitutional question existed because of the above decision. Since the Supreme Court, in transferring the cause to this court, held that no constitutional question was present, no further consideration may be given to this point. State v. Higgins, Mo.App., 252 S.W.2d 641; State ex rel. Cornelius v. McClanahan, 221 Mo.App. 399, 278 S.W. 88; State v. Veltrop, Mo.App., 6 S.W.2d 638, 639.

The next point raised goes to the question propounded to the jury upon voir dire examination. The transcript of record states the following:

“MR. VETTORI: Should you be selected as a juror in this cause, would you enforce this law?
“JUROR: It all depends on what comes out in the case.
“MR. VETTORI: Well, let’s assume that we prove to you that the Katz Drug store was open; that it was a Sunday; that sales were made consisting of frying pans, grass seed, pajamas, ball point pens and refills; and let us assume further that the Court tells you it is a violation of the law to expose to sale goods, wares and merchandise on the first day of the week commonly called Sunday, except drugs, medicines, may be exposed to sale, provisions and articles of immediate necessity.
“MR. RICHARDSON: Your Honor please, I object to that kind of a question because he is asking the juror how he is going to vote back in the jury room. You can’t commit a juror in advance.
“MR. VETTORI: I am not asking that sort of a question at all. I am asking if the juror will enforce this law.
“MR. RICHARDSON: This is a hypothetical situation. He is laying out his entire evidence. He is trying to commit the juror before he has been sworn, before he has heard the Court’s instructions, and before he has gotten back to the jury room to talk to the rest of the jurors.
“THE COURT: The objection will be overruled.”

We find no substantial difference between this examination of the jury and the voir dire examination in State v. Katz Drug Company, 352 S.W.2d 678, 1. c. 684, supra. There the jury was asked: “Now, if I prove to your satisfaction and beyond a reasonable doubt that February 22, 1959, was a Sunday, and that the Katz Drug Company at their 8th and Washington store sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict?”

Counsel for the state asserts that the word “enforce” as used in the question asked in this case has a different connotation than the word “convict” used in the question asked in the first case. Although the difference exists in legal parlance, it certainly meant the same thing to the jury, as may be ascertained by the juror’s statement above quoted. Since the Supreme Court held the above-quoted question to be prejudicial error in the first Katz case, quoting with approval State v. Heickert, Mo. Sup., 217 S.W.2d 561, 562, we hold the voir dire examination here to be erroneous. The quoted portion of the Heickert case, supra, is as follows:

“[Cjounsel has no right on voir dire to cause the prospective jurors to pledge or speculate as to their action in certain contingencies which may later occur or arise during trial. State v. Pinkston, supra, [336 Mo. 614, 79 S. W.2d 1046] ; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949.”

The prosecutor asked the first witness how many other patrons were in the store at the time the four union members entered. There was an objection to this question on the ground that it was immaterial, and the objection was overruled. The witness answered that there were about 25 or 30 patrons in the store. The defendant was not charged with having its store open on Sunday, and the fact that it was and that there were patrons within it was not relevant to the issue on the trial. The question should not be asked upon retrial of the case.

It is contended that the court erred in not instructing the jury upon all questions of law necessary for their guidance in returning a verdict. We are cited to Section 546.070. As a general rule this section has no application to misdemeanor cases. If the defendant desires additional instructions in a misdemeanor case, he is obliged to request such instructions. State v. Egan, Mo.App., 272 S.W.2d 719, 1. c. 727, and cases therein cited.

The only instruction which the defendant claims to have been erroneously refused was designated “Defendant’s Instruction No. 4”. It is as follows:

“The Court instructs the jury that before the defendant in this case can be found guilty you must find that the articles introduced into evidence could not at any time or under any circumstances be articles of immediate necessity to anyone and unless you so find then it is your duty to acquit the defendant.”

This is quite obviously contrary to the definition of “necessities” adopted in State v. Katz Drug Company, supra, and the court did not err in refusing it.

It is claimed that the form of the verdict was defective, but we are cited to no authorities, and it appears to be in form long accepted as sufficient.

The last point raised goes to the prosecutor’s argument, in which he stated:

“You don’t see your little neighborhood hardware store being open on Sunday. * * * What special privilege does the Katz Drug Company have that they open their stores on a Sunday?”

As we stated in our remarks above about the evidence concerning the number of people in the store, the defendant committed no offense by being open for the business permitted. The argument was beyond the issues, and the court should have sustained the objections to it

The judgment is reversed and the case remanded for a new trial.

FRANK W. HAYES and RAY E„ WATSON, Special Judges, concur.


text:
    STATE ex rel. AUTO FINANCE COMPANY, a Corporation, (Plaintiff) Appellant, v. JOSEPH NESSER MOTORS, INC., (Defendant) Respondent.
    No. 31057.
    St. Louis Court of Appeals. Missouri.
    Nov. 20, 1962.
    James & Hasler, John D. Hasler, St. Louis, for appellant.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Frank J. Lane, Jr., St. Louis, for respondent.
   WOLFE, Judge.

This is an action upon a warranty of a note secured by a mortgage on a used car purchased from the defendant company. The defendant warranted that “ * * * the signature of the purchaser and/or endorser, maker or comaker is/are genuine; * * The plaintiff contended that one signature was a forgery. The court directed a verdict for the defendant, and the plaintiff prosecutes this appeal.

The action was originally brought against a notary public, charging him with a false acknowledgment, and against his bonding company and the present defendant. Upon the trial prior to the one here considered, there was a directed verdict and a judgment for the defendant notary and his surety, and a verdict and judgment for the plaintiff upon Count 3 of his petition against the Joseph Nesser Motors, Inc. The judgment for plaintiff against Joseph Nesser Motors, Inc. was set aside on the ground that an instruction given was faulty. The present trial followed and the action here considered is against only the Joseph Nesser Motors, Inc.

The evidence presented by the plaintiff was that the auto finance company was engaged in buying notes secured by chattel mortgages on automobiles from used car dealers. It had purchased some notes so secured from Joseph Nesser Motors, Inc., the defendant, prior to the purchase of the one in question here. A Mr. Fred Nesser of the motor company phoned the president of the finance company and asked if his company would be interested in buying a note signed by Joe L. Olive. The note was to be given in payment for an automobile and secured by a mortgage on the automobile. The finance company investigated Joe L. Olive and concluded that he was a poor credit risk, so it declined to purchase ■such a note. In the original information given the finance company, there was reference to Joe Olive’s mother, Mrs. Iva Olive. When the president of the finance company declined to buy the note signed by Joe L. Olive alone, Mr. Fred Nesser asked if they would buy the note if it were signed by Joe Olive’s mother, Iva Olive, as a co-maker. The president of the finance company told Nesser that he would check up on Iva Olive and let him know.

A check was made on the credit standing •of Iva Olive, the mother of Joe. It showed her to be a person of financial responsibility. The finance company then agreed to buy the note and mortgage signed by Joe L. Olive and his mother, Iva Olive. The note was ,a monthly payment note, and no payment ■on it was ever made. After the default in payment the finance company found the ■automobile abandoned and took possession •of it. Mrs. Olive told the finance company that she had not signed the note. She testified that she had not been asked by her son to sign the note, that she did not sign it and knew nothing about the purchase of the automobile. At the time of trial Joe L. Olive was in the penitentiary in the State of California.

As stated, the note bore the warranty:

“The undersigned represents that the signature of the purchaser and/or endorser, maker or comaker is/are genuine; that said automobile is free of all liens; that the undersigned Seller had legal title and lawful right to sell this automobile to said purchaser; that the valid certificate of title was duly assigned to purchaser according to the motor vehicle laws of this State, and that said mortgage constitutes a valid lien on said automobile. Should any of the above warranties or representations be untrue, or not fulfilled, the undersigned will upon demand repurchase said chattel mortgage, and/or said note given in connection, from the holder thereof for the amount owing thereon plus any and all costs and expenses paid or incurred by any holder with respect thereto.
“(Signed) Joseph Nesser Motors, Inc.
“By Joseph Nesser, President.”

After the finance company took possession of the automobile, they notified the motor company, and the motor company took the automobile and has had it at all times since. The finance company took Mrs. Olive to Nesser’s home, and she told Nesser that she had not signed the note.

Demand was made by the finance company upon the motor company for them to repurchase the note and pay the expenses of the finance company in connection therewith, in accordance with the warranty. The motor company refused. The defendant put on no evidence in contradiction of any of the foregoing evidence of the plaintiff.

The court sustained the defendant’s motion for a directed verdict. In ruling upon the motion the court stated:

“ * * * There is testimony here, which I accept, and in this type of motion I take all of this testimony that has been introduced in favor of the plaintiff as being true and draw the reasonable inferences from it, but the fact that a lady on yesterday afternoon testified that her name was Iva Olive, I accept her as being such, but that didn’t tell me that someone by the name of Iva Olive, and that the person who signed this note was not Iva Olive. It only tells me that the one that was on the stand yesterday afternoon is not the Iva Olive that signed it. The basis of the plaintiff’s case and right of recovery is a misrepresentation of the genuineness of the person and the identity of the person. I have just as much proof and would he just as much justified in finding that the person who signed it was Iva Olive as I do in finding it wasn’t.
“ * * * The warranty on which they are suing here contained in this file is a part of the original petition and it contains the representations and warranties that are made. It is all in a printed form, and in that sort of situation, I don’t have a sufficient question of fact to submit to the jury that the person who signed this, be a man or woman, was not Iva Olive. * * * ”

The foregoing statement by the court indicates that it misconstrued the warranty which, according to all the evidence, was a warranty that Iva Olive, the mother of Joe, signed the note. The warranty went to the genuineness of the signatures of the parties that the motor company had agreed to have on the note. Since there was un-contradicted testimony that Iva Olive, one of these parties, did not sign the note, no inference can be logically drawn from the evidence that another Iva Olive signed it, nor would such an inference aid the defendant if it could be drawn. If the Iva Olive that the motor company agreed to have sign the note did not in fact do so, then the signature is forged no matter who signed her name to it.

Even proof that another Iva Olive signed the note would not relieve the warrantor. It is stated in 37 C.J.S. Forgery § 9, page 38:

“Falsely personating another and signing his name is forgery; and hence one who signs his name to an instrument, although it is identical with the name of another, is guilty of forgery if the intent is to have it received as the instrument of such other person and the instrument may be of legal efficacy.”

Parvin v. State, 132 Tex.Cr.R. 172, 103 S.W.2d 773; United States v. National City Bank of New York, D.C., 28 F.Supp. 144; Ex parte State ex rel. Attorney General, 213 Ala. 1, 104 So. 40.

A case was clearly made by the plaintiff, and the jury could have returned a valid verdict for the plaintiff if it believed' the evidence presented. The court therefore-erred in directing a verdict for the defendant.

The judgment is reversed and remanded, for a new trial.

ANDERSON, P. J., and GEORGE P_ ADAMS, Special Judge, concur.

RUDDY, J., not participating.


author: RUDDY, Acting Presiding Judge.

text:
    Opal DENNISON, (Plaintiff) Respondent, v. William BESSELMAN, (Defendant) Appellant.
    No. 31129.
    St. Louis Court of Appeals. Missouri.
    Nov. 20, 1962.

      Rollin J. Moerschel, Niedner, Niedner & Moerschel, St. Charles, for appellant.
    Bardgett, Gallagher & Hackmeyer, Clay-ton, for respondent.
   RUDDY, Acting Presiding Judge.

Plaintiff brings this action for damages for personal injuries and damages to her automobile alleged to have been sustained by plaintiff when the automobile she was driving and an automobile driven by defendant collided. Defendant filed a counterclaim in which he alleged he sustained personal injuries and damages to his automobile. There was a verdict and judgment for defendant on, plaintiff’s cause of action and for plaintiff on defendant’s counterclaim. Defendant has appealed from that part of the judgment for plaintiff on his counter-claim. Plaintiff has not appealed.

The sole contention of defendant is that the trial court erred in giving Instruction No. 4 offered by plaintiff.

The collision between the two automobiles occurred on January 28, 1961, about 8:30 A.M., as plaintiff was in the process of making a left turn to go south on Hanley Road where it intersects with St. Charles Rock Road in St. Louis County. Traffic at this intersection is regulated by electric signals. St. Charles Rock Road in the area of the intersection has two through westbound lanes and a lane for persons driving westwardly who desire to turn left and go south on Hanley Road. For eastbound traffic there were two eastbound lanes and in addition a lane for persons driving eastwardly who desire to turn left and go north on Hanley Road. The eastbound lanes are separated from the westbound lanes by a concrete divider.

Plaintiff entered St. Charles Rock Road at Lindhurst Avenue, which is approximately one block east of the described intersection. She drove westwardly on St. Charles Rock Road at a speed of 10 or 15 miles per hour and immediately upon entering said road proceeded into the extreme inside lane or left turn lane. This lane was described by the witnesses as being the lane next to and immediately north of the concrete divider. This lane, as we have stated, was for traffic whose drivers desired to turn left and go south on Hanley Road.

Plaintiff testified that the left turn lane she was in extended eastwardly from the Hanley Road intersection about one block. She said other cars preceded her car in this lane and that she stopped her car because traffic ahead of her in the same lane came to a halt. She thought she stopped about 50 feet east of the electric signal. She said the signal controlling traffic in this lane was red at that time.

Plaintiff further testified that her car was the third or fourth car back of the traffic signal when she came to a stop. The signal permitting a left turn to go south on Hanley Road was a green arrow. When the signal changed from red to a green arrow the cars ahead of plaintiff proceeded to make their left turns. Plaintiff said she followed these cars and that she was driving approximately a car’s length behind the car ahead of her. She said that as she approached the traffic signal, and when she was ready to make her left turn, she glanced up at the signal and saw that the green arrow was still showing and thereafter she just gradually made a left turn. She further testified that as she started into her left turn she did not see the signal again. While plaintiff was making her left turn across the inside lane for eastbound traffic her car was struck by the car driven by defendant. She stated that she was traveling at approximately five miles an hour when making her left turn. She said that as she approached the electric signal, she could “see back past the stoplight” and there were no cars moving eastwardly at that time. When she was asked how far west of Hanley Road she could see that no cars were moving eastwardly, she testified, “around fifty feet.” She did not see defendant’s car until shortly before it collided with her car. She said at the time of the collision defendant’s car was in the eastbound lane next to the concrete divider.

Plaintiff in her case in chief introduced in evidence parts of a deposition previously given by' defendant. A part .of the deposition introduced in evidencé by plaintiff was the following question and answer:

“Q. Very well. Now did you see the Dennison car — where was the Dennison car the next time you saw it after you saw it enter the left turn lane down at the east end? A. Right before I hit her.”

In his deposition defendant stated that plaintiff was making a left turn to go south on Hanley Road when he saw her for the second time. At that time he said he was in the “inside lane for eastbound traffic.” In his deposition he further stated that he was about 15 feet west of Hanley Road when he saw plaintiff’s car in its left turn. However, he did not see her start to make the left turn. At the time he saw plaintiff in the process of making her left turn he was traveling between 15 and 20 miles per hour. He said that at no time prior to the collision did he apply his brakes and going at a speed of 20 miles an hour he could have stopped his car in 30 feet. He also testified that 30 feet was the approximate stopping distance of his car when traveling at a speed of 15 miles an hour. He further stated in his deposition that prior to the collision he did not swerve in either direction and at the time of the impact he was traveling between 15 and 20 miles an hour.

Defendant testified in his case that he was driving east on St. Charles Rock Road and as he approached Hanley Road the electric signal light changed from green to caution and then to red. He stopped his car at the intersection in the second lane from the curb, which would be the inside lane for eastbound traffic. He said that while he was stopped he saw plaintiff’s automobile enter the left turn lane for westbound traffic going south on Hanley Road. He stated she entered the left turn lane a good block east of the Hanley Road intersection.

At one point in his testimony he said plaintiff was 5 or 6 car lengths back from the point where Hanley Road intersects St. Charles Rock Road. He further testified that while he was waiting in a stopped position he saw no cars preceding the plaintiff’s car make a left turn to go south on Hanley Road. He did not see plaintiff’s automobile again until he was 10 or IS feet from the point of impact, at which time he testified he was going 15 to 20 miles per hour. He said at that time plaintiff was in the process of making her left turn. He did not see her begin to make the left turn. In his cross examination he admitted there was nothing to obstruct his vision. Defendant further testified that when the light turned green for eastbound traffic he proceeded eastwardly in the inside lane and that when he was 10 or 15 feet back or west of the point of impact he saw plaintiff “making a left turn on to Hanley Road,” at which time the front end of plaintiff’s car was in the lane traveled by defendant. He said the right front fender and bumper of his car struck plaintiff’s right front door. He estimated the distance from the point where he was stopped, waiting for the signal to turn green, to the point of impact, at approximately 80 feet.

A witness who testified in behalf of defendant said he was driving his car east-wardly on St. Charles Rock Road and came to a stop at the electric signal at St. Charles Rock Road and Hanley Road. He was driving in the lane next to the curb and stopped his car about three cars back from the first car that was stopped in his lane. He testified that when the light turned green defendant and all of the other cars started to move up. He saw defendant’s car collide with plaintiff’s car and when asked when he first saw plaintiff’s automobile he said, “it seemed like she just came from nowhere.” He said that when defendant left the stop sign he proceeded east and remained in the same lane and that the impact took place in the lane in which the defendant was traveling. This witness saw three or four other cars making a left turn to go south on Hanley Road before plaintiff made her left turn.

The aforesaid brief summary of the facts demonstrates an evidentiary basis for Instruction No. 4 given at the request of plaintiff, the giving of which defendant contends was prejudicial error. Said instruction reads as follows:

“In connection with the counterclaim of defendant you are instructed that if you find from the evidence that on the occasion in question plaintiff was operating her automobile on St. Charles Rock Road and turning the same across the eastbound section of said road at a speed of approximately five miles per hour and if you further find that William Besselman was operating his car east on St. Charles Rock Road towards the intersection with Hanley Road where Opal Dennison was turning left, if you find that she was, and if you find that Besselman saw or in the exercise of the highest degree of care should have seen the automobile of plaintiff making a left turn across the eastbound portion of St. Charles Rock Road and could thereafter have avoided the collision shown in evidence by stopping his car, and if you.find that Besselman failed so to do, and that such failure, if any, was negligence, then you are instructed that William Bessel-man cannot recover against plaintiff on the claim of Besselman and your verdict should be in favor of plaintiff Opal Dennison on the counterclaim of defendant William Besselman, and this is true even though you find from the evidence that plaintiff was also negligent.”

Defendant contends that said instruction imposes an absolute duty on him to stop his automobile if he saw or could have seen plaintiff making a left turn. He contends that the instruction should have required him to stop his car if in the exercise of the highest degree of care he could have done so. Defendant classifies this instruction as a converse instruction and states that it is basically a reiteration of plaintiff’s verdict directing humanitarian instruction on her claim for damages.

Plaintiff submitted her claim under the humanitarian doctrine and required a finding that defendant could, in the exercise of the highest degree of care, have stopped his vehicle in time to have averted the collision after he saw or should have seen plaintiff in a position of imminent peril of being struck and collided with by defendant’s car. Defendant complains that no such refinement, namely, “in the exercise of the highest degree of care,” is placed on his duty under instruction No. 4 and said instruction imposed on him the absolute duty of stopping his motor vehicle and thereby avoiding the collision.

Defendant is in error when he refers to this instruction as a converse instruction. Said instruction is clearly given in connection with the counterclaim of defendant and is a contributory negligence instruction which seeks to bar recovery under the primary negligence submitted by defendant in his Instruction A for recovery under his counter-claim.

We have carefully read and studied the cases submitted by defendant wherein he contends the court held this instruction prejudicially erroneous. In practically all of the cases the instruction under review imposed the absolute duty to keep a lookout and to know what defendant could have known by such lookout. The duty to keep a lookout was not limited to the exercise of the highest degree of care. The instant instruction is not guilty of such an omission. We find nothing in any of the cases cited by defendant that would be authority for holding that the instant instruction imposed on defendant the absolute duty of stopping his motor vehicle. We think the duty of defendant to have avoided the collision by stopping his car was modified by the term as used in the instruction “in the exercise of the highest degree of care” and therefore does not impose an absolute duty on defendant to stop his car.

Contrary to defendant’s contention, we find the wording in an instruction given in the case of Anderson v. Bell, Mo., 303 S.W.2d 93, similar to the wording in the instruction under review in the instant case. In that case the jury was told:

“ * * * if you find that defendant Bell, in the exercise of the highest degree of care could have seen the automobile in which plaintiff was a passenger being driven southwardly on Broadway, and could have known that there was a probable danger of collision between the two automobiles, in time thereafter, under the circumstances then and there existing, to have avoided the collision and injury to plaintiff, if any, by sounding an effective warning of the approach, proximity and movement of defendant Bell’s automobile, and by swerving the same to the right, but that defendant Bell failed so to do, if you so find, * * *.” (303 S.W.2d 1. c. 97.)

The wording in that instruction is similar, as we have said, to the wording in the instant instruction. The contention was made that the instruction failed to furnish a guide to the jury or a standard upon which to base Bell’s duty to act. The Supreme Court held that contrary to defendant’s contention a standard of care, the highest degree of care, was required as a yardstick by which the jury was to charge defendant’s actions. The court said that “the instruction required the jury to find that defendant, in the exercise of the highest degree of care, ‘could have known that there was probable danger of collision between the two automobiles, in time thereafter,’ etc.” (303 S.W.2d 1. c. 98.) The language of the opinion in the case of Anderson v. Bell, supra, clearly refutes defendant’s contention that the instant instruction imposed an absolute duty on defendant to stop his car if he could have done so. As was said in the Anderson case, the instruction required the jury to find that defendant in the exercise of the highest degree of care could have known that there was a probability of a collision in time thereafter to do things called for in said instruction.

A somewhat similar instruction to that tinder review was reviewed in the case of Thurman v. St. Louis Public Service Company, Mo., 308 S.W.2d 680. While the precise point raised here was not raised or ■discussed in that case, the Supreme Court ■did hold that it was convinced the instruction did not mislead the jury.

Defendant has also attacked Instruction No. 4 on the ground that when read in connection with plaintiff’s instruction No. 2 it served to confuse the jury. Defendant’s ■counsel in his oral argument before us stressed this point. We have shown that plaintiff submitted her case in Instruction No. 2 on the humanitarian negligence charge that defendant failed to stop his automobile. The pertinent part of that instruction reads :as follows:

“ * * * and if you further find that defendant saw or by the exercise of the highest degree of care could have seen plaintiff in such position of imminent peril, if so, in time thereafter, by the .exercise of the highest degree of care, ■with the means and appliances then at hand, and with safety to himself, his ■vehicle and other persons and vehicles thereabout to have stopped his automo-Toile * * (Emphasis supplied.)

It is the italicized portion of the instruction that defendant says tends to confuse the jury and serves to create two standards of conduct.

Initially we should again point out that Instruction No. 4 had no reference to or ■connection with plaintiff’s Instruction No. 2. Instruction No. 4 clearly informed the jury that if it found defendant guilty of the negligence charged in said instruction, then defendant could not recover from plaintiff on defendant’s counterclaim. We are convinced that the jury must have followed the clear mandate of the instruction and considered it only in connection with defendant’s right to recover on his counter-claim.

We do not agree with defendant that when instructions 2 and 4 are read together they serve to create two standards of conduct. As we said earlier in this opinion, the language in instruction No. 4 did not impose an absolute duty on defendant to stop his car and we think that the standard imposed is the same in both instructions.

Defendant also points out that Instruction No. 2 required defendant to stop under the circumstances related in said instruction if he could have done so “with the means and appliances then at hand, and with safety to himself, his vehicle and other persons and vehicles thereabout.” Defendant complains that no such limitation was placed on his obligation to stop as called for in Instruction No. 4, and for this reason he contends there is confusion and conflict between the two instructions.

Whether or not defendant could have stopped his car with safety to himself, his vehicle and other persons and other vehicles thereabout was not a contested issue in the case. There is nothing in the evidence to show that defendant would have endangered the safety of himself and others and his vehicle and other vehicles thereabout if he stopped. The only evidence on this point is that he saw plaintiff enter the left turn lane approximately one block from where he was stopped. He did not see her again until she was 10 or 15 feet from the point of impact. He admitted there was nothing to obstruct his vision and that the distance from the point where he was stopped to the point of impact was 80 feet and that he could stop his car, at the speed at which he was traveling, within a distance of 30 feet.

The instruction under review did not require a finding of failure to swerve. As we have said, there is nothing in the evidence to show that by stopping he would have endangered his life and the lives of other persons and his vehicle and other vehicles thereabout. We merely point this out to show that it was not a contested issue and its omission from Instruction No. 4 did not constitute prejudicial error. It has been held in the following cases that the omission of these specifications from the plaintiff’s instruction did not constitute prejudicial error. McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W.2d 866.

For a case where the Supreme Court held it was error to omit one of the specifications because there was evidence tending to show the collision could not have been averted without injury to others, see Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9.

An answer to defendant’s contention that the two instructions when read together served to confuse the jury can be found in the case of Welch v. McNeely, Mo., 269 S.W.2d 871. In that case plaintiff submitted his cause to the jury on the sole ground of alleged humanitarian negligence in failing to stop. Plaintiff used the usual language contained in such instructions, that “defendant ‘saw, or by the exercise of the highest degree of care on his part could have seen, plaintiff’s automobile * * * in a position of imminent peril * * * in time thereafter with the means and appliances at hand, and with reasonable safety to his automobile and the occupants thereof to have stopped his automobile, and thus and thereby have avoided the collision.’” (269 S.W.2d 1. c. 875). Defendant submitted and had given a converse instruction in which the jury was told that “if you believe and find that at the time plaintiff’s automobile entered a position of imminent peril the defendant could not, by the exercise of the highest degree of care, have prevented the collision by stopping his automobile, then, and in such event, plaintiff is not entitled to recover * * (269 S.W.2d 1. c. 875.)

While the precise complaint made by defendant in the instant case was not asserted in the Welch v. McNeely case, the court did say in determining whether the jury could have been misled or confused by said instruction that “this is not a case in which the criticized instruction positively or affirmatively misdirected the jury, or in which there was any conflict between the criticized instruction and others given. * * * [A]ll of the instructions being read together and considered as a whole, the jury could not have been misled or confused by Instruction 3 and plaintiff could not have been prejudiced by the giving thereof.” (269 S.W.2d 1. c. 878.) While in the aforesaid case defendant’s instruction was a converse instruction and in the instant case a contributory negligence instruction, when all of the instructions are read together, the instructions in both cases present to the jury a similar word picture.

We are convinced after reading the record and all of the instructions that both plaintiff and defendant were accorded a fair trial and no error was committed that affected the merits of the action of either party.

The judgment is affirmed.

FRANK W. HAYES and RAY E. WATSON, Special Judges, concur.


author: DOERNER, Commissioner. PER CURIAM.

text:
    Roy H. HUMPHREY, Plaintiff-Appellant, v. Juanita A. HUMPHREY (now Juanita A. Gallagher), Defendant-Appellant.
    No. 31205.
    St. Louis Court of Appeals. Missouri.
    Nov. 20, 1962.

      Milton F. Napier, St. Louis, for plaintiff-appellant.
    None for defendant-appellant.
   DOERNER, Commissioner.

This is an appeal from a judgment denying a joint motion to modify a decree of divorce. A unique situation is presented in that both parties are appellants, each having appealed when their joint motion was denied. The case was briefed and argued by counsel on behalf of the plaintiff husband. Defendant wife did not appear in person or by counsel, but orally informed our clerk that she was not opposing plaintiff’s appeal.

The underlying action for divorce was instituted by the plaintiff on May 17, 1960. Defendant filed an entry of appearance but no responsive pleading, and did not contest the suit. After a default and inquiry had been granted, plaintiff was awarded a decree on August 1, 1960. By its terms plaintiff was given custody of Kathleen Gwendolyn, then three years of age, and Kimberly Ann, then one year old, the children of the parties, and defendant was accorded a limited fight of temporary custody on alternate Sundays. The decree had scarcely become final when defendant, on November 2, 1960, filed a motion to modify in which she alleged that conditions surrounding the children and the parties had materially changed since its rendition, and prayed that she be granted custody of both children.

Defendant’s motion remained undisposed of when on December 27, 1960, the parties filed their joint motion to modify the decree. They alleged therein that Kimberly Ann had been cared for by plaintiff’s mother, but that it had become exceedingly difficult for her to care for both children; that Kimberly Ann had been “for some time,” and then was, in the custodial care of Robert Calvin Brooks and Betty Lucille Brooks, his wife; that defendant had remarried and was then the wife of Fred1 Dale Gallagher; that Mr. and Mrs. Brooks were eminently fit persons, who loved the child and treated her as one of their own, and that their three children had accepted Kimberly; and that it would he to the best interests of all parties concerned, and particularly of Kimberly Ann, if she were to be and remain as a part of the Brooks family. The prayer was that the decree of divorce be amended to award the exclusive care, custody and control of Kimberly to the Brooks; and that they be permitted to remove the child out of the jurisdiction of the court and out of the state, at their pleasure. Mr. and Mrs. Brooks, as well as plaintiff and defendant, executed the motion.

According to the transcript filed with us, which was approved by the Circuit Judge, this joint motion remained on file almost eleven months, until November 20, 1961, when the court filed a memorandum stating “Plaintiff’s and defendant’s joint motion to modify decree denied.” Thereupon on the same day, a judgment was entered in which it was recited that “It is ordered by the Court, of its own motion, that the plaintiff’s and defendant’s joint motion to modify, heretofore filed herein on the 27th day of December, 1960, be and the same is hereby denied.” Thereafter, on December 5, 1961, the parties filed their joint motion to set aside the order of November 20, 1961, and to expunge the same from the record. This motion was argued and submitted on December 15, 1961, overruled on January 25, 1962, and the parties appealed on February 3, 1962.

As plaintiff points out, the record fails to disclose that their joint motion to modify the decree was placed on the dismissal or any other docket, and likewise fails to show that the parties were given prior notice that the court would take up and pass upon the motion. He contends that the court erred in ruling upon the motion without giving the parties such prior notice and an opportunity to be heard; asserts that for such lack of due process the judgment was null and void, and should have been set aside and expunged; and prays that we reverse the judgment and remand the matter “ * * * with directions to the Court nisi to set aside that ‘judgment’ and reinstate the joint motion to modify on the docket for trial upon its merits, after notice and an opportunity to present evidence in support thereof.”

It is a cardinal principle of the law that whenever a party’s rights are to be affected by a summary proceeding or motion in court, he shall have timely notice thereof in order that he may appear for his own protection. George v. Middough, 62 Mo. 549; Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126; Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347; Mandel v. Bethe, Mo.App., 170 S.W.2d 87. If the court passed upon the joint motion without giving the parties prior notice and an opportunity to be heard there can be no reasonable doubt that the judgment entered was void and should have been set aside. Mandel v. Bethe, supra. We hypothesize the statement because, though the record does not show a formal submission of the joint motion, we find in the parties motion to vacate the allegation:

“Movants further state that when the Court indicated an unwillingness to sustain said Motion, said Motion was abandoned, and that on December 31st, 1960 a Transfer of Custody was applied for in the Juvenile Division of the St. Louis Circuit Court, which transfer of custody was granted on January 20th, 1961.”

This would indicate that the parties did present their joint motion to modify to the court, at least informally, for the court could not have indicated “an unwillingness to sustain” the motion unless the parties had discussed it with it. Their statement also reveals that although they had decided to abandon their motion the parties did not dismiss or withdraw it, but permitted it to clutter up the docket for almost eleven months. Such a practice is not one to merit approbation.

If the joint motion to modify was abandoned, as the parties stated, it is difficult to perceive why the parties are now entitled to a trial upon its merits; or, for that matter, how they were aggrieved parties and entitled to appeal. Sec. 512.020, RSMo, V.A.M.S. In any case, assuming the invalidity of the judgment denying their joint motion, it does not necessarily follow that we should reverse the judgment and remand the case for a trial upon the merits of the motion, as the parties request. To do so would be a useless and futile act, for the entire matter has become moot. The relief which the parties sought by their joint motion to modify was permission to transfer the custody of Kimberly Ann to Mr. and Mrs. Brooks. According to their own statement, that relief was granted them by the Juvenile Court of the City of St. Louis on January 20, 1961. The Juvenile Court has jurisdiction to order the transfer of custody of children in certain proceedings, Sections 453.070, 453.080, State ex rel. M. L. H., etc. v. Carroll, Mo.App., 343 S.W.2d 622, and in the absence of anything to the contrary we must presume its judgment to be valid. Gomez v. Gomez, Mo., 336 S.W.2d 656. A case becomes moot, among other reasons, when some event occurs which makes it impossible for the appellate court to grant effectual relief. State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676; State ex rel. Winkelman v. Westhues, Mo., 269 S.W. 379; Euclid Terrace Corp. v. Golterman Enterprises, Inc., Mo.App., 327 S.W.2d 542. Thus in State ex rel. Myers v. Shinnick, supra, it was said (19 S.W.2d 1. c. p. 678) : “Courts are not organized and maintained for the purpose of vindicating the actions of parties in bringing lawsuits or to settle abstract propositions of law, where no relief can be granted. * * * If no relief can be granted, either because it appears that such relief has already been obtained * * *. The case is then said to be ‘moot.’ ” And in 5 C.J.S. Appeal & Error § 1362a, p. 444, the general rule is laid down:

“If, pending an appeal, an event occurs which makes a determination of it unnecessary or renders it clearly impossible for the appellate court to grant effectual relief, the appeal or writ of error will be dismissed. * * * ”

The only appropriate action to be taken is to dismiss the appeal. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, this appeal is dismissed.

WOLFE, A. P. J., and FRANK W. HAYES and RAY E. WATSON, Special Judges, concur.


author: STONE, Judge.

text:
    E. J. MALONE, Plaintiff-Respondent, v. Hamilton ADAMS, Administrator of the Estate of John W. Matlock, Deceased, Defendant-Appellant.
    No. 8078.
    Springfield Court of Appeals. Missouri.
    Nov. 8, 1962.

      William E. Seay, Salem, for defendant-appellant.
    L. Clark McNeill, Salem, for plaintiff-respondent.
   STONE, Judge.

Defendant Adams, as administrator of the estate of John W. Matlock, deceased, appeals from an adverse judgment of $1,-100 entered, at the conclusion of a jury-waived trial in the Circuit Court of Dent County, upon a demand originally filed in the probate court by plaintiff Malone, a licensed real estate broker, for commission alleged to have been earned in the sale of a 439-acre farm owned by Matlock and situate about seven miles west of Salem, Missouri.

Matlock “listed” the farm with plaintiff on October 9, 1959. It appears that “the asking price” at that time was $14,000. On January 23, 1960, Matlock, plaintiff and the Criscos (prospective purchasers) conferred in the office of a Salem attorney, who testified (without objection) that Matlock then agreed to sell the farm to the Criscos for $11,000 and that Mrs. Gertrude Crisco then issued an “earnest money” check for $100 to Matlock, who left the check with the attorney while the abstract was brought to date and examined. Under date of February 23, 1960, W. G. Crisco (at Round Springs, Missouri) wrote plaintiff that “I am ready to go with the closing of the deal on the John Matlock farm; please advise me at once.” In the meantime, Matlock had died on February 18, 1960; but, although we are not informed as to the closing date or procedure, the defendant administrator readily agreed upon trial that he had “received into the estate the sum of $11,000 for the sale of the farm” and that this sum had been paid by W. G. Crisco. The defendant administrator also testified (without objection) that he had called at plaintiff’s office after Matlock’s death and that “I (defendant) offered him a certain amount for what he had done.” A paper writing, to which plaintiff referred as “a listing on the J. W. Matlock farm,” was identified as an exhibit. However, the meager testimony pertaining to the “listing” was stricken upon defendant’s motion; the exhibit was excluded from evidence upon defendant’s objection; and the transcript on appeal neither contains this exhibit nor a call for it. Accordingly, we have no knowledge concerning its content, meaning or effect. Two witnesses for plaintiff testified that the customary and reasonable commission for sale of farm property in the Salem area was ten per cent of the sale price.

The sole point, upen which defendant here relies, is that “respondent (plaintiff) having sought relief by pleading express contract and having failed in his proof thereof by not making a prima facie case cannot now avail himself of the theory of quantum meruit and his entire case, therefore, fails.” Plaintiff’s only “pleading” (if such it may be termed) was the following claim or demand timely filed in the Probate Court of Dent County:

“The Estate of John W. Matlock Deceased
“To E. J. Malone, doing business as Malone Insurance and Realty Company, DR.
“Address Salem, Mo.
“To Commission on sale of Matlock farm at $11,000.00 on January 23, 1960, which farm was listed with E. J. Malone on Oct. 9, 1959 at 10%. 1100.00 “Sale made to W. G. and Gertrude Chrisco and approved by John W. Matlock before his death.”

Appended to the claim was plaintiff’s affidavit in statutory form. V.A.M.S. § 473.-380(1).

There is no room for argument about the legal principle on which defendant relies, to wit, that if a plaintiff elects to, and does, declare upon an express contract, he may not recover upon quantum meruit. Although all of the cases cited by defendant were initiated in the circuit court [e. g., O’Neal v. Mavrakos Candy Co., Mo.App., 255 S.W.2d 138, 140(1), affirmed 364 Mo. 467, 263 S.W.2d 430; Stanley v. Whitlow, 181 Mo.App. 461, 168 S.W. 840, 841(3) ], the stated principle is recognized also in proceedings originating in the probate court. Brown v. Clark’s Estate, Mo.App., 207 S.W.2d 530; Farris v. Faris’ Estate, Mo.App, 212 S.W.2d 71, 74(3, 4). However, as is so frequently true, our problem is not as to the validity of a legal principle but rather as to its applicability in a given situation. Defendant’s sole point (as hereinbefore quoted) is predicated on the premise that plaintiff “sought relief by pleading express contract,” and the meritorious question is as to whether the quoted claim did, in truth, plead an express contract.

V.A.M.S. § 473.380, which treats of the “form and verification of claims,” requires only that a claim be “in writing, stating the nature and amount thereof, if ascertainable, and (be) accompanied by an affidavit” containing certain statements, and that, if the claim be “founded on a written instrument, the original or a copy thereof with all indorsements * * * be attached to the claim” or “loss or destruction * * * be stated in the claim.” The practice in probate courts being designed and intended to serve the ends of justice without regard to technical precision in pleading [Guthrie v. Fields, Mo.App, 299 S.W. 141, 143(1) ; Murphy v. Pfeifer, Mo. App., 105 S.W.2d 39, 41], the niceties of pleading required in actions initiated in the circuit court need not be observed in proceedings originating in the probate court [Liebaart v. Hoehle’s Estate, Mo.App., 111 S.W.2d 925, 928-929; Hays v. Miller’s Estate, 189 Mo.App. 72, 78, 173 S.W. 1096, 1097] and a formal pleading is not necessary in presentation of a claim in the probate court. In re Franz’ Estate, Mo., 245 S.W.2d 1, 5(3); Savage v. Michalon’s Estate, Mo.App., 176 S.W.2d 626, 633. Such claim is not to be judged by the rules of pleading applicable to a petition filed in the circuit court but is sufficient if it gives reasonable notice to the legal representative of the estate as to the nature and extent of the claim and if it is specific enough that a judgment thereon would be res judicata of the matters involved. Siegel v. Ellis, Mo., 288 S.W.2d 932, 938(4); In re Thomasson’s Estate, 346 Mo. 911, 915, 144 S.W.2d 79, 81-82(4); Rassieur v. Zimmer, 249 Mo. 175, 181, 155 S.W. 24, 25.

Indeed, as we have noted, instant defendant does not contend that the claim under scrutiny was insufficient but rather that it pleaded an express contract which was not proved. It is true that the above-quoted claim does not contain a specific statement that plaintiff’s services were reasonably worth, or were of the reasonable value of, the sum sought — an averment frequently found and certainly appropriate in a claim upon quantum meruit. E. g., In re Hukreda’s Estate, Mo., 172 S.W.2d 824; Minor v. Lillard, Mo., 289 S.W.2d 1, 3; Reighley v. Fabricius’ Estate, Mo.App., 332 S.W.2d 76, 79. But numerous cases demonstrate that such an averment in a claim in the probate court is not an indispensable prerequisite to recovery upon quantum meruit. See Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 299, 302-303; In re Stein’s Estate, Mo.App., 177 S.W.2d 678, 679, 681-682(1); Liebaart, supra, 111 S.W.2d loc. cit. 926, 928; Murphy, supra, 105 S.W.2d loc. cit. 40; Aldridge v. Shelton’s Estate, Mo.App., 86 S.W.2d 395, 396, 398; Blackwell v. De Arment’s Estate, Mo.App., 300 S.W. 1035. And we note that “(p)laintiff’s demand in the instant case did not plead the terms of a contract or seek recovery of damages for breach of contract” [Vosburg, supra, 272 S.W.2d loc. cit. 303] and that “(i)t does not specifically and definitely appear that the claim was founded upon any contract or agreement * * In re Franz’ Estate, supra, 245 S.W.2d loc. cit. 6.

It may be conceded that we could not say confidently whether the instant claim declared upon an express contract or upon quantum meruit, and that, if proper disposition of this appeal necessitated a definite determination one way or the other, we would have difficulty in deciding on which side of the fence we should tumble. Our uncertainty as to the theory of the claim being certain, and our doubt with respect thereto being definite, we have concluded (with no uncertainty or doubt as to this) that the case at bar clearly falls within the rule consistently followed in analogous situations, to wit, if “ ‘it is impossible to say with definiteness whether the plaintiff is counting upon an express contract or upon quantum meruit, he will be permitted to recover upon whichever of the two theories his evidence may warrant.’ ” In re Hukreda’s Estate, supra, 172 S.W.2d loc. cit. 826(5); Reighley, supra, 332 S.W.2d loc. cit. 86(7) ; Vosburg, supra, 272 S.W.2d loc. cit. 303; Whitworth v. Monahan’s Estate, Mo.App., Ill S.W.2d 931, 933. See also Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 621(13-15); Anderson v. Ward, Mo.App., 21 S.W.2d 886, 887(1); Boyle v. Clark, 63 Mo.App. 473, 477(3).

Accordingly, with the transcript showing that the trial court proceeded upon quantum meruit, and with the sufficiency of the evidence to warrant recovery upon that theory being plain and unchallenged, the judgment for plaintiff should be affirmed. It is so ordered.

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


author: GRIFFIN, Justice.

text:
    ANGELINA CASUALTY COMPANY, Petitioner, v. Tommie H. HOLT, Respondent.
    No. A-8782.
    Supreme Court of Texas.
    Oct. 24, 1962.
    Rehearing Denied Dec. 12, 1962.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for petitioner.
    Fulmer, Fairchild & Badders, Nacog-doches, for respondent
   GRIFFIN, Justice.

This is a Workmen’s Compensation case. After an award by the Industrial Accident Board, respondent, as plaintiff, appealed and sued petitioner, as defendant, in the District Court of Angelina County, Texas, alleging general injuries to his body resulting in total permanent disability. By trial amendment, plaintiff alleged that he sustained the loss of use of his left arm, which was and will be total and permanent, and asked for 200 weeks’ compensation. In answer to special issues, the jury found total incapacity for 14 months and loss of the use of the left arm for 28 months. Judgment was rendered for plaintiff for compensation for 28 months at the maximum rate of $35.00 per week. On appeal by defendant, the Court of Civil Appeals affirmed the judgment of the trial court. Tex.Civ.App., 351 S.W.2d 627.

We reverse the judgment of both courts below and remand the cause to the district court for new trial.

Defendant assigns as error in this court that the Court of Civil Appeals erred in not sustaining its point of error complaining of the trial court’s action in overruling its objections to Special Issues Nos. 7, 8 and 9 of the trial court’s charge, for the reason that such issues did not submit the ultimate and controlling issues of the extent of the loss of use of plaintiff’s left arm. Defendant also says the Court of Civil Appeals erred in not sustaining its point of error complaining of the trial court’s action in overruling its objection to the trial court’s submission to the jury of Special Issue No. 7 and its accompanying definition of “loss of use,” over defendant’s timely objection that the definition “did not define any term in the issue, was inconsistent therewith, and was a confusing, rather than clear submission to the jury.” We sustain these assignments of error.

Special Issue No. 7, and its accompanying definition as contained in the court’s charge are:

“Do you find, from a preponderance of the evidence, that the injury, if any, sustained by plaintiff on the 3rd day of October, 1958, if any, has resulted or will result in a loss of the use of his left arm ?”
“By the term ‘loss of use,’ as used in this charge, is meant that the member is so affected as to substantially and materially impair the use thereof, in the practical performance of its functions in the pursuit of a laboring man.” (Emphasis added).

This definition is a copy of a similar definition approved by the Court of Civil Appeals in the case of Traders & General Insurance Company v. Porter (Tex.Civ.App.1939), 124 S.W.2d 900, writ of error refused. Also, it is the exact definition given in Travelers Insurance Company v. Seabolt, (Court of Civil Appeals), 351 S.W.2d 350. The Porter case was one in which the plaintiff therein recovered a judgment for total incapacity for 150 weeks. The Seabolt case was one in which the plaintiff therein recovered maximum benefits for the permanent loss of the use of his right hand. In our case, we have a recovery under Workmen’s Compensation Law for a total loss of the use of plaintiff’s left arm for 28 months. In the Seabolt case, the issue only inquired about a “loss of use” of the right hand, whereas, in our case, the issue inquired about a “loss of the use” of the left arm. Otherwise, the two issues were the same.

In our recent case of Travelers Insurance Company v. Seabolt, Tex., 361 S.W.2d 204, we reversed the Court of Civil Appeals and remanded the case to the District Court for a new trial. In that opinion, we sought to clarify the law regarding total loss of use of a specific member under Art. 8306, Sec. 12, Vernon’s Annotated Texas Civil Statutes, and also discussed the meaning of the definition under attack herein. We there held that this definition does not correctly embody a statement of the substantive law relating to a total loss of the use of a member. We recommended that the trial court use the word “total” in an issue where the question was if there was a total loss of the use of a specific member. We held that the definition used in the Porter case, 124 S.W.2d 900, writ refused, is not a correct definition of the total loss of the use of a member, but defines a partial loss of the use of a member.

We see no need for elaboration on our holding in Seabolt that the definition used herein did not define the “total” loss of the use of plaintiff’s left arm but only defined a “partial” loss of the use of the arm. It was error to submit this phase of the case as the trial court did, over defendant’s proper objections.

Here we have Special Issue No. 7, inquiring as to a loss of the use, with a definition accompanying it which permitted the jury to return a favorable answer to the issue on evidence showing not a “total” loss of use, but only a partial loss of use.

The plaintiff pleaded that he suffered a “total” loss of the use of his left arm, and recovered for such loss. The issue as defined did not determine the ultimate issue of whether or not plaintiff had suffered a “total” loss of use of his left arm. It was a confusing submission to the jury of the grounds of plaintiff’s recovery. Special Issues Nos. 8 and 9 inquired about the duration of the injury.

Plaintiff seeks to sustain the action of the trial court in overruling defendant’s objection to Special Issue No. 7, and its accompanying definition, on the ground that the defendant failed to submit a correct definition of “total” loss of use of the left arm. Plaintiff claims defendant had this duty. His reasoning runs as follows: Special Issue No. 7 submits issue of “total” loss of use, the definition given by the courts defines only “partial” loss of use, and therefore the duty was on defendant not only to object to the failure of the court to define “total” loss of use, but also to submit a correct definition of “total” loss of use to the trial court.

The law is that where the court gives a definition which is defective, an objection by the opposite party is sufficient to preserve his rights, and it is not necessary for him to tender a correct definition. Yellow Cab & Baggage Co. v. Green, 1955, 154 Tex. 330, 277 S.W.2d 92(1), and the authorities therein cited. Defendant herein preserved his point of error by his objections to the court’s charge.

Defendant also assigns error to the failure of the trial court to give his requested Issue No. 4, reading:

“Do you find from a preponderance of the evidence that plaintiff’s injury resulted from an altercation between him and Shirley Patterson at Center, Texas, on October 4, 1958?”

Defendant went to trial on its Second Amended Original Answer. In this Answer there was a general denial which put in issue whether or not the plaintiff had sustained an injury on October 3, 1958, in the course of his employment. This Answer contained no mention of plaintiff’s injuries being caused and resulting from an altercation with Shirley Patterson at Center, Texas, on October 4, 1958. This came into the case as a result of a trial amendment filed by defendant on the same day as the court delivered his charge, and evidently after the close of the evidence for both parties. The allegation is:

“Defendant further alleges that such injury and disability as plaintiff may now have or did have after October 3, 1958, was and is caused and resulted from an altercation which occurred between the plaintiff and Shirley Patterson at Center, Texas, on or about October 4, 1958.”

The record shows that this altercation took place at a tavern in or near Center, Texas, on the day following plaintiff’s injury for which he sued. It also shows that the altercation and injuries, suffered therein, had no connection whatsoever with plaintiff’s employment.

The trial amendment brought into the case an affirmative defense on behalf of defendant. On another trial the court should submit this defense to the jury.

The other assignments of the defendant have to do with matters that are not likely to arise on the retrial of this cause, so we do not discuss them.

The judgments of the Court of Civil Appeals and the trial court are both reversed, and this cause is remanded to the trial court for trial in accordance with this opinion.


author: HAMILTON, Justice. CULVER, Justice

text:
    Thomas H. CROFTS, District Judge of the 86th Judicial District of Texas et al., Relators, v. The COURT OF CIVIL APPEALS FOR the EIGHTH SUPREME JUDICIAL DISTRICT of Texas et al., Respondents.
    No. A-9182.
    Supreme Court of Texas.
    Nov. 14, 1962.

      Wynne & Wynne, Wills Point, L. F. Sanders, Canton, for relators.
    W. Ernest West, Canton, W. J. Barnes, Richard W. Barnes, Rockville, Md., for respondents.
   HAMILTON, Justice.

This is an original suit for writ of mandamus brought by relators Thomas H. Crofts, District Judge of Van Zandt County, Texas, 86th Judicial District, and An-cel M. Autry, W. N. Autry and wife, Mary Lou Autry, praying that this court issue its writ of mandamus directing the Court of Civil Appeals for the Eighth Supreme Judicial District at El Paso, Texas, to rescind its order granting writ of mandamus against Judge Crofts.

The facts, as stated in the two Court of Civil Appeals opinions and the briefs of the parties are as follows: The controversy grew out of a suit for divorce and for custody of the children of Ancel and Anita Autry, husband and wife. Six children were born to this marriage. Ancel and Anita made their home in Montgomery County, Maryland. On August 13, 1958, Ancel took the five oldest children and came to Texas, leaving Anita and their youngest child in Maryland. On November 3, 1958, Anita filed suit in Maryland for divorce a mensa et thoro and for custody of the one child left with her. The Maryland court, on March 2, 1959, decreed the divorce a mensa et thoro and gave custody of the youngest child to Anita.

In December, 1958, Ancel filed suit in Van Zandt County, Texas, district court for divorce and for custody of the five children with him, but before Ancel’s suit was tried Anita came to Texas, took the five children back to Maryland with her, and filed proceedings there for custody of those children.

In June of 1959, before legal custody of the five children had been determined by any court, Ancel went to Maryland, got possession of the children, and brought them back to Van Zandt County, Texas. Anita came to Texas, filed an answer to Ancel’s divorce petition then pending in the Van Zandt County district court, and filed a cross-action and pleas in abatement and to the jurisdiction alleging the pendency of her suit in Maryland. The plea in abatement and to the jurisdiction were sustained by the Van Zandt County district court, and Ancel’s divorce suit was dismissed.

Ancel appealed from the order of dismissal to the Fifth Court of Civil Appeals. On equalization of the docket the Supreme Court transferred the case to the Eighth Court of Civil Appeals at El Paso. That court affirmed the order of dismissal on the grounds of comity. 350 S.W.2d 233. Ancel filed application for writ of error in the Supreme Court, but this was dismissed for want of jurisdiction.

On January 10, 1961, Anita filed a petition for writ of habeas corpus in the Van Zandt County district court, alleging that tire Maryland court had entered a decree giving her legal custody and asking that the children be remanded to her possession. Ancel filed an answer and a cross-action by means of which he sought to get a change of legal custody on the ground that there had been a change of conditions since the Maryland decree was entered. When the case was called for trial both Ancel and Anita appeared. Anita’s counsel filed a plea of res judicata based on the previous order of dismissal; this plea was overruled, and the case was continued. Anita then filed a petition for writ of mandamus in the Eighth Court of Civil Appeals at El Paso asking the Court of Civil Appeals to direct the Van Zandt County district judge to issue a writ of habeas corpus remanding the children to her possession. This writ of mandamus was granted by the Court of Civil Appeals. 359 S.W.2d 272.

The relators, Judge Crofts and Ancel Au-try, attack the jurisdiction of the Court of Civil Appeals to issue the writ of mandamus and pray that this court issue a writ of mandamus directing the Court of Civil Appeals to rescind its writ of mandamus.

We think that the Court of Civil Appeals did not have jurisdiction to issue the writ of mandamus ordering the trial court to grant the writ of habeas corpus to Mrs. Autry. The Court of Civil Appeals justifies its assertion of jurisdiction on the ground that the Van Zandt County district court order of dismissal of Ancel’s suit in and of itself required a transfer of possession of the children to their mother, that such transfer of possession was a mere ministerial act of the district court growing out of the order of dismissal. The Court of Civil Appeals then reasons that it has the power to mandamus the district court to perform the ministerial acts ancillary to its order of dismissal.

We think that the Court of Civil Appeals was mistaken in assuming that an order giving Mrs. Autry possession could be considered ancillary to and a ministerial act flowing from the order of dismissal. It is elementary that a dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought. White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374; Bryan v. Smith, 7 Cir., 174 F.2d 212, 11 A.L.R.2d 1402; see 17 Am.Jur. 158, Dismissal, Discontinuance, and Nonsuit, § 86.

The Court of Civil Appeals says that since the trial court had jurisdiction to try An-cel’s divorce suit, the order of dismissal resembles a judgment of the district court from which relief may flow. We do not agree that because the Van Zandt County district court could have asserted its jurisdiction its order of dismissal took on any greater significance than any other order of dismissal. In short, delivery of possession of the children to their mother was not a ministerial act to be done after dismissal was ordered, and her application for writ of mandamus to the Court of Civil Appeals cannot be said to be ancillary thereto.

One basis on which the Court of Civil Appeals justified its granting of the writ of mandamus was that the removal of the children by Ancel Autry from the State of Maryland, while the custody proceeding filed there was pending, was'wrongful. We do not agree. In the absence of an order of the Maryland court enjoining or prohibiting Ancel from removing the children during the pendency of the custody proceeding he had as much right to the possession of the children as did the mother. His removal of the children to Texas was not wrongful or unlawful. Neither was the mother’s removal of the children from Texas to Maryland during the pendency of the divorce and custody proceeding in the Texas court wrongful in the absence of a court order prohibiting such removal. Either court could have entered an order against such removals, but neither did so.

The Court of Civil Appeals has no power to mandamus the district court except as provided for by Articles 1823 and 1824, Vernon’s Ann.Texas St.; Art. V, § 6, Texas Constitution, Vernon’s Ann.St. Under these statutes the Court of Civil Appeals may mandamus only in protection of its appellate jurisdiction and to order a trial judge to proceed to trial and judgment. The Court of Civil Appeals’ writ ordering Judge Crofts to turn over the children to Anita cannot be justified on either ground of mandamus jurisdiction. Judge Crofts has not refused to proceed to trial. On the contrary, the relators contend that when the case was called for trial and all the parties were before the court, it was Mrs. Autry’s counsel who refused to proceed, filed plea of res judicata based on the dismissal order, and threatened to mandamus Judge Crofts if he went ahead and tried Ancel’s custody question. It wás at this point that Judge Crofts continued the cause.

Nor can this mandamus be justified on the ground that the Court of Civil Appeals was protecting its appellate jurisdiction. As we have shown, the application for writ of habeas corpus was an entirely original matter based upon the alleged Maryland decree; it in no way grew out of or was ancillary to the order of dismissal which had been affirmed by the Court of Civil Appeals on appeal.

The Maryland custody decree on which Mrs. Autry relies for her writ of habeas corpus apparently has not been proved, as it does not appear from the record that it was ever before either the district court or the Court of Civil Appeals, but as-stiming' that there is a valid Maryland decree vesting custody in her, and assuming that Ancel has refused to obey that decree by keeping the children in his possession, these may be shown in the habeas corpus proceeding in the Van Zandt County district court. It is true that under the decisions of this court the questions of legal custody may be reopened upon allegations by Ancel that conditions have materially changed. Short v. Short, Tex., 354 S.W.2d 933; and Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79. But that is beside the point. The question now before us is which court has the jurisdiction to determine the right to possession of the children on habeas corpus, the district court or the Court of Civil Appeals.

The Court of Civil Appeals has no jurisdiction to issue writs of habeas corpus as an original matter. Art. V, § 6, Texas Constitution; In Re Hoover, 245 S.W.2d 557 (Civ.App., 1952), no writ hist. On the other hand, the district court does have jurisdiction to try originally and to issue writs of habeas corpus in matters of child custody. Art. V, § 8, Texas Constitution; Legate v. Legate, 87 Tex. 248, 28 S.W. 281. The Court of Civil Appeals’ writ of mandamus told Judge Crofts that he must grant the writ of habeas corpus without a hearing and without the exercise of his discretion. While the Court of Civil Appeals may mandamus the district court to proceed to trial and judgment in habeas corpus proceedings, it may not tell the district court what judgment to enter.

In view of this opinion we assume that the Eighth Court of Civil Appeals will rescind its writ of mandamus; otherwise, the writ prayed for herein will issue.

CULVER, Justice

(dissenting).

I respectfully dissent. In my opinion this writ of mandamus should not be granted. Assuming that the Court of Civil Appeals exceeded its jurisdiction in granting the writ of mandamus, yet that in itself does not justify or warrant the court’s actioni in setting it aside at the behest of these re-lators.

There are certain well-established rulei that govern the exercise of this extraordinary power. Mandamus is not issued as a matter of right, but rests largely in the sound discretion of the court. The writ will not be granted unless the petition shows that the relators have a clear right to the writ. Although mandamus is a common-law writ its issuance is largely controlled by equitable principles. Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793; Westerman v. Mims, 111 Tex. 29, 227 S.W. 178; Munson v. Terrell, 101 Tex. 220, 105 S.W. 1114; Moore v. Rock Creek Oil Corporation, Tex.Com.App., 59 S.W.2d 815; American Book Co. v. Marrs, 113 Tex. 291, 253 S.W. 817; City of Sherman v. Langham, 92 Tex. 13, 40 S.W. 140, 42 S.W. 961, 39 L.R.A. 258.

In Westerman v. Mims we quoted and adopted the following rule:

While the remedy by mandamus is not equitable, but strictly legal, yet by analogy to the principles prevailing in courts of equity it is a uniform requirement that the relator in seeking this remedy must come into court with clean hands.’ ”

In that case we also quoted from American Mortgage Co. v. Rosenbaum, 114 Ohio St. 231, 151 N.E. 122, 59 A.L.R. 1368 :

“The principle involved in this case is not new, but, on the contrary, is very old, very simple, and very fully in accord with good sense and common honesty; that is to say, one may possess a legal right, unconditional in character, with respect to the enforcement of which he may avail himself of all legal remedies applicable thereto, and, still, if the results which must attend and follow the enforcement are such as will shock the conscience of a court of equity, that court, if asked to issue its mandatory injunction as an aid to such enforcement, should, in the exercise of a sound discretion, deny the application and leave the party to pursue .his legal remedies. Extraordinary writs are issued by courts of equity to prevent and correct wrongs, but are not employed to promote wrongs.”

Turner v. Fisher, 222 U.S. 204, 209, 32 S.Ct. 37, 38, 56 L.Ed. 165, speaks to the same effect.

In Westerman the relator sought to enforce an undisputed legal right. Nevertheless the writ was denied because the relator did not exhibit good faith and conscience and was in violation of a moral obligation. In that case the court expressly classifies the issuance of a writ of mandamus as discretionary.

We quote from Moore v. Rock Creek Oil Corporation as follows:

“It must be borne in mind that the enforcement of the right is by mandamus. Such a writ is not issued as a matter of right, but in the exercise of a sound judicial discretion which allows the court to view other considerations than the mere legal right of the relator.”

With these principles in mind let us see if the relator, Ancel M. Autry, has acted in good faith, has come into this court with "clean hands” and has shown himself entitled to invoke the equitable powers of this court. Let us consider whether the writ is being employed to correct or promote a wrong.

At the outset of this controversy Autry and his wife, Anita, with their six children were domiciled in Montgomery County, Maryland. More than four years ago Au-try brought the five oldest children to Texas and subsequently announced to Mrs. Au-try that he would not return. Certain proceedings then took place which are not material here. In 1959 Mrs. Autry, having regained possession of the children, filed suit for custody in Maryland, Autry was duly served with process and in that suit filed a plea to the jurisdiction as well as a motion requesting further time to file an answer. Actually he did not answer to the merits. Admittedly the Maryland court had jurisdiction of the subject matter. During the pendency of that suit Autry, without the knowledge or consent of his wife, obtained possession of the children and returned with them to Texas. He has compelled her to retain counsel and defend a suit brought by him in Texas for divorce and custody which the trial court dismissed for want of jurisdiction. That judgment of dismissal was affirmed by the Court of Civil Appeals, 350 S.W.2d 233, and Au-try’s application for writ of error was dismissed by us for want of jurisdiction.

On the 4th day of January, 1961, the Maryland court entered a decree awarding Mrs. Autry the custody of the five oldest children. In order to obtain possession of the children to which she had an unqualified right by virtue of the Maryland decree she availed herself of her only possible recourse unless resort was had to force or stealth, namely, that of seeking a writ of habeas corpus from the Van Zandt District Court on January 10, 1961. Au-try thereupon filed his cross-action alleging that due to changed conditions and circumstances that had transpired since the Maryland decree he should be awarded the custody of the children. Due to the unfortunate illness and subsequent resignation of the judge of that court the matter was not set for hearing until February of this year when the successor judge refused to grant to her the possession of the children, holding that the issue of custody must be tried on the merits of the cross-action. On application the Court of Civil Appeals granted the writ of mandamus in question here. 359 S.W.2d 272.

Autry’s removal of the children from Maryland after the jurisdiction of the court of that state had attached was wrongful and contemptuous. He made no attempt by legal and orderly process to obtain possession or custody. The determination of the forum to try out the right to custody should not be made to turn on such a circumstance. He has refused to surrender even temporary custody of the children to his wife and has flouted the decision of the Maryland court. In his cross-action filed in the habeas corpus proceeding brought by Mrs. Autry, Ancel Autry seeks the custody of these children alleging that he is a proper person to have the care and custody rather than Mrs. Autry on the ground that he has had and exercised that custody since August 14, 1958, and that during that time the children have been receiving the best of care. In the alternative he asserts that the “conditions have completely changed; that because of the changed conditions it would be meet, wise and advantageous to said minors to place them in the care, custody and control of An-cel M. Autry”. The pleading is wholly silent as to when the conditions changed or what changes took place.

In Short v. Short, Tex., 354 S.W.2d 933, we did hold that under somewhat similar circumstances the district court had jurisdiction to pass upon the question of changed conditions, but in that case the issue had already been tried and a final judgment had been entered. The question here is not so much one of jurisdiction, but whether that jurisdiction should be exercised under the rules of comity. The authorities relied upon in that case have refused to lay down any hard and fast rule. In Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R. 2d 1, we said:

“The foregoing does not, of course, mean that our courts should take ju-
risdiction to award custody in every case where the child and the parties contending for its possession happen to be here before the court. Nor does it mean that a child’s foreign legal domicile is not an important consideration in cases of this kind. We certainly do not imply that our courts should be accessories after the fact to disorderly practices of individual parents or others who thus seek to avoid the normal processes of justice by ex parte determination of what they happen to consider a more propitious form. A review of the decisions bearing on the subject shows the impracticability of trying to formulate rules in other than the most general terms. * * * ”

Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 was a venue case. All parties were domiciled in the State of Texas. Of course any court anywhere at any time has the authority as well as the obligation to protect children against possible harm when jurisdiction has been invoked.

In Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, a case involving the question of jurisdiction under somewhat similar facts we said:

“ * * * Whether our courts have and will exercise jurisdiction depends in part upon domicile and also upon broader considerations, including among other things the physical presence before the court of the child and the contesting parties, and the general situation affecting the ability of the court to form an intelligent judgment on what will be best for the child’s welfare. Here the facts show that the child and both parents were before the court; the husband is still a Texas domiciliary; most of the relevants facts occurred in Dallas, where the domicile of all of the parties had been until only a few months before the trial, and apparently all important witnesses actually were present and testified. Under these facts we think that the Texas court was in a better position to pass intelligently on the matter of the child’s welfare than the courts of Virginia, and therefore that the Texas court had jurisdiction to award custody.”

The converse of that should be true, namely, that if the courts of Maryland are in better position to pass intelligently on the matter of changed conditions, then the Texas court should not exercise jurisdiction. If there had been any material change in conditions which would affect the welfare of these children, it would seem that the courts of Maryland should certainly be in better position to pass upon that question than the Texas courts.

The court’s opinion in this case recites that “the question now before us is which court has the jurisdiction to determine the right to possession of the children on habeas corpus”. Undoubtedly the Van Zandt District Court had jurisdiction to determine that very question. It was for that purpose that Mrs. Autry filed her application for writ of habeas corpus, but that is the question the district court refused to decide pending the trial of Autry’s claim for custody based on changed conditions, and the district court will naturally follow that procedure upon the granting of this writ of mandamus.

What we now have is that despite the award of custody by the Maryland court to Mrs. Autry, possession and custody will be continued in the father until such time as the district court tries this case and enters a final judgment. If Mrs. Autry is successful, she will have to await the outcome of an appeal to the Court of Civil Appeals and then a petition for writ of error. Not even then will she necessarily obtain possession or custody, for again she may be confronted by a petition alleging changed conditions which will give the district court jurisdiction again to hear evidence and try out the case and so on ad infinitum. To enable Mrs. Autry to withstand these frustrating experiences and bear the expense of traveling back and forth from Maryland to Texas, maintaining herself, and paying the lawyer’s fees and court costs, she would have to be possessed of some means and considerable determination.

This matter of abduction of children by one parent from another rightfully in possession, or even wrongfully for that matter, and carrying them into a distant state, happens all too often. Not only is it contrary to good order but is fraught with serious consequences to the mental well-being of the children. The courts should rather encourage the use of legal processes than to reward one who takes the law into his own hands. In my opinion the relator has not shown himself entitled as a matter of equity to the issuance of this writ.

While the action of the Court of Civil Appeals may have been erroneous it is not so clear to me that it exceeded its jurisdiction. In affirming the judgment of the dismissal of Autry’s suit by reason of the pendency of Mrs. Autry’s suit in Maryland, it inferentially held that Mrs. Autry was entitled to possession and temporary custody of the children. The order of that court complained of here actually sought to accomplish no more than to have the possession of the children placed in the hands of Mrs. Autry. That order reads as follows :

“Mandamus is granted and respondent, Judge of the 86th District Court of Texas, is hereby directed to forthwith issue his order remanding the custody of the five children involved herein to the relator, and it is so ordered.”

The order did not deny the right of the district court to try the asserted cross-action on its merits pending the disposition of the cross-action. It may also be construed as directing the relator, Judge, to proceed to hear the writ of habeas corpus apart from the cross-action and enter the only order that the court could reasonably have entered, since the judgment in the Maryland case had become final. Arts. 1823 and 1824, Vernon’s Annotated Civil Statutes.

I would deny the writ of mandamus.

NORVELL and STEAKLEY, JJ., join in this dissent.

      . The El Paso opinion, 359 S.W.2d 272, 276, recites that relator, Judge Crofts, admitted in his answer that the Maryland court did award custody of the children to Mrs. Autry on that date. Additionally there is attached to respondent’s brief what purports to be a photostatie copy of this decree of the Circuit Court for Montgomery County, Maryland, certified by the clerk of that court to be a full, true and correct copy from the record of proceedings ⅛ that court.