author: RUARK, Presiding Judge.

text:
    Charles H. DUTCHER, Plaintiff-Appellant, v. Charles Ivan HARKER and Ellaresa E. Harker, Defendants-Respondents.
    No. 8272.
    Springfield Court of Appeals. Missouri.
    March 27, 1964.

      Walter A. Raymond, Raymond, West & Cochrane, Kansas Clity, Horace S. Hasel-tine, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for plaintiff-appellant.
    Wayne T. Walker, William A. R. Dalton Walker, Daniel, Clampett, Ritterhouse & Ellis, Springfield, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment denying injunctive relief to both parties in an unfair competition suit. The case involves the right to use the brand name “Dutcher-Williams,” the name “Dutcher” alone or in any combination, the labels of the (paint) product, including name, color, and design, advertising and displays, and, to some extent, the quality of the product. Contrary to the usual situation, the seller has sued the buyer; and the buyer has filed a counterclaim likewise praying for injunctive relief.

Plaintiff-appellant Charles Dutcher had been connected with paint business since 1933. He commenced business as a paint manufacturer at Springfield, Missouri, in 1947. This business was (in 1949) incorporated under the name “Dutcher-Wil-liams Paint and Varnish Company.” Dutcher-Williams manufactured and sold a “quality” house paint which contained sixty-seven per cent linseed oil. This was (then) marketed under a label with the words “Dutcher” in large green letters against a white background; directly underneath the word “Dutcher” was the word “Williams” also in green letters, but smaller. Below this were the words (black on white) “Quality House Paint White.” To the side in small letters was the analysis, showing percentage of oil and pigment. Dutcher-Williams also manufactured cheaper or “Economy” paints under various brand names, but no inferior paints were manufactured and sold under the “Dutcher-Williams” name. No paints of any kind were sold under the label (in singular) “Dutcher.” One of the brand names used was that of “Harco,” used on paint which was manufactured for the defendants Harker, who were also in the paint business.

On July 22, 1957, a written contract was entered into between Dutcher-Williams Paint and Varnish Company, a corporation, as seller, and defendants Harker as buyers. By this contract “Sellers have this day sold” and did transfer to buyers the entire stock of goods, wares, and merchandise, including finished products and raw materials and the company truck "as well as the corporate name of the Seller, together zvith all brand names.” It was agreed that accounts receivable were not sold but would be received and remitted to seller. The agreer ment then concluded:

"In order that this contract may be fully carried out, the Seller agrees to promptly dissolve the Dutcher-Wil-liams Paint and Varnish Company so that the Buyers may register said name as a fictitious name under which they ■ will do business."

This agreement was signed on behalf of the selling corporation by C. H. Dutcher (the appellant) as president and Helen Dutcher (his wife) as secretary. Actually Dutcher and his wife owned all of the stock in the corporation with the exception of one qualifying share held in the name of a son.

At trial of the case plaintiff attempted to prove a verbal agreement, contemporaneous with the written contract, that the Harkers agreed that the “Dutcher-Williams” label was to be used only until defendants could get their “Harco” label established and then was to be discontinued, unless he, Dutcher, “came back into the business,-” In explanation of this, plaintiff testified that previously the corporation had “agreed” with another paint company (which sells “Dutch Boy”) not to use the word “Dutcher” alone in any of its brands or labels and that the name “Dutcher” was-to be so used only for so long as he was associated with the business. This explanation and agreement was father indefinite, but' the above is the best we can interpret it. The court refused to receive the parol testimony in regard to this verbal contract (if indeed it was a contract) as in violation of the parol evidence rule, but permitted it to come in as an offer of proof.

The appealing plaintiff urges the validity of such testimony as establishing a contract (1) not to use the word “Dutcher” alone and (2) to discontinue the use of the words “Dutcher-Williams” after the Harco line had been “established.” If we understand appellant’s contentions aright, they are that the evidence was admissible under sort of a mixture of theories: (a) a contract of the individuals, Dutcher with the Harkers, separate and distinct from the contract with the corporation; (b) a contract as to a collateral matter and therefore not within the parol evidence rule; and (c) ambiguity in the written contract.

Plaintiff and his wife were sole owners, stockholders, and officers of the corporation. There is no evidence that this was a forced or involuntary sale of any kind. The sale and dissolution of.the corporation could only be made in these circumstances by the volition, instigation, active participation, and voluntary act on the part of the plaintiff and his wife. In this situation (the contract for dissolution and the sale of assets) the contracting party was more than their alter ego; it was they, themselves. The plaintiff had sold or given the name “Dutcher” to the corporation (to be used in association with “Williams”). It became the corporate property. Plaintiff is now estopped to deny the gift or the sale to the corporation or the sale by the corporation. A court of equity will not permit plaintiff to assert that his right hand did not agree with his left. But if we, for the sake of argument, should assume that the so-called parol agreement between Dutcher and the Harkers was an entirely separate and distinct agreement between separate individuals, then-'we would have to say that it was no contract, for the only consideration m-volved in the so-called separate agreement had to come from the inducement of the sale by the corporation itself.

The parol evidence rule is substantive law. Warinner v. Nugent, 362 Mo. 233, 240 S.W.2d 941, 26 A.L.R.2d 278; Davison v. Rodes, Mo.App., 299 S.W.2d 591; Giraldin Bros. Real Estate Co. v. Stiansen, Mo.App., 315 S.W.2d 636. It is a part of the warp and woof of the law of contracts generally. Were such not the law, no man in modern society could ever feel secure in his business affairs. Hence the rule, subject to exceptions with which we do not now concern ourselves, that where the parties to a contract put in writing that which purports to cover their entire agreement, parol evidence will not be received to change, vary, modify, or contradict its unambiguous terms. Friedman Textile Co. v. Northland Shopping Center, Inc., Mo.App., 321 S.W.2d 9, and citations at 1. c. .14.

A collateral agreement may not be excluded by the parol evidence rule, but that is only where it is an independent and different contract which is not inconsistent with and does not interfere with the terms of the written' contract. While the collateral agreement may relate to the same subject matter, it cannot be so closely connected with the transaction as to form a part of it and so qualify or in effect destroy the written agreement. Crossan v. Noll, Mo.App., 120 S.W.2d 189; Francis & Co. v. Saleeby, Mo.App., 282 S.W.2d 167(2); Burns v. Hales, Mo.App., 360 S.W.2d 735, 736. Of course if a contract is on its face incomplete or is reasonably susceptible of two or more different meanings, then parol evidence is competent to resolve the meaning. Fabick Bros. Equipment Co. v. Leroux, Mo.App., 375 S.W.2d 887, and cases cited in footnotes two and three. And in interpreting a contract, if on the face of the instrument the intention of the parties appears to be in doubt, a court may receive evidence of the situation of the parties and the surrounding circumstances in order to put itself in the position of the parties at the time the contract was made so as to look at it through their eyes. Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527, and cases cited at footnote three, p. 532.

Returning to the contract here involved : It sold “the corporate name of the Seller, together with all brand names.” More than that it provided that the seller would promptly dissolve the Dutcher-Wil-liams Paint and Varnish Company “so that the Buyers may register said name as a fictitious name under which they will do business.” As to the name “Dutcher-Williams,” we think there can be no argument that plaintiff sold, and defendants bought, the right to use that name and brand. The meaning is not doubtful, and we need no construction aid to determine this. Hahn v. Forest Hills Const. Co., Mo.App., 334 S.W.2d 383. Plaintiff's attempt by parol evidence to limit that right to only “until the Harco label was established” is in derogation of the plain terms' of that written contract. Furthermore, if we should hold that this substantive right could be so limited, still plaintiff’s contention must fail, for the evidence lacks sufficient force to show that the “Harco” label is yet “established,” although in a close case such might possibly be inferred from defendants’ advertising. The trial court was correct in refusing to permit the plaintiff to water down the contract by limiting the use of “Dutcher-Wil-liams” for an indefinite period.

The words “all brand names” of course require proof of what were the brand names, if such are involved. Testimony of plaintiff that the seller never used the word “Dutcher” alone was competent to show that such word, in the singular (and not in combination with “Williams”), was not a “brand name.”

Did the plaintiff “sell” the word “Dutcher” ? The contract does not purport to cover that word in the singular. The general rule is that a man has the right, sometimes said to be “inherent,” to use his surname in business unless he clearly and expressly gives up that right, and the presumption is strongly against any such intention.

At this point we find the parties in this position: The defendants acquired the right to use the name and label “Dutcher-Wil-liams” (with other brands) in their business and advertising. A trade name and good will are so closely associated as to be almost inseparable, for they both involve the individuality, skill, and integrity of the maker of the product; and good will is a valuable property right. But the name acquired was “Dutcher-Williams,” not “Dutcher.” It is true that the word “Williams” as used on the labels was in smaller letters than “Dutcher.” Nevertheless it was a distinguishing tail which marked the “Dutcher” so as to set it apart and limit it as a distinct name. The mythical mermaid had the upper body of a beautiful maiden, but she had the tail of a fish. It could hardly be argued that the tail was unimportant as completing identity, or that the being was a woman. In this case we think the word “Williams” was a limiting part of the identity.

After plaintiff sold out he went to Kansas City where he worked for a paint company for three years. Then he went to Wichita, Kansas, and entered into a paint business- — • first as “C. H. Dutcher” and then as “Charles Dutcher.” His label at the time this suit was brought was in freehand script “Charles Dutcher,” both names of equal size in white on red background with a gold or yellow border underlining. He solicited business in the Springfield area including old customers who were then customers of the defendants. This he had a right to do, so long as no deception or other unfairness was practiced, because the sale contract did not contain any restriction against his reentering into business. Regardless of whether he had the right to do so, this probably is what threw the fat in the fire. The evidence shows that before and at the time this case was tried the signs over defendants’ factory and some at other places read or were made to read “Harco-Dutcher” (“Williams” omitted). Various advertisements appeared, some of them in the Wichita newspapers. Most of these depicted a can or cans of paint upon which was shown the single name “Dutcher” below which was shown in very fine print the word “Williams.” In some instances the word “Williams” was not shown at all or, if shown, was shown so small and fine as to be indistinguishable. In one large ad the top streamer above the depicted cans was simply “Dutcher Paints.” The name and address of the manufacturer was not shown, only the dealer. On the same page of one issue of the Wichita Eagle and Beacon are two paint advertisements: one at $3.95 of “C. H. Dutcher” and another at $2.99 of “Dutcher” with “Williams” underneath hut so small as to be indistinguishable if one did not know what he was looking for. Both ads offer “quality house paint.” A handbill was put out under the name of a merchant at McPherson, Kansas, advertising in bold letters “Dutcher Paints.” Neither the cans nor the labels depicted purport to carry the word “Williams.” There were shown various merchants’ displays in and around Southwest Missouri advertising special sales of “Dutcher” house paint. Some of these displays show cans labeled simply “Dutcher” (singular). Defendants also put out color cards under the label “Harco-Dutcher” and a large red and white placard advertising “Harco-Dutcher.” Plaintiff’s Exhibit 1 was a label from a can of "Dutch-er [with small] Williams” house paint, red on white with gold lining and black on white print, “Formula 77, House Paint, White.” The distinctive color design is the same as that used by the plaintiff in his business. It was not the distinctive color design used by Dutcher-Williams when purchased by defendants. Chemical analysis of the paint showed it to contain 31.70% water. In the opinion of a paint manufacturer witness, it was an “inferior” paint and not a “quality” paint. Dutcher testified that he makes a “quality” paint under his name and a cheap paint under the name “Economy” but not under the “Dutcher” label. Plaintiff also put in evidence an order which he had received from a lumber yard in Peabody, Kansas, ordering from him a substantial amount of “Dutcher Latex OS White,” “Dutcher Regular OS White,” and “Dutch-er Interior Latex” in various colors, all products of the defendants.

At the conclusion of plaintiff’s evidence he offered in open court to agree to any limitations the court might put upon his label and then rested. The defendant offered no evidence.

The memorandum decree of the court stated, among other things: (a) that there was no evidence establishing who used the labels first or if either party in any way intentionally copied the other’s label; (b) that the evidence was “very slight” that the parties compete in the same trade territory or that there is any unfair competition in the use of the similar labels; (c) that there was no evidence that the defendants prepared, set up, or furnished any advertising displays, or that they were not the individual work of the retail merchant. For that reason he rendered judgment in favor of defendants on plaintiff’s case and judgment for plaintiff on defendants’ counterclaim.

Although the defendants have not appealed, we cannot in this case determine the rights of the appellant without also determining the rights of the defendants, for these rights are relative, and as one diminishes the other increases in proportion. Both have the right to their names; it is the use of them which makes the problem difficult.

We think the evidence establishes that the parties are in competition in the states of Missouri and Kansas and that there has been and is likely to be confusion of the public as the names have been used. We have determined that defendants had the right to use of the name “Dutcher-Willi-ams.” This would include the right to use the name in the same manner the appellant was using it when he sold — that is, with a smaller “Williams.” We have determined that defendants did not acquire the right to use of the word “Dutcher” in the singular. We have also determined that plaintiff had a right to re-enter business under his own name. But the rights of both of these parties were and are subject to the fundamental law of unfair competition — that is, the use of name and labels must be limited by the principles of honesty and fair dealing. Neither of them has the right to so dress up the name, label, or advertising in imitation of the other in such manner as to make it probable that the public and buying customers will be confused or misled into mistaking the one for the other so that the products of one may be palmed off as the other's ; and so in such manner pirate the othei's good will and business, either by taking business brought in by a reputation founded on skill, industry, and integrity, or by destroying that good will in foisting on it an inferior product.

In considering a question involving unfair competition, a court of equity will scrutinize not only the similarity of names and-labels but also the object and purpose of their selection. Mary Muffet, Inc. v. Smelansky, supra, Mo.App., 158 S.W.2d 168; Lo Buono v. Viviano & Bros. Macaroni Mfg. Co., 197 Mo.App. 618, 198 S.W. 498. In this case the evidence justifies the conclusion that defendants enlarged the name “Dutcher” and reduced or omitted the name “Williams” with the intention of simulating the name and product of the plaintiff ; and the inference is that this was done for the purpose of deceiving the public. It is no defense that this form of piracy was committed by the manufacturer’s dealers. If defendants willfully placed the means with their dealers’ hands, they are subject to injunction. If they gave their dealers the weapon and ammunition, it will be inferred that they intended them to shoot. Williamson Corset & Brace Co. v. Western Corset Co., 70 Mo.App. 424; F. W. Fitch Co. v. Camille, Inc., 8th Cir., 106 F.2d 635; Stewart Paint Mfg. Co. v. United Hardware Distributing Co., 8th Cir., 253 F.2d 568, 8 Cir., 259 F.2d 273.

The enjoining of defendants from the use of the singular word “Dutcher,” except with its limiting appendage “Williams,” apparently will not solve all the problems here involved. Use of deceptive imitations in names and labels can lie not only in similar names and the emphasis on and association of ideas, it can be in the dress and makeup or the manner of writing and presenting the name or even sometimes in the use of colors. Stewart Paint Mfg. Co. v. United Hardware Distributing Co., supra, 8th Cir., 253 F.2d 568, 259 F.2d 273.

In considering zvho is unfairly imitating zvhom in respect to labels used by these parties, it would seem that we should apply the general law applicable to trademarks and determine who first appropriated and used the distinctive arrangement of name, design, color, and general makeup. In so far as brand and label makeup and design is concerned, the question must be determined by the course of action taken by tile parties at the time and after plaintiff went back into business and only so far as and to the extent that such becomes an incident to a design likely to deceive and confuse the public. The fact that a green label with heavy print of certain design was used by Dutcher-Williams at the time defendants bought the business did not require them never to change that design and color. They are only restricted in changing it to a distinctive design and color in imitation (sufficient to mislead the public) of plaintiff’s after plaintiff has appropriated such method of presenting his name and product to the public. The obligation of the plaintiff upon re-entering business and thereafter pursuing it was not to imitate a label and design which defendants had theretofore appropriated. There is evidence given by the plaintiff from which it may be inferred defendants were “chasing” him in color and design by change of labels; however, this evidence is not so clear and distinct as to establish what and which design and colors were first appropriated by him and what changes were made. Moreover there is evidence of one label at one time used by the plaintiff (but probably not at the time of trial) in which the block printed name “Dutcher” with the initials “C. H.” tailing off around the corner was used in such a way that, depending upon its manner of use in makeup and advertisement, it might be considered so close in imitation of defendants’ printed label as to subject plaintiff to the accusation of poaching on the printed “DUTCHER-Wil-liams” label. We think, however, that the use of the name “Charles Dutcher” in equal size letters in script (a label apparently now in use by plaintiff) is not such. (See cases ante.)

No inflexible rule can be laid down by which all cases of this kind will be governed. Each must stand on its own facts and circumstances. Thomas Patrick, Inc. v. KWK Inv. Co, 357 Mo. 100, 206 S.W.2d 359; Better Business Bureau of Kansas City Advertising Club, Inc. v. Chappell, supra, Mo. App, 307 S.W.2d 510(7); Madison v. La Sene, supra, 44 Wash.2d 546, 268 P.2d 1006, 44 A.L.R.2d 1145. The trial court should shape the remedy to meet the situation. Mayo Clinic v. Mayo’s Drug and Cosmetic, Inc, 262 Minn. 101, 113 N.W.2d 852. In-many cases decrees have been rendered to-fit the specific needs of the situations there involved. These cases usually limit the use of the brand or label in certain respects (so they may be clearly distinguished) and yet leave the parties free to the limited use of basic name.

Since the evidence as to first appropriation and use of design, makeup, characteristics, and color of the names and labels used is indefinite, we have no recourse except to reverse and remand the case in the hope that the parties may be able to agree upon the facts which we feel we lack; but if they do not agree, the circuit court shall hear evidence on the same and thereafter enter decree in accordance with the views which we have herein expressed.

It is so ordered.

STONE and HOGAN, JJ, concur.

      . A good example of a competent collateral agreement is that in Hart v. Riedel, Mo.App., 51 S.W.2d 891.

      . Silver Laundry & Towel Co. v. Silver, Mo.App., 195 S.W. 529; 44 A.L.R.2d Anno. 1159; Nims on Unfair Competition and Trademarks, 2d ed., § 67, p. 116, § 68, p. 118; Ralph Bros. Furniture Co. v. Ralph, 338 Pa. 360, 12 A.2d 573.

      . 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 107d., p. 366; Hopkins on Trademarks, Tradenames and Unfair Competition, 3d ed., § 35, p. 74; Nims on Unfair Competition and Trade-Marks, 2d ed., § 19, p. 39; Poorman v. Julian, 22 Ill.App.2d 208, 160 N.E. 2d .169; Burns v. Navorska, 42 Ohio App. 313. 182 N. E. 282.

      . Cullman, Unfair Competition and TradeMarks, 2d ed., Vol. 1, § 2.2, p. 22; Shrout v. Tines, Mo.App., 260 S.W.2d 782; Katz Drug Co. v. Katz, 240 Mo.App. 739, 217 S.W.2d 286; Mary Muffet, Inc. v. Smelansky, Mo.App., 158 S.W.2d 168, see Simplified Tax Records, Inc. v. Gantz, Mo.App., 333 S.W.2d 328.

      . Counts v. Medley, 163 Mo.App. 546, 146 S.W. 465; Karsh v. Haiden, 120 Cal. App. 75, 260 P.2d 633; 29 Am.Jur., Good Will, § 18, p. 813; 38 C.J.S. Good Will § 12, p. 957; 82 A.L.R. Anno. 1030.

      . Grocers’ Journal Co. v. Midland Publishing Co., 127 Mo.App. 356, 105 S.W. 310, 313; Osborn Paper Co. v. Carrold Osborn Paper Co., 361 Mo. 357, 234 S.W.2d 614; Silver Laundry & Towel Co. v. Silver, supra, Mo.App., 195 S.W. 529; Shrout v. Tines, supra, Mo.App., 260 S.W.2d 782; Furniture Hospital v. Dorfman, 179 Mo.App. 302, 166 S.W. 861; Ralston Purina Co. v. Checker Food Products Co., Mo.App., 80 S.W.2d 717; Better Business Bureau of Kansas City Advertising Club, Inc. v. Chappell, Mo.App., 307 S.W.2d 510; Brooks Bros. v. Brooks Clothing of Cal., S.D.Cal., 60 F.Supp. 442, 9 Cir., 158 F.2d 798; Madison v. La Sene, 44 Wash.2d 546, 268 P.2d 1006, 44 A.L.R.2d 1145, and Anno. 1156; Brown Sheet Iron & Steel Co. v. Brown Steel Tank Co., 198 Minn. 276, 269 N.W. 633, 107 A.L.R. 1276.

      . Cook Paint & Varnish Co. v. Cook Chemical Co., W.D.Mo., 87 F.Supp. 865, 8th Cir., 185 F.2d 365; Mishawaka Rubber & Woolen Mfg. Co. v. Panther Panco Rubber Co., C.C.A.Mass., 153 F.2d 662; Bagby v. Blackwell, 240 Mo.App. 574, 211 S.W.2d 69; Better Business Bureau of Kansas City Advertising Club, Inc. v. Chappell, supra, Mo.App., 307 S.W.2d 510.

      . Katz Drug Co. v. Katz, supra, 240 Mo.App. 739, 217 S.W.2d 286; Ralston Purina Co. v. Checker Food Products Co., supra, Mo.App., 80 S.W.2d 717; Charles J. Donnelly, Inc. v. Donnelly Bros. Inc., R.I., 191 A.2d 143; R. H. Macy & Co. v. Colorado Clothing Mfg. Co., 10th Cir., 68 F.2d 690.

      . United States v. Steffens, 100 U.S. 82, 25 L.Ed. 550; Nims on Unfair Competition and Trade-Marks, 2d ed., § 78, p. 152; Hopkins on Trademarks, Trade-names and Unfair Competition, 3d ed., § 34, p. 69; Ethyl Gasoline Corporation v. Jay-Craver, Inc., W.D.Mo., 4 F.Supp. 264 (4); Edgar-Morgan Co. v. Alfocorn Milling Co., E.D.Mo., 270 F. 344, 8th Cir., 282 F. 394.

      . See Cleo Syrup Corporation v. Coca-Cola Company, 8th Cir., 139 F.2d 416, 150 A.L.R. 1056.

      . Charles J. Donnelly, Inc. v. Donnelly Bros., Inc., supra, R.I., 191 A.2d 143; Horlick's Malted Milk Corp. v. Horlick, 7th Cir, 143 F.2d 32; Libby, McNeill & Libby v. Libby, D.C.Mass, 103 F.Supp. 968; Ralph Bros. Furniture Co. v. Ralph, supra, 338 Pa. 360, 12 A.2d 573; see 44 A.L.R.2d Anno. 1177.


source: Caselaw Access Project

author: FRANK D. CONNETT, Jr., Special Judge. PER CURIAM:

license: Public Domain

text:
    Joseph H. LAMB, (Plaintiff) Respondent, v. NEW YORK LIFE INSURANCE COMPANY, (Defendant) Appellant.
    No. 31493.
    St. Louis Court of Appeals. Missouri.
    Feb. 18, 1964.
    On Denial of Rehearing March 12, 1964.

      Hocker, Goodwin & MacGreevy, Henry S. Stolar, St. Louis, for appellant.
    Edward W. Fredrickson, St. Louis, for respondent.
   FRANK D. CONNETT, Jr., Special Judge.

Plaintiff-respondent, Joseph Lamb, brought this action against defendant-appellant, New York Life Insurance Company, for a Declaratory Judgment declaring and determining plaintiff’s rights in and to five (5) certain insurance policies issued by defendant. The parties entered into a stipulation as to the facts necessary to a determination of the issue. By the terms of these policies, plaintiff was the named “insured” and plaintiff’s father, Woodrow Lamb, was named "applicant”, and as such was given all of the powers of an insured (except to designate an irrevocable beneficiary) prior to the anniversary of the policies on which insured’s (plaintiff’s) age at the nearest birthday was twenty-one. This specifically included the right to borrow money against said policy during plaintiff’s minority. These five policies were part of an insurance program begun in 1941 when plaintiff was less than one year old and designed to create a college educational fund for plaintiff. These policies were each Twenty Pay Life with a face value of $5,000. Two of them provided endowments at age 65, and with plaintiff, the insured, as beneficiary of the endowments.

On November 10, 1952, plaintiff’s parents were divorced in Arkansas. The divorce decree required plaintiff’s father to continue to pay the premium of these insurance policies until plaintiff became of age and to “refrain from borrowing against said policies or otherwise , depleting their value.” The decree further required him to pay $300 per month to plaintiff’s mother, $150 allocated to alimony and $150 to child support. In June 1955, plaintiff’s mother sent a copy of this decree to the defendant and received this reply:

“I have discussed your letter and enclosures with our office of General Counsel and they have advised me to mark our records that no action may be taken without reference to the divorce decree dated November 12, 1952.”

In December, 1957, following an inquiry by plaintiff’s mother, defendant wrote that no cash payments could be made on such insurance policies without first securing a modification of the divorce decree.

By July, 1959, plaintiff’s father was in default in the payment of alimony and child support per terms of the decree; plaintiff was anticipating entering college; and plaintiff’s mother was threatening action against his father to enforce payment of the alimony and support payments in order to pay for plaintiff’s freshman year of college.

In August, 1959, without notice to plaintiff or his guardian, plaintiff’s father made loans totaling $4,267.55 on the five insurance policies here involved, and defendant issued checks to plaintiff’s father in that amount.

On August 18, 1959, plaintiff’s father cashed four of the checks totaling $2,600.66, and on the same day the father deposited $2,000.00 in a checking account for the benefit of plaintiff. During the next nine months he deposited $655.75 more in this account. With the exception of one check for $24.77, drawn by his father, plaintiff used said account to purchase clothes and to pay the majority of his expenses at school during the first year.

By June, 1960, except for the payments described in the preceding paragraph, plaintiff’s father had made no payments of alimony or support money for a year; and plaintiff’s mother was again threatening action to enforce this obligation, and for the first time she learned of the policy loans made in August, 1959.

On September 1, 1960, plaintiff’s mother, by her attorney, wrote defendant reminding it of the court decree and of its acknowledgment of the terms thereof, and on October 6, 1960, the defendant replied as follows:

“I agree with you, Dr. Lamb was restrained by court order and should not have applied for the loans which were completed on five policies involved in the court order.
“We are writing to him regarding this situation and trust that there will be no difficulty in the matter. Naturally, no further payments will be made to him.”

On October 31, 1960, the Arkansas divorce court approved a stipulation between the pláintiff’s father and mother providing for (and we quote from defendant’s brief) : “(a) the absolute assignment of the insurance policies by plaintiff’s father to plaintiff’s mother, 'subject only to existing loans against the policies’ (b) sole ownership of and full dominion . over the policies by plaintiff’s mother (c) the naming of plaintiff as beneficiary of the policies, (d) the termination of the duty on the part of plaintiff’s father to pay premiums on the insurance policies, (e) the payment by plaintiff’s father of $2,000.00 to plaintiff’s mother, (f) the release by plaintiff’s mother' of all past, present, or future alimony and support claim, and (g) the assumption by plaintiff’s mother of the obligation to support, maintain and educate plaintiff until his majority.”

Plaintiff at the time of the trial was twenty-one years old and entitled to all the rights of an insured under these policies. The precise question before the trial court was whether the interest of plaintiff in these insurance policies had been affected by loans made to plaintiff’s father by defendant. Is plaintiff’s interest in these policies subject to the loans made by defendant to plaintiff’s, father in the amount of $4,267.55? The trial court found that they are not.

On the defendant’s motion for a new trial being overruled, the defendant appealed.

Defendant’s first contention is that the Circuit Court did not have jurisdiction to render a declaratory judgment because plaintiff had an adequate remedy at law by cashing in his policies, and then when defendant withheld the amount of the loans, plaintiff could sue at law for the amount withheld. The factor which keeps this from being an adequate remedy is that plaintiff is not required to cash in his policies and he should be able to ascertain his interest therein without so doing. He may want to keep his insurance in force. Furthermore, a suit to construe a contract of insurance is properly brought under Section 527.-020, RSMo 1959, V.A.M.S., of the Declaratory Judgment Act. Pennsylvania Casualty Company v. Suburban Service Bus Company, Mo.App., 211 S.W.2d 524. This is particularly true in cases like this one, where there was no dispute as to the facts.

Defendant further contends that the Court could not render judgment in this case because of the absence of- an indispensable party, i. e., plaintiff’s father. Defendant failed to raise this point in the trial court by either motion or answer, nor did it raise it in its motion for a new trial. It has waived the claimed defect and, further, it cannot raise this issue in this court for the first time. See Section 509.340, RSMo 1959, V.A.M.S.; Ray v. Nethery, Mo., 255 S.W.2d 817; Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132. See also Section 512.160, RSMo 1959, V.A.M.S.

Defendant’s third contention is that judgment should have been entered for it because, although it should not have made the loans to plaintiff’s father, the 1960 stipulation between plaintiff’s mother and father discharged it from its liability to plaintiff for having made these loans. The stipulation provided that these policies “will be assigned by Woodrow McDonald Lamb to Jane Davis Lamb absolutely, and Woodrow McDonald Lamb shall take such action as may be necessary to cause all interest which he, or any other person other than the New York Life Insurance Company and Joseph H. Lamb, may have in said policies to be assigned and vested in Jane Davis Lamb, subject only to existing loans against the policies.” It further provided:

“It is understood and agreed that Jane Davis Lamb shall be the sole owner of the said policies and shall have full power, right and authority to cash, pledge, or borrow against the said policies, or to surrender them for different forms of insurance.”

The defendant argues that the clause '“subject only to existing loans against the policy”, and other language in the stipulation referring to these loans, recognize these loans, ratified the making of them, and subjected the cash surrender value of the policies to these loans.

Although plaintiff’s mother’s interest was referred to in the stipulation as that of ■“owner”, the correct terra was “applicant”, because the policies did not provide for an “owner”. They provided only for a “beneficiary”, an “insured”, and an “applicant”, whose interest ceased when “insured” became of age. It may be that the interest transferred, or attempted to be transferred to plaintiff’s mother, would be subject to these loans, but we are here concerned with plaintiff’s interest.

Plaintiff had an interest as the “insured”, separate and apart from that of his father as “applicant”. This interest under the terms of the policies and the terms of the original divorce decree could not be affected by any action of the father, nor of the mother, who was not a party to the insurance contract, prior to her becoming in 1960 the “applicant” unfettered by the original divorce decree. The stipulation was between plaintiff’s mother and father. Plaintiff’s father transferred to plaintiff’s mother all the interest he had, that of the “applicant”. He could transfer no more. Plaintiff as the “insured” had a proprietary right and interest in the monetary value of these policies of insurance which was not and could not have been diminished by any agreement made between 'his mother and father, even though approved by the divorce court. See Wilson v. Kansas City Life Ins. Co., 233 Mo.App. 1006, 128 S.W.2d 319. Also, Ferguson v. Phoenix Mutual Life Ins. Co., 84 Vt. 350, 79 A. 997, 35 L.R.A.,N.S., 844.

Defendant argues that the 1960 stipulation foreclosed the plaintiff’s right to recover the loans. However, plaintiff does not seek to recover the money loaned. He seeks to have his policies free of the lien of these loans. The loan agreement was between defendant and plaintiff’s father, by virtue of the divorce decree and defendant’s acknowledgment thereof, and it did not affect plaintiff’s interest in the policies. The loan created a debtor-creditor relationship between defendant and plaintiff’s father. Defendant is simply an unsecured creditor of plaintiff’s father.

Defendant’s last contention is that to allow plaintiff to recover would be to allow him a double recovery and to thereby unjustly enrich him. Defendant’s theory is that since plaintiff’s father paid $2,630.98 ($2,655.75 less $24.77), to plaintiff during the 1959-1960 school year, after having made these loans amounting to $4,267.55; and that since he paid plaintiff’s mother in the 1960 agreement $2,000.00, some of which may have been used for plaintiff’s benefit; if defendant owes plaintiff anything, it is only the difference between $1,636.57 ($4,-267.55 less $2,630.98), and that amount actually used for his support between October 30, 1960, and February 28, 1962, when plaintiff became 21, nearly sixteen months’ time. The defendant argues that the $2,630.98 and the $2,000.00 were from the insurance loans proceeds and were used for the purposes for which the insurance policies were intended — the support and the education of plaintiff, and that since plaintiff actually received the proceeds of these loans, he was not injured. However, plaintiff in his brief points out that from June, 1959 to June, 1960, defendant made no payments of child support or alimony and by October, 1960, when he paid plaintiff’s mother $2,000.00, he was in arrears $4,800.00. The transcript further shows that plaintiff’s father was relieved of this arrearage and of all future obligations to make alimony and child support payments, although it was sixteen months until plaintiff would become 21.

By the terms of the divorce decree, plaintiff’s father was required to support plaintiff and to create and maintain what amounted to an estate for him by the means of these insurance policies. These were two separate obligations running from plaintiff’s father to plaintiff. Plaintiff cannot be said to have been unjustly enriched when he has received no more than that to which he was entitled, his estate and his support.

It is apparent to the Court that the payments to plaintiff and to plaintiff’s mother of $4,630.98, should be charged to plaintiff’s father’s obligation of alimony and child support and should not be used to offset defendant’s obligation to plaintiff under their contracts of insurance.

The trial court’s judgment for plaintiff is in all respects affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.

RUDDY, J., not participating.

ON MOTION FOR REHEARING OR TO TRANSFER TO THE SUPREME COURT.

PER CURIAM:

Defendant, appellant, files a motion for a rehearing or to transfer to the Supreme Court on the grounds that the court overlooked two points in the following statement from the opinion: “Plaintiff, as the insured, had a proprietary right and interest in the monetary value of these policies of insurance which was not and could not have been diminished by any agreement made between his mother and father even though approved by the divorce court.” Defendant states that we should have applied the law of Arkansas rather than the law of Missouri, and, secondly, that plaintiff’s mother was a Missouri legal guardian rather than a natural guardian, noting that the two cases cited for the above proposition concerned natural guardians rather than legal guardians.

Neither the appellant, nor respondent, cited any Arkansas cases which were in point, and appellant on page 11 of his reply brief stated that it wouldn’t make any material difference whether we applied Missouri law or Arkansas law. The Court on independent research was unable to find any Arkansas cases or statutes on the point. Furthermore, if plaintiff’s mother acted in her capacity as a Missouri Probate Court-appointed guardian of his estate, no Arkansas Court would have jurisdiction to do anything to affect that estate.

Neither party briefed the question as to what the effect would be if plaintiff’s mother, in negotiating the 1960 modification of the divorce decree, were acting in her capacity as an appointed guardian of plaintiff’s estate. However, it is the opinion of the court that it doesn’t make any difference if she were acting in such capacity because, if this decree were to be construed as defendant contends, then the decree would be detrimental to the estate of the ward, the plaintiff in this case; and the mother, as guardian, would have no authority to do anything detrimental to the ward’s estate and her action would be void. See In re Farmers’ Exchange Bank of Gallatin, 327 Mo. 640, 37 S.W.2d 936, 82 A.L.R. 22.

Therefore, the Motion for a Rehearing is overruled.


author: CLAY, Commissioner. Montgomery, J.,

text:
    Keith AYERS, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Keith Ayers, pro se.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellees.
   CLAY, Commissioner.

Appellant petitioned for a writ of habeas corpus, principally on the ground that his constitutional rights were violated because his court-appointed counsel had an adverse interest in the proceeding and had failed to-effectively represent him in presenting his-defense.

The trial court dismissed the petition on the ground that it failed to state facts upon which relief could be granted.

The Commonwealth’s motion to dismiss was based on the ground that since-appellant had a remedy by motion under R. Cr 11.42, he was not entitled to a hearing on his habeas corpus petition. RCr 11.42 is-intended to provide a more satisfactory form of remedy for this type of case than is practicable under habeas corpus. See Higbee v. Thomas, Ky., 376 S.W.2d 305 (1963), and Tipton and Sprinkle v. Commonwealth, Ky., 376 S.W.2d 290 (1964). It is comparable with the remedy provided federal prisoners by 28 U.S.C.A. § 2255. Cf. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1951). The federal statute expressly suspends the right to-proceed by habeas corpus “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him,, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” RCr 11.42 does-not contain such an explicit provision, but its purpose plainly implies it.

Our opinion in Rice v. Davis, Ky., 366 S.W.2d 153 (1963), broadening the remedy of habeas corpus so as to provide an adequate post-conviction review procedure in conformity with the current trend of U.S. Supreme Court opinions, does not apply to proceedings originating on and after January 1, 1963, the effective date of RCr 11.42.

There being no showing that the remedy by motion pursuant to RCr 11.42 is inadequate to test the legality of appellant’s detention, his petition was properly dismissed.

The judgment is affirmed.

Montgomery, J.,

dissents on the same ground as in Commonwealth v. Strickland, Ky., 375 S.W.2d 701 (1964).


author: PALMORE, Judge.

text:
    Bobby J. JONES, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Bobby J. Jones, pro se.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Penitentiary, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.


author: _ PALMORE, Judge.'

text:
    Beecher BURTON, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Beecher Burton, pro se.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   _ PALMORE, Judge.'

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Penitentiary, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.'


text:
    Paul J. PRYOR, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Paul J. Pryor, pro se.
    John B.' Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., for appellee..
   PALMORE, Judge.

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Penitentiary, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Scott BROWN, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    For dissenting opinion see 377 S.W.2d 878.

      Scott Brown, pro se.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Penitentiary, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.


text:
    Clyde W. COLES, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Clyde W. Coles, pro se.
    Robert Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   WILLIAMS, Judge.

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Penitentiary, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.


author: STEAKLEY, Justice.

text:
    COMMERCIAL STANDARD INSURANCE COMPANY et al., Petitioners, v. MERIT CLOTHING COMPANY, Respondent.
    No. A-9863.
    Supreme Court of Texas.
    March 25, 1964.
    Malone, Seay & Gwinn, Dallas, Moore & Lipscomb, Paris, for petitioners.
    T. D. Wells, Paris, for respondent.
   STEAKLEY, Justice.

The subject matter of this case is an assignment for the benefit of creditors which is governed by Article 261 et seq., Vernon’s Annotated Civil Statutes. The suit was by Merit Clothing Company, a corporation, a non-consenting creditor, who is Respondent here, against John Black, the assignee, and his bonding company, Commercial Standard Insurance Company, Petitioners here. The judgment of the trial court that Respondent take nothing was reversed by the Court of Civil Appeals and the cause remanded. The Court of Civil Appeals was of the view that the trial court erred in overruling Respondent’s motion for continuance; that equity provided Respondent a remedy resulting from the fact that the bond of assignee was not filed within five days after delivery of the assignment; and that fraud was established. 371 S.W.2d 59. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

On April 10, 1958, the debtor, John Lut-trell, executed an assignment for the benefit of creditors to all of the goods, wares and merchandise of his dry goods store in Honey Grove, Texas. John Black was named as the assignee. An inventory and list of creditors was attached to the assignment. The inventory valued the assets at approximately $4,175.00 and listed debts in the sum of $7,708.90. The County Judge fixed the bond of Black in the amount of $5,000.00. The bond was executed on April 16, 1958, and approved by the County Judge on April 21, 1958. It was not actually filed, however, until April 18, 1959.

The actual value of the assets delivered to Black, as assignee, was a contested fact issue. There was testimony that this valuation included a ten per cent profit markup, together with merchandise of the value of $849.25 previously levied on under an execution. There was also testimony concerning two burglaries which occurred during the time the assets were in the hands of the assignee in which approximately $1,-000.00 of the merchandise was stolen. Black resigned as trustee on April 20, 1959, after unsuccessful attempts to dispose of the merchandise and after filing his final report. It is unclear from the evidence whether at such time he returned the keys to the building to the assignor or to the landlord. In any event, the landlord, who held a claim for rent of $1,080.00, thereafter undertook to dispose of the merchandise on five successive Saturdays. He applied the net amount from these sales of approximately $825.00 to the payment of his claim for past due rent.

Merit Clothing Company, Respondent, sued Luttrell, the assignor, on August 20, 1958, and took a default judgment against him. On September 18, 1959, Merit instituted the present suit in which it sought to collect its judgment under the bond executed by the assignee. The attorneys of record for Merit in this suit were Wear and Wells of Paris, Texas. The depositions of four witnesses, including those of the assignor, Luttrell, and the assignee, Black, were taken and filed by Merit in November and December subsequent to the filing of the suit. The case pended on the docket without further action until January 6, 1961, when it was set for trial on February 27, 1961. No one appeared on the date of the setting. On July 10, 1961, the case was again set for trial on July 24, 1961, at which time it was continued on motion of the Plaintiff, Merit Clothing Company. On May 7, 1962, the case was set for trial by the court on May 28, 1962. The clerk addressed a notification letter dated May 7, 1962, to Frank Wear, who, with T. D. Wells, composed the firm of Wear and Wells at the time Merit’s suit was filed; the letter contained advices of the setting of the case for trial on the following May 28. The firm of Wear and Wells had in fact been dissolved in April of 1961, but no notification of the dissolution had been received by the clerk, nor had there been any withdrawal by the firm of Wear and Wells as attorneys of record for Merit.

On May 25, 1962, T. D. Wells, the former partner of Frank Wear, forwarded to the clerk a jury fee deposit and demand for a jury and on the morning of May 28 filed motion for continuance on behalf of Merit Clothing Company. The motion asserted that the attorney had a setting of another case in Texarkana on the following day; that Merit could not safely go to trial because settlement negotiations had broken down and it needed to make additional parties, although who they were, and for what purpose, was not shown; and that there were fact issues to be determined as to which Merit desired a jury trial, although no explanation was offered as to why Merit had not placed its case on the jury docket during its pendency since September 18, 1959. The court overruled the motion for continuance and by a judgment signed December 27, 1962, decreed that Plaintiff, Merit Clothing Company, take nothing. No findings of fact or conclusions of law were requested or filed by the trial judge.

The trial court did not abuse its discretion in overruling the motion for continuance. The record is barren of any in-juy to Merit resulting therefrom. And on-the question of diligence we said in Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856, that

“Moreover, a trial court will not be required to grant a motion for continuance, at the risk of committing error in overruling it, when the allegations in the motion examined in the light of the record show beyond cavil a complete lack of diligence as measured by other rules regulating procedure in the trial of cases.”

Merit Clothing Company as a non-consenting creditor had no rights or interest in the property assigned for the benefit of creditors except and unless there was an excess remaining after payment to the consenting creditors of the amount of the debts and the costs and expenses of executing the assignment. Article 271; Schoolherr v. Hutchins, 66 Tex. 324; Moody v. Carroll, 71 Tex. 143, 8 S.W. 510; Craddock v. Orand, 72 Tex. 36, 12 S.W. 208; Schumacher Co. v. McLane, Tex.Civ.App., 89 S.W.2d 477, no writ hist.

The judgment of the trial court implies all necessary findings in its support since no findings of fact or conclusions of law were requested of or filed by the trial judge. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. This includes the implied findings that the assigned assets were insufficient to pay the debts of the consenting creditors and costs' and expenses, and hence that no excess remained. Cf. Schumacher, supra. There is evidence supporting the implied findings and' quite clearly the contrary is not shown as a matter of law. The failure of Black, the assignee, to file the bond within five days as contemplated by Article 266 did not constitute a conversion of the assets assigned to him, as contended by Merit, nor did this failure afford Merit an additional remedy in equity as held by the Court of Civil Appeals. Article 266 expressly provides that the assignment shall be effective as against the assignor and his creditors notwithstanding the failure of the assignee to execute and file the requisite bond. The failure to do so does not vitiate an assignment nor prevent its effectiveness in vesting title in the assignee. Windham v. Patty & Mathews, 62 Tex. 490; Fant v. Elsbury, 68 Tex. 1, 2 S.W. 866; Schoolherr v. Hutchins, supra.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author:
GREENHILL, Justice.
      SMITH, Justice

text:
    E. M. LAND, Petitioner, v. W. R. TURNER, Respondent.
    No. A-9799.
    Supreme Court of Texas.
    Feb. 19, 1964.

      Adams & Granberry, Crockett, for petitioner.
    J. B. Sallas, Crockett, for respondent.
   GREENHILL, Justice.

W. R. Turner instituted this suit against E. M. Land in trespass to try title. Trial' was to a jury which found that Land had-not had 5 or 10 years’ adverse possession of the property. No jury issue was given or requested as to prior possession, but judgment was entered for Turner on the basis of his prior possession. That judgment was affirmed by the Waco Court of Civil Appeals. 369 S.W.2d 716. The main questions here are whether Turner had prior possession; whether his possession was sufficient to entitle him to judgment; whether the possession, if had, was not abandoned; and whether, assuming issues of fact existed on these questions, the burden was upon Turner to obtain fact findings thereon.

Turner’s petition described 340 acres of land, but Land in open court disclaimed as to all but 44 acres.

All of the land in question had belonged to R. C. Stokes. It was in the J. M. Love Survey, Houston County, some five to seven miles west of Crockett, Texas. In September of 1913, R. C. Stokes executed a deed to Dr. E. B. Stokes. The deed conveyed 140 acres of land and included the 44 acres here in question. Dr. Stokes thereafter died. His widow, in 1948, executed a deed to 93.6 acres to the defendant E. M. Land. The property conveyed to Land was in the same survey but was immediately to the south of the 44 acres here in question. The deed from Mrs. Stokes to Land did not include the 44 acres. Land also purchased from Mrs. Stokes other realty immediately to the west of the 44 acres.

In November of 1913, after the deed from R. C. Stokes to Dr. E. B Stokes which conveyed the 44 acres to Dr. E. B. Stokes, R. C. Stokes executed a deed to 180 acres in the J. M. Love Survey to the plaintiff Turner. The 44 acres was included within the 180 acres which Stokes conveyed, or purported to convey, to Turner. The 44 acres involved is the southernmost part of the 180-acre conveyance from Stokes to Turner, and the 44 acres was adjacent to land owned by E. M. Land immediately to the south and west. The plaintiff Turner also owned land to the north of the 180-acre tract.

To recover in trespass to try title, the plaintiff must recover upon the strength of his own title. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). He may recover by (1) proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations, or (4) by proving prior possession, and that the possession had not been abandoned. Prior possession has other ramifications, but we are here dealing with alleged possession by Turner under a deed (though the deed was ineffectual as a conveyance as to the 44 acres), and a trespasser, Land.

It is apparent, at the outset, that under the proof made in this case, the record title to the 44 acres in question is in the heirs of Dr. E. B. Stokes. R. C. Stokes had already conveyed the 44 acres to E. B. Stokes when he executed the conveyance to the plaintiff Turner. And the grant from the widow of E. B. Stokes to the defendant Land did not convey the 44 acres.

The plaintiff Turner did prove a common source of title in R. C. Stokes. And he made a prima facie case when he, as plaintiff, first introduced the deed from the common source to himself of land which included the 44 acres. But this pri-ma facie case was refuted upon the introduction of the prior conveyance of the 44 acres to Dr. E. B. Stokes.

So Turner failed to prove a regular chain of conveyances from the sovereign, he failed to prove a superior title out of a common source, and he neither pleaded nor proved title by limitation. It therefore became his burden to prove prior possession.

Because the courts below have sustained Turner’s claim on the basis of prior possession, the evidence is here set out rather fully. For purposes of this opinion, we shall treat Turner’s evidence of possession of the 180-acre tract which was deeded to him and which included these south 44 acres as evience of possession of the land in question. The defendant Land had no knowledge of the occupancy, if any, of the land until late in 1948. The plaintiff W. R. Turner did not testify on account of the infirmities of his advanced age. His sons did testify as well as the County Surveyor and others.

It is conceded that the land was rural and uncleared. Turner never claimed to have lived upon it. Nor did he claim to have used it for farming or as a pasture for cattle. His contention is that he used it primarily for the purpose of growing timber. He proved that he had paid the taxes upon the land, including the 44 acres, from 1919 through 1961.

Rufus Turner, plaintiff’s son, testified that the family moved to the Wesley Chapel community, in which the land is situated in 1913, the year of the conveyance from R. C. Stokes to the plaintiff W. R. Turner. The Turner family resided on nearby land in the E. Gossett Survey, but not on this tract. The family moved away from the Wesley Chapel community in 1919 to the nearby town of Crockett, Texas. The family planted a small garden on the 44 acres in question. But when the garden was planted, and how long it was maintained, was not shown. Since the family moved away in 1919, it is presumed, in the light of the testimony, that it was not continued after that time. This son, Rufus, left Crockett and lived at Lufkin and Bryan, Texas. He moved to Pasadena, Texas, in August of 1941, and continued to reside there. He could not remember being on the land between 1941 and 1960.

He testified that his father built a sawmill on the 180 acres and that he, the son, worked at it. On cross examination, however, he located the site of the mill on a map or plat at a point near but not upon the 180-acre tract. Later the mill was relocated “right in this area here” (referring to a place on a plat), “due south of the point C.” Point C is, on the map used upon the trial, in the west boundary line of the 180-acre tract. At another place he said, “The sawmill was over here. The sawmill had been removed from the 180-acre tract.” As to the time of the'operation of the sawmill, he said it was operated “about 1922 or-1923”; that it was erected about 1920 and. removed in 1922 or 1923. Mr. Reynolds, bought the mill about 1932 or ’33: “He didn’t move it on our tract, he moved it on. the adjoining tract.” The plaintiff Turner-sold the timber from the 180-acre tract to Reynolds, and Reynolds cut it in 1932 or-1933. Turner also sold timber to A. E.. Hurley, who formerly operated a sawmill “in this area,” and Hurley cut the timber - in 1940.

The younger son, W. A. Turner, went off to college and graduated in 1937. He-was also away from the Crockett area from. 1937 to 1951 when he returned to Crockett.. Between 1951 and 1960, he was on the 180> acres only three or four times. On those-occasions, he had taken his father out to ■ look at the land; and they walked over it except for the extreme south portion, (where the 44 acres are located). He particularly remembered going out once after-a hard freeze to inspect for any timber-damage. He testified about some fences.. That testimony will be noted below.

Mr. Stanley Minns, a local surveyor, testified that he surveyed the land in 1960 for-the plaintiff Turner. He prepared the map- or plat which was used during the trial.. He described the land as being “very brushy throughout on all courses.” The-southern part [where the 44 acres were] was in particularly bad shape. Asked if the-land was suitable for grazing, he said there were parts where cattle could get through; that generally “they could graze on it all right.” There was a gravel pit on the 44-acres with small trees around it. There-were pines, hickory and oaks.

Asked about the condition of the land and. any improvements thereon, he said he-mainly went around its boundaries while-making the survey. He found one or two “clearings.” Asked if there were any structures, he said he found an old syrup mill in the northwest corner. He did not go into-the interior of the 44-acre tract, but said! there could not have been many large fields. In making his survey he saw no houses or "barns.

There was a fence on the west side of the 180 acres, and a fence along a part of the «astern boundary. There was no fence on the northern boundary. He found evidence of an old fence on the northern boundary, hut it was down. Except for some 30 to 60 feet at the southwest corner, there was no fence on the southern boundary, and he found no evidence of there having been one. There was an old fence, running generally east and west across the 180 acres. This was on, approximately, the northern boundary of the south 44 acres. This fence "had been replaced by a new fence in the same area but on a different location. The new fence had been built by defendant Land.

W. A. Turner, the younger son, remembered the old fence on the north of the 44 acres, but testified that there was no fence on the south of it where it joined the defendant Land’s property.

Raymond Cornelius, son-in-law of the E. B. Stokeses, testified that he helped negotiate the sale from Mrs. Stokes to Land in late 1948, and that he walked with Land to the western edge of the property and showed Land where Land’s property was to the south and where the 180 acres were. He did not go into the land because it was pretty rough. He said he had helped the Stokeses manage their land, but he never remembered going into the 180-acre tract. He did not remember any garden on it. He remembered the timber sales. He had heard of the gravel pit, but had never gone to it. He thought an old dim lane led to it.

The plaintiff introduced evidence to support his claim to the 180 acres including the 44 acres in question. In addition to paying the taxes, he had mortgaged the 180 acres in 1930 and in 1938. He had executed oil and gas leases thereon in 1941 and in 1953. The mortgages, their releases, as well as the oil and gas leases, had been placed of record in Houston County.

The defendant Land testified that when he purchased his land in late 1948, it and the 44-acre tract were being used by one Johnson, a tenant of Mrs. Stokes, for grazing. Land purchased the property for grazing his cattle. When Land entered in January, 1949, the land he purchased was fenced; and the land fenced included the 44-acre tract. Apparently Land, according to his testimony, thought his land included the 44-acre tract. He thought he bought everything under fence. There was no fence between Land’s 93.6 acres to the south and the 44 acres adjoining to the north. There was a fence at the northern end of the 44 acres, and Land built a new fence to hold his cattle. He kept the fences up all around his land. In all, Land purchased about 839 acres in the vicinity from Mrs. Stokes. The fence around the 839 acres encloses the 44-acre tract and did so at the time the land was conveyed to him by Mrs. Stokes, although the deed to Land did not include the 44 acres.

While there have been many opinions of this Court and the Courts of Civil Appeals on prior possession, there has not been, at least in modern times, an opinion by this Court on the nature and extent of the possession which is required to constitute prior possession. There are Courts of Civil Appeals’ opinions which vary between the widest extremes. For example, in Street Realty Co. v. Brown, Tex.Civ.App., 291 S.W. 580 (1927, writ dism.), it was held that to support a judgment based on prior possession, the possession must be so clearly defined as to give the claimant exclusive dominion over the property, and that this actual and exclusive possession must have existed up until the very time of his actual dispossession. At the other extreme is Boyd v. Miller, 54 S.W. 411 (1899, writ refused), where plaintiff occupied the land for one year in 1852 but did not occupy the land from 1853 to the time of trial around 1900. It was held that the possession having been once had, though not continued for over 40 years, would support a fact finding of prior possession. The basis for this is apparently a presumption of a continued status of possession in plaintiff.

The opinions of this Court in prior possession cases have not always set out the same tests for the requisite quality of possession necessary for prior possession. In many of the leading cases, there was such actual possession that no question appears to have been raised as to whether the possession was sufficient. House v. Reavis, 89 Tex. 626, 35 S.W. 1063 (1896); Alexander v. Gilliam, 39 Tex. 227 (1873). In an early case where the Court held that there had not been “prior possession,” it was stated that the fact of prior actual possession “must be clearly and unequivocally proved.” Lea v. Hernandez, 10 Tex. 137 (1853). In Wilson v. Palmer, 18 Tex. 592 (1857), and in Parker v. Fort Worth & D. C. Ry. Co., 71 Tex. 132, 8 S.W. 541 (1888), it was said that the actual possession must be continuous, or at least not abandoned. In Duren v. Strong, 53 Tex. 379 (1880), it was held that “the plaintiff having clearly estab-

lished a prior peaceable possession never abandoned, and the defendants having failed to show any right to disturb that possession, the judgment in favor of plaintiff should stand.” 53 Tex. at 382. Where the petitioner and his predecessors “had actual, continuous, and exclusive possession of the land for more than 30 years, and the evidence leaves no doubt as to the fact of actual possession,” it was held that the claim of prior possession should be sustained. Bruni v. Vidaurri, 140 Tex. 138 at 162, 166 S.W.2d 81 at 162-163 (1942). In Pacific Express Co. v. Dunn, 81 Tex. 85, 16 S.W. 792 (1891), this Court said, “* * * an exclusive and peaceable possession of land furnishes prima facie evidence of ownership, which, if not rebutted, is sufficient * * * against a trespasser or mere intruder.” 81 Tex. at 86, 16 S.W. at 792. In Conn v. Franklin by the Texas Commission of Appeals, 19 S.W. 126 (1892) it was said, “In order to enable the plaintiff to recover on the strength of his possession alone, it [the possession] should be actual and corporeal, not merely a constructive possession,” citing Lea v. Hernandez, supra. Similarly, in Humble Oil & Refining Co. v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218 (1934, writ refused), it was held that the later actual possession of plaintiffs would prevail over previous claims of possession by defendants and the previous occasional cutting of timber on the land by defendants.

In defining “possession,” Tiffany says: “We may say, however speaking generally, that one is in possession of land when he is in occupation thereof, with the intention, actually realized, of excluding occupation by others, or when, although not in actual occupation, he claims the right of exclusive occupation, and no person is in occupation opposing his claim. The possession which involves actual occupation of land is conveniently termed 'actual* possession, and that not involving such occupation, ‘constructive’ possession.” 1 Tiffany, Real Property, 3rd ed., § 20, p. 27.

From the foregoing, we conclude that the rule is that to establish “prior possession,” there must be an actual possession of the property which is exclusive, and peaceable. The “actual” possession in Texas to support “prior possession” may be through tenants or agents. Duren v. Strong, 53 Tex. 379 (1880); Pacific Express Co. v. Dunn, 81 Tex. 85, 16 S.W. 792 (1891).

As indicated, it has been held in some cases that prior actual possession has been established as a matter of law. In other cases, it has been held that as a matter of law, there has not been “prior possession.” For example, Conn v. Franklin, Tex.Comm. App., 19 S.W. 126 (1892), where plaintiff merely went on the land and made a crop one year; and Pettis v. Achille, Tex.Civ.App., 313 SW.2d 348 (1958, no writ), where the “possessor” had fenced the property but had never occupied it.

In Humble Oil & Ref. Co. v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218 (1934, writ refused), there were two sets of “possessors.” The defendants owned the adjoining land, and there was evidence that they claimed the land in dispute. On one or more occasions they had cut timber from it. In November, 1931, the plaintiffs went into actual possession. The plaintiffs were ousted by the defendants in December, 1931. It was held that since there had been no actual occupancy of the land until that of the plaintiffs, plaintiffs were entitled to an instructed verdict.

In many cases, it had been held that there was an issue of fact as to prior possession. Lockett v. Glenn, Tex.Sup.Ct, 65 S.W. 482 (1901), where possessor fenced the land and built a cabin on it; Teagarden v. Patten, 48 Tex.Civ.App. 571, 107 S.W. 909 (1908, writ refused), where possessor dug a well, built a house, cleared and cultivated part of the land, paid taxes, and sold timber off .the land; Griffin v. Mauritz, Tex.Civ.App., 308 S.W.2d 599 (1957, no writ), where possessor fenced the land and pastured cattle; and Lynn v. Burnett, 34 Tex.Civ.App. 335, 79 S.W. 64, (1904, no writ), where a large ranch fenced 240,000 acres, but left a “little three mile gap” in the fence, this area being patrolled by cowboys. Said the Court, “Such possession must, of course, be actual, and must be so clearly defined as to give the claimant the exclusive dominion over the property.”

Qnce an actual possession of the land has been established, it must be continuous. But it may be continued by actual or constructive possession if there has been no abandonment of possession. This may be illustrated by Holman v. Herscher (Tex. Sup.Ct., opinion not officially reported), 16 S.W. 984 (1891), where the plaintiffs owned “The Iron Roof House.” They had occupied it, but left town, leaving the house in the hands of an agent for rental. The house was locked when defendants broke in and occupied it. Though the house and land were not physically occupied when defendants entered, it was held as a matter of law that there was constructive possession and no abandonment.

At the other extreme there are cases which hold that there has been an abandonment as a matter of law. In Conn v. Marshburn, Tex.Civ.App., 169 S.W. 1113 (1914, writ refused), .the possessor had moved on the land in 1855 and had built a house, had opened a small field and had cultivated it. He moved off before 1871, and the property was sold for taxes in 1881. No claim was manifested to the property until 1901. Similar is the holding of abandonment as a matter of law in Adels v. Joseph, Tex.Civ.App., 148 S.W. 1154 (1912, no writ), where there had been no possession for 22 years before suit; and Bartee v. W. T. Carter & Bros., Tex.Civ.App., 100 S.W.2d 378 (1936, writ dism.), where the claimant had been out of possession and had exerted no claim for 50 years.

In between these holdings, it has been held on other occasions that there was an issue of fact as to whether there had been an abandonment. Kolb v. Bankhead, 18 Tex. 228 (1856). These cases are summarized in Balli v. McManus, Tex.Civ.App., 311 S.W.2d 933 (1958, writ refused, n. r. e.). This Balli case, as well as Holman v. Herscher, above, holds that where there has been actual possession, it may be continued by constructive possession if there has been no abandonment; i. e., the actual possession need not be present when the opposing party enters if there has been no abandonment.

One who does not prove that his possession was disturbed by another’s entry has the burden to prove that he did not abandon his possession. This is the holding in the leading case of Sabariego v. Maverick, 124 U.S. 261, 8 S.Ct. 461, 31 L.Ed. 430 (1887), in which the U. S. Supreme Court ably interprets the Texas and the common law rule. Thus the rule is that if the plaintiff does not have actual possession when ousted, but claims constructive' possession, he must show the facts amounting to a constructive possession. If the land- was apparently vacant when defendant entéred, the plaintiff “must go further and show that his actual possession was not abandoned; otherwise he cannot be said to have had even a constructive possession.” 124 U.S. at 298, 8 S.Ct. at 481, 31 L.Ed. 430. The Sabariego opinion is followed in Balli v. McManus, Tex.Civ.App., 311 S.W.2d 933 (1958, writ refused, n. r. e.).

Under the foregoing authorities, particularly Humble Oil & Ref. Co. v. Wilcoxon, Tex.Civ.App, 70 S.W.2d 218 (1934, writ refused), we think it doubtful that Turner raised an issue of fact as to prior possession. In the 47 years from 1913 to 1960, the only actual, physical possession shown on the land by Turner was the building and use of a sawmill from 1920 to 1923, the planting of a garden at one time before 1919, and the cutting of timber in 1933 and 1940. The land was open and vacant. The 180-acrc tract was unfenccd on the north, and the 44-acre portion of it was unfenced on the south. Between 1940 and 1960, the only evidence of physical acts of Turner as to the land was that of looking at it and walking upon it on three or four occasions. There were no improvements on the land, no cultivation, and no cattle of Turner’s, just growing trees and brush.

There was a good deal of evidence which might support a claim of ownership and constructive possession by Turner: payment of taxes and the execution of mortgages and oil and gas leases. But there must be prior actual possession to initiate “prior possession” in trespass to try title.

In any event, the evidence of possession by Turner was not sufficient to establish prior possession as a matter of law. It therefore was an issue of fact. The burden was upon Turner to establish this fact finding as part of his case in trespass to try title. In Garcia v. Garza, Tex.Civ. App, 161 S.W.2d 297 (1942, no writ), it was held that prior possession was an independent ground of recovery. The holding was sound. As stated at the outset, in a trespass to try title case, the plaintiff must recover upon the strength of his own title; and the grounds of recovery are proof of (1) regular chain from the sovereign, (2) superior title from a common source, (3) adverse’ possession, or (4) prior possession. Each of these is an independent ground. In the Garcia case, it was held that if no request was made for the submission of special issues under the theory of prior possession, this ground of recovery was considered to have been waived. If we assume that there was an issue of fact here on prior possession, no special issue was given or requested thereon. This ground of recovery was therefore waived. The Garcia case was followed on this point by Stringfellow v. Brown, Tex.Civ.App, 326 S.W.2d 1 (1959, no writ).

Turner did not establish his title under any other theory, and the courts below erred in holding that Turner established his title or right by prior possession.

This holding makes it unnecessary for us to pass on Land’s remaining point of error: that since Turner was not in actual possession when Land entered, Land could successfully defend this suit by showing the outstanding legal title in a third person. Compare: Alexander v. Gilliam, 39 Tex. 227; House v. Reavis, 89 Tex. 626, 35 S.W. 1063 (1896); Humble Oil & Refining Co. v. Wilcoxon, Tex.Civ.App, 70 S.W.2d 218 (1934, writ refused); Teagarden v. Patten, Tex.Civ.App, 107 S.W. 909 (1908, writ refused); with Lund v. Doyno, 127 Tex. 19, 91 S.W.2d 315; Bates v. Bacon, 66 Tex. 348, 1 S.W. 256; Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951) ; and Wehrly v. Humble Oil & Ref. Co., Tex.Civ.App., 64 S.W.2d 396 (1933, writ refused). See Casenotes, 12 Tex.L.Rev. 523,. and 16 Tex.L.Rev. 598.

The judgments of the courts below are reversed, and judgment is here rendered' that plaintiff Turner take nothing.

SMITH, Justice

(concurring).

I agree with the result. It is my view that Turner failed, as a matter of law, to establish title under the theory of prior possession. This being true, there is no necessity to go further and discuss the question of whether or not Turner abandoned possession of the land involved in this suit. Nor is the discussion of constructive possession on the part of Turner necessary. The record shows that Stokes was and is the true owner of the land. Stokes is presumed to be in constructive possession.

Since Turner failed to discharge the burden of proof resting with him to prove title through prior possession or otherwise, it is proper to enter judgment that Turner take nothing.


author: WOODLEY, Presiding Judge.

text:
    Wendell Odell STEPHENS, Appellant, v. The STATE of Texas, Appellee.
    No. 36686.
    Court of Criminal Appeals of Texas.
    March 18, 1964.
    Rehearing Denied April 22, 1964.
    John Patrick McDowell, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by a prior conviction for burglary with intent to commit theft, 10 years.

The prior conviction was proved as alleged.

The indictment alleged the theft of a suit of men’s clothing of the value of over fifty dollars from Weldon Barnett on or about the 8th day of November, 1962.

Weldon Barnett testified that he was a supervisor for Sanger-Harris, a department store located in Preston Center in Dallas, and was assigned to the men’s area ; that as supervisor he had the care, control and custody of all the men’s suits in that department. He identified a new man’s suit which had been picked up off the street as; having been taken from his department without his consent, and testified in part:

“Q. I’ll ask you if you have an opinion as to the price of this suit, the fair market value of that suit as was sold on November the 8th, 1962.
“A. $55.00.
“Q. $55.00 is the value of the suit?
“A. Right.
“Q. Is there a price tag on the suit?
“A. Yes, sir.
“Q. And what is the value as marked on the price tag?
“A. $55.00.
******
“Q. Suit of that same general type sold on November 8th, 1962 for $55.00?
“A. Right
“Q. That is also what you base your opinion, too, I take it ?
“A. Right.”

Wilma Gallant, store investigator for Sanger-Harris, testified that she saw Lila Jo Bentley and the appellant in the suit department “ * * * and this man was leaning over the woman covering her with his coat sort of with his arm. * * * She took this man’s suit off the rack, rolled it up, hanger and all, and stuck it up under her skirt and dropped her skirt, and then they very slowly walked out of the store, him covering her, and helping her all the way to the front door.”

“Q. Did they run out of there?
“A. No sir, no, because when she had this suit between her legs she couldn’t run.
“Q. Just walked kind of slowly?
“A. Slowly and sort of a shuffling step. * * *
“Q. And what about the man?
“A. The man was helping her along and walking very slowly with her covering her on the way out.”

She further testified that outside the store D. L. Hutchinson, Protection Manager for Sanger-Harris, and Mrs. Gallant came up behind the couple. As they stepped off the curb Mr. Hutchinson took ahold of the woman’s arm and the suit which had been taken from the store fell out of her dress onto the sidewalk. Both Lila Jo Bentley and the appellant fled, but were soon apprehended and returned to the store.

Mr. Hutchinson testified that when he stopped Lila Jo, the appellant drew back to hit him and he turned her loose and started at him and the appellant broke and ran.

On cross-examination Mr. Hutchinson was asked and answered:

“Q. Did he say anything to you when you finally caught him?
“A. Yes, he did. When I finally caught him, he didn’t want me to handcuff him and take him back.
“Q. What all did he say?
“A. That I wasn’t going to take him back.
“Q. Did he say he didn’t do it?
“A. He didn’t do it, she did it, and he was just helping her.”

Four propositions are advanced upon which reversal is sought. The first three relate to the sufficiency of the evidence: (1) To show that the suit was of the value of $50 or more; (2) To show an intent to deprive the owner of the suit of clothes of its value; and (3) To show that the appellant acted as a principal with Lila Jo Bentley in the taking of the suit.

The evidence above set out is deemed sufficient in each of the particulars mentioned and sufficient to sustain the jury’s verdict.

The fourth and last ground for reversal is the contention that the court erred in allowing the state’s attorney to read to the jury the judgment and sentence of a prior conviction of the appellant as well as the indictment in the present case.

We are not disposed to depart from our holding in numerous decisions that the state may allege and prove a previous conviction for the purpose of enhancing the punishment under the applicable enhancement statute. (Arts. 61 to 63 P.C.) Dozier v. State, 167 Tex.Cr.R. 84, 318 S.W.2d 80, cert. denied 361 U.S. 849, 80 S.Ct. 107, 4 L.Ed.2d 88; Welch v. State, Tex.Cr.App., 341 S.W.2d 909; Carso v. State, Tex.Cr.App., 375 S.W.2d 297.

The court in his charge instructed the jury that they could not consider the prior conviction alleged or any evidence relating thereto in passing upon the guilt or innocence of the defendant.

Finding no error, the judgment is affirmed.


author: DICE, Commissioner.

text:
    John Daniel McGRUDER, Appellant, v. The STATE of Texas, Appellee.
    No. 36612.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Rehearing Denied April 22, 1964.

      Marvin O. Teague, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault; the punishment, a fine of $500 and 365 days in jail.

The complaint and information charged an aggravated assault when committed with ■a knife, as defined in subdivision (10) of Art. 1147, Vernon’s Ann.P.C.

In charging the offense it was alleged that on or about the 26th day of May, 1963, in Harris County, Texas, the appellant did “make an aggravated assault in and upon Robert Bailey, by then and there cutting and stabbing the said Robert Bailey with a knife.”

Appellant filed no exception or motion to ■quash the complaint and information in the trial court but urges on this appeal that the information is fatally defective because it does not allege that an assault and battery was committed and that the same was unlawful.

The allegations of the complaint and information state the commission of an ■assault and battery and are sufficient to ■charge an offense. The failure to specifi•cally allege that the assault was unlawful did not vitiate the information, as the facts alleged therein clearly show the act to have been unlawful. Veevers v. State, Tex.Cr. App., 354 S.W.2d 161.

At the trial, the prosecuting witness, Bailey, testified that on the night in question he was at the ElDorado Club drinking beer; that during the evening he went outside where he saw the appellant’s sister, to whom he had once been engaged; that he asked her about what she had been saying about him and she began to curse him; that he caught her by the arm and after he turned her loose and she called to the appellant for help, the appellant came running to the witness and struck him in the left side. He stated that he then told appellant he did not want to fight and appellant replied, “ * * * you are going to fight me, you jumped on my sister,” whereupon the witness ran across the street and was pursued by appellant. He related that as he was fleeing from appellant, someone gave him a gun and that after he took the gun he turned around and told appellant to stop; and that appellant continued to advance upon him and he hit appellant on the head with the gun and knocked him down. The witness stated that when he knocked appellant down, he (the witness) saw that appellant had a knife in his hand which he described as a pocket knife and as being “very long.”

Bailey stated that at such time two officers arrived upon the scene and took him to the hospital after it was ascertained that he had been cut. In describing his injury, Bailey stated that he had a knife cut which penetrated his spleen and that an operation was performed in which the spleen was removed.

Appellant did not testify but called two ' witnesses, Penny Mae Barnes and his sister, Marion McGruder, who gave their version of the difficulty and stated in substance that it was Bailey, the injured party, who started the fight with appellant and struck the first blow. Both witnesses swore that they did not see appellant with a knife on the night in question.

• The record presents no formal bills of exception and there are no objections to the court’s charge.

We overrule appellant’s contention that the evidence is insufficient to sustain the conviction and that the court erred in overruling his motion for an instructed verdict of not guilty, on the ground that the evidence showed the defense of another as a matter of law. The evidence is clearly sufficient to support the allegation of the state’s pleading that appellant cut and stabbed the injured party with a knife.

While the testimony shows that appellant cut the injured party on the occasion of the difficulty between the injured party and appellant’s sister, we are unable to say that the defense of another was established as a matter of law. See: Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260; Pruneda v. State, Tex.Cr.App., 329 S.W.2d 886.

In this connection it should be noted that no charge on self-defense or defense of another was submitted to the jury and none was requested by appellant. In the absence of an objection to the charge or a requested charge, appellant’s complaint to the court’s failure to submit such a charge to the jury is not before us. Nesbit v. State, 165 Tex.Cr.R. 336, 306 S.W.2d 901; Morgan v. State, Tex.Cr.App., 341 S.W.2d 438; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841.

At the hearing on the motion for new trial, it was developed that as the court reconvened following the noon hour one Jesse Curtis Moore was called to the stand and asked his name and address and at this juncture the court interrupted the proceeding because he discovered that a juror was missing. The juror then appeared and took her place in the jury box and the witness was again asked his name and address and the questioning continued.

In this we perceive no error.

While being questioned, • it was discovered that the witness had talked to the injured party during the noon hour (in violation of the rule) and the court directed that his testimony be stricken, and no further questions were propounded to him.

No objection was made by appellant to the court’s action, and any complaint thereto was waived.

Appellant’s remaining complaint is that the punishment assessed by the jury was onerous, cruel, unusual, and excessive.

The punishment assessed is within the limits prescribed by law and it is not within the province of this court to pass upon the propriety of such punishment. Manning v. State, 162 Tex.Cr.R. 329, 284 S.W.2d 903; Hunt v. State, 167 Tex.Cr.R. 51, 317 S.W.2d 743.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    John Forrest LOWE, Appellant, v. The STATE of Texas, Appellee.
    No. 36848.
    Court of Criminal Appeals of Texas.
    April 8, 1964.

      Orville A. Harlan, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with three prior felony convictions alleged for enhancement; the punishment, life.

A Texas Ranger and two Houston City Police Officers, who had received information that a certain building was to be burglarized that night, proceeded to the building, and after securing permission from the owner, secreted themselves therein. After a short wait, they heard the rear door of the sheet iron building being forced open. Shortly thereafter, appellant, whom they knew and whom they were able to identify with the aid of light coming in the windows of the building, and one Bourg entered the building. After they had proceeded a distance therein, one of the officers called out, “Hold it right there.” This was answered by pistol fire from one of the burglars. The officers returned the fire; one of the burglars fell and the other escaped through the entrance which they had forced. After the lights in the building were turned on, it was discovered that Bourg, who was unarmed, had been killed. Appellant was not apprehended until some hours later. It was discovered that he had been shot once in the leg and once in the back.

The prior convictions were established by the prison records, fingerprint comparisons and other testimony.

Appellant did not testify in his own behalf or offer any affirmative defense.

We find the facts sufficient to support the conviction and shall discuss the contentions advanced by counsel on appeal in his brief. He first contends that the court erred in admitting the judgments and sentences in the prior convictions alleged for enhancement, in that two of them showed that they had originally been charges containing allegations of prior convictions, but the prior convictions had been abandoned by the State, and the appellant had plead guilty to the primary offense charged therein.

Reliance is had upon McGill v. State, 160 Tex.Cr.R. 324, 269 S.W.2d 398, wherein we held that a prior conviction might not be successfully used for enhancement purposes more than once. There are several reasons why appellant’s contention cannot be sustained. First, the judgment showed that the prior convictions had not been successfully used for enhancement. Secondly, appellant’s trial counsel leveled their objections to the instruments as a whole, and therefore, this case comes under the rule announced by this Court in Heard v. State, 148 Tex.Cr.R. 19, 184 S.W.2d 285.

Appellant next contends that the State failed to show that each prior conviction had become final prior to the commission of the offense in the next succeeding conviction charged. The first conviction was on April 4, 1947, for an offense committed on February 4 of that year, and the records of the Department of Corrections show that he was incarcerated for such conviction. The second conviction was on January 10, 1952, for an offense committed on April 1, 1951, and records of the Department of Corrections show that he was incarcerated for such conviction. The third conviction was on September 30, 1955, for an offense committed on August 27, 1955, and the records of the Department of Corrections show that he was incarcerated for such conviction. We perceive no merit in appellant’s contention.

Appellant next contends that the Court erred in charging the jury on the abstract law of principals. Reliance is had upon Perez v. State, 141 Tex.Cr.R. 575, 150 S.W.2d 402. As we view Perez, it was not reversed because the court charged on principals, but Judge Graves merely observed that, in his opinion, such a charge under the facts was not called for. A far sounder conclusion is expressed in Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092, 1093, where an abstract charge on the law of principals was given without being applied to the facts, and Judge Morrow said: “To reverse the case because of the charge mentioned would, in our opinion, do violence to the statutory command inhibiting a reversal of the conviction on account of a charge not calculated to injure the rights of the accused.” Durham has been cited with approval in Allen v. State, 114 Tex.Cr.R. 79, 21 S.W.2d 527; Branch v. State, 116 Tex.Cr.R. 205, 33 S.W.2d 1069; Graves v. State, 118 Tex.Cr.R. 591, 40 S.W.2d 100; Day v. State, 118 Tex.Cr.R. 244, 42 S.W.2d 1013; Miers v. State, 124 Tex.Cr.R. 152, 60 S.W.2d 217; Fine v. State, 125 Tex.Cr.R. 337, 68 S.W.2d 192; and Johns v. State, 129 Tex.Cr.R. 206, 86 S.W.2d 235.

Appellant’s last contention is that the court erred in admitting evidence of the wounds upon the body of appellant at the time of his arrest because the officer who arrested him did not have in his possession a warrant authorizing the arrest of appellant. Officer Coica testified that immediately after the shooting he filed charges against appellant. One of the officers who participated in the arrest testified that his lieutenant had informed him that he had a warrant for appellant’s arrest. Be this as it may, several other witnesses had testified prior to the making of any objection as to their observation of appellant’s wounds after he was placed under arrest.

Counsel is to be commended for his diligence, however, we find no reversible error, and the judgment is affirmed.


author: McDonald, judge.

text:
    Luther C. KIRKWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 36779.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    No attorney of record on appeal for appellant.
    James E. Barlow, Dist. Atty., Raymond A. Wietzel, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is burglary with intent to commit theft (repeater); the punishment, twelve years confinement in the state penitentiary.

The appellant has filed no formal bills of exception, nor has he filed a brief in this-cause.

The only question presented for review is whether or not the evidence is sufficient to support the jury’s verdict. No witnesses were called by appellant, and he did not testify in his own behalf. From the evidence presented by the state, the following was adduced: On August 3, 1963, when Mr. Terry Ricks, fleet service manager at Hemphill-McCombs Ford Company, left work the cigarette machines were unbroken, the windows and doors were checked and locked and the building secured. Mr. Ricks further testified that he did not give appellant or anyone else permission or consent to break into the place of business on August 3, 1963

Mr. Jack Gilbert, an investigator for Texas Industrial Surveys, testified that his company had a central office burglary alarm system installed in the premises of the Motor Company and that alarm switches were set up on the coke machine, on the parts department door, on several doors inside and also on an overhanging door. He testified that on the night in question the alarm system was set off; that the central office telephoned him at his apartment, and as a result of the call he proceeded to the Motor Company, taking from five to seven minutes to get there. Upon waiting outside the fence about two minutes, Mr. Gilbert hear the overhead door of the building slowly raise and lower and within three seconds, saw appellant come around the corner into view, stooping over so as to avoid being seen. Mr. Gil-bart drew his pistol and told appellant to lie face down on the pavement with arms outstretched, as a fence separated them.

When police officers arrived they inspected the premises and found the coke machine broken open, the lock on the door separating the parts and service department was broken, and the grease rack window to the outside was broken open. The appellant was searched and ten dollars and seventeen cents in nickels, dimes and quarters was found in his pockets. Also a sack containing approximately fifty-three packs of cigarettes was found by a truck where appellant was seen to stoop over after coming from the building. It was also shown that the coins in question were the type which could be used in the machines which had been broken into.

The indictment alleged that appellant was convicted on September 14, 1961, in Harris County for the offense of theft of over fifty dollars and this allegation was properly proven by the state.

We find the evidence sufficient to support the jury’s verdict.

No reversible error appearing, the judgment is affirmed.