author: WILSON, Justice.

text:
    Roxie Mae ARMSTRONG, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 4010.
    Court of Civil Appeals of Texas. Waco.
    April 19, 1962.

      Carter, Gallagher, Jones & Magee, Morton Rudberg, Dallas, for appellant.
    Leachman, Gardere, Akin & Porter, Gordon H. Rowe, Jr., Dallas, for appellee.
   WILSON, Justice.

Defendant’s motion for instructed verdict _ was sustained in an action for recovery of accidental death benefits under defendant’s policy naming plaintiff beneficiary. The policy covered “loss resulting directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means”, excluding loss resulting “from self-destruction” whether sane or insane, and that “caused by intentionally self-inflicted injury.” Insured died as a result of a self-inflicted gun shot wound which plaintiff alleged resulted accidentally, and which defendant asserted was caused intentionally.

Plaintiff says the evidence raised a jury issue that death resulted from accidental means, and did not show conclusively insured died as a result of intentional self-destruction.

The only living witness to the shooting is described by plaintiff as the paramour of deceased. Her testimony was that after an argument with her alone in her apartment following drinking of intoxicants, assured held a loaded revolver to his body and asked “Are you tired of me? Why don’t you just go ahead and pull the trigger!”; that she turned and “he had the gun half-cocked, and when I said T am not pulling’, he said he would, and all at once a 'boom’ ”. Deceased had pressed the pistol to “his side, stomach or lower part of his body.” She testified deceased was not drunk. He died later in a hospital.

Appellant relies on evidence showing deceased had never before threatened to. kill himself, was in good health, had a steady job and no known enemies; and testimony of a police officer that the revolver was a single-action type which must be manually cocked; that it was usually necessary- that this type of weapon be fully cocked to fire, but the revolver used by insured could be fired when the hammer was in the half-cocked position. Insured had the pistol in his possession for several days before the occurrence.

The burden of proving that insured’s death was by accidental means rested on plaintiff. Plaintiff’s own evidence negatived any presumption against suicide. “The negative of suicide was an element of Plaintiff’s case.” Combined American Insurance Co. v. Blanton, Tex.Sup., 353 S.W.2d 847, 849.

We have carefully examined all the favorable circumstances which may be said to support plaintiff’s claim and- in our opinion the court correctly instructed a verdict.

Appellant complains of exclusion of a copy of a certificate of death signed by a Justice of the Peace, certifying he held an inquest on the day of death, and that death was caused by gunshot wounds. The certificate contained blanks after the words, “Accident”, “Suicide” and “Homicide.” An “X” mark was inserted in the “Accident” blank. The acting City Registrar of Vital Statistics certified that the document was a true copy of the death certificate. The Justice of the Peace did not testify; he was not present at the shooting, and there is nothing to show the sources or nature of information on which he based the conclusion, or from which he filled the blank.

We are not concerned with the problems of whether death certificates are generally admissible, or whether they are admissible as evidence of cause of death. The question is whether it was reversible error to exclude this certificate under the facts in the present case. More accurately, perhaps, the problem is whether the statement in the certificate would constitute evidence of probative force to raise an issue or support a finding authorizing recovery. Gulf C. & S. F. Ry..Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937. The-problem has caused concern, but in our opinion it was not reversible error to exclude the certificate.

Appellant urges it should have been admitted under provisions of Art. 4477, Rules 40a, 41a, 51a and 52a, Vernon’s Ann. Tex.Stat. We do not consider reversal maybe predicated on Art. 4477 in any event, since the only provision that a copy of a death certificate shall be prima facie evidence of “the facts therein stated” is Rule 54a thereof, which only applies to copies certified by the State Registrar of Vital Statistics, and not to those certified, as is this, by local registrars.

Rule 41a of Art. 4477 authorizes a Justice of the Peace to state in the certificate only whether the death was “probably” accidental, suicidal or homicidal. Whether the conclusion of the officer as to such probability is a “fact” under Rule 54a is considered in Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484, 487, writ dism. c. j., and other authorities listed below.

Appellant argues, however, that the certificate should have been admitted on the issue by virtue of Sec. 1, Art. 3731a, which provides that any written instrument, certificate, record, return or report made by an officer of a governmental subdivision in the performance of the functions of his office shall be “so far as relevant, admitted in the courts of this State as evidence of the matter stated therein.” The “certificate” is the only part of the proffered document “made” by the local registrar. The Justice of the Peace made the “record, return or report;” and we think Art. 3731a limits the “matter stated”, in the performance of the functions of his office in making the certificate of death, to the statements prescribed by the only statute making this a function of his office. Art. 4477, Rule 41a. Belford, Clarke & Co. v. Scribner, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514.

We have found no case by a Texas court holding that a statement as to whether death was by accident or suicide in a death certificate by a Justice of the Peace after inquest, or otherwise, is admissible on these issues.

Although all do not involve construction of statutes, the following decisions hold directly that such statements are not admissible, or hold that other statements in death certificates or inquest findings are not admissible to show cause of death where that issue is controverted: Boehme v. Sovereign Camp, Woodmen of the World, 98 Tex. 376, 84 S.W. 422; Service Mut. Ins. Co. of Texas v. Banke, Tex.Civ.App., 155 S.W.2d 668, writ refused; Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484, 487, writ dism. c. j.; American Nat. Ins. Co. v. Fress, Tex.Civ.App., 142 S.W.2d 531, 532, writ dism. c. j.; First States Life Co. v. Ransom, Tex.Civ.App., 110 S.W.2d 143, 145, no writ; Washington Nat. Ins. Co. v. Chavez, Tex.Civ.App., 106 S.W.2d 751, 752, writ dism.; Texas Employers’ Ins. Ass’n v. Ritchie, Tex.Civ.App., 75 S.W.2d 942, 944, writ dism.; Dent v. Nat. Life & Acc. Ins. Co., Tex.Civ.App., 6 S.W.2d 195, 196, no writ. Contra: Mutual Life Ins. Co. v. Hayward, Tex.Civ.App., 27 S.W. 36, 38, no writ. See also Aetna Cas. & Surety Co. v. Love, 132 Tex. 280, 121 S.W.2d 986; Pan American Life Ins. Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787, 793; Fite v. State, 158 Tex.Cr.R. 611, 259 S.W.2d 198, 200; Missouri Pacific R. R. Co. v. Harkins, Tex.Civ.App., 346 S.W.2d 910, 914, writ ref., n. r. e.; Tichenor v. Little, Tex.Civ.App., 279 S.W.2d 379, 381, writ ref., n. r. e.; Smith v. Riviere, Tex.Civ.App., 248 S.W.2d 526, 530, no writ; Folse v. Monroe, Tex.Civ.App., 190 S.W.2d 604, 609, writ ref. w. m.; Universal Life & Acc. Ins. Co. v. Ledezma, Tex.Civ.App., 61 S.W.2d 165, 166, writ dism.; Green v. Missouri State Life Ins. Co., Tex.Civ.App., 219 S.W. 552; 46 C.J.S. Insurance § 1337, p 484; McCormick, Handbook of Evidence (1954) p. 616; Norville, Selected Writings on Evidence (1957) p. 918; 16 Minn.L.Rev. 209; 59 Harv.L.Rev. 481, 561; 30 Tex.L.Rev. 112, 118; 96 A.L.R. 324 ; 20 Am.Jur., Sec. 1027, p. 866; Cum.Supp. 171; 69 A.L.R.2d 1158; cf. 5 Wigmore, Evidence, Secs. 1670 et seq.; 32 C.J.S. Evidence § 638, pp. 497, 498; 159 A.L.R. 181, 191; 24-B Tex.Jur. p. 879.

Although the rule in other jurisdictions is not uniform, the majority rule is summarized in 28 A.L.R.2d 362: “In many jurisdictions there are statutes providing for the admission in evidence under certain circumstances of either (1) reports or death certificates issued by the coroner, (2) records of births and deaths generally, or (3) records of public officers generally.

“With respect to the question of the admissibility of the reports of coroners, these statutes have been consistently construed as not allowing their admission for the purpose of proving suicide;” and id. 354: “As a general rule the coroner’s finding or verdict is not admissible on the issue of suicide.”

In stating that the “weight of authority refuses to admit these opinions” as to whether a death is accidental or suicidal under statutes making contents of death certificates admissible as prima facie evidence of matters stated therein, the reason' is given in 27 N.Y.U.L.Rev. 158 (1952) : “The rationale underlying legal intent in requiring the report to state whether death was accidental, suicidal or homicidal is the compilation of vital statistics for public purposes,” and not to make the conclusions admissible to show accident or suicide when these matters are at issue in civil litigation.

In 69 A.L.R.2d 1151, 1152, 1158, the cases under official records acts are collated and analyzed, and the general rule from these decisions is summarized: "‘courts exclude statements contained in a report of a police or public officer or employee concerning the cause of or responsibility for an injury to person or property, notwithstanding the rule that public records and reports are admissible in evidence”. In 153 A.L.R. 166 the rule from decisions which construe such statutory provisions is stated: “Notwithstanding the general rule that public records and reports are admissible in evidence, the courts almost universally exclude statements contained in such reports or records the cause of or responsibility for any injury to the person.”

The judgment is affirmed.

      . Art. 3731a, Sec. 1, as it existed before the 1961 amendment (Acts 1951, 52nd Leg., eh. 471, p. 830) included any written “statement” in the list of subject matter dealt with. The 1961 amendment (Acts 1961, 57th Leg., Reg.Sess., ch. 321, p. 685) deleted or omitted the word “statement”.

      . In Marker v. Prudential Ins. Co. of America, 5 Cir. 1960, 273 F.2d 258, one Judge disagreeing, the majority concluded the statements were admissible as prima facie evidence, subject to explanation and contradiction. A medical Examiner (Art. 989a, Vernon’s Ann.C.C.P.) had made two certificates: the first stating death was due to suicide; and the other, that death was caused by accidental shooting. The trial court admitted the first, but excluded the other. The direct holding was that the court erred “in admitting the original death certificate, while refusing to admit the amended certificate.” It may be noted that the Court cited the Federal Business Records Act, 28 U.S.C.A. § 1732 which provides “lack of personal knowl- • edge” by the entrant does not affect admissibility; whereas the Texas equivalent, Art. 3737e, requires personal knowledge; and under Federal decisions construing the former, the certificate is admissible. Rule 43, Federal Rules of Civil Procedure, 28 U.S.C.A. provides the statute or rule which favors reception of evidence shall govern. Of. Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156; Gilbert v. Gulf Oil Corp., 4 Cir., 175 F.2d 705; Gordon v. Robinson, 3 Cir., 210 F.2d 192.
      In Universal Life & Ace. Ins. Co. v. Barron, Tex.Civ.App., 269 S.W.2d 467, 471, writ ref. n. r. e., cause of death was not in issue, and it was said there was no reversible error in admitting a certificate stating the cause as pulmonary hemorrhage, where appellant had pleaded this was the cause of death and introduced other evidence in support of the allegation.
      In American Nat. Ins. Co. v. Valencia, Tex.Civ.App., 91 S.W.2d 832, 833, writ dism., the issue was whether insured was in good health when the policy was delivered. It was said not to be error to admit a death certificate where appellant alleged lie was suffering from tuberculosis, from which he died, at the time of delivery.
      In Continental Cas. Co. v. Fountain, Tex.Civ.App., 257 S.W.2d 338, writ ref., the jury found death was solely caused by bodily injury and insured was not afflicted with cancer at the time of his death. In its original opinion the court said there was no evidence in the record that cancer was not the cause of death, and stated a death certificate which recited death was caused by cancer “as a matter of law establishes a defense of death due to cancer, unless it is rebutted.’’ On rehearing it said, however, “We did not reverse the trial court’s judgment on the ground that deceased did or did not have cancer. We reversed the case because there was nb evidence” that death was effected solely through accidental means.
      In Southland Life Ins. Co. v. Brown, Tex.Civ.App., 121 S.W.2d 653, writ dism., insurer contended a statement in a death certificate that insured committed suicide was conclusive. The court did not pass directly on admissibility of the recital, but rejected only the contention it was conclusive.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    Garland SHERMAN et al., Appellants, v. Van WHITTENBERG et al., Appellees.
    No. 10966.
    Court of Civil Appeals of Texas. Austin.
    April 25, 1962.
    Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, for appellants.
    Bradbury, Tippen, Brown & Clement, Abilene, for appellees.
   ARCHER, Chief Justice.

This suit was filed by appellees as trustees of the Bethel Baptist Church of Winters, Texas, against appellants as trustees of Pentecostal Church of God, of Winters, Texas, in trespass to try title to recover the title and possession of the South one half of Lot No. 3 in Block No. 7 of Murray Addition to the City of Winters, Runnels County, Texas and in the alternative for a cancellation of a purported lease, describing the same, and for rents, etc.

The appellants answered by plea of not guilty only.

On trial before the Court judgment was rendered for the plaintiffs, appellees herein, for the title and possession of the property.

Findings of fact and conclusions of law were made, the Court finding that the Beth-el Baptist Church purchased the property from W. H. Cole and wife on May 18, 1945; that the plaintiffs are the successors to the trustees named in the deed; that W. G. Richardson is not a trustee of the Bethel Baptist Church; that neither a majority of the trustees of the Bethel Baptist Church nor the majority of the congregation, authorized the leasing of the property to the defendants; that the plaintiffs represent the majority of the members and that W. G. Richardson and O. A. Fowler represent a minority; that neither the trustees nor the congregation were notified that Fowler and Richardson were planning to lease the property; that only three adults attended the congregational meeting at which the lease was authorized; that the Bethel Baptist Church was an active church at the time of the trial; that the claim of title is the deed from Cole and wife; and that the defendants base their claim to title as lessees of the trustees of Bethel Baptist Church.

As a matter of law the Court concluded that the deed from Cole and wife is the common source of title; that plaintiffs are the legal successors to the trustees named in the Cole deed, and that the trustees of Bethel Baptist Church have not leased the property to the defendants; that the lease is invalid and that the plaintiffs are entitled to title and possession of the premises.

The Court denied the defendants’ request for additional findings and conclusions of law to the effect that the lease was valid, that the plaintiffs were not the duly elected trustees of Bethel Baptist Church, and that the makers of the lease are the legal trustees.

The appeal is based on four points and are that the Court erred in awarding title because there was no proof of title from the State or a common source; in finding that appellees are a majority of the trustees elected by a majority of the congregation, and entitled to title and possession of the property; in finding that the lease was not executed by a majority of the trustees of Bethel Baptist Church and authorized by all of the duly qualified members of the congregation; and in denying the appellants’ requested findings and conclusions of law.

Plaintiffs introduced into evidence a warranty deed dated May 18, 1945, recorded on April 11, 1951 in the Deed Records of Runnels County, Texas, conveying to the trustees of Bethel Baptist Church, of Winters, Texas, for a recited consideration of $100.00 the South one half of Lot No. 3 in Block No. 7 of Murray Addition to the City of Winters, Runnels County, Texas.

Mrs. R. A. Kiser, a witness for plaintiffs, testified that she had resided in Winters for about 38 years and was a member of Bethel Baptist Church and had been for 14 years; that during this time there had been an attendance of between 50 and 65 and at the present time there were between 30 and 35 members; that she put her membership in the Church when Mr. Richardson was pastor; that Mr. Richardson stated several times that he was going to resign; that the Church had declared the pulpit vacant; that she knows O. A. Fowler who was a member, but that he was attending the Church of God before the lease was made; that after the lease some of the members of the Baptist Church were meeting in private homes. The witness further testified that Levi Smith, Van Whittenberg and Mrs. Sherman Hord are the trustees of the Church and had been elected before the Church was leased and that she believed that the trustees served indefinitely; that the Church property consists of the parsonage and the building which contains Sunday School rooms and an auditorium; that there are about 15 or 20 active members in the Church at that time and named them.

Further testimony given on cross examination was that the Church holds services on Friday night at homes and that their Pastor, Jack Griffith, comes from Abilene and that other services were had on Sunday without a pastor.

Jack Griffith testified that he is a Baptist Minister with a Church in Abilene; that he had lived in Winters from 1944 to the Fall of 1947, during which time he was Minister of the Bethel Church, and testified-as to the customary actions of a Baptist Church in its functioning as such in admitting members and the manner in which one may cease to be a member and that non-attendance is not a reason for dropping a member since no record is usually kept; that he had known W. G. Richardson as a preacher and that it is- not the accepted custom or practice for the pastor to be a trustee.

Van Whittenberg testified that he and his wife were members of the Bethel Baptist Church; that he was elected trustee in 1958 and that Levi Smith and Mrs. Hord are trustees also; that O. A. Fowler was attending the Church of God; that the congregation did not authorize the leasing of the property.

Mrs. Hord testified that she is a member of the Bethel Baptist Church and had been for 14 years and was elected as a trustee and that she had no knowledge that the property of the Church was leased out.

The defendants called as a witness, Mrs. Allen Richardson, who testified that she lived at Merkel, Texas and was Clerk of the Bethel Baptist Church in 1960 and continued to be the Clerk until the Church ceased to exist.

There were identified and introduced in evidence defendants’ exhibits 1, 2, 3 and 4, exhibit No. 1 being the membership roll and the minutes of the Church covering a period from January 6, 1945 to June 2, 1952. This exhibit is long and refers to rules, regulations and Church meetings and we will not insert any part of it herein. The witness, Mrs. Richardson, testified that her husband was pastor of the Church during this period of time.

Exhibit No. 2 is the Minutes of the Church from July 2, 1952 to the final entry on December 18, 1960 (there being no minutes from March 11, 1960 of the activity of the Church except the granting of two letters of dismissal). We quote herein the December 18, 1960 minutes:

“The Bethel Baptist Church met in regular conference Dec. 18, 1960. Minutes were read and approved, the business was after prayer and discussion, it was decided upon to drop the services for the time being due to small membership and lack of finance and let The Church of God use the building and parsonage and the funds received will be paid to Bro. O. A. Fowler to be placed in the bank for the upkeep of the building and Insurance and other needs.
“Bro. Richardson will continue as Pastor until further notice, in case some of the inactive members should call for their church letters.
“Mrs. W. G. Richardson was elected Church Clerk.
“Rev. W. G. Richardson, Mod.
“Mrs. W. G. Richardson
“(Church Clerk)
“Read & Approved. Dec. 18, 1960.”

Mrs. Richardson testified that to her knowledge, subsequent to March 11, 1960, no other trustees were elected by the Church.

Exhibit No. 3 is an account of the attendance roll for the adult Sunday School Class. Mrs. Richardson testified that she had never met Mr. Whittenberg and that his name does not appear on any of the records. The record showed that Mrs. Hord had been in attendance only two times during 1960 according to Mrs. Richardson’s testimony.

On cross examination Mrs. Richardson testified that she was a member of the Bethel Baptist Church and was elected Clerk pro tem on March 11, 1960; that she and her husband lived at Merkel and did not attend services from May 8 until November 11, 1960, but that such non-attendance was not through ill-will.

W. G. Richardson testified that he lived at Merkel, Texas, was a Baptist Minister and pastor of the Bethel Church from 1948 to July 1957 and returned to the Church in 1959; that he supported himself as a contractor; that the call to return to the Bethel Church was from O. A. Fowler and that none of the plaintiffs were active in the call. The witness testified as to the March 11, 1960 meeting and the election of trustees, none of which have been replaced; that the meeting on December 18, 1960 was held pursuant to prior announcements ; that the only adults present at the December 18th meeting were his wife, Mr. Fowler and himself and that no one present at the meeting objected to the lease. The witness testified as to making the lease and the receipt of $120.00 deposited in a bank under the control of Mr. Fowler; that he was still the pastor of the Bethel Baptist Church and that he would return to the Church and hold services if the members desired him to do so.

O. A. Fowler testified that he became a member of the Bethel Baptist Church in 1956 and that he is still a member; that he became a trustee in 1957 and had served as treasurer and as head of the Adult Sunday School Class; that when Mr. Richardson returned to the Church he was again elected trustee and that Levi Smith and Wayne Plummer were elected trustees also; that Plummer never served; that during 1960 the attendance became less and less, until in November, only Reverend Richardson, the witness and two or three children attended; that none of the plaintiffs attended and it was decided to lease the property for $120.00 per year for 10 years to the Pentecostal Church.

There can be no question but that all parties were testifying to the same property described in the deed from Cole to the Church.

The plaintiffs made out a prima facie case by the introduction into evidence of the warranty deed from Cole and wife and the burden shifted to defendants, who did not offer into evidence the lease under which they claim. There is no question of plaintiffs’ prior title and possession of the property. They are presumed to be the owners until the contrary is proved. State v. Lain, Tex.Civ.App., 339 S.W.2d 272, affirmed Tex., 349 S.W.2d 579.

The evidence sustains the findings that plaintiffs had exclusive possession of the property involved until they were allegedly dispossessed by the defendants. Rilling v. Munoz, Tex.Civ.App., 344 S.W. 2d 696, error ref., N.R.E.

The Court resolved the fact issue in favor of the plaintiffs and we believe that the evidence supports the Court’s action.

“The pleadings and the evidence concerning this matter were before the court and every legitimate presumption must be indulged in favor of the trial court’s judgment. If the trial court’s judgment can be sustained upon any reasonable theory consistent with the record, it must be affirmed.” Anderson Furniture Co. v. Roden, Tex.Civ.App., 255 S.W.2d 345.

The judgment of the Trial Court is affirmed.

Affirmed.


author: McNEILL, Justice.

text:
    Max B. CLARK et al., Appellants, v. LIQUOR CONTROL BOARD of Texas et al., Appellees.
    No. 6529.
    Court of Civil Appeals of Texas. Beaumont.
    March 1, 1962.
    Frank M. Adams, Beaumont, for appellants.
    Kenneth Hynes, Beaumont, for appellees.
   McNEILL, Justice.

This is an appeal by appellants, Max B. Clark and Albert Eaves, from the judgment of the District Court upholding the refusal of the County Judge of Jefferson County to issue to them a license for the purpose of selling beer to be consumed off the premises, as provided for in the Texas Liquor Control Act, at a location known as the Cheek Drive In in a wet area. The location is in a small community known as Cheek on Highway 124 a few miles south of the city limits of Beaumont in Jefferson County. The County Judge’s order refusing the license was upon two grounds : (1) that the Cheek Public Elementary School is closer than 300 feet to the proposed place of business; (2) that the issuance of such license “would be detrimental to the welfare, health, peace, temperance and safety of the school children in said area.”

The burden is on appellants to prove that the order of the County Judge refusing their license was not supported by substantial evidence. Vrocher v. Texas Liquor Control Board, Tex.Civ.App., 350 S.W.2d 349. And in this case it was said: “It is the evidence introduced in the District Court, not that which was introduced before the County Judge or' the Liquor 'Control Board, to which we must look in determining whether appellants failed to discharge their burden.” Our duty is to ascertain from the record made in the 'District Court whether there is sufficient evidence reasonably sufficient to support the challenged order. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198. If the evidence does, we are required to affirm; if it does not, we are required to reverse and render the judgments of the County and District Courts.

Is the evidence sufficient to support the finding of the County Judge that the Cheek Drive In is within the prohibited distance of 300 feet? Testimony of one witness was to the effect that he had measured the distance from the front door of the Drive In to the nearest door of the school and it was 285 feet. However, this measurement was taken in a straight line “as the crow flies” from the Drive In door to the school door. We know of no authority for this measurement. The statute, Art. 666-25a, Vernon’s Ann.P.C., provides “the measurements to be along the property lines of the street fronts and from front door to front door and in a direct line across intersections where they occur.” See Stubbs v. Texas Liquor Control Board, Tex.Civ.App., 166 S.W.2d 178, for permissible measurements under the statute. The inspector of the Liquor Control Board testified that he measured the distance from the front door of the Drive In out to the property line, then followed the property line along the right'of way of State Highway 124 to a point opposite the nearest school building door, which was the cafeteria door, and the distance was more than 400 feet. The appellants measured the distance this way and found it 416 feet. Under the circumstances delineated, we hold the County Judge’s finding that the Cheek Drive In is within the 300 feet prohibited distance to the school is without substantial evidence to support it.

Is the evidence sufficient to support the finding of the County Judge that the granting of the permit would be detrimental to the welfare, health, peace, temperance and safety of the school children of the area as the question must be construed within the provisions of said Liquor Control Act? The immediate Cheek community consists of only a small number of homes, as many children attending the school ride the school busses.

Three witnesses testified to the effect that they had known appellants for two or more years, and that appellants had been operating a grocery business known as the Tyrrell Park Drive In, in a neighboring community for two years in which business they have had and now hold a permit to sell beer to be consumed off the premises; that these applicants were good law-abiding citizens and they conducted their business in a proper and lawful way, and that in the judgment of these witnesses a permit to sell beer to be consumed off the premises at the Cheek Drive In would not be detrimental to the community but would be an asset thereto. Appellant Eaves testified that both their Tyrrell Park Drive In and the Cheek Drive In are grocery stores; that beer sold and consumed off the premises is an integral but minor part of such a business; that a customer likes to get all his purchases at one place and if appellants are not allowed to sell beer for off-premises consumption they will lose considerable trade to other drive ins having permit to sell beer. Appellants are brothers-in-law. Appellant Clark and family, composed of his wife and two children, one of whom attends the Cheek school live in a new bungalow home just back of the Cheek Drive In.

The South Park Independent School District, of which the Cheek school is a part, opposed the granting of this license. The Superintendent of Schools, Mr. Joe J. Vincent, testified as a witness for the District. He is a well informed, able and experienced public school official. When asked whether he would give his opinion as to the effect, good or bad, that the sale of beer at the Cheek Drive In would have upon the school children at this school, he stated that he would have to recite the policy of public schools in general, that is, the policy of the American School System. He mentioned the -fact that the schools in-doctrínate the children in the love of the American flag and place Bibles in the different rooms of the schools; that these are symbols of the American way of life. In this case he stated there was no street between the school campus and this business. There is a map in the record which indicates that the Cheek Drive In is on a corner lot at the intersection of Highway 124 and Avenue A. The school faces Highway 124 more than the proscribed distance East of the Drive In. It appears that since this Drive In is on a corner close to the school campus, the school district felt obliged to contest the granting of the license. When asked on cross-examination whether it was the policy of the American School System to oppose the establishment of any business where intoxicants are sold near a school, Mr. Vincent’s answer was: “A. No, to set forth their symbols. We are just as much opposed to the amount of television we have where the children have to see advertisements that we don’t think are wholesome.

Q. That would be advertisements of beer? A. That’s right. Q. And as part of your policy, you would oppose that, too?

A. Yes, sir, that’s right.” Parenthetically it should be mentioned that the Liquor Control Act allows only one sign with only the word “Beer”, the letters of which may not be over 12 inches high, to be displayed where license of the kind now involved is granted. On further cross-examination Mr. Vincent testified: “Q. I take it that your objection as superintendent of schools is the same objection that you have to the advertisements on TV programs and the establishment of the shopping center that you had at Amelia, the same objection as that because it creates traffic and you don’t like to have any type of business close to the school? A. That’s right. I would object to a blacksmith shop being there, anything that causes people to * * *.

Q. To come there other than for school purposes? A. That’s right.”

Witness for the School District, Rev. R. E. Sjolander, testified that he lived in the Tyrrell Park area, but that he and several neighbors had children going to the Cheek school. He was opposed to the issuance of this license and stated he was interested, both as a parent and as a minister, and that he was of the opinion there were enough liquor sales on the highway as it was and that the granting of this license would be detrimental not only to the community but to the Cheek public school. He further stated that it was his feeling that he would not want his children to be placed where they may see and observe things as result of the sale of beer, or to see people who might come to the store for the purpose of purchasing beer, because this would be a bad influence on the school children. He stated on cross-examination that he was opposed to the granting of the license for the reason that he considered there was something immoral about the purchase of beer; that it is an immoral transaction.

Does this testimony justify the refusal to issue the license sought? We think not. The question whether the sale and purchase of beer is an immoral act, as presented in this case, is a political one decided by the voters under the Local Option sections of the Liquor Control Act. This Act provides if the sale of beer is permitted within an area that, upon the adoption of the provision of Art. 666-25a, by the Commissioners’ Court, or governing body of the city involved, no such sale may be conducted within 300 feet of a public school as defined in that Act. The Legislature has thus established the proscribed distance, and it is not within the province of the court to substitute its judgment therefor.

The sufficiency of appellants’ application is not questioned; nor the qualifications of appellants, nor the adequacy of the building involved. The proper department of the Liquor Control Board has approved the application. No unusual condition within the meaning of the Act is shown; therefore the license should have been granted. Killingsworth v. Broyles, Tex.Civ.App., 300 S.W.2d 164; Morton v. Plummer, Tex.Civ.App., 334 S.W.2d 322. To deny the license in this instance is to discriminate between appellants and their competitors. Morton v. Plummer, supra; Smith v. Cove Area Citizens Committee, Tex.Civ.App., 345 S.W.2d 850.

The judgment of the District Court is reversed and it is directed that the license to appellants be issued.


text:
    Edward L. FLOWERS, Jr., Appellant, v. W. M. COLLINS et al., Appellees.
    No. 10960.
    Court of Civil Appeals of Texas. Austin.
    May 2, 1962.
    Rehearing Denied May 23, 1962.

      Franklin R. Navarro and B. Rice Aston, Houston, for appellant.
    William F. Billings and Finklea & Fink-lea, Dallas, for appellees.
   ARCHER, Chief Justice.

This suit was filed by W. M. Collins et al. against Edward L. Flowers, Jr. individually and as independent executor of the Estate of Mrs. Flora Collins, deceased, and Central National Bank of San Angelo to recover $10,000.00 being one half of a sum of $20,000.00 advanced to Flora Collins from trust funds by the bank to be used by Flora Collins to make a gift to Edward L. Flowers, Jr.

The answer of the bank was a general denial and that it acted in good faith in paying out the money.

Edward L. Flowers, Jr., individually and as independent executor, answered by way of denial and avoidance, plea of estoppel and good faith, limitation and further by cross action against the bank alleged negligence on the part of the bank in distributing the $20,000.00, and sought judgment for $10,000.00.

Trial was had without a jury and judgment was rendered in favor of the plaintiffs and against the defendant Flowers only for $10,000.00.

The appeal is from this judgment and is based on three points of error which are that the Court erred in rendering judgment because there was no evidence or the evidence was insufficient to support the judgment, and because the evidence showed the appellee’s cause of action was barred by limitation.

Alex Collins died leaving community property and devised his one half to his wife, Flora Collins, in trust for life, with remainder to his living survivors, who are the appellees herein.

The will of Alex Collins contains a provision as follows:

“If at any time my wife, Mrs. Alex Collins, feels that she needs any additional sums of money for her personal use over and above the net revenues from my estate, or over and above the $6,000.00 for each calendar year in the event the net revenues do not reach the sum of $6,000.00, I direct that upon her request to the trustee, such trustee shall be authorized to pay over to her such additional moneys as she may feel that she needs for her personal use and the trustee is authorized to make sales from the corpus of my estate in order to raise such additional money.”

On January 2,1957, the bank, trustee, permitted Mrs. Collins to withdraw $20,000.00. There was no showing that Mrs. Collins had any need for this sum “for her personal use.” On January 7, 1957, a check for $20,000.00 payable to Dr. E. L. Flowers, Jr., signed by Mrs. Collins was charged to her account.

Mrs. Flora Collins executed a will dated December 17, 1949 by the provisions of which Dr. Edward L. Flowers was made the principal beneficiary and independent executor and afterwards was appointed as such.

This case was tried before the Court without the aid of a jury and no request for findings of facts and conclusions of law were made and none given. If the judgment of the Court can be sustained upon any reasonable theory consistent with the record, it must be affirmed, and we believe that the evidence supports the judgment.

Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Rilling v. Munoz, Tex. Civ.App., 344 S.W.2d 696, error ref., N.R.E.

There can be no question as to the withdrawal of the sum of $20,000.00 at a time when Mrs. Collins had on deposit $2628.30, a sufficient sum to meet her personal needs; nor can there be any question but that Dr. Flowers received $20,000.00 from Mrs. Collins. The defendant, Dr. Flowers, did not testify in the trial of this case, although he was present in San Angelo.

In the defendant’s pleading he, by cross action, sought judgment against the trustee alleging negligence in distributing the $20,-000.00 to Mrs. Collins as the proximate cause of his damages in the sum of $10,-000.00 and inferentially admitting the receipt of the $20,000.00.

The only burden on the plaintiffs was to show that the $20,000.00 was not expended for the personal use of Mrs. Collins and this they did.

There are two letters from the trustee bank admitting the issuance of the $20,->000.00 check to Mrs. Collins. A vice president and trust officer of the bank testified as to his conversations with Mrs. Collins about the withdrawal and as to her statement that she wanted to send it to her nephew Edward L. Flowers to pay a debt •on his home.

Complaint is made by appellant that the admission of two letters written by an officer of the trustee bank concerning the withdrawal of the funds and the conversation had with Mrs. Collins was hearsay as to Flowers and violated Article 3716, ■Vernon’s Ann.Civ.St., the Dead Man’s .Statute.

The officer of the bank testified 'before the letter was offered and subsequent thereto and no objection was timely made to such conversations or to the reading of the letter of October 23, 1957, but instead defendant’s counsel stated that he had no objection to such letter and did not object to either of the letters dated October 16, 1957 and October 23, 1957 when re-offered in evidence with the check dated January 2, 1957, but objected to the check only, and thereby waived any possible objection to the letters. Further, in the letters, there were admissions against interest and as such are exceptions to the hearsay rule. The trustee’s officer was an opposite party and Article 3716, supra, does not exclude testimony when such witness is called by the opposite party.

Appellees subpoenaed the original check or photocopy of the check from Mrs. Collins to Dr. Flowers and the bank failed to produce either the original check or a photocopy. Appellees having accounted for the non-production of the original or photocopy of the check were entitled to have the copy, apparently written out by the officer of trustee, by reference to a photocopy admitted in evidence.

Appellant contends that the two years statute of limitation barred appellees’ suit based on a cause of action arising on January 2, 1957 when the trust funds were delivered to appellant.

Appellees take the position that there cause of action was not barred by limitation and we are in accord therewith. The date of the payment to Mrs. Collins by the trustee and subsequently to Dr. Flowers of the $20,000.00 was fixed as on or about January 2, 1957 and appellees first learned of such payment on October 4, 1957. Their suit was filed on July 3, 1959.

Limitation does not begin to run against the beneficiary of a trust for the enforcement thereof until the trust is repudiated by the trustee and knowledge or notice of such repudiation is acquired by the beneficiary.

Cole v. Noble, 63 Tex. 432; Hand v. Errington, Tex.Comm.App., Sec. A, 248 S.W. 25; Winkler v. Craven, Tex.Civ.App., 265 S.W.2d 191, error ref., N.R.E.

The judgment of the Trial Court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    Ovna WEATHERRED et al., Appellants, v. George D. KIKER et al., Appellees.
    No. 7145.
    Court of Civil Appeals of Texas. Amarillo.
    April 16, 1962.
    Rehearing Denied May 14, 1962.
    Ed Hoover, Jr., Canadian, for appellants.
    Crow & Crow, Wm. J. Jackson, Canadian, for appellees.
   CHAPMAN, Justice.

This is an appeal by Ovna Weatherred, surviving wife of Marcus B. Weatherred and the children of that union, all daughters, joined pro-forma by their husbands, from an instructed verdict in a trespass to try title case styled Ovna Weatherred et al. v. George D. Kiker et al. Mr. Weath-erred in the record is variously referred to as M. B. Weatherred, Marcus B. Weath-erred, Marcus Bate Weatherred, and Marcus Bates Weatherred.

These same parties were before us in Kiker, Administrator of the Estate of F. B. McComb v. Perkins et al., Tex.Civ.App., 338 S.W.2d 538. In that case we sustained the trial court’s injunctive relief granted appellees there, the Weatherred family, to preserve the status quo until a final determination of the title to the land involved could be adjudicated. Appellee Kiker, appellant in the previous hearing before us, was in that case seeking to sell the interest claimed by the Weatherred family to satisfy claims against the estate of F. B. McComb, the record owner at that time of all the surface and one-half the minerals of the quarter section of land in the controversy. In that proceeding by sworn pleadings Ruth Weatherred Perkins was alleged to be administratrix of the Marcus B. Weatherred estate. It now develops by the pleadings in ’ this case that “the said Marcus B. Weatherred died on April 4, 1954 without leaving a will and no administration was had on his estate nor was there a necessity for same.”

In this case it was alleged that Ovna Weatherred owned a community one-half interest in the land and that her children inherited their father’s one-half interest upon his death intestate. The Original Petition was verified and alleged that F. B. McComb, in whom the superior record title was vested, had no heirs of his estate and was divorced at the time he entered the State Hospital at Abilene. Then by an instrument called the Plaintiffs’ Amended Petition Ovna Weatherred alleged that F. C. McComb “was at such time married at the time of his admission to State Hospital.” He died intestate in the hospital in March, 1949, approximately 18 years after he was admitted.

The instant case was prosecuted by appellants on the theory that Marcus B. Weatherred, until his death, owned the property under a quit-claim deed from Weta McKinny and her husband to M. B. Weatherred dated September 27, 1933, and that he in his life time and appellants here established title under the 3, 5, 10, and 25 years Statutes of Limitations. In the pleadings Ruth Weatherred Perkins claimed the property only as an heir of her deceased father. In order to further their proof to that end Ruth Weatherred Perkins at the beginning of the trial attempted to disclaim “all interest in the subject matter that she may have had, as heir and in any and all other capacities, and any interests whatsoever, that she may have owned or claimed in the subject matter of this suit,” in order to circumvent the Dead Man’s Statute with her testimony. After her .testimony, in which she attempted to show limitation title made by her deceased father and his heirs since his death, and after 125 pages of testimony, including that of her mother to the same effect, counsel for appellees introduced a deed executed April 12, 1934 filed of record in Hemphill County, April 14, 1934 showing M. B. Weatherred and wife, Ovna Weatherred for and in consideration of $2400.00 cash, receipt of which was acknowledged, conveyed the property by warranty deed to Ruth Weatherred.

Thus, appellants are in the anomalous position of attempting to show title by limitations made by Marcus B. Weath-erred under the 3, 5, 10, and 25 years Statutes of Limitations in the face of a warranty deed by him and his wife for valuable consideration conveying the property to his daughter before he had held under any title or color of title even as long as one year. This would immediately eliminate any semblance of limitation title through Marcus B. Weatherred under the 3, 5, and 25 years Statutes of Limitations, all requiring possession to be under a deed or deeds or under an instrument or instruments. Articles 5507, 5508, 5509, and 5519. Nor is there a showing of the necessary conditions required in Article 5519a to prove title by limitation.

There is a claim asserted in the case under a purported lost deed from H. B. McComb to Marcus B. Weatherred but the only testimony concerning such purported deed is that it was made in 1930. There is no evidence of probative force showing it to be on this particular property [the evidence only showing it to be a deed from H. B. McComb] but even if it had been proved and would have proved title.to the property in Marcus B. Weatherred it was conveyed away by him in 1934 to his daughter, Ruth Weatherred. Counsel argues by brief that she never accepted the deed but in the Statement of Facts he said: “She had forgotten about the deed * * * ” There is no probative evidence in the case that she did not accept the deed. In fact, after it was introduced she never testified any more.

The next question with which we are faced is whether Ruth Weatherred Perkins had the legal authority to disclaim any interest she may have had in the property without being joined by her husband, with whom she was living, in the absence of being qualified under Article 4614, Vernon’s Tex.Civ.St. or some other statute operating as an exception to Article 1299, V.T.C.S. The last cited article requires that a wife must be joined by her husband in a conveyance of her real property. Though the disclaimer was not a conveyance it had the effect if legal of divesting her of any interest she had in the property in controversy without being qualified under any of the statutory exceptions. It is a unique question and we believe one of first impression. Because of the fact that it would have had the effect of divesting her of any interest she may have had in the separate real property in controversy without being joined by her husband we believe and so hold that the attempted disclaimer was of no effect unless ratified by her husband. There is no probative evidence of his ratification.

Since her father could not have ripened any limitation title before he and her mother deeded the land to her and since he could not have acquired under the 3, 5, and 25 years Statutes of Limitations it only remains for us to decide if the record supports a limitation title by him or by him and his heirs after his death under Article 5510, V.A.C.S., the 10-year limitation statute. There is no pleading of limitation by Ruth Weatherred Perkins except as an heir of her father.

We hold the evidence was insufficient to support a limitation title through Marcus B. Weatherred under the statute just mentioned. The evidence most favorable to him was that he went to Hemphill County from his home in Taylor County in 1930, 1935, and in the 40’s and 50's. Mrs. Weatherred said she went to see the land in 1957, 1959, and 1960. Since he deeded to his daughter Ruth in April, 1934 the record shows only four visits to Hemphill County by him after he deeded any interest he could have had and three visits by the-mother after his death. We believe it takes more than just visits to a county where land is located or visits to the land itself to ripen a limitation title. Our Supreme Court has said: “to constitute adverse possession sufficient to deprive an owner of legal title to his property by an. adverse claimant, such possession must be-continuous and uninterrupted for the statutory period, and must be ‘actual, notorious, distinct and hostile, and of such character as to indicate unmistakably an assertion of' a claim of exclusive ownership in the-occupant.’ ” Heard et al. v. State et al.,. 146 Tex. 139, 204 S.W.2d 344.

That same court in Nona Mills Co. v., Wright et al., 101 Tex. 14, 102 S.W. 1118, 1121 said: “To constitute adverse possession, the party occupying the land must-in some way appropriate the land for some purpose to which it is adapted.” This, land is all in a dry river bed except one acre. There is evidence to the effect that-it was suitable only for minerals but there-is not any evidence whatever that Mr.. Weatherred ever tried to lease it for mineral development or in any manner appropriate it for some purpose for which it was. adapted. The evidence shows it would not have been practical to fence the entire quarter section but the record is silent as. to any use of the small part not in the ■river bed by fencing, cultivating, using or enjoying it or using or enjoying any of the. other in any manner.

Under the 10-year Statute of Limitations it is not a requirement that the adverse claimant pay the taxes but had they been paid for some of the period during which the appellants had attempted to ripen title through Marcus B. Weath-erred it would have at least furnished some evidence of an adverse claim. No taxes were paid on the property during his life time.

In Urschel v. Garcia, Tex.Civ.App., 164 S.W.2d 804, (refused W. M.) the adverse claimant when asked what use he made of the property he was claiming by limitation, replied: “at the moment I just had it taking care of it until I could lease it.” The Court said: “Such testimony is not sufficient to support a claim of limitation for exclusive and adverse possession, for the burden of proof upon such issue is on the claimant and such proof must be clear and satisfactory.” In the instant case we see little more proof, if any, than that shown in the case just cited. In any ■event, the proof is not satisfactory.

When the deed was introduced from Marcus B. Weatherred and wife to their daughter the trial court immediately instructed a verdict before the appellants rested their case.

Appellants recited a point of error in their brief because the court prematurely instructed a verdict before “plaintiff had an opportunity to develop and close their case” but did not carry the point forward by citing evidence of what they could have proved, nor did they cite any cases or make any argument on the point. In fact, they simply cited points 2, 3, 6, 7, 8, 12, 14, and 16 and never pursued any of them any further in their brief. Therefore, we must assume the points were waived. Kelley et ux. v. City of Austin, Tex.Civ.App., 268 S.W.2d 773 (N.W.H.); Amstater et al. v. Andreas, Tex.Civ.App., 273 S.W.2d 95 (N.R.E.); Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (Supreme Court); Crowell-Gifford Furniture Company v. Cloutman, Tex.Civ.App., 276 S.W.2d 539 (N.R.E.); Whitson Company, Inc. et al. v. Bluff Creek Oil Company et al., Tex.Civ.App, 278 S.W.2d 339, affirmed 156 Tex. 139, 293 S.W.2d 488.

As heretofore stated this is a suit filed in the nature of trespass to try title. The record shows considerable time was consumed in complaining of the weaknesses and defects in the title of appellees. It has many times been held that a person can recover only on the strength of his own title and cannot rely on the weaknesses or defects in the title or proof of defendant. Niendorff et al. v. Wood et al, Tex.Civ.App, 149 S.W.2d 161 (writ refused); Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (Supreme Court).

Under the record made in this case we have no alternative except to affirm the judgment of the trial court. Accordingly, the judgment is affirmed.


author: DIXON, Chief Justice. DIXON, Chief Justice.

text:
    TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellant, v. Dr. J. A. FENLAW, Appellee.
    No. 16031.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1962.
    On Rehearing March 9, 1962.
    Rehearing Denied May 11, 1962.

      Will Wilson, Atty. Gen., Leon Pesek, Pat Bailey and John Reeves, Assts. Atty. Gen., Austin, for appellant.
    Leslie Jackson and Stanley C. Hogg, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal by the Texas State Board of Dental Examiners from a judgment of a District Court setting aside an order of the Board revoking and can-celling the license of Dr. J. A. Fenlaw to practice dentistry in the State of Texas.

The record reveals that on June 22, 1960 Dr. Fenlaw was charged with violating Sec. (g) of the second part of Art. 4549, Vernon’s Ann.Civ.St. in that on or about April 18, 1960 Dr. Fenlaw, in his dental office, permitted Archer Hamilton Fenlaw, a person not licensed to practice dentistry in the State of Texas, to extract four teeth from the mouth of one Ronald Sheffield. Following notice a hearing was held by the Board on July 22, 1960, at which hearing Dr. Fenlaw was' present.

Dr. Fenlaw took an appeal to the District Court as provided by Sec. (a) of the third part of Art. 4549, V.A.C.S. After trial on June 5, 1961 before the court without a jury, judgment was entered setting aside the order of the Board can-celling Dr. Fenlaw’s license. The trial was had before Judge W. L. (Jack) Thornton, Judge of the 44th District Court, who uttered the judgment, but the written decree afterwards prepared was signed by Judge Paul Peurifoy, sitting for Judge Thornton.

Most of the evidence is undisputed. On April 18, 1960 Ronald Sheffield presented himself to Dr. Emmett Johnson in Dr. Johnson’s office in Dallas to have dental work done. Dr. Johnson sent Sheffield to Dr. Fenlaw’s office to have some teeth extracted. In Dr. Fenlaw’s office were two dental chairs, located about five feet apart. One was being used by Dr. Fenlaw himself. The other was being used by Dr. Fenlaw’s 17 year old grandson, Archer Hamilton Fenlaw. The young grandson attended to Sheffield and extracted four teeth for him. Sheffield paid the grandson $10 in payment for his services and was given a receipt for said sum, the receipt being part of the record evidence before us.

Dr. Johnson, a member of the Texas State Board of Dental Examiners, had heard that Dr. Fenlaw was permitting someone to practice dentistry in his office. He sent Sheffield to Dr. Fenlaw’s office to see if the report were true. Either Dr. Johnson, or the State of Texas reimbursed Sheffield for the $10 he paid the young grandson of Dr. Fenlaw.

Archer Hamilton Fenlaw, the 17 year old grandson, has a long record of juvenile delinquency. He also has spent some time in a Government hospital in Fort Worth, Texas as a narcotic addict. In connection with the present matter criminal charges were preferred against him for practicing dentistry without a license. He pled guilty and paid a fine.

Dr. Fenlaw testified that he did not know his grandson was practicing dentistry in his office. His testimony is contradicted by Sheffield, who stated that the two dental chairs are located in one room about five feet apart, and that on his visit to the office on April 18, 1960 and also on á prior visit on April 12, 1960, the two men were working side by side, each working on a .dental patient seated in a dental chair.

Judge Thornton in the course of uttering the judgment made certain statements in the nature of findings of fact, which are shown in the record, which findings resolve the issue of knowledge against Dr. Fenlaw.

In its brief the Board presents two points on appeal, asserting that it was error for the trial court to set aside the Board’s order cancelling Dr. Fenlaw’s license because (1) the court substituted its discretion for the statutory discretion of an administrative agency; and (2) the order of the Board has reasonable support in substantial evidence.

The Board’s two points are well taken. Cases such as this are controlled by the substantial evidence rule. The proceedings are not comparable to a proceeding in an ordinary civil suit in which the preponderance of the evidence is the guiding rule. The question here is whether there is substantial evidence affording reasonable support for the Board’s findings and the order entered thereunder. It is a question of law. If the action of the Board finds reasonable support in substantial evidence offered in the District Court, the Court is bound to render judgment supporting the Board’s order. The court may not substitute its discretion for that of the Board. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619.

In this case we must hold, as a matter of law, that there was substantial evidence reasonably supporting the Board’s decision. Therefore, it was error for the trial court to attempt to exercise discretionary authority by entering judgment setting aside the Board’s order. Appellant’s two points on appeal are sustained.

Appellee’s counterpoints require our attention. In his first counterpoint appellee says that it was proper for the court to set aside the Board’s order because the court found on ample evidence that the Board acted arbitrarily and capriciously. With this contention we cannot agree.

The trial judge in connection with his rendering judgment in this case made a statement from the bench which is part of the record before us. We quote a part of the statement:

“ * * * if I was on this board I would tell him ‘if we ever hear of that boy being around there, we are going back and forfeit your license.’ I don’t think the boy will give any more trouble in the dentist’s office. * * * The point is, this old gentleman here, he is a victim of a grandson. That’s the whole story. He shouldn’t have let him come in there, shouldn’t have let him hang around there, but I think he had in mind keeping an eye on him and to try to keep him out of jail. * * * I think it is just bad judgment and certainly he is to be criticized and condemned by the other members of the profession by letting a boy like that pull somebody’s teeth and I can’t understand why he would do it except that he is a grandfather — MR. PESEK: Your honor, is it the court’s position that the Board acted arbitrarily and capriciously? THE COURT: Yes, acted arbitrarily arid capriciously, I think they ought to give him a chance; I think they ought to have said to him: ‘If you don’t get rid of this boy, we are going to get rid of you.’ That’s the way I feel about it and that's the way I am going to rule.” (Emphasis ours.)

From the above statement it is apparent that the court found that the Board acted arbitrarily and capriciously because it ordered the Doctor’s license revoked without first having given him a warning to desist from his violation of the law. The statute does not provide that a violator shall first be warned to desist from his illegal practice before the penalty provided by law may be visited upon him. The Board, not the Court, was charged with the duty of using its discretion within the limits laid down by the law in deciding what to do about Dr. Fenlaw’s violation of the statute regulating the practice of dentistry. There was not ample evidence that the Board acted arbitrarily and capriciously. The Board simply took an action for which the law itself expressly provides. Appellee’s first counterpoint is overruled.

Appellee in his second counterpoint says that the order of the Board did not have reasonable support in substantial evidence. We discussed this question in connection with appellant’s two points on appeal and held that the Board’s order was reasonably supported by substantial evidence. Ap-pellee’s second counterpoint is overruled.

In his third counterpoint appellee contends that the Board lacked jurisdiction to revoke -his license because appellee was already a licensed dentist at the time of the passage of the statute now in effect, and not having exchanged his original license, is “exempted and excepted” from the terms of the present statute.

Dr. Fenlaw’s license to practice dentistry in the State of Texas, issued by the Texas State Board of Dental Examiners, is dated December 31, 1909.

The statutes regulating the practice of dentistry were enacted as part of the codification of our laws in 1925. They are in two parts; one part is to be found in our Vernon’s Ann.Penal Code, Arts. 747-7540; the other part in our Civil Statutes, Arts. 4543-4551b, V.A.C.S.

Appellee in support of his third counterpoint leans heavily on Art. 752c, § 4, of the Penal Code, which provides that for certain violations of the law the Board may revoke any license "that may have been issued by such Board.” (Emphasis ours.) Appellee says that under the above provision the present Board, created in 1925, lacks jurisdiction to revoke his license, since it was not the Board which issued his license.

Appellee also leans heavily on Art. 4548, V.A.C.S., which provides, “Nothing herein applies to any person legally engaged in the practice of dentistry in Texas at the time of passage of this law.”

Also referred to by appellee is Art. 4547, V.A.C.S., which provides that any person licensed and practicing previous to the passage of the present law may, at his option, surrender his old license for a new license under the present law. Dr. Fenlaw has not surrendered his old license for a new license.

The complaint against appellee was brought pursuant to § (g) of the second part of Art. 4549, V.A.C.S. It will be observed that this statute also authorizes the Board to revoke a dental license, and it does not qualify the authority with the clause heretofore quoted, which is included in Art. 752c, § 4, of the Penal Code.

Do these statutes support appellee’s contention that since his license was issued in 1909 prior to the date the present Act was passed, the present Board has no jurisdiction to revoke his license? In our opinion the answer is no.

The statutes in question are regulatory in nature. The regulation of the dental profession is an exercise of the police power and is a continuing power. Waller v. State, Tex.Civ.App., 68 S.W.2d 601, 603; Sherman, et al. v. State Board of Dental Examiners, Tex.Civ.App., 116 S.W.2d 843, 846. After a study of the 1925 Act as a whole it is our opinion that the Legislature in passing the Act plainly intended to regulate the conduct of all dentists presently practicing their profession in this State. All dentists who presently violate existing laws are answerable to present day law enforcement agencies for their violations. They are not “exempted and excepted” from such accountability, though their licenses may have been issued prior to 1925.

Our conclusion as above stated is based in part on two rules of statutory construction. The first of these rules concerns statutes which are in pari materia, (in relation to the same matter) as are Art. 752c, § 4, of our Penal Code and § (g) of the second part of Art. 4549, V.A.C.S.

In construing statutes which are in pari materia all parts of such statutes are to be taken and construed together in carrying out the legislative intent. If there is any conflict between their provisions the conflicts will be harmonized if reasonably possible. Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20; Bishop v. Houston Independent School District, 119 Tex. 403, 29 S.W.2d 312; 39 Tex.Jur. 253.

The second rule is to the effect that an interpretation of a statute may sometimes be at variance with the literal terms of a statute. The language of a statute will ordinarily be literally construed, but when necessary to effectuate or preserve the obvious intention of the Legislature the court will depart from the exact and literal import of a statute. A literal interpretation will be avoided if reasonably possible when to give a literal interpretation would plainly thwart the purpose of the Legislature, or would lead to absurdity. State v. Dyer, 145 Tex. 586, 200 S.W,2d 813; Rogers v. Dallas Ry. & Term. Co., Tex.Civ.App., 214 S.W.2d 160; 39 Tex.Jur. 179-185.

What interpretation is properly to he given Art. 4548, V.A.C.S., hereinbefore quoted? ' Iñ our opinion the Statute simply means that those persons who were qualified and licensed prior to 1925 will not be disturbed or interfered with in the practice of their profession. They will not be required to obtain a new license, or to take the dental examination over again. Having validly obtained their licenses under the old rules they may continue to practice under the new rules without proving their qualifications under the new rules. This view seems to .us to find support in the light of the Art. 4547, which immediately precedes Art. 4548, V.A.C.S. Art. 4547 provides that any person licensed and practicing before the enactment of the present law may surrender his old license for a new license under the new law. But this exchánge of the old for the. new license is optional. The practitioner. under the old license 'is not réquired to make the exchange. .

We do not in otir interpretation of Art. 4548, V.A.C.S., give the statute the broad construction for which' appellee contends. We do not believe that it was the intention of the Legislature that’ dentists who had obtained their licenses prior to passage of the present law should be free of the police power regulations in the' law, which are necessary properly to protect the public health, morals and welfare; nor was it the intention to deny the Board its jurisdiction to enforce these regulatory measures. We have found no Texas cases exactly in point. However there are cases from other jurisdictions in which a similar statute was construed in favor of the Board on the question of the Board’s jurisdiction. Brun v. Lazzell, 172 Md. 314, 191 A. 240, 109 A.L.R. 1453; Triplett v. State Board of Health, 257 Ky. 848, 79 S.W.2d 226; and State v. Luscher, 157 Minn. 192, 195 N.W. 914. Appellee’s third counterpoint is overruled.’ ‘

In his fourth counterpoint appellee says the Board lacked authority to consider the complaint upon which it based its order, because the complaint upon which the Board based its decision does not comply with the requirements of Arts. 4549, V.A. C.S. and 752c. Complaint No. 1960-1 is shown in the transcript of the record beginning at page 15. It is sworn to by Tom A. Garner, an employee of the Board. It complies with statutory requirements. Dr. Fenlaw testified that he received a copy of the complaint and a notice of the hearing. He was present and testified at the hearing before the Board and at the trial in the District Court. The fourth counterpoint is overruled.

In his fifth counterpoint appellee claims that after the hearing of July 22, 1960 was held, the Board held another hearing on July 23, 1960 without notice to appellee. In support of this contention-ap-pellee cites us to State Board of Dental Examiners v. Fieldsmith, Tex.Civ.App., 242 S.W.2d 213, 26 A.L.R.2d 990.

• The case cited by appellee is not in point. In the Fieldsmith case the Board held a hearing at Dallas on Sunday June 18, 1950 -at which hearing all the evidence was heard. Thereafter another meeting was held at Mineral Wells, Texas on July 29, 1950 without notice to Fieldsmith, at which second meeting a decision was reached in Field-smith’s case. This Court .affirmed the judg.ment of the District Court setting aside the Board’s order because (1) the hearing of June 18, 1950 was illegal, being held on Sunday; and (2) the Board could not thereafter by its decision reached at the second meeting validate the illegal hearing of Sunday June 18, 1950.

There is no similarity in the instant record to that of the Fieldsmith case. In this case the Board met on Friday July 22, 1960 at the Adolphus Hotel after notice to Dr. Fenlaw. He was present at the hearing and testified. In his pleadings appellee alleges that another hearing was held next day without notice to him. But in his testimony appellee did not claim that there was 'a second hearing. The Board’s order re- ' cites that the Board’s “findings and orders are made this the 23rd day of July 1960.”

The uncontradicted testimony is that no second hearing was held in regard to ap-pellee’s case. The only testimony which touches on the matter is that of Dr. Emmett Johnson. He testified as follows:

“A Well, there was no hearing thereafter on this. Now, we had many other things to handle, and we went back into executive session the next day.
“THE COURT: You didn’t have any other witnesses ?
“A No, sir, no other witnesses; the case ended.”

Appellee’s fifth counterpoint is overruled.

The judgment of the trial court is reversed and judgment is here rendered confirming and affirming the order of the Texas Board of Dental Examiners revoking appellee’s license to practice dentistry.

ON REHEARING

DIXON, Chief Justice.

In his motion for rehearing appellee calls our attention to the recent opinion of our Supreme Court in the case of Key Western Life Insurance Co. v. State Board of Insurance, Tex., 350 S.W.2d 839.

In the above case the Supreme Court held that an appeal de novo to the District Court from an order of the State Board of Insurance Commissioners should have been tried under the preponderance of evidence rule rather than the substantial evidence.rule. We have carefully considered the opinion and have concluded the holding of our Supreme Court there is not applicable here.

Art. 3.42(g) and Art. 21.44 of Sub-Chapter F, V.A.T.S. Insurance Code, as amended in 1957 and 1955 respectively, provide for appeals from orders of the Board of Insurance Commissioners. Art. 21.44 includes this provision: “The action shall not be limited to questions of law and the substantial evidence rule shall not apply, but such action shall be tried and determined upon a trial de novo to the same extent as now provided for in the case of an appeal from the Justice Court to the County Court.” The Supreme Court held that the above provision was not unconstitutional, and should have been complied with by the District Court.

The Legislature has not seen fit to include such a provision as the above in our laws relating to appeals from the State Board of Dental Examiners. Section (a) of the third part of Art. 4549, V.A.C.S. and Sec. 5 of Art. 752c of our Penal Code provide for appeals from the Board to the District Court. They state “Such District Court shall thereafter and under the rules of procedure applicable to other civil cases, proceed to set such cause for hearing as in other civil cases.” The above language has been in the statutes pertaining to dentistry since 1937.

Does such language, or similar language, mean that the trial in the District Court shall be under the preponderance of evidence rule rather than the substantial evidence rule? By judicial construction the answer has been given in favor of the substantial evidence rule. Texas State Board of Dental Examiners v. Fieldsmith, Tex.Civ.App., 242 S.W.2d 213 (Syl. 2), 26 A.L.R.2d 990; Tamez v. State Board of Dental Examiners, Tex.Civ.App., 154 S.W.2d 976 (Syl. 8). Similar interpretations have been given to other but similar statutes. Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530 (Syl. 2); State Board of Examiners in Optometry v. Marlow, Tex.Civ.App., 257 S.W.2d 761 (Syl. 2); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198.

Our Legislature has met several times since the above opinions were rendered. With knowledge of such opinions the Legislature has not seen fit to amend our statutes relating to the practice of dentistry as it has amended our Insurance Code in such manner as to abolish the substantial evidence rule in appeals from orders of the Insurance Board.

We are of the opinion that the substantial evidence rule is still in effect in regard to appeals to the District Court from an order of the State Board of Dental Examiners revoking a license.

The motion for rehearing is overruled.

ON SECOND MOTION FOR REHEARING

In a second motion for rehearing appel-lee points out that Art. 4549, V.A.C.S., contains this language:

“Upon the hearing of such cause, if such Court shall find that the action of such Board, in .revoking or suspending such license or licenses is not well taken, such Court shall by appropriate order and judgment set aside such action of said Board; but if such Court or jury shall sustain such action of said Board in revoking or suspending such license or licenses an order shall be made and entered in appropriate form sustaining and affirming the action of such Board; provided, however, that the person or persons whose license shall have been so revoked or suspended may waive the impanelling of a jury, from which order an appeal may be taken to the Court of Civil Appeals, as in other civil causes (Emphasis ours.)

Appellee argues that since the Statute provides for a jury trial, the substantial evidence rule is not applicable.

The present Statute was amended in 1951, the amendment becoming effective 90 days after June 8, 1951, the date of adjournment of the Legislature. The caption of the amending act makes no reference to a jury trial. General and Special Laws, 52nd Legislature, 1951, Chapter 267, § 2, pp. 427-434. The cases of Texas State Board of Dental Examiners v. Fieldsmith, Tex.Civ.App., 242 S.W.2d 213, 26 A.L.R.2d 990; and Tamez v. State Board of Dental Examiners, Tex.Civ.App., 154 S.W.2d 976 were both decided prior to the effective date of the amendment of 1951.

However, the Statute had previously been amended in 1941. General and Special Laws, 47th Legislature, 1941, Chapter 605, § 1, pp. 1336-1339. This 1941 amendment also permitted a jury trial in substantially the same language as above quoted in the amendment of 1951. The two cases above cited were decided while the 1941 amendment was in effect. The cited cases are not exactly in point for they refer only to Arts. 747, 752b(c) and (o) and 752c, § 4 of our Penal Code, Vernon’s Ann.P.C. They do not refer to Art. 4549, V.A.C.S. And the Articles in the Penal Code malte no reference to trial by jury in respect to the revoking or cancelling of a license to practice dentistry.

So far as we know our Supreme Court has not made a judicial determination interpreting the Statutes in question in regard to the applicability of the substantial evidence .rule.

If this were a matter of first impression we might be inclined to interpret the Statutes to mean that the substantial evidence rule is not applicable in cases involving the revocation of a license to practice dentistry. But in the light of the holdings in the Fieldsmith and the Tamez cases, supra, by Courts of Civil Appeals, and in view of the fact that our Legislature has not seen fit to amend the dental statutes in the plain manner it amended the Insurance Code by Art. 21.44, we shall adhere to our original holding that the substantial evidence rule is applicable here.

Appellee’s second motion for rehearing is overruled.


author: BROADDUS, Judge.

text:
    Evelyn B. GAIN, Respondent, v. Charles B. DORWARD, Appellant.
    No. 23438.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.
    John L. Sheridan, C. Thomas Carr, Sheridan, Baty, Markey, Saunders, Edwards & Carr, Earl J. Boughan, Kansas City, for appellant.
    Walter A. Raymond, Raymond, West & Cochrane, Kansas City, for respondent.
   BROADDUS, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $10,000 and defendant has appealed.

On May 19, 1955, about 10:45 A.M. plaintiff was on the northeast corner of the intersection of 75th and Troost in Kansas City, Missouri, on the way to the office of her dentist for some routine dental work. Troost Avenue runs north and south and has four traffic lanes and traffic at this intersection is controlled by automatic electric signal lights. The day was clear and bright and the weather was warm. The streets were paved with cement and the pavement was dry.

As plaintiff reached the aforesaid position the traffic light for east and west traffic on 75th Street was red and she waited for the light to change. She saw one automobile standing at the southwest corner of said intersection near the south curb waiting for the light to change. Said automobile was giving no signal of an intention to make a left turn. When the traffic light turned green for east and west traffic plaintiff started walking west in the pedestrian lane on the north side of 75th Street. As she was approaching the center of Troost Avenue an automobile was coming south very fast in the traffic lane for southbound traffic first west of the center line and she gave attention to that automobile.

As she reached the center of the traffic lane immediately east of the center line of Troost Avenue the defendant made a left turn to go north on Troost in the lane next to the center. Defendant did not see plaintiff until almost upon her and his car struck her with such force that it knocked her out of the pedestrian lane and prone to the ground five feet north of the north line of the pedestrian lane in which she had been walking. Defendant sounded no horn or other warning of his approach. Defendant’s automobile was moving slowly and there was nothing to prevent him stopping or swerving to the right as the east traffic lane was clear. His brakes, steering gear and tires were in good condition and he could stop his car under the circumstances in four feet.

We will set forth the evidence relating to the nature and extent of the injuries sustained by plaintiff as we discuss defendant’s third contention—that the verdict is excessive.

Defendant’s first contention is that the court erred in giving on behalf of plaintiff Instruction No. 3, which dealt with the measure of damages. It reads as follows :

“The Court instructs the jury that if you find the issues for plaintiff and against the defendant on the evidence and under the instructions of the Court, you should assess her damages at such sum as you believe and find from the evidence will fairly and reasonably compensate her for the injuries, if any, sustained by her as shown by the evidence; and in assessing such damages you may take into consideration the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which she has endured and suffered and which she is reasonably certain to endure and suffer in the future; the character and extent of her injuries and disabilities, if any, and whether they are temporary or permanent.”

Defendant urges that the instruction is too broad, and does not limit and confine the damages for the injuries sustained by plaintiff as a direct result of the automobile accident of May 19, 1955. Similar instructions have been uniformly approved by the decisions of the appellate courts of this State. Among those many cases are Oldham v. Standard Oil-Co., 15 S.W.2d 899 (Mo.App.); Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903. Those authorities hold that an instruction on the measure of damages in a personal injury case is not erroneous because it is general if it does not misstate the law, and that, if defendant considers it might be misleading, it is his duty to ask instructions excluding elements of damage not proper to be considered, and otherwise limiting the damages to be allowed.

The two cases cited by defendant are not in point. The first was a contract action with no evidence to support the instruction given. The second was a' fraud case which did not limit the damages to the difference in the value of the property at the time purchased and the value it would have had had the representation been true.

Defendant also contends that the trial court erred in overruling his objections to the following remarks made by plaintiff’s counsel in his closing argument.

“ * * ⅜ and she is going to have this tooth trouble. Certainly until they have to be pulled and artificial teeth are put in. And I want to say to you that artificial teeth are something to be reckoned with. I remember one time in a lawsuit here in Kansas City, the complaint was made that they allowed the lady too much money.
“Mr. Russell: Object to this form or argument.
“Mr. Raymond: It is an anecdote.
“Mr. Russell: I fail to see the relevancy to that.
“The Court: I don’t know what he is going to say.
“Mr. Russell: I think the mere mention of it is prejudicial.
“Mr. Raymond: I don’t know who wrote the opinion for the Court of Appeals for cracking a set of plates, and I know the problem, to him who contends store teeth are as good as natural teeth holds complete disillusionment.
“Mr. Russell: Objection to that for the record as being highly prejudicial for the jury, he is quoting hearsay evidence to this jury, which is improper, immaterial and irrelevant to any issue in this case.
“The Court: Overruled.”

The argument complained of does not attempt to inform the jury of the result of the lawsuit referred to nor does it mention any amount. It does not purport to recite the ruling or language of the court, but shows it is only the personal opinion of Counsel for it says: “I know the problem, etc.”

In the recent case of Kiger v. Terminal Railroad Ass’n of St. Louis, 311 S.W.2d 5, 11, our Supreme Court said: “In considering contentions of error in relation to the argument of counsel we have said, ‘The trial court, however, is allowed large discretion in permitting or restraining argument and as to the manner in which improper argument is to be restrained or its prejudicial effect purged or cleansed, and the appellate court will not interfere unless it clearly appears that the trial court has abused its discretion. * * * It is recognized that in the stress of summing up the evidence and analyzing its probative effect in tending to support or refute the fact involved in a sharply contested factual issue, trial counsel’s ardent advocacy sometimes impels him to go beyond the limits -of fair argument; but when the trial court does not consider such instances sufficient to require a new trial, this court is inclined to defer to the trial court’s opinion in these matters, unless upon a full examination of the record it appears that the improper argument was so prejudicial, inflammatory and outside the record as to effect the result on the merits.’ ”

Under the circumstances we are not inclined to hold that the trial court abused its discretion in permitting the argument complained of.

Defendant’s final point is that the verdict is excessive. In considering this question we are required to view the evidence in the light most favorable to plaintiff.

As stated plaintiff was struck by defendant’s car with such force as to throw her clear out of the pedestrian lane and cause her to fall flat on the pavement about five feet north of the north line of said pedestrian lane. She was helped to an ambulance and taken to the emergency room of Menorah Hospital. She was shocked, dazed, confused and only partly conscious. Being unable to reach her family doctor, Dr. Lyddon, Dr. Jacob who had treated some other member of her family wai called.

Plaintiff was 35 years of age at the time of her injury on May 19, 1955. She had previously suffered from some nervousness resulting from the worry and responsibility of caring for an epileptic daughter. Her back at times grew tired and sometimes ached from lifting and carrying her epileptic daughter. She had a congenital anomaly of the fifth lumbar vertebra and a certain weakness making it more susceptible to injury and more difficult to heal. She had suffered from headaches from time to time previously. She also had some Hypertrophic arthritis of the dorsal spine. This condition was not giving plaintiff any trouble before the accident and she did not even know it existed.

Plaintiff suffered a severe blow to her head causing a cerebral concussion. This was evidenced by dizziness, severe headaches, a Nystagmus or inability to focus her eyes to either left or right without flickering, nausea and floating-off spells. Her sense of balance was affected causing her to lose her sense of equilibrium. Plaintiff’s four upper front teeth were chipped and fractured. Sometime within a week after the accident plaintiff went to her dentist Dr. Jarvis N. Williams, for treatment of her four front upper teeth. At that time her mouth was hurting and said teeth were very sore, sensitive and painful; they were loosened and showed evidence of some chipping, fracturing, breaking and cracking. Dr. Williams found it necessary to put a jacket on one of said teeth and as to the likelihood of having to put jackets on the other three he said: “It is my opinion they definitely will.” By jacketing is meant grinding the tooth down to a stub and then putting a porcelain jacket over it. There is always a very good probability that these teeth, the nerves will die at some time, and could at any time, have to be extracted.” The teeth are more fragile and susceptible to injury and more sensitive than before the accident. The witness had seen plaintiff’s teeth three days before the accident in process of some routine dental work and testified the injury and damage to the teeth was caused by a trauma since he had seen her. Some teeth other than the four front teeth also showed some chipping. A jolt, shock, blow on the chin without a direct blow on the teeth or mouth could cause the damage to plaintiff’s teeth.

She suffered multiple contusions of her left shoulder, left arm, left chest wall including her left breast, left hip, left thigh, left knee with abrasions on the left knee, left leg, left arm. Her left breast was very miserable and painful for which she received a series of diathermy treatments. The arthritic deposits in her dorsal spine were aggravated and made very painful and disabling. The fifth lumbar vertebra condition was aggravated by the trauma causing tenderness and pain over the lower dorsal and lumbar area. She can hardly move without her back hurting very badly. Her nervous condition was aggravated and made much worse. She now has those floating-off spells, crying spells, gets hysterical and has lack of coordination and balance. Her headaches were aggravated and became more frequent and more painful. She blacks out occasionally. She has done some temporary work under great difficulty. Additional symptoms of nervousness appeared such as floating-away spells and depression. Her condition is worse, requires more frequent and more difficult treatment since the accident. Her increased nervousness is permanent and she was still under the care of a physician and still needed treatment at the time of the trial, almost six years after the accident. At the time of the trial plaintiff was taking librium, 5 milligrams, as a tranquilizer three times a day for nervousness upon her doctor’s prescription. On the 11th of February, 1961, shortly before trial Dr. Jacob made a complete examination of plaintiff. His findings were briefly as follows: At that time she was still complaining of having pains in her left forearm on the outside; she still had pains on both sides, along the entire spine which causes aching there when she is moving about; her sense of balance is disturbed and during the past year she blacked out several times and she has been extremely nervous since the accident. Upon examination he found: There was pain on moving her head backward and forward and to both sides, particularly on the right with a catch and popping noticeable on active as well as passive movements; tenderness on palpation of the ex-tensor muscles of the left forearm; tenderness on palpation of the mid and lower dorsal area and the muscles on both sides of the spine in this area were somewhat spastic or contracted; tenderness of the superscapular area of the back; tenderness over the lower lumbar area and pain on extreme flexion and extension and the muscles in the lower lumbar spine were also spastic, tight and contracted. Spastic or tight muscles indicate pain. On examination of the nervous system he found a questionable deposit of Romberg although nystagmus was not then present. This indicated some equilibrium or coordination difficulty. Dr. Jacob then testified that considering the fact it had been approximately six years since plaintiff’s injury he would consider the condition he found on this last examination to be permanent. His findings were based on subjective symptoms verified by objective symptoms he personally observed. He further testified that the conditions he found and described “I think that was caused by trauma.” He attributed the pain and tenderness in plaintiff’s neck to aggravation of the arthritic changes in her spine. He personally knew she had no such disabling condition before her accident.

In determining whether a verdict for personal injuries is excessive each case must be decided on its own peculiar facts. Myers v. Karchmer, 313 S.W.2d 697 (Mo.Sup.). As stated in the case of Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d, 120, 127: “Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries and to the fact that the jury and the trial judge were in a better position than this court to measure an award of reasonable compensation, as well as to the fact that the trial court has approved the verdict in question.”

Under the instant circumstances, we have concluded that we would not be justified in holding the verdict excessive. The judgment is affirmed. All concur.