author: ROBERT R. WELBORN, Special Judge.

text:
    Marilyn Lee MANSELL, Appellant, v. Gerald A. MANSELL, Respondent.
    No. 30292.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Sally E. Wells, Wells, Eisberg, Slough & Connealy, Kansas City, for appellant.

      William A. Mayer, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and ROBERT R. WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Child custody proceeding. In dissolution decree dated July 17, 1975, custody of Liza Lee Mansell, born March 29, 1973, to Marilyn Lee Mansell and Gerald A. Mansell, was awarded to mother. The father, by motion filed August 22, 1977, moved to amend the decree by awarding custody to him. The mother, by motion filed December 5, 1977, sought to amend the original decree to permit her to remove the child to California. The motions were consolidated. The matter was heard on April 5, 1978, upon an amended motion of the father filed that date. By an order filed May 1, 1978, the trial court placed custody of the child with the father and gave the mother the right of visitation “only in the State of Missouri and not over night,” with the right of overnight visitation for alternate weekends from 7:00 P.M. Friday to 5:00 P.M. Sunday if the mother was living in lawful wedlock. The order further required that, as a condition of visitation in the State of California, the mother be required to deposit $1,500 in cash in the registry of the court, to be released upon the return of the child to her father, with further provision that, in the event of non-return of the child to Missouri, the fund might be paid to the father for expenses in going to California in order to attempt to enforce the Missouri order. The mother has appealed from the decree.

The fundamental question on this appeal is whether or not the conduct and attitude of appellant following the dissolution of her marriage with respondent constitutes a change in the circumstances of the custodian of a child within the meaning of Section 452.410, RSMo 1975 Supp., so that modification of the prior custody decree was authorized.

Appellant Marilyn, 35 years of age at the time of the hearing, had been thrice married prior to her marriage to respondent Gerald. Her first marriage in May, 1961 to Max Bagshaw ended in divorce in September, 1963. A daughter, Deidre, was born to that union. She was married to Jerry Dean Chance in 1964 and they were divorced in 1969. A daughter, Shelby, was born to that marriage. A second marriage in August, 1969 to Bagshaw ended in divorce after eight months. The marriage to Gerald occurred in September, 1970, terminating in dissolution in July, 1975.

Gerald had been married in 1967. A child was born to his wife during that marriage, but Gerald denied that he was the father. Gerald did not support the child and it had been adopted. The date of termination of that marriage does not appear. Following the dissolution of his marriage to Marilyn, Gerald, on November 22, 1975, married Jo Anne Blackland. A son was born to that marriage September 28, 1976. Gerald, Jo Anne and the son lived in a two-bedroom apartment in Merriam, Kansas, at the time of the hearing.

Following dissolution of the Marilyn-Gerald marriage, Marilyn lived at the house on 51st Terrace in Kansas City which she received upon distribution of the marital property. Her daughters, Deidre, Shelby and Liza, lived with her. Marilyn worked as a receptionist in a real estate office.

In the fall of 1975, Marilyn began dating Steve Akin. According to Deidre, Marilyn would be out with him three or four nights a week until from 11:00 to 4:00 a.m. Akin also began spending the night with Marilyn in her home. Sometime early in 1976, Deidre told Marilyn that she did not like the idea of Steve’s spending the nights at the house and that Marilyn would have to make a choice between her (Deidre) and Steve. According to Deidre, Marilyn told her that the choice would have to be hers and Deidre decided to leave and go live with her father.

Both Akin and Marilyn denied that Akin had spent the night at Marilyn’s before Deidre left. According to Marilyn, she and Deidre had previously discussed the possibility of Deidre’s moving to her father’s and they had agreed that when Deidre reached an age which would permit her to make a rational decision on the matter she could do so. Deidre was becoming rebellious at the restrictions which her mother imposed and the inference is that Deidre took advantage of the Akin situation to press an ultimatum upon Marilyn: “Either him or me.” According to Marilyn, she told Deidre that she could not permit Deidre to blackmail her into such a decision and that if Deidre wanted to move she could.

Undisputed is the fact that in April, 1976, Marilyn and Steve entered into a written contractual arrangement under which Akin did move into Marilyn’s house and share her bed. The two held themselves out as husband and wife. They shared their incomes and Marilyn used the name Akin. Steve assisted in the upbringing of the children, Shelby and Liza, and he and Liza got along very well.

The contractual arrangement between Steve and Marilyn terminated after one year, for reasons which neither would disclose. Steve then departed.

A short time later, Marilyn resumed an acquaintanceship with Randy Amos whom she had known since she was 13 years old and whom she dated as a high school student. Amos was in California and after some correspondence, Marilyn spent her vacation in California with him. In the fall of 1977, Amos, also divorced, came to Kansas City with his two boys. Marilyn and he were contemplating marriage and wanted to see how the children got along. Marilyn and Amos spent one night at a Kansas City hotel, leaving the children in charge of her 17-year-old niece. The niece’s boyfriend spent the night also.

According to Marilyn, she and Amos decided to marry. She moved to California, taking Shelby and Liza, and moved in with Amos. At the hearing, Marilyn said that they planned to marry July 4. Appellant’s brief indicates that the marriage did occur but the record is otherwise silent on the subject.

Respondent’s motion for change of custody alleged as grounds for the action sought that appellant had failed to provide adequate medical care for Liza; that she had failed to provide adequate supervision for the child in her absence; that she had shared her residence for a year with a man not her lawful husband and that she had engaged in illicit sexual activity while the child was in the house. The trial court made no findings of fact although he did find, in effect, that the charge of providing inadequate medical care had not been proved.

In a letter to counsel, the trial court explained his decision as follows:

“Perhaps the most persuasive evidence in this case is the shocking revelation that this matter does not come before the Court for review because of an isolated event, but rather because of an openly adopted way of life.
“Petitioner has had numerous marriages, five in the past and one contemplated in the future. The fact is indicative of an instability but is not the compelling force in the decision. Rather it is Petitioner’s chosen lifestyle that has already separated her from one child (Deidre), and unless the Court intervenes those established moral standards could well be adopted by Liza as the ones that are principled and accepted.
“Petitioner’s ethical choices are not spontaneous, but well chosen and calculated. They are selfish to the extent that she would not give moral leadership to her daughter (Deidre), but instead thrust her from the home rather than surrender the attachments of her then present affair. The protestations of her daughter went unheeded. Unfortunately, Liza does not have the maturity or opportunity to exercise her choice; she is a captive and needs protection. Equally important is the fact that Deidre needs to understand that the courts neither condone nor approve of Petitioner’s principles and ideals. The ethical values of the next generation are being molded now, and it is not the desire of this Court to put the stamp of approval on the quality of virtue established in Petitioner’s home.”

Appellant first contends that the trial court’s order is erroneous because respondent did not sustain his burden of proving a change of circumstances making a change of custody necessary to serve the best interest of the child.

If the order is to be upheld, it must be on the basis of the trial court’s conclusion that the mother’s life style had produced an environment which threatened the proper upbringing of her daughter. There can be no question that the appellant’s choice of life style which the court found adverse to the best interest of Liza was a situation which arose subsequent to the original custody decree. Appellant argues, however, that there was no showing of adverse effect on Liza as a result of appellant’s relationship with Akin.

Without equating the conduct of appellant in this case with that of the mother involved in L. H. Y. v. J. M. Y., 535 S.W.2d 304 (Mo.App.1976), what the court said in that case is here apropos:

“The mother points to current social trends as allowing for greater permissiveness in moral attitudes and suggests that she had been doing no more than living to accepted mores. It is not our function to indite a revisionary preachment as to moral models. We do recognize that today we have changing standards of morality. Certain conduct once looked upon by society with opprobrium does not carry the social or private stigma it once did a few short years ago. Such conduct may even be socially ‘approved.’ But private personal conduct by a parent which could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by courts. Private conduct of a parent in the presence of a child or even under some other circumstances may well influence his or her young, impressionable life.
“We do not pass judgment on private morality in the absence of some societal interest. That is left to others. Our concern here is the best interest of the child. That is the polestar we are duty bound to follow. There was sufficient evidence for the trial court to conclude that the conduct of the mother in this case, under all the circumstances, was not compatible with that ultimate objective. No matter how she or society views the private morality of the situation, we cannot ignore the influence her conduct may well have upon the future of this child and cannot give our judicial cachet to such conduct by etching in the lawbooks for all to read and follow.
******
“We are also unimpressed by the mother’s argument that there can be no custodial change unless there is evidence of some harm to the son. She argues that since the boy is currently normal and healthy no basis exists for the custody modification. We believe that the boy’s present condition is in spite of rather than as a result of the mother’s care, and it is not necessary to wait for manifestations of harmful consequences before action is taken.” 535 S.W.2d at 308.

Here the trial court concluded that appellant’s life style was potentially harmful to the moral development of Liza. This court cannot find such ruling erroneous either factually or legally.

Appellant argues that the trial court erred in admitting evidence of her marital history contending that her previous experiences, having antedated the original custody decree, could not be considered on the request for change of custody. As the trial court pointed out, it did not base its order upon the prior marital history of appellant. However, it would have been practically impossible to exclude such evidence as it might bear on the future of Liza. Hopefully, the asserted present marriage of appellant may prove more enduring than her previous ones. However, her history does not provide reason for optimism and the court could well consider the history in the light of the life style adopted by appellant upon the most recent dissolution of her marriage.

This having been a court-tried case, the admission of evidence, even the erroneous, can hardly ever be grounds for reversal of the trial court’s judgment. Even if the evidence as to appellant’s marital background is not considered, there is sufficient evidence to support the trial court’s decree so that the admission of such evidence is at the most harmless error. Gould v. Starr, 558 S.W.2d 755, 769[10-11] (Mo.App.1977).

Appellant contends that the trial court’s decree was the result of the trial court’s giving undue credibility to the testimony unfavorable to appellant, especially the testimony of Deidre Bagshaw, and by failing to give sufficient consideration to the testimony of appellant, her witnesses and the custodial investigator appointed by the court. The latter testified that, as a result of his investigation, he recommended no change of custody from appellant. Appellant’s witnesses also testified that Liza was a happy, well-adjusted child.

This is, in effect, an argument that the decree of the trial court is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), admonishes that an appellate court is to set aside the trial court’s judgment in a court-tried case on the grounds that it is against the weight of the evidence only “with caution and with a firm belief that the decree or judgment is wrong.” 536 S.W.2d 32. Credibility judgments were necessary in this case. The testimony of witnesses was diametrically opposed on significant facts. The trial court was in a much better position to arrive at the correct judgment on that issue. This court will not disturb his ruling on that basis.

There is merit to the complaint of appellant that the trial court’s decree unduly limited her right of visitation with Liza.

Section 452.400 recognizes the visitation right of a non-custodial parent “ * * * unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development.” The trial court here made no such finding. However, in view of the fact that appellant was a resident of California at the time of the order granting her visitation rights, the practical effect of the order was to preclude the exercise by appellant of such right. Although the noncustodial parent’s residence in another state presents problems with respect to visitation, that fact does not call for a denial of such privilege. Carver v. Carver, 558 S.W.2d 340, 343-344[2] (Mo.App.1977). Upon a showing that appellant is able to provide for visitation in California in a normal home environment, the appellant should be permitted visitation rights there for a period of thirty days each year during the summer school vacation season, together with such visitation rights otherwise as the trial court might consider proper in the light of appellant’s current home situation.

No statute authorizes the requirement imposed by the trial court for a cash deposit by appellant as a condition of visitation in the State of California. The trial court expressed concern about the tendency of authorities in that state to ignore custody orders from this state. However, such concern does not permit an unauthorized condition to be imposed upon the exercise of visitation rights in that state. It might be noted that California has enacted the Uniform Child Custody Jurisdiction Act. West Ann.Civ.Code, §§ 5150-5174 (1978 P.P.). Section 5164(2) thereof provides:

“A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or his witnesses.”

Missouri has also adopted this act. Laws of Mo.1978, p. 688. Hopefully such enactments may improve relations in this area.

Decree awarding custody to respondent affirmed. Portion of decree granting visitation rights to appellant set aside and cause remanded to trial court for further proceedings and entry of new decree according appellant visitation rights.

Affirmed in part; reversed and remanded in part.

All concur.


source: Caselaw Access Project

author: KENNEDY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard D. RALLS, Defendant-Appellant.
    No. KCD 30305.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Clifford A. Cohen, Kevin Locke, Gary L. Gardner, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

Defendant Ralls after a jury trial was convicted of stealing from the person (§ 560.156, RSMo 1969 and § 560.161, RSMo 1975). As a Second Offender he was sentenced to six years’ imprisonment by the Division of Corrections, and has appealed to this court. We reverse and remand for a new trial, for reasons hereafter explained.

The facts disclosed by the evidence are as follows:

On September 3, 1976, a warm, sunny day, witness Doris Smith, 65, had just come out of the Skaggs store at the Metro Plaza, a shopping center, at about 11:00 a. m., when a man passed her from the left rear, hooked her purse which she was carrying on her left arm, and fled with it. The man was black, according to her description, about 19 years old, weighing 150 pounds, and was five feet nine inches tall. He was wearing dark red trousers, a red, white and blue printed shirt, and a brown cap. She cried out for help and pursued the man until he disappeared, about a quarter of a block away, into the Citadel apartment complex. The purse, Mrs. Smith said, contained $52 represented by two $20 bills, one $10 bill and two $1 bills.

She was conducted to the office of the manager of the apartment complex to call the police, but learned that the police had already been called. In fact, a policeman, Officer White, arrived almost at once. She was giving him her report of the purse-snatching, and a description of the thief, when a message came over the car radio that a suspect was in custody at a point about two blocks away. (The failure to furnish us the exhibits referred to by the witness has placed us at a disadvantage in locating the various points and routes.)

The witness rode with the police officer to the place where defendant was in custody. He was standing by another police car at the side of the street, handcuffed. There were three officers close by. Officer White either stopped his car momentarily or slowed down almost to a stop. The witness immediately identified the defendant as being the culprit, although he had on no shirt or cap.

Testimony of police officers established that an officer in a helicopter over the area, upon receiving the report of the theft, had seen the defendant running and slowing down to a walk in the vicinity of the arrest. The defendant had on no shirt. The helicopter officer alerted officers on the ground, who accosted the defendant and placed him under arrest. Defendant was sweating profusely and was breathing heavily. He had on his person $52, in two $20 bills, one $10 bill, and two $1 bills.

Searching the surrounding area, the police found on a patio a sweat-dampened shirt and a hat, identified as having been worn by the thief. On the second floor of the same complex — on a balcony, according to the suppression hearing testimony — they found the stolen purse.

By way of defense, the defendant’s mother testified that she had sent defendant, who lived with her, to the grocery store at the Metro Plaza at about 11 o’clock that morning, with $10 to buy some groceries. He was wearing no shirt, and owned no shirt such as the one worn by the thief. He walked and ran with a limp because one leg was shorter than the other. She explained that he breathed heavily after walking because of a bullet wound to his lung received two years earlier.

Identification of defendant.

Witness Smith on the trial was asked if she could identify the man who had stolen her purse. “This is the man right here,” she answered. Thereupon defendant objected to the in-court identification and moved to suppress the same. The motion was denied, and the ruling is assigned as error.

If I have correctly traced defendant’s argument, it is this: The witness in her testimony in a pre-trial suppression hearing had testified she did not positively identify defendant when she saw him in police custody, only that in build, size, color of trousers and racial characteristics he resembled the thief; that if she had testified to a positive “facial” identification on the suppression hearing (as she did at the trial), then the judge (a different judge from the one trying the case) would have sustained the motion to suppress as indicated by his comments in overruling the motion; and that, since the witness now on the trial positively identified the defendant as the purse snatcher, the trial court should reopen and sustain the motion to suppress. We do not agree with defendant about the tenor and effect of witness Smith’s suppression hearing testimony, or about the meaning of the judge’s comments in overruling the motion. We do not need to go into them, however, for if we granted the validity of both propositions, his conclusion would not necessarily follow that the in-eourt identification should be suppressed.

We believe that the trial court ruled correctly in denying defendant’s motion to suppress the witness’s in-court identification. Combining all of her testimony relating to identification, both in the suppression hearing and in the trial, looking at the “totality of circumstances”, as we must, there was not such a “very substantial likelihood of irreparable misidentification”, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Bivens, 558 S.W.2d 296 (Mo.App.1977), as to justify suppressing the witness’s identification testimony and removing it from the jury’s consideration. True it is that the witness did not have an opportunity fully to view the thief’s face, but she did have ample opportunity to see his retreating figure. Within a short time, perhaps as short as eight minutes, she viewed him in police custody. The time lapse between the time of the crime and the time the suspect is viewed by the eyewitness is a factor to be considered in assaying identification testimony . .; the shorter the time, the more reliable the identification. Neil v. Biggers, supra; State v. Hudson, 508 S.W.2d 707, 710 (Mo.App.1974). The procedure here used by the police, i. e., allowing the witness to see the suspect by himself in custody at the scene of the crime or at the scene of the arrest, is an approved procedure. State v. White, 549 S.W.2d 914, 918 (Mo.App.1977). It does not vitiate the identification unless the evidence shows that the witness made the identification as a response to the suggestion or encouragement of the police, rather than on his own observation and visual recollection of the defendant’s appearance. State v. French, 528 S.W.2d 170, 173 (Mo.App.1975). There was nothing of such undue suggestion in the procedure here.

As for the inconsistencies in the trial and prior testimony of the witness, they were brought out on cross-examination and were for the jury to evaluate. The jury was competent to deal with the issue. State v. Bivens, 558 S.W.2d at 298, 299. Manson v. Brathwaite, supra 432 U.S. at 116, 97 S.Ct. 2243.

Refusal to declare mistrial upon the receipt of inadmissible evidence.

Defendant next complains of the court’s failure to declare a requested mistrial when police officer Wolfe testified that witness Smith identified defendant as the culprit when she saw him in custody. This testimony, by one other than the identifying witness himself, is condemned by State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). The court did sustain an objection to the testimony and instructed the jury not to consider the same, but refused a mistrial. We will assume the court’s denial of a mistrial was within an allowable discretion, but need not decide the same in view of our ruling upon the next point.

Refusal to declare mistrial for argument of excluded evidence.

Then during argument, the prosecutor argued to the jury the same testimony. Once again defendant objected, reminding the court of his earlier ruling on the evidence, and asked for a mistrial. The court denied the mistrial, but sustained the objection and directed the jury to disregard the argument of the prosecutor on that subject. The court’s denial of a mistrial on this occasion is said to be prejudicial error.

Mistrial, of course, is a drastic remedy. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); State v. Csolak, 571 S.W.2d 118, 125 (Mo.App.1978). The trial court is quite properly reluctant to abort a trial. Appellate reversal is yet a more drastic remedy. But here the prosecutor in argument boldly repeated testimony which the court had specifically ruled out and had instructed the jury to disregard. The evidence ruling had come after some discussion at the bench. It could not have been easily forgotten. If the court’s action was sufficient in sustaining the objection to the testimony and instructing the jury to disregard it, we do not think it was sufficient when the same evidence was then recited in argument. We have here the added impact of a repetition of the improper evidence, aggravated by prosecutorial misconduct.

The improper evidence, upon which the improper argument was based, was not merely cumulative. Evidence is cumulative when the fact is “fully and properly proved by other testimony”, so as to take it out of the area of serious dispute. On that point, see the concurring opinion of Finch, C. J., in Degraffenreid, at 66. That was not quite the case here, for the identification by witness Smith was sharply challenged and she was the only identification witness.

We believe the defendant’s complaint is well taken, and for that reason we reverse and remand for a new trial.

Allowing argument, otherwise improper, in retaliation.

Defendant’s final complaint is that the prosecutor was permitted to argue to the jury that they could assume that the testimony of five other persons, who were members of the same household as defendant, but who were not called by defendant to testify that he did not own such a shirt as was worn by the thief, would have been unfavorable to the defendant. Defendant’s mother, with whom defendant lived, had testified to the fact defendant did not own such a shirt, and also that three other of her children, ages 7-18 years of age, and two “grandbabies”, ages 10 and 13, lived with her. Defendant’s criticism of the prosecutor’s argument is that the witnesses were no more available to defendant than to the state, and that the testimony of the five would have been cumulative. State v. Wallach, 389 S.W.2d 7, 13 (Mo.1965); State v. Collins, 350 Mo. 291, 165 S.W.2d 647 (1942); State v. Davis, 504 S.W.2d 221, 225 (Mo.App.1973). However that may be, the prosecutor’s argument had been invited by defendant when he had argued to the jury: “Now, who else would know that he doesn’t own a shirt like that? If I could find other witnesses, sure, I’d bring them to you. But I can’t. But who else do you have?” It was within the court’s discretion to permit this type of retaliatory argument. State v. Treadway, 558 S.W.2d 646, 650 (Mo. banc 1977); State v. Whiteaker, 499 S.W.2d 412, 419 (Mo.1973); State v. Swenson, 551 S.W.2d 917, 920 (Mo.App.1977); State v. Lacy, 548 S.W.2d 251, 253-4 (Mo.App.1977).

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

All concur.


author: SHANGLER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Gerard ROGERS, Appellant.
    No. KCD 30314.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      William F. O’Sullivan, David B. Dysart, Duncan, Russell & Bunch, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   SHANGLER, Presiding Judge.

The defendant Rogers was tried to the court on counts of forcible rape, assault with intent to do great bodily harm with malice, and the crime against nature, and was convicted on each. He was sentenced to three concurrent terms of fifteen years imprisonment.

The appeal contends there was not sufficient evidence to find guilt in that (1) the only evidence against the defendant Rogers was the uncorroborated testimony of the victim, an admitted accomplice with the defendant in a separate, but concurrent, crime, and (2) that at the time of the conduct alleged the defendant was so affected by drugs that he could not have formed the specific intent to commit the criminal acts charged.

The testimony to the court was from three prosecution witnesses; two police officers, and the female victim. On the night of the event, while the husband was at work, the victim opened the door of the residence to a knock. She was confronted by the defendant who identified himself as an undercover officer and gave a report of prowlers about the neighborhood. He had an axe handle in hand. After some discussion she allowed him entrance. He placed the axe handle against the kitchen wall and then, with the victim, went into the basement to show the windows by which children could have easy access to the interior house. After this pretext, they came up into the living room. While in the basement, however, the victim observed a bag of marihuana on the floor by the defendant which he acknowledged as his. He asked her there if she could roll a joint of marihuana; she answered she could not but was willing to try. When they resumed in the living room, she offered him a bottle of beer. She then contrived a marihuana cigarette from which she inhaled some, but not enough for effect. The defendant also smoked the substance while they conversed. He told her that he had known the people who lived in the residence before occupancy by the victim began [only some three weeks before] and visited them every night to share pot or marihuana.

After the defendant had come downstairs from the bathroom facility [which he found without direction] he resumed the seat in the living room and then, quite without warning, jumped up and commenced to throttle her with the threat that he would kill her if she did not make love. She disrobed first herself and then him according to his direction. His genital penetrated her vagina and was then taken into her mouth under his threats. After they re-clothed, he commenced to beat her with his fist, with the beer bottle and with a kitchen knife, all without cause. The victim managed to escape to the people next door who called the police.

The defendant contends that the only evidence of crime, other than the testimony of the victim herself, were the blood-stained clothes worn by her and the photographs of body bruises and wounds taken by the police, which tend to prove the assault but not the rape or sodomy. From this want of corroboration, the defendant argues the charges of sexual misconduct were not proved and he must be acquitted of those counts.

This contention rests on two misconceptions: that the testimony of a victim of sexual crime requires corroboration for substantial effect and that, in the circumstances shown, the victim was an accomplice in crime [the shared marihuana cigarette] so that her testimony — inconsistent and contradictory in particulars — was suspect as proof of forced sex acts. The testimony of a victim of rape or sodomy needs no other corroboration for submission of charges against the defendant. Evidence by the victim inherently contradictory or such as to leave the court clouded with doubt must be corroborated or the conviction will not stand, not because the testimony of a victim cannot stand alone, but because the law does not allow an inference of fact from evidence not substantial or probative of that fact. State v. Bohannon, 526 S.W.2d 861, 863[1] (Mo.App.1975).

The discovery by the police officers of marihuana paraphernalia in the premises occupied by the victim or her testimony that she placed the marihuana remnant in a box with others do not inherently contradict her assertion that she was a nonsmoker, but are credibly explained by her other testimony that her husband was a user. Other testimony, that she had smoked marihuana on other occasions so as to become “high,” even if a contradiction was as to a collateral matter and affects only the credibility of the witness. State v. Mitchell, 500 S.W.2d 320, 323[1, 5] (Mo.App.1973). The testimony of the victim on the essential elements of the offense, that she had been forced by assault to submit to his sexual depredations, that his priapus penetrated her vagina and then was received into her mouth under his compulsion, was unimpaired by contradiction, but rather corroborated by the physical evidence of bloodstained garments, contemporaneous photographs of her battered body and early complaint. The testimony of the victim uncon-tradicted as to the elements of the offense needed no corroboration for submission. State v. Lee, 404 S.W.2d 740, 747[12, 13] (Mo.1966).

The contention continues, however, that the victim was an accomplice of the defendant in the unlawful use of the contraband marihuana and so, for that further reason, her testimony was suspect unless corroborated. The charge against the defendant was rape, sodomy and assault — as to these, the victim was not a willing participant. There was no evidence of that knowing, voluntary participation with another in the commission of the sex crimes which marks the status of accomplice. State v. Lewis, 539 S.W.2d 451, 453[2, 3] (Mo.App.1975).

The defendant contends further that his precipitate and sudden assault on the victim consequent to the shared marihuana cigarette show that he was so under the intoxication of the drug as to render him unable to form the criminal intent to commit the rape and other acts. In effect, the defendant asks our declaration, as a matter of law, to direct acquittal on that ground.

The defendant ostensibly seeks the benefit of § 562.076 which accords as a defense that the accused was so intoxicated or drugged as to prevent purposeful or knowing conduct — when the crime charged requires either mental state. That enactment, however, became effective January 1, 1979, and was not available to the defendant for earlier misconduct. The defense of intoxicated or drugged condition, now in effect, becomes available only where supported by evidence and only where the defendant has injected the issues — requisites both absent. § 562.076.2, RSMo Supp.1977; MAI-CR 2d 3.30.1 — Notes on Use 4 and 5; MAI-CR 2d 3.30.2 — Notes on Use 2.

The judgment is affirmed.

All concur.


author: PER CURIAM:

text:
    Hazel ROBINETT, Appellant, v. The BENDIX CORPORATION, Employer, and Fidelity & Casualty Company of New York, Insurer, Respondents.
    No. KCD 30378.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    L. R. Magee, John E. Redmond, Kansas City, for appellant.
    Steven J. Borel, Kansas City, for respondents.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   PER CURIAM:

The widow of Millard 0. Robinett filed claim for death benefits under the Workmen’s Compensation Act. The Labor and Industrial Relations Commission found that there was no accident and that in any event the alleged accident did not contribute to Robinett’s death; and the Commission therefore denied the claim. On appeal the circuit court affirmed. The widow again appeals to this court.

On the morning of July 18,1975, Robinett was going to his place of work in a westerly direction through a hallway in his employer’s plant. Located on the north wall of that corridor was a Wilkerson Dry-Pack Air Dryer which operated by air pressure and which emitted a pop-off noise every 30 seconds. As Robinett passed or was a short distance away from the dryer, the pop-off noise sounded. About that time, witnesses saw Robinett stagger, stumble and collapse at a point approximately 71 feet west of the air dryer. Attempts to revive Robinett failed, and the cause of his death was diagnosed as heart failure.

Robinett had suffered a prior severe heart attack in December, 1971. He had recovered, at least to the extent of working daily, but he continued under medical observation and treatment. The widow contends, contrary to the Commission’s finding, that the pop-off noise was an “accident;” that the noise startled Robinett and caused or contributed to cause his death.

It is unnecessary to pass upon the question of whether the pop-off noise constituted an accident within the meaning of the Workmen’s Compensation Act. Assuming that it was, the Commission’s determination is entitled to affirmance on the ground that the noise was not causally related to the death.

The Commission’s finding on causation is binding on appeal if it is supported by competent and substantial evidence on the whole record and is not contrary to the overwhelming weight of the evidence. Section 287.490, RSMo 1969, as explicated in Snider v. Green Quarries, Inc., 535 S.W.2d 274 (Mo.App.1976). The medical evidence on this issue is in conflict. That of the employer is to the effect that it was highly unlikely that the noise constituted a factor in the death. This medical testimony and the record as a whole supports the Commission’s order by competent and substantial evidence. Under the statutory standard of review, the Commission’s determination could not be disturbed, and under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the judgment of the circuit court must be approved.

An extended review of the evidence would have no precedential value. The judgment is therefore affirmed under Rule 84.16(b).


author: PRITCHARD, Judge.

text:
    Jack C. ROSE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 30396.
    Missouri Court of Appeals, Western District.
    June 11, 1979.
    Clifford A. Cohen, Public Defender, Kevin Locke and Gary L. Gardner, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines and Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

Appellant was, on December 11, 1974, in a jury-waived trial, found guilty of the offense of robbery in the first degree. The court sentenced him to seven years imprisonment on January 31, 1975. The conviction was affirmed in State v. Rose, 535 S.W.2d 115 (Mo.App.1976).

On May 24, 1978, appellant filed a motion pro se to set aside his conviction. Recognizing that the pro se motion was one which “reaches the nadir of insufficiency”, the trial court appointed the office of Public Defender to represent appellant for the limited purpose of amending the motion. That was done, and the trial court took up the amended motion without an evidentiary hearing and ruled that the motion, files and records in the case, including State v. Rose, supra, and Rose v. Wyrick, No. 77-0901-CV-W-4 (W.D.Mo.), in which a petition for a writ of habeas corpus was denied on May 8, 1978, conclusively showed that appellant was entitled to no relief.

Although the amended motion under Rule 27.26 specified four grounds for relief, only the denial of one ground is presented on this appeal: “The trial court erred in denying appellant’s motion to vacate without a hearing insofar as appellant’s allegations of ineffective assistance of counsel were not conclusively resolved by the files and records of the case.” In connection with this sole point, the amended motion alleged: “8.c. he was denied his right to effective assistance of counsel when defense counsel, after the Court had quashed the Subpoena Duces Tecum, did not take steps to serve Detective Clavin again with the subpoena.” The facts of this matter appear at page 118 of State v. Rose, supra, which, paraphrased, are: Appellant caused a subpoena to be issued to Detective Clavin for the production of 150-200 police photographs which had been shown to witnesses, Mitchell and Stringberg, and for other documents pertaining to pretrial identification procedures of the police department. The subpoena duces tecum was not served upon Clavin, but was left with his department head the evening before trial. Clavin found the subpoena lying on a clipboard at headquarters the night before trial, but stated that he did not have control or possession of the documents sought.

In his motion, appellant, with the aid of appointed counsel (cf. the non-retroactive case of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), has pleaded the bare, conclu-sionary allegation that he was denied effective assistance of counsel by counsel’s failure to again secure a subpoena [duces te-cum]. From what may be gleaned from the facts stated on the appeal, State v. Rose, supra, this allegation undoubtedly relates to a failure to procure the 150-200 photographs which were shown to witnesses Mitchell and Stringberg. It is not, however, factually pleaded how the reissuance of the subpoena duces tecum would have aided appellant’s defense, as for example, and by this court’s indulgence in surmise, that the photographs would have borne upon a claim that there existed impermissible suggestions in the witness’ identification procedures. No fact in paragraph 8.c. of the motion is alleged which, if true, would have entitled appellant to relief under Rule 27.26. See Smith v. State, 513 S.W.2d 407, 411[2] (Mo. banc 1974): Sherrill v. State, 515 S.W.2d 611 (Mo.App.1974), where the conclusionary allegation was that movant’s counsel was ineffective on the ground that five unnamed witnesses were not called on movant’s behalf, it being held that an evidentiary hearing was not warranted where there were no allegations as to what the testimony of such witnesses might have been, or that such testimony would have provided a defense. There is nothing here which would have led the trial court to believe that the issuance of a second subpoena duces tecum would have provided a defense which was ignored or overlooked by counsel. The judgment of the trial court is not clearly erroneous, and under the circumstances should be affirmed, Rule 27.26(j).

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. David L. RAUCH, Appellant.
    No. KCD 30485.
    Missouri Court of Appeals, Western District.
    June 11, 1979.

      Jefferson G. Broady, Rockport, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   WASSERSTROM, Judge.

Defendant appeals from a conviction of burglary in the second degree upon which the jury assessed punishment of four years imprisonment. The facts are not in dispute.

Clark Lentz, the owner of a general store, became suspicious of four young men who were apparently “casing” his store and notified the sheriff. The sheriff assigned a deputy to “stake out” the store that night. Shortly after 10:00 o’clock the deputy observed a car drive slowly past the store and then return. Pour men then got out of the car and circled the store on foot. The deputy then heard glass break and radioed the sheriff for assistance, since it appeared that the men that he had observed were armed.

When the sheriff arrived at the scene, he and the deputy entered the store. They found defendant hiding in a closet under a pile of merchandise, and a loaded rifle was discovered only a few feet away. The officers noticed that one window had been broken and another had been pried open. A box of cigarettes and other merchandise was discovered stashed near the cash register.

Defendant testified in his own behalf. He admitted that he went into the store with his companions for the purpose of stealing merchandise, although he denied that it was his idea or that he had carried the rifle. Defense counsel made no defense on the issue of guilt or innocence, stating candidly to the jury: “The facts speak for themselves. David got up and told you what he did, and, let’s face it, he’s guilty.” The thrust of the defense plea was one for leniency.

As his sole point on appeal, defendant challenges the prosecutor’s closing argument as improper. As put by defendant in the argument portion of his brief, he claims that the prosecutor argued to the jury a “bad faith inference which excited the jury to enhance the defendant’s punishment.”

To be properly understood, the prosecutor’s argument under challenge must be placed in the context of defendant’s argument which immediately preceded it. Defense counsel had stated to the jury that there was very little law and order in a penitentiary when the lights go out and that the defendant, who was only 18 years old, was “fearful, of course, of what could possibly happen to him once he gets down there, so I want you to consider these factors in assessing his punishment * * *

In response, the prosecutor rejoined as follows:

“Now, these aren’t toys I’ve laid here on the jury bench for you all to look at. These weren’t something that little kids go out in the street and play with.
Defense counsel has said that poor Mr. Rauch is fearful. What about Mr. Lentz? What if he would have returned to the store that night? What if Mrs. Lentz would have forgotten something and had to come back to the store along about ten o’clock or so that night? What if Mr. Lentz wouldn’t have been there that afternoon and been aware enough to have the foresight to call the Sheriff? What use would have been made of those little toys at that time?
Now, defense counsel has done what I would expect. They tell you here’s a poor eighteen year old boy who’s going to Jefferson City, which, of course, none of us have any knowledge of or control over a sentence but this would be a sentence to the Department of Corrections and that would be up to someone not even in this room today as to whether or not he would be incarcerated.”

No objection was registered by defense counsel at the time to the foregoing argument against which such strenuous contention is now made. Indeed, defendant’s brief does not even solicit this court to engage in a plain error review pursuant to Rule 27.20(c).

Nevertheless, reviewing this matter for plain error as a matter of grace, the point must be rejected. A prosecutor’s closing argument will not be grounds for reversal on grounds of plain error on appeal unless the argument is “ ‘so glaringly offensive and prejudicial’ as to demand action by the [trial] court without objection * * * State v. Clark, 412 S.W.2d 493, 497 (Mo. 1967); State v. Thompson, 531 S.W.2d 63, 66 (Mo.App.1975). Only rarely will a prosecutor’s closing argument affect substantial rights of the defendant so as to result in plain error. State v. Jones, 571 S.W.2d 741, 746 (Mo.App.1978); State v. Brown, 528 S.W.2d 503, 505 (Mo.App.1975). The facts of the present case present no exception to the foregoing general rule.

Affirmed.

All concur.


text:
    STATE of Missouri, Respondent, v. Frank J. CLARK, Appellant.
    No. KCD 29677.
    Missouri Court of Appeals, Western District.
    June 18, 1979.
   MEMORANDUM AND ORDER

The appellant-defendant herein prosecuted his appeal to this Court from a conviction based upon jury verdicts finding him guilty of possession of less than 35 grams of marijuana, a misdemeanor, and possession of amphetamines, a felony. Both offenses were charged in a single information containing two counts. The charges were tried in the Circuit Court of Jackson County, Missouri on April 25 and April 26, 1977. This judgment was affirmed by this Court on October 30, 1978 and this Court’s mandate issued on January 8, 1979. State v. Clark, 574 S.W.2d 452 (Mo.App.1979). In so doing, this Court followed the then binding authority of State v. Duren, 556 S.W.2d 11 (Mo. banc 1977) which held that the Missouri jury selection statutes as they applied to the exclusion of women from jury service upon the sole basis of gender was constitutional.

The Missouri decision in Duren was thereafter set aside and reversed by the Supreme Court of the United States in the case of Duren v. State of Missouri, on Writ of Certiorari to the Supreme Court of Missouri, No. 77-6067, decided January 9, 1979, 439 U.S.-, 99 S.Ct. 664, 58 L.Ed.2d 579. On January 15, 1979, the Supreme Court of the United States held that its holding as to the unconstitutionality of the pertinent Missouri statutes as to the automatic exemption of women to serve upon juries was to be applied retroactively to the date of its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Lee v. Missouri,-U.S.-, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

In accordance with the authority of Duren v. State, supra, the Missouri Supreme Court and this Court have set aside and ordered new trials in numerous cases where the jury was clouded by the unconstitutional methods employed in jury selection as it pertained to the service of women. State v. Hardy, 578 S.W.2d 361 (1979); State v. Brown, 577 S.W.2d 163 (1979); State v. Arrington, No. 59,699 (Mo. banc, March 15, 1979); State v. Madison, No. KCD 29,639 (February 26, 1979); State v. Heavey, 582 S.W.2d 284 (1979); State v. Tate, 582 S.W.2d 329 (1979); State v. Coleman, 582 S.W.2d 335 (1979); State v. Buford, 582 S.W.2d 298 (1979); State v. Hawkins, 581 S.W.2d 102 (1979); State v. Wiekizer, 584 S.W.2d 604 (1979); and State v. Peters, 582 S.W.2d 323 (1979).

The defendant-appellant herein filed his motion to quash the jury panel at the earliest possible time based upon the unconstitutionality of the Missouri statutes with reference to the exclusion of women by reason of gender under the authority of Taylor v. Louisiana, supra, and, although no evidence was offered in support of this motion, the point was properly preserved in defendant-appellant’s motion for a new trial and as a point in his appeal. The conclusion is reached that under Taylor v. Louisiana, supra, and Duren v. State, supra, this case is squarely within the constitutional prohibitions therein determined together with the subsequent opinions of the Missouri courts, as above noted.

IT IS THEREFORE ORDERED that the decision of this Court and the mandate issued pursuant thereto on January 9,1979 be and the same are hereby withdrawn and recalled and for naught held, and this cause is remanded to the Circuit Court of Jackson County, Missouri for further proceedings.


author: BROCK, Judge.

text:
    STATE of Tennessee, ex rel. Charles Ray NELSON, Appellant, v. Ross SIMS, Sheriff of Knox County, Tennessee, Appellee.
    Supreme Court of Tennessee.
    Sept. 27, 1976.
    Ralph E. Harwell, Asst. Atty. Gen., Ronald A. Webster, Dist. Atty. Gen., Knoxville, David L. Raybin, Asst. Atty. Gen., Nashville, for appellant; R. A. Ashley, Atty. Gen., Nashville, of counsel.
    Donald A. Donati, Memphis, William L. Shulman, Johnson City, for appellee.
   OPINION

BROCK, Judge.

This appeal is from the judgment of the Criminal Court, Knox County, denying relator’s petition for the writ of habeas corpus.

Relator, Charles Ray Nelson, was charged in two warrants; one was for assault and battery, which is not involved in this appeal, and the other was a “peace warrant” issued under the authority of T.C.A. § 38-301, et seq. Relator was ordered to give security in the amount of $2,000.00, conditioned that he keep the peace. Initially, because he was unable to post the bond, he was incarcerated in the Knox County jail until such time as he could post the bond, or until October 9, 1975. But, on May 13, 1975, before his appeal was heard in this Court, relator was released from custody upon his own recognizance by order of the General Sessions Court of Knox County in which the peace warrant proceeding was pending. Nevertheless, relator has persevered in his appeal of the habeas corpus case, presenting a number of attacks upon the constitutional validity of the statutes governing proceedings to keep the peace, T.C.A. § 38-301, et seq.

It must first be noted that there was no appeal from the judgment in the proceeding to keep the peace; this appeal is from the judgment denying the writ of habeas corpus.

The office of the great writ of habeas corpus is to free from custody those who are unlawfully imprisoned. It may not be used as a substitute for appeal. State ex rel. Jones v. West, 139 Tenn. 522, 201 S.W. 743 (1918); State ex rel. Smith v. Bomar, 212 Tenn. 149, 368 S.W.2d 748 (1963).

The State, in its brief, argues that the habeas corpus proceeding and this appeal were rendered moot by the relator’s release from custody upon his own recognizance on May 13, 1975. Relator, however, urges that the Court should render an opinion upon the constitutional issues which he has raised in his brief, relying upon State ex rel. Dillehay v. White, 217 Tenn. 524, 398 S.W.2d 737 (1966) as authority for his contention that this appeal is not moot. In that case, it was held that a defendant in a criminal case who had been released from jail upon her own recognizance could, nevertheless, maintain habeas corpus because the terms of her release restricted her to the confines of Maury County, Tennessee, and subjected her to immediate reimprisonment in the event her appeal should be dismissed, factors which this Court deemed to constitute a “constructive confinement.”

But, here there is no constructive confinement of the relator; nor is he subject to summary confinement in the peace warrant case. Therefore, we are of the opinion that this appeal is moot and should be dismissed.

Ordinarily, this Court will not determine an issue unless it is presented by parties who have a genuine, live, personal interest in its decision. Perry v. Banks, Tenn., 521 S.W.2d 549 (1975).

It is true that on rare occasions the courts have been moved to decide issues of great public importance although presented in a case which has become moot as to the litigants. McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1945); State ex rel. v. Trotter, 153 Tenn. 30, 281 S.W. 925 (1926); 5 Am.Jur.2d 210, Appeal and Error, § 768. In each of the cited cases, the lower court had held a statute to be unconstitutional and void, impelling the court, in its discretion, to go ahead and determine the constitutional validity of the statute, although the appeal had been rendered moot insofar as the parties’ litigants were concerned. But, when this rationale was urged upon the court in a moot case in which the lower court had upheld the constitutional validity of a statute, it was held that there was no sufficient public importance in the issue to impel the court to decide it, since all statutes are presumed to be constitutional, and, accordingly, the appeal was dismissed. Federal Firefighters of Oak Ridge v. Roane-Anderson Co., 185 Tenn. 320, 206 S.W.2d 369 (1947). Here, the statutes attacked were upheld by the judgment of the lower court and we see no public interest sufficient to impel this Court to decide the constitutional questions presented. It is our view that it is better that such issues be decided in a case in which the litigants have a real, live, substantial interest in the outcome of the litigation; such is the teaching of our judicial heritage.

Accordingly, the appeal is dismissed and costs taxed against relator.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


author: BROCK, Justice.

text:
    OMAN CONSTRUCTION COMPANY, INC., and Reliance Insurance Company, Appellants, v. Della M. BRAY, Administratrix of the Estate of Gladys Bray, Deceased, Appellee.
    Supreme Court of Tennessee.
    April 30, 1979.

      William 0. Foutch, Jr., Capps, Foutch & Cantwell, Morristown, for appellants.
    Tom H. Rogan, Rogersville, for appellee.
   OPINION

BROCK, Justice.

This is an action for workmen’s compensation benefits. The action was instituted by the employee, Gladys Bray, who sought benefits for permanent total disability resulting from the occupational disease of silicosis which he alleged arose out of and in the course of his employment with the defendant Oman Construction Company, Inc. A trial on the merits resulted in a judgment in favor of the employee and against the employer and its insurance carrier for the maximum benefits provided by the workmen’s compensation law for permanent and total disability. After judgment was entered, the employee died on March 21,1978. Thereupon, Della M. Bray, was qualified as the administratrix of the estate of Gladys Bray and filed a petition in this Court suggesting the death of Gladys Bray and praying that the action be revived in her name as administratrix of the estate of Gladys Bray. This Court duly allowed the substitution and reviver in the name of Della M. Bray, administratrix of the estate of Gladys Bray, deceased.

Della M. Bray further petitioned this Court on her own behalf and in behalf of Phyllis Marie Bray, Donald Alan Bray and Jimmy Wayne Bray, whom she alleges are the minor children born to her and the deceased, Gladys Bray, alleging that she and the children are surviving dependents of Gladys Bray and are entitled to recover the benefits provided by the workmen’s compensation law for dependents of employees whose death arises out of and in the course of their employment. This effort to proceed in this Court for the recovery of benefits provided for dependents of deceased employees was met by a motion to dismiss filed by defendants upon the ground that this Court is without jurisdiction of such action at this time, since the claim for dependents’ benefits has not been presented to the trial court.

Since the jurisdiction of this Court is appellate only, the petition of Della M. Bray on behalf of herself individually and on behalf of Phyllis Marie Bray, Donald Alan Bray and Jimmy Wayne Bray, seeking to recover as dependents under the workmen’s compensation law for the death of Gladys Bray is hereby remanded to the trial court for a trial in that court upon the merits.

Of course, Della M. Bray as the ad-ministratrix of the estate of Gladys Bray, is entitled to the benefits, if any, which this Court may determine upon this appeal had accrued and were due and unpaid at the time of the death of Gladys Bray. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542 (1943); Housley v. American Mut. Liability Ins. Co., 197 Tenn. 38, 270 S.W.2d 349 (1954).

The issue presented with respect to the claim for workmen’s compensation benefits for disability prior to the death of Gladys Bray is whether there is any evidence to support the finding of the trial court that the employee was “last injuriously exposed to the hazards of the disease” of silicosis while in his employment with defendant Oman Construction Company, Inc., on November 15 and 16, 1976, so that liability may be imposed under the terms of T.C.A., § 50-1106, which provides:

“When an employee has an occupational disease that is covered by the Workmen’s Compensation Law, the employer in whose employment he was last injuriously exposed to the hazards of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”

Gladys Bray was a “powder man” and worked for the defendant, Oman Construction Company, Inc., from 1955 until 1975 at which time he ceased employment with Oman and began working in a similar capacity for Tillett Brothers Construction Company with whom he worked for approximately one year, until on or about November 7, 1976. Then, on November 15, 1976, Bray was again employed by the defendant Oman Construction Company and worked for approximately 12 hours on November 15, 1976, and for one or two hours on the morning of November 16, 1976. On the latter date he was unable to continue working because, as he explains, “. . my air went out.” From November 16, 1976, when the employee became incapacitated on the job he was totally disabled until his death on March 21, 1978.

The evidence in the record leaves no doubt that Bray was permanently and totally disabled from November 16, 1976, until his death and that this disability was the result of silicosis, an occupational disease, which arose out of and in the course of his employment by reason of his breathing of rock dust, or silica, during his employment with the defendant Oman Construction Company for a period of approximately 20 years during the first employment, his employment with Tillett Brothers Construction Company for approximately one year and during the period of one and a fraction days of his second employment with defendant Oman Construction Company on November 15 and 16, 1976.

The record abundantly shows that Bray’s silicosis was contracted during his first employment with defendant Oman Construction Company and had existed for a period of time well in excess of one year prior to November 16, 1976. But we must go further under the above quoted statute and determine whether there is evidence that Bray was “last injuriously exposed to the hazards of the disease” during his employment with Oman. Indeed, under the statute, it is not the last employment nor the last exposure to the hazards of the disease which imposes liability; it is the last such exposure that is injurious to the employee.

We conclude that the evidence supports the finding of the trial court that the employee was last injuriously exposed to the hazards of the disease, that is, the breathing of rock dust, on November 15 and 16, 1976, while employed by defendant Oman Construction Company, Inc. Thus, the employee himself testified that throughout the day on November 15, 1976, his work required him to breathe air that was heavily laden with rock dust. The only medical evidence in the record is the testimony of Dr. Smiddy. He explained that silicosis is a progressive disease caused by the breathing of silica, or rock dust, over a period of time and that chronic silicosis of the type contracted by this employee “. . . would come after, more likely, five to seven years of exposure; so, a greater than seven years exposure to dust would be consistent with the changes we saw on his chest x-ray and in his clinical picture.” With respect to the significance of Bray’s exposure to rock dust on November 15 and 16, 1976, Dr. Smiddy testified:

“My own answer to that is, that is correct that that seems to be the final day that he truly could not press on any longer, but that final day was certainly based on each and every day that he was employed throughout his work career in an environment of breathing dust; so that each day was a contributing day and that was just the last one he could make it through.”
(Emphasis added.)

We interpret this testimony to mean that each day of breathing rock dust was an injurious exposure to the hazards of the disease of silicosis and that the last such injurious exposure was November 15 and 16, 1976, while Mr. Bray was employed by the defendant, Oman. This is sufficient evidence to impose liability upon Oman in this case. See Tennessee Tufting Company v. Potter, 206 Tenn. 620, 336 S.W.2d 539, 337 S.W.2d 601 (1960); Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275 (1942); Climax Uranium Company v. Death of Smith, 33 Colo.App. 337, 522 P.2d 134 (1974); Gregory v. Peabody Coal Company, Ky., 355 S.W.2d 156 (1962); Edwards v. Catapano & Grow Construction Co., 15 A.D.2d 843, 224 N.Y.S.2d 565 (1962); Willingham v. Bryan Rock & Sand Co., 240 N.C. 281, 82 S.E.2d 68 (1954); 4 Larson, Workmen’s Compensation Law, § 95 (1979); 99 C.J.S. Workmen’s Compensation § 46 (1958). Construing a “last injuriously exposed” provision similar to our own, the North Carolina court in the Haynes case, supra, held that “last injuriously exposed” means any exposure which proximately augments the disease to any extent, however slight. We apply that test and conclude that the evidence supports the finding of the trial court that the employee, Bray, was last injuriously exposed while in the employ of the defendant, Oman Construction Company. As noted by Larson,

. once the requirement of some contributing exposure has been met, courts applying this rule (last injurious exposure) will not go on to weigh the relative amount or duration of the exposure under various employers and carriers.” 4 Larson Workmen’s Compensation Law, § 95, p. 17-87 (1979).

The judgment of the trial court, insofar as it awards benefits to the plaintiff for total disability from November 16, 1976, to March 21, 1978, is affirmed; insofar as the petition filed in this Court sought to recover on behalf of the widow and minor children of the deceased employee dependency benefits provided by the workmen’s compensation law for the death of the employee, it is remanded to the trial court for trial upon the merits.

Costs incurred in this Court are taxed against the appellants.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


author: CAMPBELL, Justice.

text:
    TEXACO, INC., et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. B-7909.
    Supreme Court of Texas.
    May 9, 1979.

      Stubbeman, McRae, Sealy, Laughlin & Browder, Joe R. Greenhill, Jr. and Milton Bankston, Austin, Vinson & Elkins, Ray-bourne Thompson, Houston, for appellants.
    Mark White, Atty. Gen., Ralph T. Aldave, Asst. Atty. Gen., Austin, McGinnis, Loch-ridge & Kilgore, Robert C. McGinnis and S. Jack Balagia, Jr., Austin, for appellees.
   CAMPBELL, Justice.

This is a direct appeal from a district court judgment. Texaco Inc. and Vernon W. Frost et al. applied to the Railroad Commission for a permanent suspension of a bonus allowable rule (Rule 20), in the Fig Ridge (Seabreeze) Oil Field in Chambers County. The Commission denied the suspension, and the decision was upheld by the District Court of Travis County.

The Fig Ridge Oil Field was discovered in 1941 in the Frio Formation in Chambers County, Texas. The producing sand is composed of six distinct members, of which the uppermost Seabreeze A-l sand is the principal producing member. Originally, the oil in the field was accumulated along an underground anticline, or salt dome, and was bounded on the East and South by sealing faults and by oil-water contact on the West and North. The field dips gradually from East (up-structure) to the West (down-structure). The principal producers are Frost and Texaco, with production in the center of the field, and Sun Oil Company, with production on the east and west sides. Thus, Sun’s properties are at the bottom and top of the anticline while Texaco’s and Frost’s properties are at the middle.

Shortly after the completion of the field in 1945, the operators determined that the natural water drive in the field was insufficient to maintain the necessary pressure in the reservoir to produce all the recoverable oil and by 1954 the Sun leases on the west side of the field had already watered out. Texaco, Frost and Sun determined that if maximum recovery was to be realized, additional water had to be injected along the low side of the anticline to supplement the natural water drive and to maintain reservoir pressure.

In 1954, the three operators entered into a cooperative water injection pressure maintenance program agreement and presented their proposed agreement to the Railroad Commission for its consideration. In seeking Commission approval to conduct the pressure maintenance program all three parties proposed the adoption of special field rules for the Fig Ridge (Seabreeze) field. Included in the proposal was Rule 20, providing for a “bonus allowable.” This rule allows an increase in the number of barrels of oil the parties are allowed to produce in proportion to the number of barrels of water injected into the field. On July 31, 1954, the operators executed a construction and operation agreement, the stated purposes of which were: (1) to arrest and equalize the declining pressures throughout the field and to not only increase the current rate of recovery of oil but also to increase the ultimate recovery and (2) to protect the correlative rights of all affected parties.

This program, including Rule 20 giving the operators a bonus allowable for water injection, was implemented by Commission order dated April 27, 1954. The program continued without incident from 1954 through 1973. Throughout the almost twenty-year period all three parties were benefiting substantially from the pressure program because the water injection slowed the decline in reservoir pressure and all parties were able to produce more oil through the bonus allowable.

At the beginning of the water injection program, pressures throughout the field were fairly uniform, with a slight gradient from east to west. Now the pressure differential across the field is more than 400 psig. The injection wells along the western and northern rim of the field created an area of high pressure and caused oil to be pushed up the anticline toward the east. The result has been a migration of oil away from the leases owned by Texaco and Frost toward the Sun leases on the eastern side of the field. By late 1973, the Texaco and Frost wells had begun to produce less oil and more water, and Sun was the only operator in the field that was able to produce all of the bonus allowed to each operator.

Texaco and Frost contend that the pressure differential in the field is being enhanced by Sun’s ability to produce the full bonus allowable and that by the end of 1979, Sun will be the only operator in the field with the capacity to produce any bonus allowable. On February 23, 1977 Texaco and Frost applied to the Commission for permanent suspension of the bonus allowable rule. The Commission, after a hearing before an examiner, adopted the following findings of fact:

(a) The injection program initiated by the parties in 1954 has resulted in the watering-out of wells on the down-dip leases and the migration of oil to the up-dip leases. (Findings number 1, 2, 3, 7 and 8.)
(b) The ultimate recovery of oil will be increased by 12,000,000 barrels without the bonus. (Finding number 4); and
(c) An additional 800,000 barrels will be produced as a result of the bonus and the injection. (Finding number 5); and
(d) One-half of the 800,000 barrels presently underlies Sun Oil Company’s leases in the lower formations other than the main Seabreeze A-l sand. (Finding number 6.)

The Commission concluded that the continuation of the bonus allowable rule is a waste prevention measure properly in the Commission’s jurisdiction and issued an order denying the permanent suspension.

Texaco and Frost contend the Commission’s order is invalid because:

(1)The order violates the correlative rights of appellants by allowing production of bonus allowable under the Rule 20 even though bonus production is causing and will cause net uncompensated drainage of oil from their properties.
(2) The conclusion of law that the bonus allowable is a waste prevention measure is based on fact finding number 5
(a) which is not supported by substantial evidence,
(b) even if it were such finding is not sufficient to support the conclusion that 800,000 barrels of oil will ultimately be lost if the bonus allowable is discontinued; and
(c) there is no substantial evidence to support a finding that the continuation of bonus allowable is necessary to prevent waste.
(3) The order adopts a waste prevention measure which causes confiscation in lieu of a waste prevention measure which will avoid confiscation.

The Commission’s order is presumed to be valid. The question is not whether the Commission came to a proper factual conclusion on the basis of conflicting evidence, but whether it acted arbitrarily and without regard to the facts. Our duty is to look to the record as a whole to see whether the order of the Commission is reasonably supported by substantial evidence and to determine whether there is in the record competent evidence which reasonably supports the order. If so, the Commission’s order will be sustained. Pickens v. Railroad Commission, 387 S.W.2d 35 (Tex.1965).

It is undisputed that the migration of oil to Sun leases will continue as a result of the water injection pressure maintenance program and that the Texaco and Frost properties will be drained more with the bonus allowable than without it. The migration of oil represents “net uncompensated drainage” because the oil migrating from their properties is not being replenished. Texaco and Frost contend that this net uncompensated drainage is in violation of their correlative rights.

It is now well settled that the Railroad Commission is vested with the power and charged with the duty of regulating the production of oil and gas for the prevention of waste as well as for the protection of correlative rights. Railroad Commission v. Shell Oil Company, 380 S.W.2d 556 (Tex.1965). While Texaco and Frost are correct that it is an elementary rule of property that a landowner is entitled to an opportunity to produce his fair share of oil from a common reservoir, this rule is qualified by both the rule of capture and the Commission’s authority to prevent waste. In Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (1945), it was held that the rule in this state recognizes the ownership of oil and gas in place, and gives to the lessee a determinable fee therein. It is also held “ that such rule should be considered in connection with the law of capture, which is recognized as a property right, and both rules are subject to regulation under the police power of this state. Thus, the right to be protected against confiscation under the Commission’s oil and gas rules is not unconditional or unlimited.

The business of producing, storing and transporting oil and gas is a business affected with a public interest and subject to regulation by the state. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). Between protecting correlative rights and protecting the public interest of preserving our state’s natural resources, the prevention of waste has been held to be the dominant purpose. The Commission, by controlling the oil stored in a common reservoir, is enabled to carry out the dominant purpose of preventing waste. Brown v. Humble Oil and Refining Co., 126 Tex. 296, 83 S.W.2d 935 (1935).

Based on a finding of fact that bonus allowable production would lead to the ultimate recovery of an additional 800,000 barrels of oil, the Commission concluded that this is a waste prevention measure properly within its jurisdiction. Even though the evidence before the Commission was conflicting, there was substantial evidence which reasonably supports the order. It is undisputed that water injection is necessary to increase production in the field and that the bonus allowable had been proposed by the three operators and had been in effect for more than twenty years. A reservoir simulation study indicated that the bonus allowable would increase ultimate recovery from the field by 800,000 barrels. Engineering reasons given to explain why the bonus allowable will increase recovery and thereby prevent waste were that more rapid production will:

(1) improve drainage in the lower stringers by removing the oil before the encroaching water reaches the wells completed in these stringers;
(2) improve the sweep around individual wells by causing higher pressure draw-down at the well bore;
(3) improve the sweep of oil trapped against the major fault of the field by pulling the oil down to existing wells;
(4) improve the sweep of oil trapped ■ against small faults in the field by pulling oil down to existing wells.

Additionally, the evidence showed that one-half of the 800,000 barrels is located in the lower sand members of the reservoir and that recovery of oil from these layers will be reduced without the bonus allowable because the lower members are at a lower pressure than the A-l sand members and water is encroaching into the lower members. The bonus allowable will enable the producers to remove more oil before water encroachment reaches the level at which production is no longer economical. There is no evidence in the record to show that this oil could be recovered by any alternate method.

Appellants point out to us previous holdings of this Court which provide that if a property owner has demonstrated that, due to the effect of a Commission order, net uncompensated drainage of oil from his tracts to adjoining tracts is occurring, he has shown he is not receiving a fair chance to produce that oil, or has shown that his property is being confiscated and, . the courts have struck down such orders as invalid, arbitrary, discriminatory and a denial of equal protection of the laws. Atlantic Refining Co. v. Railroad Commission, 162 Tex. 274, 346 S.W.2d 801 (1961); Halbouty v. Railroad Commission, 163 Tex. 417, 357 S.W.2d 364 (1962); Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941 (1944). We do not find these cases to be controlling.

The issue in the above cases was whether the allocation formulas were reasonable conservation measures, in light of the fact that they resulted in confiscation. In the Atlantic Refining Co. case (Normana) a Commission order allowing a well on a 3/10th acre tract to produce at a rate of 200% more than a well on a 320 acre tract was allowed to produce was not supported by substantial evidence in the record justifying such a wide discrepancy in the rate of production. Waste prevention was not involved and the court held each producer was not allowed to produce his fair share. In the Halbouty case (Port Acres) a Commission order which allowed a well on a one-acre tract to obtain 92.87% of its gas recovery and 90.63% of its condensate recovery by drainage from adjoining tracts was held invalid as being arbitrary, unreasonable and confiscatory of large owner’s property rights and again waste prevention was not involved. In the Marrs case an order which allowed 5,082 barrels per day to be produced from a lease that had only 15% of the recoverable oil in the common reservoir as opposed to 6,500 barrels per day from the lease which had 80% of the recoverable oil was held to be arbitrary, unjust and discriminatory and to deprive the property owners of their just property rights. In fact, the evidence showed this was not necessary to prevent waste. These cases support the proposition that this Court will strike down a Commission order that is not supported by substantial evidence or is arbitrary, unreasonable or confiscatory and thus does not adequately protect correlative rights. Waste prevention orders were not involved.

We do not find any evidence in the record to support a finding that all 800,000 barrels of oil, which the Commission found would be lost without the bonus allowable, can be recovered by any alternate method. Sun’s engineering witness testified that approximately one-half of the 800,000 barrels of oil is trapped against the major fault on the southeast side of the field and thus could be recovered by drilling additional wells on Sun’s leases. However, there is no evidence that any alternate method exists to recover the remaining 400,000 barrels of oil found to be located in the lower sand members of the reservoir. Sun’s engineering witness testified that these 400,000 barrels will be lost unless the oil is produced at the bonus allowable rate before the encroaching water destroys the wells.

The existence of an alternate method does not necessarily render the one chosen by the Commission invalid. The Commission is vested with a statutory duty to conserve and prevent the waste of oil and has determined that the bonus allowable provides the best means to accomplish this duty. This Court fully stated this principle in Railroad Commission v. Mackhank Petroleum Co., 144 Tex. 393, 190 S.W.2d 802 (1945). In that case the Commission, in order to prevent waste, had exempted several oil wells from a field-wide shutdown order. This order was based on evidence that the exempted wells would cease to flow if they were forced to shut down seven days a month. The order resulted in drainage from adjacent producers. The Court of Civil Appeals held the order invalid on the ground that the confiscation problem could be solved by closing in the two exempt wells and transferring their allowable to a third and last well. This Court held: “The court cannot strike an administrative order on the ground that the evidence heard by the court indicated that a more equitable one could be entered. That procedure would be destructive of uniformity of administration.”

We hold that finding number 5 is sufficient to support the conclusion that 800,000 barrels of oil will ultimately be lost if the bonus allowable is discontinued. We further hold that the order of the Railroad Commission is reasonably supported by substantial evidence. The Travis County District Court was correct in upholding the order and we affirm the judgment of that court.