text:
    John SPOONMORE, Appellant, v. BOARD OF POLYGRAPH EXAMINERS of the State of Texas, Appellee.
    No. 986.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.
    Rehearing Denied Jan. 27, 1977.
    Tom S. McCorkle, McCorkle & Wester-burg, Dallas, for appellant.
    John L. Hill, Atty. Gen. of Texas, Jack B. Boone, Asst. Atty. Gen., Austin, for appel-lee.
   McKAY, Justice.

This is an injunction suit. John Spoon-more, appellant, sued the Board of Polygraph Examiners of the State of Texas (the Board) seeking to enjoin the Board from suspending his license to practice as a polygraph examiner and from enforcing criminal sanctions against him. Trial was before the court (without a jury) which denied a permanent injunction, from which judgment Spoonmore appealed.

On June 2, 1975, appellant, a licensed polygraph examiner received notice from the appellee Board that during April 1975 evidence was presented to the Board that appellant at some time during November 1973 had violated Regulation 3 of the Board Regulations promulgated by the Board and Article 4413(29cc) V.A.C.S., also called the Polygraph Examiners Act. Regulation 3 of the Board Regulations reads as follows:

“All polygraph charts, question sheets, reports, data sheets and other pertinent paper shall be maintained in a safe place for a period of at least two years from the date of the examination.”

On July 11, 1975, a hearing was conducted by the Board with Spoonmore present. Evidence was presented that, in November 1973, Spoonmore had given a polygraph chart of a tested individual to the attorney of that individual. The conclusion reached by the Board was that such action by Spoonmore was a violation of Regulation 3 in not keeping the record in a “safe place”, and they suspended Spoonmore’s license for the period August 10,1975, through August 18, 1975. Authority for suspension was based on Section 19(4) of the Polygraph Examiners Act, Article 4413(29cc), which provides:

“The board . . . may suspend or revoke a license on any one or more of the following grounds:
* * * * * *
“(4) wilful disregard or violation of this Act or of any regulation or rule issued pursuant thereto . . ..”

Spoonmore filed suit on July 18, 1975, to enjoin the Board from suspending his license and from imposing criminal sanctions under Section 26 of the Act, providing criminal penalties for violations of its provisions. He contended that he had no adequate remedy at law under the Act, and that he would suffer irreparable harm, damage and injury “unless the acts and conduct of Defendant above complained of are enjoined because his reputation as a polygraph examiner enjoys the highest regard and the suspension, the publication thereof, and being charged with criminal activity would so impugn that reputation that it . could not be rehabilitated . . .” He alleged, among other things, the following points which are now the substance of this appeal: (1) Regulation 3 is vague and indefinite thereby being unenforceable as a denial of due process of law, (2) Section 19(4) is arbitrary and unreasonable thereby being in violation of Article 1, Section 19, of the Texas Constitution, (3) Section 26 is vague and indefinite thereby being in violation of Article 1, Section 10, of the Texas Constitution, and (4) Regulation 3 had been repealed prior to the Board’s attempted enforcement thereof and that the application of it would be violative of due process of law.

The Board answered that there was “absolutely no necessity for any injunctive relief” in this case since under Section 23 of the Polygraph Examiner’s Act the filing of Spoonmore’s petition made “all administrative procedures and actions of no force and effect.” Section 23 provides:

“Any person dissatisfied with the action of the board in refusing his application or suspending or revoking his license, or any other action of the board, may appeal the action of the board by filing a petition within 30 days thereafter in the district court in the county where the person resides or in the district court of Travis County, Texas. In all appeals prosecuted in any of the courts of this state pursuant to the provisions of this Act, such trials shall be de novo as that term is used and understood in appeals from justice of the peace courts to county courts. When such an appeal is filed and the court thereby acquires jurisdiction, all administrative or executive action taken prior thereto shall be null and void and of no force and effect, and the rights of the parties thereto shall be determined by the court upon a trial of the matters in controversy under rules governing the trial of other civil suits in the same manner and to the same extent as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. . . .”

The court, after granting a temporary injunction against the Board, dissolved said injunction and denied a permanent injunction. The court made findings of fact and conclusions of law upon the request of Spoonmore. It found as facts that plaintiff failed to prove he had no adequate remedy at law; that plaintiff would not suffer irreparable harm if the conduct of defendant was not enjoined; and that Regulation 3 had not been repealed on June 2,1975, or at any other time since November 1973. In his conclusions of law the court found, among other things, against Spoonmore on all of the constitutional questions.

Appellant brings seven points of error complaining of the above actions by the trial court. Points one through three complain of the court’s finding that Section 19(4), Section 26, and Regulation 3 were consistent with the United States and Texas Constitutions. Points four and five complain of the ruling that Regulation 3 had not been repealed prior to its application and as such the application was not a violation of due process. Point six complains that the trial court erred in finding that he would not suffer irreparable harm if an injunction was not ordered. Point seven complains that the judgment of the trial court is “vague, uncertain, and indefinite” and that it does not “dispose of all the issues and matters in controversy . ..”

In order to be entitled to injunc-tive relief one must allege and prove that he has no adequate remedy at law. Western Hills Theaters, Inc. v. Motion Picture Machine Operators Local Union No. 330, 495 S.W.2d 39, 41 (Tex.Civ.App., Fort Worth, 1973, no writ); Wilson v. Whitaker, 353 S.W.2d 945, 947 (Tex.Civ.App., Houston 1962, no writ); Texas Unemployment Compensation Commission v. Campbell, Wise & Wright, 119 S.W.2d 388 (Tex.Civ.App., San Antonio 1938, writ dism’d); 31 Tex.Jur.2d, Injunctions, sec. 43 p. 106; 6 Texas Practice, 2nd Ed. (Lowe), Remedies, sec. 113, 114. It has been held specifically that an injunction is properly denied where adequate relief is afforded at law by trial de novo on appeal. Texas & P. Ry. Co. v. Southern Produce Co., 168 S.W. 999 (Tex. Civ.App., Texarkana 1914, no writ).

We are of the opinion that Spoon-more had an adequate remedy at law; and, on that basis, injunctive relief was properly denied. Under Section 23 of the Polygraph Examiners Act, the mere filing of Spoon-more’s petition suspended the administrative action taken by the Board, maintained his status quo and gave him all the relief which he is otherwise seeking by injunction. Since he had this remedy at law he was not entitled to an injunction, and the trial court properly denied the injunction.

The proper action for Spoonmore to have followed was to file a petition for trial de novo in the district court, as provided by Section 23. The suit here was brought and tried on the theory of injunction, not prescribed or necessary under Section 23. Appellant’s counsel admitted in oral argument before this court that a declaratory judgment action, and not a suit for injunction, was proper; however, he asked that this court consider the case on its merits as if a declaratory judgment action had originally been brought. A case will not be reviewed on appeal on a theory different from that on which it was tried below. American Mut. Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1946); Lanphier Construction Co. v. Fowco Construction Co., 523 S.W.2d 29, 43 (Tex.Civ.App., Corpus Christi 1975, writ ref'd n. r. e.). We hold that the trial court did not err in refusing to grant a permanent injunction in favor of Spoonmore against the Board.

Point seven complains that the judgment was “vague, uncertain and indefinite” and did not dispose of all matters in controversy. We do not agree. All Spoonmore prayed for was a temporary injunction to be made permanent on final hearing. The court, in the judgment, said it was “of the opinion that Plaintiff should be denied in-junctive relief.” We are of the opinion that this disposed of all the matters in controversy.

Since we have held that the injunction was properly denied because an adequate remedy at law existed, we do not pass on points one through five. Additionally, we do not pass on the validity of the criminal provisions since no action was either prosecuted or threatened.

The judgment of the trial court is affirmed.

      . “Any person who violates any provision of this Act or any person who falsely states or represents that he has been or is a polygraph examiner or trainee or that he is qualified to apply instrumentation to the detection of deception or verification of truth of statements shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $100 nor more than $1,000 or by imprisonment in the county jail for a term of not to exceed six months, or both.”

      . “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

      . “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.”


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Willard GOOLSBY, Appellant, v. James W. KENNEY et ux., Appellees.
    No. 977.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 30, 1976.
    Rehearing Denied Jan. 31, 1977.

      W. Richard Bernays, Touchstone, Bernays & Johnston, Dallas, for appellant.
    Henry Stollenwerck, Dallas, for appellees.
   McKAY, Justice.

This is a negligence case brought by Ap-pellees, James W. Kenney and wife, and Intervenor, Trinity Universal Insurance Company, for property damages to the Kenney’s house and personalty caused by fire which spread from a home under construction, which was being built by appellant Willard Goolsby, a home builder. Goolsby had subcontracted all of the plumbing work to an independent plumbing subcontractor, McLemore, who was a codefend-ant. Trial was had before a jury; and based upon the verdict, the trial court rendered judgment against Goolsby and McLe-more, jointly and severally, for the sum of $77,575.03. Goolsby brings this appeal from that judgment, but McLemore has not appealed.

At the close of the evidence the trial court overruled Goolsby’s motion for instructed verdict. The jury found (issue 20) that McLemore was an independent contractor, but also found (issues 13-18) that McLemore and his employees were guilty of various acts of negligence in the use of the plumber’s torch which proximately caused the fire and damage to appellees. The jury also found (issue 19) that the plumbing work contracted to be done by McLemore “was inherently dangerous work”, and the jury also found on issues submitted over Goolsby’s objections, that Goolsby failed to take certain precautions while McLemore’s employees used the plumber’s torch, and that such omissions constituted negligence proximately causing appellees’ damage. Goolsby filed a motion for judgment notwithstanding the verdict which motion was overruled by the trial court.

Goolsby, appellant, is a home builder and on the occasion in question was in the process of building a home for the market. He had for many years employed Dennis McLe-more, who does business as McLemore Plumbing Company, to do all plumbing work on the new houses under construction. The construction site in question was next to the appellees’ home. At the time of the fire the Goolsby house had been framed and shingled. Fiberglass insulation was nailed to the outside walls of the house, being supported by paper backing which faced the interior of the house.

On the day of the fire neither Goolsby nor McLemore was present. McLemore had sent two of his employees, Shelton and Sterling, to the house to set the bathtubs. The men found a leak, resulting from a nail hole apparently left by the carpenters in a bathroom pipe. The pipe ran vertically, coming up through the floor and through a horizontal 2" X 4" board and extended up between two vertical 2" X 4" studs. The distance between the pipe and the paper-backed insulation was approximately IV2 feet.

Shelton undertook to repair the leak. He used a saw to cut out the section of the pipe containing a nail hole and then, by using a Smith torch, a standard plumber’s torch, Shelton heated the pipe, applied a flux can acid paste to the pipe so that it would draw solder into the joints and soldered a coupling or collar to the existing pipe so as to seal the pipe on both sides of the cut-out portion. This is called “sweating” the joint. In performing this operation, the flame of the torch should have been parallel to the outside wall, not directed at the insulation, and the flame should have been in direct contact with the coupling at all times. The soldering torch produces a flame approximately three inches long and a heat of approximately 2300 degrees Fahrenheit.

Shelton had been working on the pipe about a minute when there was a flash in the outside wall. When he looked up the fire covered the wall from top to bottom. Efforts of the two men to extinguish the fire with a garden hose proved futile. The flames spread to the roof and then to the Kenney house next door.

Although appellant brings 18 points of error, only points four and five are needed for the disposition of this case. Point four complains of the submission of issues pertaining to Goolsby’s “alleged failure to take precautions during the use of the plumber’s torch on the occasion in question, and related issues of negligence and proximate cause, for the reason that as a matter of law, there was no duty upon the part of the employer of a competent independent contractor to take such precautions.” The fifth point complains of the trial court’s failure to “disregard the answer of the jury . to the effect that the work contracted to be done by McLEMORE . was inherently dangerous work.”

The right to recover for injuries from negligence is based upon violation of a duty, and where there is no duty there can be no negligence. Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913). Thus, issues on negligence should not be submitted if the defendant owes no duty to the plaintiff. In considering the inherently dangerous work question, we must be guided by the rule that the court may disregard any jury finding which has no support in the evidence, Rule 301, T.R. C.P., and such finding must be disregarded if the evidence conclusively establishes the existence of a vital fact contrary to the jury finding. Calvert, “No evidence" and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). Two related questions present themselves: with a finding that McLemore was an independent contractor was Goolsby liable for the acts of McLemore; and, secondly, was the use of the plumber’s torch inherently dangerous work?

It is the well-settled law of this state that one who contracts for work to be done by an independent contractor is not liable for the negligence of the latter. Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S.W. 282 (1904); Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003, 1004 (1944). This rule is subject to an important exception where the work is inherently dangerous, however skillfully done. Cameron Mill & Elevator Co. v. Anderson, supra. The logic behind the exception was explained in the Cameron case by Chief Justice Gaines, quoting Judge Dillon, 2 Dillon’s Mun.Corp., par. 1029, where he said, “the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.” 81 S.W. at 282. It has been held that an instrumentality is inherently dangerous only if it is “dangerous in its normal or non-defective state, like explosives.” Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 101 (1953). The work to be inherently dangerous must result in probable injury to third persons or the public. Stephenville, N. & S. T. Ry. Co. v. Couch, 56 Tex.Civ.App. 336, 121 S.W. 189 (1909, no writ). No recovery may be allowed for an injury resulting from an act or fault purely collateral to the work and which arises entirely from the wrongful act of the independent contractor or his employees. Loyd v. Herrington, supra, p. 1005; Brownsville Navigation Dist. v. Valley Ice & Fuel Co., 313 S.W.2d 104 (Tex.Civ.App.-San Antonio 1958, no writ). The burden is on the plaintiff to show an exception to the general rule exempting the owner or employer from liability. Wilson v. Crutcher, 176 S.W. 625, 628 (Tex.Civ.App.-Texarkana 1915, writ ref’d); Harris v. Farmers’ & Merchants’ State Bank, 239 S.W. 1027, 1029 (Tex.Civ. App.-El Paso 1922, no writ).

The case which most directly resembles the present case is the Brownsville Navigation case cited supra. In that case the defendant had hired an independent contractor to remove an ice machine from a pier, which machine the defendant had bought from the tenant of the pier. While using an acetylene torch, an oxygen-fed torch much hotter than the one in the present case, the independent contractor started a fire by sparks which dropped from the torch to some unknown material below the pier, and spread to the plaintiff’s property. In holding the employer not liable for the acts of the independent contractor, Judge Pope said:

“The contract did not directly require it [the torch], and the torch was not necessarily incident to the removal of the equipment from the Pier. We doubt that the use of the acetylene torch was an inherently dangerous operation, since it was the negligent manner of its use which resulted in the fire.” [Emphasis added] 313 S.W.2d at 106.

After reviewing the rules cited above, the Brownsville Navigation case, and the evidence in the present case, we are convinced, as a matter of law, that the activities of McLemore, the plumbing subcontractor, particularly in regard to the use of the plumber’s torch were not inherently dangerous such that Goolsby can be held liable for the negligence of McLemore. The testimony showed that the torch being used produced a flame of 2300 degrees Far-enheit whereas an ordinary match produces a flame of 1500 degrees Farenheit, while a welding torch produces some 5000 degrees Farenheit. The torch is used for heating the pipe, burns only acetylene and produces no sparks, while a welding torch (as used in the Brownsville Navigation situation) cuts or melts the metal, burns the more volatile acetylene-oxygen mixture, and produces sparks and flying hot metal. From all indications the plumber’s torch is much less dangerous than a welding torch which was found not to be inherently dangerous in the Brownsville Navigation case. Moreover, the testimony showed the plumber’s torch only produced a three-inch flame, while the insulation was some 18 inches from the pipe joint which was being repaired. In performing this operation the flame of the torch should have been parallel to the outside wall, not directed at the insulation, and the flame should have been in direct contact with the coupling at all times. Several plumbers testified that the torch would have to be closer than 12 inches away from the insulation in order to pose a danger. We are convinced that only through the carelessness of the worker in handling the torch did the fire get started, and the jury so found that the worker was negligent. The appellees’ principal witness, Jack Todd Alexander, Chief of the Inspection Division of the Dallas Fire Department, attached a condition to the dangerous aspects of the torch, saying that it posed a special hazard “unless certain precautions are taken to prevent that from igniting surrounding materials.” One experienced plumber testified that he had started several fires with the plumber’s torch, but that almost all he had either blown out or put out with his hand. The evidence reflects that the use of a plumber’s torch is a common practice, and that an average of a hundred joints are repaired in each new house that is built. Appellees cite cases where owners have been held liable for the negligent acts of independent contractors while working on public thoroughfares such as streets and sidewalks. These, however, are based upon the principle that one may not contract away a nondelegable duty and are distinguishable. Cameron Mill & Elevator Co. v. Anderson, supra; Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089 (1908). From the evidence we must conclude that the use of the plumber’s torch was not inherently dangerous, and that the negligent manner in which it was used was the cause of the fire. We must also point out that Special Issue No. 19 inquired not whether the plumber’s torch was inherently dangerous, but whether “all plumbing work on the house under construction” was inherently dangerous. No showing was made that any other aspects of plumbing work was inherently dangerous; as a matter of common knowledge all plumbing work is not inherently dangerous. We sustain appellants’ contention that the jury’s answer to Special Issue No. 19 should have been disregarded by the trial court.

Appellees argue that certain sections of the City of Dallas Fire Code, introduced into evidence by them, cast a duty upon Goolsby, beyond the common law, to take precautions as to fire hazards created by McLemore. Section 16-73(n) of the code provides, “All welding or cutting operations at construction or demolition sites shall be performed in accordance with requirements of section 16 — 139 of this code” and requires the presence of “first aid fire extinguishing equipment” and “a competent person” during operation to “watch for sparks and hot metal and to extinguish any incidental fires which may occur.” Section 16-139 is under Article VIII, generally titled “Welding and Cutting”. Section 16-139(a)(l) requires a permit to be obtained “before beginning operations in the use of oxygen-fuel gas, gaseous fuels generated from flammable liquids under pressure, or electric-arc welding or cutting, or any combination thereof.” Part (a)(2) of the same section requires “every owner, operator, superintendent, foreman, or other person in charge of any operation” to acquire a permit, post a competent fire watch, and provide fire extinguishers at the site. Appellees contend that under the ordinances appellant violated a duty to obtain a permit, to provide a fire watch, and to provide fire fighting equipment, and thus should be held liable for the damage to appellees’ house resulting from the negligence of McLemore. We do not agree.

The ordinances in question applied to welding and cutting” operations which as shown by the testimony cited above, is a very different operation from the soldering process involved in the use of the plumber’s torch. Welding involves a much hotter flame than soldering, producing sparks and hot metal, as recognized by the Fire Code in Section 16-73(n). Welding and cutting involves a melting of the actual metal to be fused, while a plumber’s torch merely heats the pipe in order to expand it so that the flux may be applied to the joint. A mask and gloves are necessary for welding while soldering with the plumber’s torch does not. The plumber’s torch does not involve the use of “oxygen-fuel gas” as required by 16-139(a)(l), since the acetylene is not mixed with oxygen before it is burned. The torch does not employ “gaseous fuels generated from flammable liquids under pressure.” The only liquid involved is acetone, which is mixed with the acetylene gas in order to stabilize the latter. We are of the opinion from both the naming of the processes (welding and cutting) and their description that they do not apply to the soldering or “sweating” process involving the plumber’s torch. Alexander himself testified that it would be quite rare if plumbers ever applied for a permit before they soldered a joint, and that the fire department is not set up to send a fireman out to stand by on every joint-sweating that is done in construction in Dallas. As regards the fire extinguisher, Shelton, one of the workmen present when the fire started, testified that a CO2 fire extinguisher would have been little help from the time he noticed the fire. We, therefore, hold that Goolsby cannot be held liable to appellees on the basis of the fire code ordinance.

Appellees also contend that Goolsby may be held liable for the damages to ap-pellees’ house based on the finding of the jury of three omissions constituting primary negligence. The jury found that Goolsby was negligent (1) in failing to require that any torch in use was used with an adequate shield, (2) in failing to provide a person standing by immediately as the torch was being used with adequate fire fighting equipment in hand, and (3) in failing to provide adequate fire fighting equipment on the premises while the torch was being used, and that each of such acts of negligence constituted a proximate cause of the damage to the Kenneys’ house. We do not agree with this contention. The appel-lees seek to impose liability upon Goolsby for his failure to act under circumstances where the law imposes no duty upon him to act. Having subcontracted the work to an independent contractor, the duty to take such precautionary measures as may be required in the circumstances of the developing work rests upon the independent contractor whose employees are doing the work and who are subject to the control of the independent contractor, not the owner. As no duty existed in this situation, no cause of action in negligence arose; therefore, these issues should not have been submitted to the jury.

We do not reach the remaining points.

There was no appeal from the judgment against McLemore, and it, therefore, became final against him; the judgment of the trial court with respect to Goolsby is reversed, and judgment is here rendered that appellees take nothing against Gools-by-

      . The jury found in issues 1-7 that Goolsby was negligent in failing to require a person standing by with an adequate fire extinguisher, in failing to require the use of an adequate fire fighting device, and in failing to require the use of an adequate shield between the torch and the insulation paper, and that each of these acts of negligence was a proximate cause of the damage.

      . “ISSUE NO. 19
      “Do you find from a preponderance of the evidence that the work contracted to be done by McLemore, to-wit, all plumbing work on the house under construction, was not ‘inherently dangerous work,’ as that term is defined in this Charge?
      “Answer ‘It was not inherently dangerous work’ or “It was inherently dangerous work’
      “Answer: It was inherently dangerous work.’ ”


author: WARD, Justice.

text:
    Guadalupe PARRA, Appellant, v. F. W. WOOLWORTH COMPANY, INC. and the Border Tobacco Company, Inc., Appellees.
    No. 6573.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 5, 1977.

      Mauro Rosas, El Paso, for appellant.
    Kemp, Smith, White, Duncan & Hammond, W. Royal Furguson, Jr., Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., El Paso, for appellees.
   OPINION

WARD, Justice.

Guadalupe Parra sued for personal injuries she received when she fell on a City of El Paso sidewalk. The Defendants are the adjoining property owner and its tenant. The one point on this appeal is whether the Ordinances of the City of El Paso have created a cause of action in favor of the pedestrian against the abutting landowner for a failure to maintain the City sidewalk in repair. We hold that the Ordinances have not created such a cause of action and affirm the judgment of the trial Court.

The sidewalk is located on the North side of Paisano Drive between Stanton Street and an alley, and it was stipulated that the sidewalk belongs to the City of El Paso. The sidewalk runs parallel to the South side of a building owned by the Defendant, The Border Tobacco Company, and occupied by Defendant F. W. Woolworth Company, Inc. The opening to the building is on its East side where it fronts on Stanton Street. There is also an opening into the building at the rear end on the alley. There is no opening onto the South side where it adjoins the sidewalk. The Plaintiff admits that neither of the Defendants had made a “special use” of the sidewalk; that neither of them had created the complained of defect in the sidewalk; and that the City of El Paso had never given written notice to either Defendant of the need to repair and eliminate any condition existing in the sidewalk. The Plaintiff testified that she was walking with a friend on her way to lunch on March 1, 1972, when she either slipped on a crack or her foot hit a bump or patch on the sidewalk and she fell.

The applicable provisions of the Charter and Ordinances of the City of El Paso were stipulated by the parties as being in existence and valid on the date in question. Section 56, City of El Paso Charter, gives complete and exclusive control to the City Council over the streets, alleys and highways of the City. Section 58 of the Charter gives to the City Council full power to keep in repair any sidewalk within the limits of the City, and also provides for the defraying of costs and expenses thereof and the manner in which notice is to be given to the owner of the property adjoining said sidewalk. Section 93 of the City of El Paso Charter gives to the City the power to repair sidewalks and to punish for an obstruction or encroachment thereon. Section 97, City of El Paso Charter, empowers the City to inspect and remove encumbrances from sidewalks. Section 19-13, City of El Paso Code, precludes any person from constructing or altering any sidewalk or street without permission of the City Engineer, which must be in accordance with specifications prescribed by him. Section. 19-13.1, City of El Paso Code, limits the construction of a sidewalk by the owner of the abutting property to the order and direction of the City Engineer. Finally, there is Section 19-14.1 of the City of El Paso Code. This ordinance is entitled “Maintenance of sidewalks, curbs and gutters, duty of owners of abutting property; notice to be given; costs to be assessed; penalties.” It contains the following provisions:

“(a) It shall be the duty of the owner of property abutting on any public street containing a sidewalk, curb or gutter to keep such sidewalk, curb or gutter in repair.
“(b) When the building official finds that any such sidewalk, curb or gutter is in hazardous condition because of need of repairs or faulty construction, he may notify the owner of the abutting property to make such repairs or changes as may be necessary to put the sidewalk, curb or gutter in safe condition. If the owner fails to make such repairs or changes within a reasonable time given in the notice, he shall be deemed guilty of a misdemeanor and punished as provided in section 1-6 of this Code.
“(c) If the owner fails to comply with the notice, the city council may authorize the work to be done by city forces or by contract, and may, after reasonable notice and opportunity to be heard, assess the actual cost of the repairs against the abutting property and its owner. The resolution of the city council making the assessment shall be recorded in the county clerk’s office and the assessment shall then constitute a lien against the property.”

With the evidence in the record as outlined and the stipulations as made, the Defendants filed special exception to the Plaintiff’s petition and a plea in abatement, because the petition and the evidence showed that a defect of parties existed in the suit, as it was clearly evident that only the City of El Paso, and not the two joined Defendants, was the responsible party and liable for any injuries received from a fall on the City sidewalk. The trial Court, after having considered the Defendants’ special exception and plea in abatement, dismissed the case. For the purpose of inducing the Defendants to accept an abbreviated statement of facts, the Plaintiff filed in the trial Court a statement of the points upon which she intended to rely on appeal, and has properly limited herself to such points. Rule 377-a Tex.R.Civ.P. The form of the procedural apparatus used by the Defendants in securing the dismissal of the suit is not in issue. Essentially, the Plaintiff contends that Section 19-14.1(a), City of El Paso Code, places financial responsibility on the abutting property owner if a person falls and is injured on an adjoining City sidewalk, even though the property owner did not create the physical condition which caused the fall, was not making a “special use” of the sidewalk, and had received no notice from the City of El Paso of the need to repair a particular condition on the sidewalk.

It is the general rule, in the absence of a valid statute or ordinance to the contrary, that the owner or occupant of land abutting on a public sidewalk does not, solely by being an abutter, owe to the public a duty to keep the sidewalk in a safe condition. Annot., 88 A.L.R.2d 340 (1963). Sidewalks in a city are a part of the street, and a duty to exercise ordinary care to maintain them in reasonably safe condition for the use of the public rests upon the city and not upon the abutting property owner. Grapotte v. Adams, 130 Tex. 587, 111 S.W .2d 690 (1938). Absent such a statute or ordinance, the abutting owner or occupant can only be liable when he made an unusual or special use of the walk or committed a wrongful or unlawful act which caused the defect. Since the Defendants admittedly made no special use of the sidewalk, nor were they actively negligent in rendering the sidewalk dangerous, liability cannot attach to them for those reasons. Grapotte v. Adams, supra; Houston Belt & Terminal Ry. Co. v. Seheppelman, 235 S.W. 206 (Tex.Com.App.1921, judgment adopted); Melvin v. Kane, 277 S.W. 374 (Tex.Com. App.1925, judgment adopted); Texas Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996 (1944), and Henry v. Mrs. Baird’s Bakeries, Inc., 475 S.W.2d 288 (Tex.Civ.App., Fort Worth 1971, writ ref’d n. r. e.).

As to the Ordinance of the City of El Paso, the general rule is that such a statute or ordinance which requires an abutting owner or occupant to construct, reconstruct, or maintain in proper repair a sidewalk adjoining his premises does not impose upon him a duty to the public to comply with the ordinance, and does not of itself render him liable in damages for injuries sustained by a member of the public as a result of any defect in the sidewalk. The abutting owner or occupant only becomes liable when the statute or ordinance goes further and expressly makes them liable for the injuries occasioned by reason of the defective condition of such walk. Annot., 88 A.L.R.2d 354, Sec. 6; 358, Sec. 7. This is in accord with the view adopted by the Restatement of Torts. It states that, where the ordinance merely provides that abutting owners must repair defects in sidewalks and upon failure they shall be liable to the city for the cost of repairs, such an ordinance does not provide a standard of conduct for the benefit of the person injured. Restatement of Torts 2d, Sec. 288, Illustration 5.

Texas authority supports that view. Texas Co. v. Grant, supra. There, the Court was reviewing an ordinance of the City of Dallas which provided that the abutting property owner “shall be primarily liable in damages for any loss or damage sustained as a result of such defective condition.” The ordinance further provided that it would be the duty of the abutting property owner who made a special use of the sidewalk to keep the walk in good and safe condition and free of defects. The abutting owner was held not liable. The abutting tenant, who made a special use of the walk and who created the greasy condition on the walk, was subjected to liability. Nothing in that ordinance was held to enlarge the liability of the parties over their common law duty. Based upon the above, the Appellant’s points are overruled.

The judgment of the trial Court is affirmed.


author: CORNELIUS, Justice.

text:
    Ex parte Melvin Harold HAWKINS.
    No. 8462.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 11, 1977.

      Patricia H. Florence, Florence & Florence, Hughes Springs, for appellant.
    J. Michael Smith, Gilmer, for appellee.
   CORNELIUS, Justice.

This is an original habeas corpus proceeding instituted by relator, Melvin Harold Hawkins, pursuant to Tex.Rev.Civ.Stat. Ann. art. 1824a (Supp.1976), seeking release from custody of the sheriff of Upshur County.

Relator alleged that he was arrested and confined to the Upshur County Jail by the sheriff pursuant to a purported judgment of contempt issued by the 115th Judicial District Court on motion of relator’s former wife. The contempt proceeding arose from relator’s alleged failure to comply with a child support order entered by the same court in a divorce proceeding.

Relator raises several serious questions concerning the validity of the proceedings leading to his confinement, but it is not necessary that we consider those questions because the transcript on appeal reveals that no written judgment of contempt or commitment has been filed in the proceedings. The proof of restraint submitted by relator contains a statement by Sheriff Johnson that he arrested and confined relator by virtue of written judgment and commitment of the 115th Judicial District Court dated October 19, 1976, but the official transcript shows no such judgment or commitment. Indeed, on December 9,1976, one day after completion and certification of the transcript, the County Clerk of Upshur County certified that no judgment of contempt had yet been entered.

It has long been settled in Texas that unless the contemptuous conduct is committed in the presence of the court, no person may be imprisoned for contempt unless at the very time he is so committed the proper judgment of contempt is reduced to writing and made a matter of record in that court, and a writ of commitment is issued for the purpose of his detention. Ex Parte Kearby, 35 Tex.Cr.R. 531, 34 S.W. 635 (1896); Ex Parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709 (1925); Ex Parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136 (1935). Nor, unless such steps are taken, is it competent for any court after a party detained has sued out a writ of habeas corpus, to then make its judgment and have same entered, and in that manner supersede the jurisdiction of the court granting the writ. Ex Parte Kearby, supra. The above cited cases have been approved and followed many times by our Supreme Court as well as by this Court. Ex Parte Martinez, 160 Tex. 328, 331 S.W.2d 209 (1960); Ex Parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (1959); Ex Parte Palmateer, 150 Tex. 510, 243 S.W.2d 160 (1951); Ex Parte Spencer, 508 S.W.2d 698 (Tex.Civ.App. Texarkana 1974, no writ).

The transcript before us certifies that it contains a true and correct copy of all proceedings in the cause. As that record shows there is no written judgment of contempt or commitment, relator’s restraint is unlawful. Relator is therefore discharged.


author: RAY, Justice.

text:
    KIMBELL, INC., d/b/a Buddies Supermarket, Appellant, v. Esther Lynn TAYLOR, Appellee.
    No. 8429.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 11, 1977.
    Edward E. Crowell, Jr., Gardere, Porter & DeHay, Dallas, for appellant.
    Ronald A. Dubner, Dubner, Weinstein & Bell, Dallas, for appellee.
   RAY, Justice.

This is a venue case. Esther Lynn Taylor, appellee (plaintiff), brought suit against Kimbell, Inc., d/b/a Buddies Supermarket, appellant (defendant), in Dallas County seeking recovery of money damages for injuries she received while in one of the appellant’s stores in Dallas. Appellant filed its plea of privilege to be sued in Tarrant County, the location of its main office. Ap-pellee duly filed her controverting affidavit and the trial court heard the matter without the aid of a jury and entered an order overruling the plea of privilege. This appeal was perfected by the appellant and eight points of error are submitted for our consideration.

Appellee Taylor contends that venue is in Dallas County under Tex.Rev.Civ.Stat.Ann. art. 1995, sec. 9a and see. 23. In order to maintain venue in Dallas County under those sections, it was necessary that appel-lee prove by a preponderance of the evidence that she had a cause of action which arose in Dallas County.

Appellee alleged that she entered the appellant’s retail grocery store in Dallas County to purchase some grocery items, and that suddenly and without warning some dog food bags by which she was standing, fell and caused severe injuries to her. The specific acts of negligence alleged were that the appellant failed to use ordinary care in stacking the sacks of dog food, failed to warn of the danger of the stacked sacks of dog food and failed to search the premises to discover whether there was an existing dangerous condition as a result of the dog food bags being stacked in large numbers, one on top of the other.

Appellee Taylor testified that she entered the supermarket and saw a display of dog food placed on a dais and that on the dais there were three fifty pound sacks of dog food which had been damaged and a stack of ten sacks of dog food, each weighing twenty-five pounds, about two sacks of which were above Mrs. Taylor’s head. Ap-pellee noticed that the fifty pound sacks were broken and since she had sixteen dogs to feed, she was interested in purchasing the damaged sacks of dog food. She asked a stock boy from the next aisle to come and tell her how much the damaged sacks would cost. The stock boy left, and Mrs. Taylor remained for between three to four and possibly five minutes with her toes about eighteen inches from the stack of twenty-five pound sacks of dog food. As she was standing near the twenty-five pound sacks, the stack suddenly fell on her. No other evidence was introduced by appellee regarding the falling of the sacks or the stacking of the dog food sacks.

The mere happening of an accident is no evidence of negligence. Thoreson v. Thompson, 431 S.W.2d 341 (Tex.1968).

Appellee’s first burden in proving her case was to establish that appellant had created or maintained a dangerous condition on its premises. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972). There was no evidence that stacking twenty-five pound dog food sacks in a stack ten high creates a dangerous condition. There was no evidence of how thick the sacks were, whether the sacks were slick or not, or the manner in which they were stacked, and there was no evidence of how tall Mrs. Taylor was. There is no evidence that the manner in which the sacks were stacked would cause them to be more likely to fall than not. Since there was no evidence that appellant maintained a dangerous condition on its premises, there was no duty to warn nor any duty to search the premises to discover a dangerous condition. Adam Dante Corporation v. Sharpe, supra.

There was no evidence in the record which would dictate that the risk of injury was high when compared to common experience. Since common knowledge would not suffice in the instant case, appellee had to establish the degree of risk by competent evidence. Thoreson v. Thompson supra; J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968).

The judgment of the trial court is reversed and judgment is here rendered transferring the cause, as prayed for, to the 48th District Court of Tarrant County.


author: PALMORE, Justice.

text:
    Ronnie Earl DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 1, 1976.
    Rehearing Denied Jan. 28, 1977.
    Edward C. Airhart, Schaefer & Airhart, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PALMORE, Justice.

On the late evening and night of February 15-16, 1974, Ronnie Earl Davis, the appellant, picked up a 16-year-old girl in Jefferson County and transported her into Bullitt County, where they had sexual intercourse. She claims that she was abducted against her will and was raped. He claims that she went with him willingly and consented to the intercourse.

Davis was indicted in Jefferson County for detaining a woman against her will (KRS 435.110) and for armed robbery (KRS 433.140), and was indicted in Bullitt County for rape (KRS 435.090), carnal knowledge, KRS 435.100(c), and detaining a woman against her will (KRS 435.110). He was first tried on the Jefferson County charges and was acquitted. He was then tried on the Bullitt County charges and was convicted only of carnal knowledge, for which he was sentenced to 10 years' imprisonment (the maximum penalty for that offense). He appeals the Bullitt County conviction, claiming among other things double jeopardy.

The double jeopardy point is based on the theory that the offenses of carnal knowledge and detaining a woman against her will are both lesser included offenses within the offense of forcible rape, hence an acquittal on any one must be an acquittal on all.

It is true that each of these two lesser offenses is included within the greater offense of forcible rape. Fenston v. Commonwealth, 82 Ky. 549 (1885), so held with respect to carnal knowledge, and Meade v. Commonwealth, 214 Ky. 88, 282 S.W. 781 (1926), so held with respect to detaining a woman against her will. Nevertheless, though each is embraced within forcible rape, neither of these two lesser offenses is embraced within the other. As a matter of fact, they are mutually exclusive. Hence a trial on one of them alone does not expose the defendant to conviction of the other, or to conviction on any component of the other (as, for example, assault would be a degree of detaining).

Laying aside the possible argument that what may have begun with consent in Jefferson County could have culminated in something without consent in Bullitt County, or vice versa, let it be assumed that Davis’ acquittal of the detaining charge in Jefferson County was a bar to the detaining and forcible rape charges in Bullitt County. He was acquitted of them anyway, leaving for consideration only the question of whether the Jefferson County prosecution and acquittal were a bar also to his trial in Bullitt County on the charge of carnal knowledge.

Force is a necessary element of common-law rape. So is the act of intercourse. Hence in the course of consummating a forcible rape one must necessarily (1) assault and detain a woman against her will and (2) have carnal knowledge of her. Conversely, force is not a necessary element of carnal knowledge. A trial on the charge of detaining a woman against her will does not involve any element necessary to conviction of carnal knowledge. Therefore, it is our opinion that even though the evidence at the two trials may have been the same, the first trial on the charge of detaining the girl against her will was not a bar to the subsequent trial on the charge of having simple intercourse with her. The cases holding that a trial on any degree of a crime bars a conviction on any other degree are not applicable.

The linchpin of the appellant’s argument on the jeopardy proposition is that Meade v. Commonwealth, 214 Ky. 88, 282 S.W. 781 (1926), held detaining a woman against her will to be a lesser degree of carnal knowledge. We do not so construe the Meade case. The defendant had been indicted tor attempted rape, and his conviction was reversed on the grounds that he was entitled to instructions on simple assault and detaining a woman against her will, both of which offenses were held to be included within attempted rape. The opinion has a peculiar twist, however, in its treatment of the court’s earlier opinion in Head v. Commonwealth, 174 Ky. 841, 192 S.W. 861 (1917), written by the same author. The Head opinion correctly held that detaining a woman against her will was not a lesser degree of carnal knowledge, but in so doing relied on Lowry v. Commonwealth, 119 Ky. 691, 63 S.W. 977, 23 R 1240 (1901), which had held (incorrectly) that detaining a woman against her will was not a degree of forcible rape. In overruling Lowry, Meade also damns Head, but its thrust was directed at Head’s reliance upon Lowry, as clearly indicated by the following passage in Meade (emphasis added):

“We therefore see no escape from the conclusion that we were in error when we held in the Lowry case and the Head case and the others following and based upon it, that the statutory offense of detaining a woman against her will was not a degree of the common-law one of rape, and those cases are hereby overruled,” etc. 282 S.W. at p. 785.

Thus it is not necessary to overrule Meade in order to reach the result upon which we have decided in this case. We do not perceive that the issue, or any issue, tried in Jefferson County was relitigated under the carnal knowledge issue in Bullitt County. They were relitigated under the rape charge, and probably under the detaining charge as well, but as heretofore mentioned, the latter two charges resulted in acquittals.

It is further contended that even if it be held that his trial on the charge of carnal knowledge did not subject Davis to double jeopardy, he was nonetheless unfairly prejudiced and denied due process of law in violation of the federal Constitution by reason of being simultaneously tried on the rape and detaining charges. We acknowledge that his acquittal of these charges does not necessarily mean they did not have a prejudicial effect on his defense against the charge on which he was found guilty. However, the situation is much the same as when a defendant indicted for murder and convicted of manslaughter complains that the instruction on murder was not supported by sufficient evidence and should not have been given. In such instances it has been uniformly held by this court that the error, if any, was not prejudicial. See cases collected in West’s Kentucky Digest, Homicide, ®=» 340(4).

The judgment is affirmed.

All concur.

      . Ail of these statutes have been superseded by the Kentucky Penal Code, effective Jan. 1, 1975.


author: BARDGETT, Judge.

text:
    Harry A. McINTOSH, Petitioner, v. Edward R. HAYNES, Director, Missouri Division of Corrections, Respondent.
    No. 59477.
    Supreme Court of Missouri, en banc.
    Jan. 17, 1977.
    Ronald R. McMillin, Jefferson City, for petitioner.
    John C. Danforth, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Harry A. McIntosh, a prisoner, filed an original petition for writ of habeas corpus in this court naming the director of the Missouri division of corrections, Edward R. Haynes, as respondent. In his original petition, the petitioner alleged that certain conditions of his confinement in the Missouri state penitentiary constituted cruel and unusual punishment in violation of the constitutions of the United States and the state of Missouri from which he seeks relief.

The writ was issued and the respondent filed his return asserting that the petitioner was lawfully in custody “under the authority of a judgment and sentence entered in the Circuit Court of Greene County, Missouri, No. 70035-1, entered September 17,1974, and ordering petitioner to serve a term of six years in the custody of the Missouri Division of Corrections.” The respondent then requested this court to dismiss the writ of habeas corpus and remand the petitioner back into custody of the division of corrections.

The petitioner filed an answer in which he admitted being held in custody of the Missouri department of corrections pursuant to the authority and judgment entered in the circuit court of Greene county. Petitioner claims, however, that his particular confinement in a particular place within the penitentiary, because of conditions that exist there, constitutes cruel and unusual punishment in violation of the state and federal constitutions. Specifically, the petitioner claims the condition that renders this confinement unlawful is that the building in which he is required to sleep is rat-infested and while he was so confined he was bitten by a rat. He also claims other prisoners confined in the same place have been bitten by rats. Although the prayer of his petition for the writ utilizes the classical language whereby he seeks discharge from his confinement, it is clear from his response to the return and the stipulation of facts that petitioner does not seek discharge from the department of corrections but only from being confined in a place infested with rats.

The case was submitted to the court on the following stipulated facts:

“1. Petitioner is in the custody of the Missouri Department of Corrections as a result of a six-year sentence imposed by the Circuit Court of Greene County, Missouri, in the cause styled State of Missouri v. Harry Arthur McIntosh, No. 70035-1. Said judgment and sentence were entered on September 17, 1974, pursuant to a plea of guilty to a charge of robbery in the first degree.

“2. Petitioner currently is housed in the Missouri State Penitentiary, Jefferson City, more particularly in a building formerly used as a clothing warehouse, which now has been converted into an honor dormitory. The dormitory is known as housing unit No. 9.

“3. Respondent is and was at all relevant times the Director of the Missouri Division of Corrections.

“4. Petitioner would testify that on January 2, 1976, at about 4:30 a. m., he was bitten by a rat while in bed in housing unit No. 9, which incident was reported to the guard. Petitioner was then taken to the prison hospital where he began anti-rabies treatment, consisting of a fourteen-shot series of anti-rabies vaccine. Petitioner would testify that this treatment was painful.

“5. Two other inmates in housing unit No. 9 had previously reported being bitten by rats and undergone anti-rabies treatment, the first on December 15, 1975, and the second on December 18, 1975.

“6. Donald Wyrick, Warden, Missouri State Penitentiary for Men, would testify that shortly after petitioner reported being bitten he contracted with Rose Exterminator Company, Jefferson City, Missouri, for its extermination service on a once-a-month basis. He further would testify that he has received no further reports concerning the presence of rats since the company had been employed and that no other action is contemplated.

“7. Petitioner would testify that three other inmates in housing unit No. 9 had told him that they had seen rats in housing unit No. 9 after the institution of the above-described vermin-control methods.

“8. The same issues presented in this petition were previously raised in the Circuit Court of Cole County (Case No. 28260) and the Missouri Court of Appeals-Kansas City Division (Case No. 28529). Both petitions were dismissed without a hearing on the merits.”

The principal legal issue is: Assuming the conditions of confinement as alleged constitute cruel and unusual punishment, is habeas corpus a proper remedy to challenge those conditions and obtain relief short of discharge from the penitentiary.

The factual issue is: Assuming habeas corpus to be the proper remedy, do the facts of the instant case establish that petitioner is being subjected to cruel and unusual punishment.

The respondent’s basic contention is that habeas corpus is not the proper remedy to challenge the conditions of one’s confinement but instead is limited to challenging the cause of confinement. Stated in other words, habeas corpus is intended to inquire into the legality of the authority under which the petitioner is confined. Furthermore, the only remedy available is release from that confinement either by discharge or bail. Respondent argues that since the petitioner admits he is incarcerated pursuant to a valid judgment of the circuit court of Greene county, Missouri, and cannot be discharged from his confinement habeas corpus is not the proper remedy.

Traditionally, the courts in Missouri have refused to examine the conditions of one’s confinement by way of habeas corpus. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), wherein the Supreme Court of the United States said the practice of Missouri courts was to dismiss petitions for writs of habeas corpus which challenge conditions of confinement because they fail to state causes of action. We are now of the opinion that it is appropriate to reexamine this reputed practice in light of a trend to expand the use of the habeas corpus remedy.

It is important to point out that there is no limitation contained in the Missouri ha-beas corpus statute which would prevent a court from taking cognizance of habeas corpus proceedings which seek to challenge the conditions of confinement. All such limitations have been products of judicial constraint. Section 532.010, RSMo 1969, provides:

“Every person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever, except when, according to the provisions of this chapter, such person can be neither discharged nor bailed, or otherwise relieved, may prosecute a writ of habeas corpus as herein provided, to inquire into the cause of such confinement or restraint.”

The essence of this section is that every person restrained of his liberty may prosecute a writ of habeas corpus to inquire into the cause of that restraint. This right, however, is qualified by the except clause, “except when, according to the provisions of this chapter, such person can be neither discharged nor bailed, or otherwise relieved, . ” This does not say that a writ of habeas corpus will not issue in all cases where the individual can neither be “discharged nor bailed, or otherwise relieved”, but instead the writ shall not issue where the provisions of chapter 532 say it shall not. Specifically, section 532.040 provides the writ shall not be entertained by an inferior court where the relief sought was refused by a superior court; section 532.390 provides no person shall be discharged pursuant to chapter 532 who is in custody of or enlisted in the military of the United States, or who is a prisoner of war under authority of the United States, or who is in custody for treason, felony, or high misdemeanor, committed in any other state or territory, and by the constitution and laws of the United States ought to be delivered to that state or territory; section 532.400 provides no person shall benefit from the provisions of chapter 532 whose confinement is erroneous as to time or place of imprisonment, but he may be otherwise relieved by sentencing him to the proper place and for the correct amount of time; section 532.410 provides the person shall be remanded to custody if he is detained by virtue of process of a federal court which has exclusive jurisdiction, or by virtue of a final judgment for civil or criminal contempt, or for any contempt specially and plainly charged in the commitment, or where the time has not expired during which the person may be legally detained; section 532.420 provides a party who has been remanded may not be discharged by a second writ where he is charged in the order remanding him or in the commitment order with a criminal offense; section 532.-450 provides that no person imprisoned under an indictment may be discharged under the provisions of chapter 532 unless the offense is bailable. None of these sections proscribe the prosecution of a writ of habe-as corpus by one seeking relief from conditions of confinement.

A comment is needed by way of explanation regarding section 532.410, subd. 4, which provides a party shall be remanded if “the time during which such party may be legally detained has not expired.” This section does not say that habeas relief is only available in those instances where a person may be discharged from custody. If it was read to allow habeas relief only when a person could be discharged, it would mean a prisoner could be confined under the most onerous conditions in violation of the prohibition against cruel and unusual punishment without the opportunity to be relieved from that condition. To interpret this section so restrictively would mean it either superseded the state and federal constitutions or it must be in contravention of those documents and, therefore, unconstitutional. A statute cannot lawfully supersede the constitution. It is our policy wherever possible to harmonize statutes with the constitution so as to make their interpretation come within the strictures of the constitution. In following this guideline, we are of the opinion that subdivision 4 of section 532.410 should not be interpreted so as to limit habeas relief to only those instances where the prisoner may be discharged. Nothing in this chapter, therefore, would prohibit the use of habeas corpus by prisoners seeking relief from inhumane conditions of their confinement which amount to cruel and unusual punishment.

Section 532.010, if read without the except clause, is quite similar to section 1473 of the California Penal Code (1970), as amended by Statutes 1975, c. 1047, p. 2726, sec. 2, which provides: “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” Since 1920 the California courts have interpreted this section to allow prisoners to challenge the conditions of their confinement. The first case to allow this expansion of the habeas corpus remedy was Ex parte Rider, 50 Cal.App. 797, 195 P. 965 (D.Ct. of App., 2d Dist., Div. 2, 1920). In Rider the petitioner claimed she was entitled to habeas corpus relief because she was unlawfully restrained of her liberty due to the refusal of the authorities to allow her to consult privately with her lawyer. The respondent argued, as does the respondent in the instant case, that habeas corpus was not the proper remedy because petitioner was lawfully confined pursuant to a valid commitment order and could not be discharged from custody. The court dealt with this contention at 966 wherein it stated:

“Respondent’s argument places too narrow limits upon the high prerogative writ of habeas corpus, the right whereto is guaranteed by the Constitution. By express statutory enactment, it may issue in all cases where the petitioner is unlawfully 'restrained of his liberty,’ as well as where he is unlawfully imprisoned. Section 1473 of the Penal Code provides:
“ ‘Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.’
“The office of the writ is to afford the citizen a speedy and effective method of securing the removal of any unlawful restraint upon his liberty; and the statute which confers the right has always been construed in favor of the liberty of the citizen. We think that a person may be said to be unlawfully ‘restrained of his liberty,’ so as to be entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which, even in his confinement, he is lawfully entitled under the Constitution or laws of this state or the United States, the deprivation whereof serves to make his imprisonment more onerous than the law allows, or curtails, to a greater extent than the law permits even in his confinement, his freedom to go when and where he likes.”

The principles set forth in Rider have received expansive treatment and general acceptance by the California courts. In recent cases the Supreme Court of California has allowed the prosecution of habeas corpus where prisoners have alleged cruel and unusual punishment on the part of their custodians. In the case of In re Riddle, 57 Cal.2d 848, 22 Cal.Rptr. 472, 372 P.2d 304 (Cal.bank 1962), a prisoner asserted he was subjected to cruel and unusual punishment because of beatings received by him at the hands of certain prison officials. The court recognized this allegation as an invasion of the prisoner’s fundamental constitutional rights guaranteed to him under the federal and state constitutions. The court stated 57 Cal.2d at 851, 22 Cal.Rptr. at 473, 372 P.2d at 305: “The allegations of the petition stated a good cause for relief by habeas corpus. The California courts have used the writ not only to test jurisdiction, but also to protect the fundamental rights of prisoners.” The Supreme Court of California, however, denied the writ and discharged its order to show cause because the proof did not support the allegation that the force used was excessive.

Following the lead of California have been the courts in Idaho, Kansas, Minnesota, New York, Oregon, Pennsylvania, and Utah. In Commwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971), a prisoner claimed he was being subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United' States Constitution because he was in “grave danger of serious physical harm” and “the conditions of the cells and other areas of the prison were substandard.” The state advanced the usual argument that habeas corpus was not the proper remedy because the prisoner’s confinement was lawful and he was not entitled to be discharged. The Supreme Court of Pennsylvania responded with what we consider to be a convincing rationale at 112-113:

“Traditionally in Pennsylvania and in many other jurisdictions, the writ of ha-beas corpus has functioned only to test the legality of the petitioner’s commitment and detention. It was long held that the manner of his treatment and discipline during confinement was not reviewable in habeas corpus proceedings. For example, see Commonwealth ex rel. Milewski v. Ashe, 362 Pa. 48, 66 A.2d 281 (1949), and Commonwealth ex rel. Wright v. Banmiller, 195 Pa.Super. 124, 168 A.2d 925 (1961). On the other hand, some states adopted a more liberal view and permitted the use of habeas corpus to secure relief from conditions constituting cruel and unusual punishment, even though the detention was legal. For example, see In Re Riddle, 57 Cal.2d 848, 22 Cal.Rptr. 472, 372 P.2d 304, cert. denied 371 U.S. 914, 83 S.Ct. 261, 9 L.Ed.2d 173 (1962); Mahaffey v. State, 87 Idaho 228, 392 P.2d 279 (1964); State ex rel. Cole v. Tahash, 269 Minn. 1, 129 N.W.2d 903 (1964); and Cf. Hughes v. Turner, 14 Utah 2d 128, 378 P.2d 888 (1963). See also, People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 215 N.Y.S.2d 44, 174 N.E.2d 725 (1961), and People ex rel. Rockey v. Krueger, 62 Misc.2d 135, 306 N.Y.S.2d 359 (1969).
“The United States Supreme Court has also indicated in several instances that the use of the writ should not be restricted to a determination of the legality of the detention, and ruled that the writ may be utilized to secure relief from any restraint which violates freedoms considered basic and fundamental. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
“In Fay v. Noia, supra, Mr. Justice Brennan, speaking for the Court, outlined in scholarly fashion the development and history of ‘the great writ’ and said [at 402, 83 S.Ct. at 829] that ‘in a civilized society government must always be accountable to the judiciary for a man’s imprisonment’ and [at 405, 83 S.Ct. at 831] that ‘there was respectable common law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law.’ (Our emphasis.)
“And in Harris v. Nelson, 394 U.S. 286, at pages 290, 291, 89 S.Ct. 1082, at page 1086, 22 L.Ed.2d 281 (1969), Mr. Justice Fortas, speaking for the Court, aptly said:
“ ‘The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: “The Privilege of the Writ of Habeas Corpus shall not be suspended * * U.S.Const., Art. I, § 9, cl. 2. The scope and flexibility of the writ — its capacity to reach all manner of illegal detention — its ability to cut through barriers of form and procedural mazes — have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.
“ ‘As Blackstone phrased it, habeas corpus is “the great and efficacious writ, in all manner of illegal confinement.” As this Court said in Fay v. Noia, 372 U.S. 391, 401-402, 83 S.Ct. 822, 829, 9 L.Ed.2d 837 (1963), the office of the writ is “to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints.” ’ [Footnote omitted.]
“Again in Peyton v. Rowe, supra, 391 U.S. at page 66, 88 S.Ct. at page 1556, the Court appropriately said:
“ ‘ “[The writ] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.” ’
“Finally, in a host of decisions the federal circuit courts have adhered to the view that habeas corpus is available to seek relief from a confinement under conditions which amount to cruel and unusual punishment. See Johnson v. Dye, 175 F.2d 250 (3d Cir. 1949); Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944); and, Creek v. Stone, 126 U.S.App.D.C. 329, 379 F.2d 106 (1967).
“Therefore, despite what has been said in our previous decisions, we now conclude and rule that habeas corpus is available to secure relief from conditions constituting cruel and unusual punishment, even though the detention itself is legal.”

See also Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972), and Newton v. Cupp, 474 P.2d 532 (Ct. of App. Ore.1970).

The petitioner in the instant case has a fundamental right to be free from any cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Art. I, sec. 21, Missouri Constitution 1945.

We are of the opinion that a prisoner is entitled to utilize habeas corpus to secure relief from inhumane conditions constituting cruel and unusual punishment even though the detention itself is legal. Concern has been registered that hereafter numerous petitions for writs of habeas corpus will be filed to remedy claimed wrongs which do not rise to the level of inhumane conditions constituting cruel and unusual punishment. It should be clearly understood that penal and correctional institutions are under the control and responsibility of the executive branch of government, not the judicial branch, and that courts will not interfere with the conduct, management, and disciplinary control of this type of institution except in extreme cases. Douglas v. Sigler, 386 F.2d 684, 688 (8th Cir. 1967).

At the same time, however, it must also be clearly understood that when a petition for writ of habeas corpus alleges specific facts which, if true, would constitute inhumane conditions constituting cruel and unusual punishment, the petition may no longer be summarily dismissed for failure to state a claim. The court must proceed with the issuance of a show cause order preliminary to deciding whether the writ should issue or issue the writ. What takes place thereafter cannot accurately be predicted. The alleged conditions may be remedied and the writ quashed or a hearing to determine the facts may be necessary. In this type of case where relief is sought from certain conditions of confinement, the situation will usually remain rather fluid. By that is meant that the case may often be mooted by administrative action whereby judicial relief is no longer necessary.

The supreme and appellate courts of this state are primarily courts of review, not courts of original jurisdiction, and are therefore not in a position to originally entertain and hear this type of habeas corpus on a regular basis. Petitions for writs of habeas corpus seeking relief from the type of conditions noted supra should be filed in the circuit court of the county wherein the petitioner is confined.

The question of whether the specific facts alleged would, if true, constitute inhumane conditions of confinement amounting to cruel and unusual punishment is, of course, a decision which must be made in the first instance by the circuit judge and does not lend itself to an explication by this court of detailed specific criteria.

The essence of the respondent’s argument is that we should deny the petitioner relief even though it be true that the conditions of his confinement constituted inhumane conditions amounting to cruel and unusual punishment because the only relief appropriate in a habeas corpus proceeding is discharge. This disregards the petitioner’s rights under the constitutions of this state and the United States to be free from inhumane conditions which amount to cruel and unusual punishment. To do this would be to place the petitioner in the medieval position of having a right without any remedy to secure that right. Such a position is contrary to Art. I, sec. 14, of the Missouri Constitution 1945, which provides: “That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.”

It should be noted at this point that the respondent, after stating that the question of what remedy might be available is not before the court in this case, suggests there might be some other form of action available and speculates that a suit for declaratory judgment may be one such alternative. Respondent does not claim declaratory judgment would be an adequate remedy under the facts alleged in the instant case. It is quite difficult for those familiar with the judicial process to believe that, if a person is being confined in a rat-infested dormitory, the time-consuming procedures involved in a declaratory judgment action would afford him reasonable relief from that type of confinement prior to being severely injured by the rats.

Since we have concluded that habeas corpus is the proper remedy, it is now incumbent upon us to determine whether the petitioner is presently being subjected to cruel and unusual punishment. We are of the opinion the petitioner has failed to establish that he is presently suffering from cruel and unusual punishment. The evidence does show he was bitten by a rat and he alleged that the dormitory was rat infested; that the prison officials are fully aware of that condition but took no remedial action. That was the basis upon which we issued our writ. The evidence also shows the petitioner was promptly treated in the hospital and the warden has since contracted with an exterminating company for its extermination service on a once-a-month basis. Although there is conflicting evidence on the issue of whether rats are still present in housing unit No. 9, the facts as stipulated show the warden would testify that there have been no reports of the presence of rats since the exterminating company has been employed. The stipulation recites the petitioner would testify that three inmates in housing unit No. 9 told him they had seen rats in that unit after the extermination began.

The so-called “Stipulation of Facts” in this case does not stipulate very many facts but merely recites what various people, including petitioner, would testify to if called as witnesses and, as such, does not provide the court with any substantial evidence upon which a factual finding that petitioner’s dormitory is rat infested could be made. There is no stipulation that the dormitory did in fact continue to be rat infested after the warden instituted vermin-control procedures. The recitals as to what petitioner would testify to with respect to what other inmates claim to have seen does not amount to substantial evidence on the matter. The petitioner has the burden of proof to show that he is entitled to habeas corpus relief, State v. Swink, 241 Mo.App. 1048, 256 S.W.2d 825 (1953), but both parties chose to submit the case on their “Stipulation”. On the state of the record in this case, the court finds against the petitioner on his allegation that rat infestation continued after the vermin-control procedures were initiated and therefore concludes that the writ of habeas corpus heretofore issued should be quashed.

As indicated supra, the court does not intend by its ruling today to suggest that it is the function of the courts to superintend the treatment and discipline of prisoners. The responsibility for that is in the executive branch of government and those in charge of penal institutions. Nor do we intend that habeas corpus should be resorted to where the conditions complained of can be remedied by administrative action. For those individuals who choose to file petitions for the purpose of harassing public officials, the warning given by the Idaho Supreme Court in Mahaffey v. State, 87 Idaho 228, 392 P.2d 279, 281 (1964), is appropriate:

“Because of the fact that we may not, on an application for a writ of habeas corpus, dispute the veracity of the allegations contained in the petition, it is foreseeable that any number of fabrications could be employed in order that the writ might issue. If such tactics are used, this court will not hesitate to deal harshly, through either its power of contempt or by reference to the proper authorities for prosecution on the charge of perjury, against those who would employ fraud and deceit to win a minor legal victory. Any individual who attempts to make a mockery out of procedures designed to benefit the wronged is tampering with the very foundation of our judicial process and risks having additional punishment imposed.”

The writ of habeas corpus is quashed.

All concur.

RENDLEN, J., not participating because not a member of the court when cause was submitted.

      . All citations are to RSMo 1969 unless otherwise indicated.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Adrian MONTGOMERY, Appellant.
    No. 36639.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 30, 1976.
    Motion for Rehearing or Transfer Denied Jan. 14,1977.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
    Anderson, Fredrick, Preuss, Elckhorst & Geissal, Clayton, for appellant.
   CLEMENS, Judge.

Defendant Adrian Montgomery has appealed from a jury conviction of manslaughter and a prison sentence of ten years. He does not question the sufficiency of the evidence so we briefly outline the facts.

On November 18, 1973 defendant was standing with a group of people in a parking lot near a public housing project in St. Louis. He got into an argument with Ricky Dillard over money defendant claimed Dillard owed him. The argument ended when Dillard ran off toward a group of children playing football. Defendant got a gun from the trunk of his car and fired one shot at Dillard. The bullet struck Aaron Scott in the head, fatally injuring him.

Defendant raises four points. He first contends the trial court erred in admitting the results of a neutron activation analysis and the resultant expert opinion that defendant had recently discharged a firearm. He argues that the one-day lapse of time between the shooting and the test rendered the results inadmissible. Defense counsel failed to make a specific objection at trial and this issue has therefore not been preserved for review. State v. Simmons, 500 S.W.2d 325[2] (Mo.App. 1973). Even so, viewed under plain error Rule 27.20(c) we find the point is not well taken since the lapse of time and its effect on the test results went to the weight, not the admissibility of the evidence. United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971); State v. Johnson, 539 S.W.2d 493 (Mo.Ct.App. at St. L., 1976).

Defendant’s second contention also concerns the admission of the neutron activation analysis. He contends the test results were erroneously admitted because his consent was obtained by deception, but this is refuted by the record. Police officers requested appellant to take a “firearms residue test.” He was informed of the purpose of the test as well as his right to refuse to submit to it. The record therefore demonstrates that defendant voluntarily consented to the test. Accord, State v. Berry, 526 S.W.2d 92[8, 9] (Mo.App. 1975).

Defendant’s third point concerns the State’s use of a .38 calibre revolver unconnected with defendant or the crime which was shown to the jury for demonstration purposes. Defense counsel did not object to its use, requesting only that the court advise the jury the revolver was a police weapon furnished for demonstration purposes only. The court so advised the jury. We find no error in the use of the weapon for limited demonstration purposes, since the court granted defendant all the relief his counsel requested. See State v. Barnes, 535 S.W.2d 602, l.c. 604 (Mo.App. 1976).

Defendant finally argues that the trial court erred in refusing to instruct the jury on excusable or accidental homicide. He cites the facts contained in his confession as evidentiary support for the instruction. His statement however shows that defendant fired at Dillard as he retreated from defendant, so defendant was neither in an act of self defense nor was he facing sudden combat. We find the evidence did not warrant an excusable homicide instruction. State v. Cook, 512 S.W.2d 907[2, 3] (Mo.App. 1974).

Judgment affirmed.

WEIER, P. J., and DOWD, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Scott ATKINS, Defendant-Appellant.
    No. 37176.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 30, 1976.

      Graham W. LaBeaume, Huck, Kasten & LaBeaume, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Scott Atkins was convicted by a jury of murder in the second degree. Punishment was assessed by the court at forty years imprisonment because the jury was unable to agree upon the punishment. On this appeal we affirm the judgment of the trial court.

Defendant urges that it was error on the part of the trial court to (1) overrule his objection to the testimony of Detective DeVere to the effect that witness Earl Scott had viewed a line-up which included defendant, and (2) in admitting the laboratory report of the police department into evidence.

The sufficiency of the evidence to sustain' the conviction is not questioned. Defendant was present in the alley behind 4209 Cozens Avenue with Larry Smith, Elbert Clifton, and Melvin Payne, the victim. Payne was attempting to apologize for calling Smith a derogatory name. Smith would not accept the apology. Clifton threatened to hit Payne if Smith did not hit Payne. After further argument Clifton hit Payne, Smith joined in, striking Payne in the face. Then Atkins joined the other two and they hit Payne with their fists and then kicked him after he was knocked to the ground. They then hit Payne with chunks of concrete. After Clifton dropped a large piece of concrete on the victim’s head they left the scene. Later they went back because they felt that “he may not be dead yet.” Clifton again dropped the large piece of concrete on Payne’s head, the defendant then picked up the same piece of concrete and dropped it on the victim’s head. The three men then left the scene. Payne died of the injuries which he received in the assault.

Defendant testified that he had seen Smith, Clifton and Payne on the evening of the crime. He had come upon them in the alley and heard them arguing. Earl Scott, a witness, was attempting to get Payne to leave and go into a house. When Payne refused to join him, Scott left before the assault.

Defendant stated that he did not hit or kick Payne, or hit him with a concrete block. He testified that the statement he gave to the police was the same as his testimony at the trial.

With respect to defendant’s first contention Earl Scott testified that he had seen the defendant in the alley during the argument, but he did not see an assault. The State produced Detective DeVere who testified that he accompanied the witness Earl Scott to a line-up. He further testified that the photograph identified as Exhibit 1 accurately depicted the line-up viewed by Mr. Scott, and that defendant was in the lineup.

Defendant contends that DeVere’s testimony was hearsay evidence which tended to buttress the unimpeached testimony of Earl Scott and constituted prejudicial reversible error under State v. Degraf- fenreid, 477 S.W.2d 57 (Mo.banc 1972). De-graffenreid stands for the general proposition that a third person may not testify that a witness has made an extra judicial identification of the defendant. Such testimony is admissible only to rehabilitate the witness after he has been impeached. State v. Few, 530 S.W.2d 411 (Mo.App. 1975). In the case at bar Detective DeVere did not testify that Earl Scott identified defendant at the line-up. The fact that the prosecutor did not pursue this line of questioning could as easily give rise to the inference that Scott had not identified defendant at the line-up as it would to the contrary. The case is readily distinguishable from Degraffenreid. The testimony by DeVere was not hearsay and it did not buttress the identification testimony of Scott.

Even if the testimony of DeVere could be said to come within the scope of Degraffen-reid the evidence in this case could not be said to be prejudicial. Earl Scott testified that he saw defendant, Smith, Clifton and Payne in the alley. He heard them arguing but went into the house and did not see any assault upon Payne. Defendant’s testimony was practically identical with that of the identifying witness. The defendant’s identity and presence at the scene was not an issue in the case. The issue here is identical to that in State v. Brown, 528 S.W.2d 503 (Mo.App.1975), and in State v. Leady, 543 S.W.2d 788, Mo.App., St.L.Dist., 1976. The real issue in this case was whether defendant engaged in the assault upon Payne. The evidence that the witness, Scott, attended a line-up was not crucial nor was it likely to “have tipped the scales against defendant." Where the question of defendant’s identity is conceded, or is not a real issue in the case, the admission of such evidence is not necessarily prejudicial. State v. Leady, supra, at page 792.

While the evidence complained of may not have been admissible upon a proper objection as to its materiality or relevance; such an objection was not made, and that issue is not before us.

The court committed no error with respect to defendant’s first contention.

The next matter sought to be raised involves a stipulation which was made by the parties with respect to the laboratory report of the police department. The prosecutor stated the stipulation:

“Mr. Fredericks: ... It has been agreed by and between the parties that this particular exhibit is a record of the St. Louis Metropolitan Police Department made up and kept in the usual and ordinary course of business and qualifying under the Uniform Business Record Act and to that extent we would now offer State’s Exhibit number 15.
Mr. LaBeaume: Your Honor, as I indicated before I am stipulating to this as Mr. Fredericks has said.”

Defendant, however, objected to the report being read into evidence stating, “And I would object to that . _ _ to the contents of it, the only person that could testify to this would be Ruth McKnight but I am stipulating to the fact that it would _ . _ if Mr. Fredericks had to, he would bring in somebody from the Police Department to testify that this is done in the normal course of business. We will accept that stipulation.”

The Point Relied On reads as follows:

“It was error for the court to overrule defendant’s objection to the evidence contained in the lab report as contained in Exhibit No. 15 for the reason that this evidence could not be shown merely by business records, but rather should have been introduced through the witness who actually made the tests, that being Ruth McKnight.”

The point relied upon does not tell us why the evidence contained in the business record should have been introduced by Ruth McKnight. This is a violation of 84.-04(d) and provides us with nothing to rule upon. Simpson v. Island View Sales Corporation, 540 S.W.2d 624 (Mo.App.1976).

A thorough discussion of the admissibility of police laboratory reports can be found in State v. Taylor, 486 S.W.2d 239 (Mo.1972). In that case under circumstances similar to those in this case the court held the report to be admissible. A further discussion could add nothing and would be of no prec-edential value.

We find no error. The judgment is affirmed.

McMILLIAN, P. J., and RENDLEN, J., concur.